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Thursday, 17 April 2014

Soma Isolux Nh One Tollway Private Limited Vs. Harish Kumar Puri & Ors.

In order to facilitate and expedite completion of the Highway Project, Court directed the respondent NHAI to permit shifting of Toll Plaza from 146 to anywhere between KMs 110 and KMs 117 expeditiously but not later than a period of two months from the date of this order during which period the required legal formality of notifying the area for construction of the Toll Plaza shall also be complied with by the NHAI by getting it notified through the Competent Authority and making the land available free from all encumbrance. The appellant thereafter shall forthwith restart the construction including setting up of Toll Plaza at the agreed point and continue with construction of the remaining area of the Highway Project and shall complete the entire construction of the Highway on or before 31st of March 2015 failing which the appellant/concessionaire company shall be liable for penal consequences to be determined by the NHAI in terms of the Concession Agreement.
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State of Himachal Pradesh Vs. Raj Kumar

Indian Penal Code, 1860 - Section 302 - Murder - Circumstantial Evidence - In this case, the chain of circumstances is not so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. It is not possible to say that in all human probability the accused was the culprit. The High Court has, therefore, rightly set aside the conviction and sentence and acquitted the accused. Besides, while dealing with an appeal against order of acquittal, Court have to be cautious. Unless the order of acquittal is perverse, it cannot be overturned. The impugned judgment to be well reasoned and legally sound. It is not perverse. The appeal is, therefore, liable to be dismissed and is dismissed.

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Association of Unified Tele Services Providers & Others Vs. Union of India

Scope and ambit of the powers and duties of the Comptroller and Auditor General of India (CAG), the Telecom Regulatory Authority of India (TRAI) and the Department of Telecommunications (DoT) in relation to the proper computation and quantification of Revenue in determining the licence fee and spectrum charges payable to Union of India under Unified Access Services (UAS) Licences entered into between DoT and the private service providers.
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Wednesday, 16 April 2014

Kokkilagadda Subba Rao Vs. Divisional Manager, United India Assurance Co. Ltd. & Ors.

Insurance Act, 1938 - Section 64 UM(3) - Survey Report.
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Devi Ispat Limited & Anr. Vs. State Bank of India & Ors.

Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Section 13(3A) -Enforcement of security interest.

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Friday, 11 April 2014

Periyasami s/o. Duraisami Novanagar Vs. State represented through the Inspector of Police, ‘Q’ Branch CID, Tiruchirappalli, Tamil Nadu

Terrorist And Disruptive Activities (Prevention) Act, 1987 -  a confessional statement recorded under Section 15 of the TADA, if found to be voluntarily made and is truthful and properly recorded, can form the basis of conviction.
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Mahinder Dutt Sharma Vs. Union of India & others

Delhi Police (Punishment and Appeal) Rules, 1980 - Central Civil Services (Pension) Rules, 1972 - Rule 41 - Compassionate allowance - Determination of claim.

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Madhukar Vs. State of Maharashtra & Ors.

Maharashtra Civil Services (Pension) Rules, 1982 - Rule 48 (3) - Condonation of interruption in service - In the absence of a specific indication to the contrary in the service record, an interruption between two spells of civil service rendered by a Government servant under Government, shall be treated as automatically condoned and the pre-interruption services to be treated as qualifying service.
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Dharam Deo Yadav Vs. State of U.P.

This case, concerned with the gruesome murder of a 22 year old girl by name Diana Clare Routle a New Zealander, for which the trial Court awarded death sentence to the appellant, which was affirmed by the High Court.
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State of Rajasthan Vs. Manoj Kumar

Two questions that emerge for consideration in these appeals, are (i) whether the High Court was justified in accepting the contention of right of private defence; and (ii) whether the conclusion of the High Court that Section 34 IPC could not be attracted regard being had to the factual score, is correct.
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Annapurna Vs. Mallikarjun & Anr.

