YAKEEN AHMED ABDUL MAJIDKHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Few observations made by the Apex Court in case of Chairman, Railway Board v. Chandrima Das, reported in AIR 2000 SC 988, as regards the rights enshrined under Part III of the Constitution of India are relevant and material in the peculiar facts and circumstances of the present case. They are therefore, reproduced as under :

(2.) . Learned Advocate Mr. M. H. Dayamakumar for petitioner has submitted that a very long F.I.R. has been filed by the prosecution and while reading the F.I.R. it contains the only statement of Samirkhan Sarfarazkhan Pathan of Ahmedabad who subsequently died in an encounter. He also submitted that the whole F.I.R. is based upon the statement of accused No. 7 Samirkhan Sarfarazkhan Pathan and the petitioner is not involved in the F.I.R. at all in the charge-sheet. However, the petitioner was shown to be accused No. 1 in the charge-sheet. He also submitted that in entire incident, Samirkhan Sarfarazkhan is the central figure and that is why he met with his fate. He submitted that the petitioner is belonging to Rajasthan State, District Kota, Village Suket having his own mines license. He also submitted that in the petitioner's stone mine, various labourers are working. He also submitted that the accused No. 7 Samirkhan Sarfarazkhan Pathan committed murder of police constable on 12th May, 1996, and thereafter, it was alleged that he was absconding but the absconding part has not been notified by the police authority. He also submitted that the police authority has taken the base of one statement given by Gulalamkhan Ibrahimkhan on 10th December, 2002; his brother-in-law who is also accused No. 11 in this case. He is also belonging to Rajasthan. His name is Badrealamkhan Inamullakhan Pathan. He submitted that the said statement may be considered to be hearsay evidence against the petitioner. He also submitted that Badrealamkhan Pathan came in Ahmedabad in the year 2001 because of the disputes between the wife and the husband. Gulalamkhan made arrangement for Samirkhan in Madhya Pradesh and Samirkhan was not able to get job at Madhya Pradesh. Thereafter, he was sent to Rajasthan. He also submitted that the charge-sheet has also been filed against the petitioner and the petitioner has received the same. He also raised a contention that the statement dated 16th December, 2002 of Gulalamkhan Pathan is not admissible in evidence; even the statement of Samirkhan is also not admissible in evidence because it was a statement of the co-accused further submitted that except these two statements which are considered as evidence against the petitioner which are not admissible in evidence, there is nothing against the petitioner involving him in the alleged incident. He also submitted that while deciding the bail application, whether the prima facie case has been established or not is the only question which is required to be examined by the Court. He also submitted that looking to these facts, there is no prima facie case find out against the petitioner. He has relied upon the decision of this Court in case of 5. C. Verma v. State of Gujarat, reported in 2001 (2) GLR 1029. He has also relied upon the decision of the Apex Court in case of 5. N. Thapa, Additional Collector, Marine & Preventive, Bombay v. State of Maharashtra, reported in 1994 (2) UJ (SC) 369. He also submitted that there is no direct evidence and no prima facie case has been proved against the petitioner, and therefore, in such circumstances, personal liberty being the fundamental right may be taken into account while considering the bail. He also submitted that there is no past incident against the petitioner. He also submitted that in case of clear past of the accused, even though prima facie case has been established against the accused, in that circumstance also, the Court has granted the bail, and therefore, he submitted that in this case, the trial Court has committed error in rejecting the bail application, and therefore, the petitioner is entitled to be released on bail.

(3.) . On the other hand, learned Public Prosecutor Shri A. D. Oza appearing for the State has submitted that the trial Court has considered the statement which is, admittedly, not the statement of co-accused, being the extra-judicial statement dated 16th December, 2002. According to him, statement dated 16th December, 2002 is clearly establishing the prima facie involvement and participation of the petitioner, and therefore, the trial Court was right in relying upon the said statement dated 16th December, 2002 and was also right in rejecting the application for bail. He also submitted that the petitioner is belonging to the State of Rajasthan, outside the State of Gujarat and he is involved in the serious offence and there is prima facie case against the petitioner, and therefore, present bail application is required to be rejected.