STATE OF GUJARAT Vs. ALPESHBHAI NAVINBHAI PATEL

JUDGEMENT

(1.) Rule. Mr.Kogje, Ld.APP and Mr.Zaveri waive service of rule on behalf of respective respondents.

(2.) The only question which arises for consideration of this court is:

(3.) The short facts of the case appear to be that the respondent No.2 who is the accused of the complaint bearing CR No.108/02 of Vidyanagar Police Station for the offences punishable under sections 302, 304, 120B of IPC and section 25(1) of Arms Act and Section 27 and 135 of Bombay Police Act. It is the case of the prosecution that one Babubhai Girdharbhai Patel who is the political rival of the respondent No.2 and his group is killed through contract of murder (sopari) and by an arranged conspiracy with Shyamgiri Bhavangiri and others. It appears that the respondent No.2 was arrested and was in judicial custody and at that stage he filed application for bail under section 439 Cr.P.C.being Cri.M.A.No.714/02. The learned Sessions Judge considered the matter at length and passed detailed order running into 17 pages whereby it was, interalia, primafacie, found by him that the applicant therein-the respondent No.2 herein is in direct political rivalry with the deceased and there is also political vengeance and as concluded by him at para 7 it primafacie revealed the motive on the part of the applicant. The learned Sessions Judge at para 8 in the said order, dated 10.2.03 also, primafacie, concluded that the statements of witnesses, namely, Jigar, Anant and Kamlesh fully involved the applicant with the alleged offence. At the relevant point of time, the learned Sessions Judge had also considered the contention of the applicant therein (respondent No.2 herein) that the statement made before the Executive Magistrate in the proceedings under section 164 of Cr.P.C. by the aforesaid persons, namely, Jigar, Anant, Kamlesh and others are contrary to the extent that they have not given any statement before the police. It was also considered by the learned Sessions Judge that though the statements are recorded before the police, it can not be held on the reliable material that such statements by the aforesaid witnesses, namely, Jigar, Anant, Kamlesh and others involving the accused in the alleged offences are not voluntary. The Ld.Sessions Judge also observed in the said order of February, 2003 that the amount was also paid for purchasing the weapons and so far as the amount fixed for killing the deceased is concerned there is corroboration for the subsequent recovery of Rs.5 lacs in the statement of Jigar after contract of murder was over. The Ld.Sessions Judge in the said order at para 10 also observed, interalia, that the concerned accused has a past criminal record and his involvement is there in the offence under Secs.307, 324 and therefore it was observed by the learned Sessions Judge that the accused is having past criminal background and therefore also his bail application can not be granted. The Ld.Sessions Judge at para 11 in the said order also observed that so far as the criminal conspiracy is concerned there is clear evidence that agreed amount was of Rs.8 lacs out of which Rs.3 lacs was paid earlier and the balance of Rs.5 lacs was subsequently paid after the death of the deceased. The Ld.Sessions Judge ultimately concluded in the said order that on the overall perusal of the police papers it is primaacie established that the accused is involved in the office under section 302 read with section 34 and 120B of IPC and the offence is a serious offence and the accused is involved in causing death to a reputed political person and therefore it is not proper to release the accused on bail and therefore ultimately the application for bail was rejected by the order, dated 10.2.2003.