Code of Civil Procedure, 1908 - Order XXI, Rules 89 and 92 - Limitation Act, 1963 - Article 127 - Application for setting aside the execution of sale Deposit of the requisite amount in the court is a condition precedent or a sine qua non to application for setting aside the execution of sale and such an amount must be deposited within the prescribed time for making the application otherwise the application must be dismissed. In absence of required deposit made by the judgment-debtor within the time mandated by law, such an exercise would be only an exercise in futility because the Executing Court does not have any option but to reject the petition.
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Wednesday, 9 April 2014

Jacky Vs. Tiny @ Antony & Ors.

Whether the High Court while exercising its power under Articles 226 and 227 of the Constitution of India is competent to set aside the plaint? Held, If a suit is not maintainable it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings but in no case power under Articles 226 and 227 of Constitution of India can be exercised to question a plaint.

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Nagar Palika Parishad, Mihona and Anr. Vs. Ramnath and Anr.

M.P. Municipalities Act, 1961 - Section 187 - Section 319 - Bar of suit in absence of notice - Specific Relief Act, 1963 - Section 38 - Perpetual injunction when granted.
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Muralidhar @ Gidda & Anr. Vs. State of Karnataka

Principles relating to the appeals from a judgment of acquittal.

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Monday, 7 April 2014

M/s. Indus Airways Pvt. Ltd. & Ors. Vs. M/s. Magnum Aviation Pvt. Ltd. & Anr.

Whether the post-dated cheques issued by the ‘purchasers’ as an advance payment in respect of purchase orders could be considered in discharge of legally enforceable debt or other liability, and, if so, whether the dishonour of such cheques amounts to an offence under Section 138 of the Negotiable Instruments Act, 1881?
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Friday, 4 April 2014

Vinod Kumar Vs. State of Kerala

Indian Penal Code, 1860 - Section 375, 376 - Essentials and parameters of the offence of rape Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances”.

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A.T. Prakashan Vs. The Excise Inspector & Anr.

Abkari Act, 1077 - Section 8, 55(a) - Learned counsel submitted that after coming into force of Act 10 of 1996, the appellant could not have been charge-sheeted under Section 55(a) of the Act, but only under Section 8 of the amended Act 10 of 1996. Learned counsel also pointed out that the offence was committed in the year 1999, hence, he could have been charged-sheeted only under Section 8 of the Act and not under Section 55(a) of the Act, which would apply only in cases of liquor and intoxicating drug other than arrack. It is true that the proper Section, which is attracted in the instant case, is Section 8(1) of the Abkari Act, as amended by Act 10 of 1996, not Section 55(a). But, misquoting of the Section or misapplying the provisions has caused no prejudice to the appellant, since the offence has been clearly made out. Offence under Section 55(a) can always be altered to Section 8(1) of Act 10 of 1996, therefore, no error in the conviction recorded by the Courts below.
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Thursday, 3 April 2014

Babubhai Bhimabhai Bokhiria & Anr. Vs. State Of Gujarat & Ors.

Code of Criminal Procedure, 1973 - Section 319 - Scope and extent of powers of the court to arraign any person as an accused during the course of inquiry or trial - Section 319 of the Code confers power on the trial court to find out whether a person who ought to have been added as an accused has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction has to be arrived at on the basis of the evidence so led during the trial. Power under Section 319 Cr.P.C. is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. Though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. 

Indian Evidence Act, 1872 - Section 32 -Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant - the note written by the deceased does not relate to the cause of his death or to any of the circumstances of the transaction which resulted in his death and therefore, is inadmissible in law.

Legal Maxim - “judex damnatur cum nocens absolvitur” - a Judge is condemned when guilty person escapes punishment.

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Tuesday, 1 April 2014

Kalpesh Hemantbhai Shah Vs. Manhar Auto Stores Thru Its Partner and Others

Constitution of India 1950 - Articles 226 and 227 - High Court had no jurisdiction  to interfere with or alter a finding of fact arrived at by an Appellate Court deciding the question of personal necessity of a landlord in a landlord- tenant dispute. 
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V. Kala Bharathi & Ors. Vs. The Oriental Insurance Company Limited

Code of Civil Procedure, 1908 - Order XXI Rule 1 - Whether the amount deposited by the judgment debtor in a decree is to be adjusted first towards interest or towards principal decretal amount? If the amount deposited by the judgment debtor falls short of the decretal amount, the decree-holder is entitled to apply the rule of appropriation by appropriating the amount first towards interest, then towards costs and subsequently towards principal amount due under the decree. The appellants herein are entitled to the amount awarded by the Executing Court, as the amounts deposited by the judgment debtor fell short of the decretal amount. After such appropriation, the decree-holder is entitled to interest only to the extent of unpaid - principal amount. Hence, interest be calculated on the unpaid principal amount.
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Manmohan Sharma Vs. State of Rajasthan & Ors.

Whether award of bonus marks to candidates seeking appointment as primary school teachers under Zila Parishads in the State of Rajasthan based on the domicile of the candidates was legally permissible?
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Monday, 31 March 2014

P. Ramakrishnam Raju Vs. Union Of India & Ors.

High Court Judges (Salaries and Conditions of Service) Act, 1954 - Section 14 - Constitution of India, 1950 - Article 217 (2)(b) - Pension payable to Judges - Whether High Court Judges, who are appointed from the Bar on retirement, are entitled for an addition of 10 years to their service for the purposes of their pension? - Petitioners have prayed that the number of years practiced as an advocate shall be taken into account and shall be added to the service as a Judge of the High Court for the purpose of determining the maximum pension permissible under Part-I of the First Schedule to the HCJ Act - Court accept the petitioners’ claim and declare that for pensionary benefits, ten years’ practice as an advocate be added as a qualifying service for Judges elevated from the Bar. Further, in order to remove arbitrariness in the matter of pension of the Judges of the High Courts elevated from the Bar, the reliefs, as mentioned above are to be reckoned from 01.04.2004, the date on which Section 13A was inserted by the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 2005 (46 of 2005). Requisite amendment be carried out in the High Court Judges Rules, 1956 with regard to post-retiral benefits as has been done in relation to the retired Judges of the Supreme Court in terms of amendment carried out by Rule 3B of the Supreme Court Judges Rules, 1959.
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Navneet Kaur Vs. State of Nct of Delhi & Anr.

Death Sentence - Commutation of - to life imprisonment - the report signed by the Director & Chairman as well as four Members of the Medical Board clearly shows that accused is suffering from acute mental illness. Insanity / mental illness / schizophrenia is one of the supervening circumstances for commutation of death sentence to life imprisonment. By applying the principle the accused cannot be executed with the said health condition. 
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Ram Niranjan Roy Vs. State Of Bihar & Ors.

Contempt of Court - The appellant’s contention that since the respondents have not filed affidavit, his case is unrebutted is without any merit. A contempt matter is essentially between the contemnor and the court. On the basis of the record and the attendant circumstances the court has to decide whether there is any contempt or not. No doubt, the respondents could have filed an affidavit, but merely because there is no affidavit, the contemnor cannot escape his liability. The facts of the case are gross. The contempt is in the face of the High Court. The fact that the respondents have not filed affidavit in reply does not dilute the contempt committed by the appellant.
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Friday, 28 March 2014

Sanghian Pandian Rajkumar Vs. Central Bureau of Investigation & Anr.

Indian Penal Code, 1860 - Section 120B read with Sections 302, 364, 365, 368, 193, 197, 342, 420, 384, 201 and 34 - Arms Act, 1959 - Sections 25(1B)(a) and 27 - Code of Criminal Procedure, 1973 - Sections 437 and 439 Grant of bail in non-bailable offences - At the foremost, the court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though, for grant of bail, detailed examination of evidence and elaborate discussion on merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie conclusion why bail was being granted, particularly, when the accused is charged of having committed a serious offence. Amongst other circumstances of the case, the following factors are required to be considered by the court before granting bail:

“(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge.”


IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(P. SATHASIVAM, CJI.(RANJAN GOGOI) AND (N.V. RAMANA) JJ.

MARCH 28, 2014

CRIMINAL APPEAL NO. 698 OF 2014

(Arising out of S.L.P. (Crl.) No. 10337 of 2013)

Sanghian Pandian Rajkumar .... Appellant(s)

Versus

Central Bureau of Investigation & Anr. .... Respondent(s)

WITH

CRIMINAL APPEAL NO. 699 OF 2014

(Arising out of S.L.P. (Crl.) No. 10600 of 2013)

Balkrishan Rajendraprasad Chaubey .... Appellant(s)

Versus

Central Bureau of Investigation & Anr. .... Respondent(s)

J U D G M E N T

P.Sathasivam, CJI.

1) Leave granted in both the appeals.

2) These appeals are directed against the orders dated 20.11.2013 and 10.07.2013 passed by the High Court of Judicature at Bombay in Criminal Bail Application Nos. 2002 and 1713 of 2012 respectively, whereby the High Court dismissed the bail applications of both the appellants pending trial.

3) The appellant - Sanghian Pandian Rajkumar (Accused No. 2), an IPS Officer, is one of the accused persons in Special Case No. 5 of 2010 (RC BS1/S/2010/0004-Mumbai dated 01.02.2010), who was charge-sheeted, inter alia, for the offences punishable under Section 120B read with Sections 302, 364, 365, 368, 193, 197, 342, 420, 384, 201 and 34 of the Indian Penal Code, 1860 (in short ‘the IPC’) and Sections 25(1B)(a) and 27 of the Arms Act, 1959 and he was arrested on 24.04.2007 and since then is in custody.

4) The other appellant - Balkrishan Rajendraprasad Chaubey (Accused No. 6), who was working as a sub-Inspector of Police in the Anti Terrorist Squad (ATS), Ahmedabad, at the relevant time, is also one of the accused persons in the same case arising out of R.C. No. BS1/S/2010/0004 dated 01.02.2010 registered with the CBI SCB, Mumbai and was charge-sheeted for the offences punishable under Section 120B read with Sections 365, 368, 302 and 201 of the IPC and he was arrested on 01.07.2007 and since then is in custody.

5) Inasmuch as we are concerned only with the grant of bail pending trial, there is no need to analyse all the factual details except their involvement in the commission of offence, as alleged by the prosecution. In the cases on hand, as per the prosecution story, three murders were allegedly committed inter alia by senior police officers like the appellants - Sanghian Pandian Rajkumar (A-2) and Balkrishan Rajendraprasad Chaubey (A-6), whose duty was otherwise to maintain law and order and to prevent the commission of offence.

6) Heard Mr. U.U. Lalit, learned senior counsel, Mr. Sushil Karanjkar, learned counsel for the appellants (A-2 and A-6) respectively and Ms. Indira Jaising, learned Additional Solicitor General for the respondent- CBI.

Submissions:

7) Mr. U.U. Lalit, learned senior counsel for the appellant, by taking us through the allegations against A-2 in the charge-sheet filed in the Special Court, submitted that there is no direct evidence linking the present appellant with the commission of offence as alleged by the prosecution and the investigation carried out by the CBI suffers from serious infirmities. He further pointed out that the materials shown to support the prosecution charges against the appellant (A-2) are characterized with various defects such as lack of spontaneity, invaryness, untrustworthiness, hear-say witnesses, inherently impossible or improbable facts and humanly abnormal conducts apart from the infirmities in the charges which are yet to be framed by the Court. He further pointed out that A-2 is in judicial custody without trial for almost seven years and continued incarceration will amount to violation of Article 21 of the Constitution of India. He also pointed out that inasmuch as either the High Court or this Court granted bail to similarly placed co-accused, the present appellant is also to be released on the ground of parity. Finally, he stressed on the fact that there are hundreds of witnesses to be examined and voluminous documents exhibited in the charge-sheet, it would not be possible to complete the trial in the near future.

8) Though Mr. Sushil Karanjkar, learned counsel for the appellant - Balkrishan Rajendraprasad Chaubey (A-6) adopted the arguments made by Mr. U.U. Lalit, learned senior counsel, he also submitted that A-6, being a sub- Inspector, was present in the company of certain officers and there is no allegation against him having fired at the deceased. He also pointed out that even if the Court accepts the prosecution story that he was present at the place of firing along with the other police officers, there is no specific role attributed to him. In addition to the same, he also pointed out that the appellant (A-6) is in judicial custody without trial for almost seven years.

9) On the other hand, Ms. Indira Jaising, learned Additional Solicitor General, by taking us through the relevant materials referred to in the charge-sheet and presented in the court, submitted that inasmuch as both the appellants were police officers, there is every likelihood of influencing the witnesses. Learned ASG also submitted that inasmuch as there is a direct link in the abduction and killing of Sohrabuddin, Kausarbi and Tulsiram Prajapati, no case is made out for grant of bail at this juncture. She further submitted that by transfer of case records from the trial court as well as from the High Court of Gujarat to the transferee Court at Mumbai, viz., the Special Court, CBI and after translation of the same, the trial is likely to be concluded within a reasonable time. She also pointed out that the grant of bail/anticipatory bail to certain other accused is not a ground for release of these appellants at this stage. Accordingly, she prayed for dismissal of both the appeals.

10) We have considered the rival contentions and perused all the relevant materials including the charges levelled against the appellants.

Discussion:

11) Before considering the claim of the parties and materials relied upon for and against the grant of bail, it is necessary to highlight the law relating to grant of bail in non-bailable offences. At the foremost, the court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though, for grant of bail, detailed examination of evidence and elaborate discussion on merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie conclusion why bail was being granted, particularly, when the accused is charged of having committed a serious offence. In Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav and Another, (2004) 7 SCC 528, this Court, while considering Sections 437 and 439 of the Code of Criminal Procedure, 1973, (in short ‘the Code’) held that, amongst other circumstances of the case, the following factors are required to be considered by the court before granting bail:

“(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge.”

12) Keeping the above principles in mind, let us discuss the stand of both the sides. As observed in the earlier part of our judgment, considering the limited issue involved, there is no need to elaborately analyse, assess, the acceptability or otherwise of the prosecution version, charges levelled, witnesses examined and documents exhibited at this juncture. However, in the light of the submissions made by both the sides, we have carefully perused the role attributed to these appellants in the charge sheet filed in the Court as well as other materials and also taken note of judicial custody for nearly seven years pending trial and the rival contentions.

13) Coming to the delay, it is not in dispute that in respect of abduction and killing of Sohrabuddin and Kausarbi, after prolonged hearings, the trial was transferred to Mumbai, that is, out of Gujarat on the orders of this Court. Thereafter, in respect of killing of Tulsiram Prajapati, again, on the orders of this Court dated 08.04.2013, the same was transferred to Mumbai to be heard along with the trial relating to killing of Sohrabuddin and Kausarbi. Taking note of these aspects including various orders of this Court, it cannot be claimed that the investigating agency was responsible for the delay.

14) Mr. U.U. Lalit, learned senior counsel for Sanghian Pandian Rajkumar (A-2) asserted that not even a single person implicated him in the commission of offences as alleged by the prosecution. On going through the allegations pertaining to A-2 in the charge-sheet and the arguments of Mr. Lalit, learned senior counsel as well as Ms. Indira Jaising, learned ASG, we are not inclined to express any specific opinion at this stage. However, there is no dispute that A-2 was arrested on 24.04.2007 and A-6 was arrested on 01.07.2007 and both of them are in custody since then. In other words, they are in custody nearly for a period of seven years pending trial. Though the prosecution has filed the charges, admittedly, so far, the same have not been framed by the Court. Both the counsel for the appellants pointed out that there is no chance of completion of trial in the near future due to voluminous documents and more than 600 witnesses. We have already pointed out that the charges have not been framed even after seven years. Per contra, Learned ASG submitted that inasmuch as both the appellants are police officers, there is every likelihood of influencing the witnesses. She also pointed out that by giving appropriate direction for transfer of records from Gujarat to the transferee Court, i.e., special Court CBI at Mumbai, Maharashtra and after completion of the translation work, a direction may be issued to the special court for early completion of the trial. We also considered the above objection. It is clear from the statement of Learned ASG that the relevant records/documents are still pending in the original court at Gujarat as well as in the custody of Registrar General, High Court. They are yet to be transferred to the transferee court. It is also evident that voluminous documents are to be translated from Gujarati to Marathi. There is no concrete information about the probable duration for completion of the said work. In such circumstances, the completion of trial cannot even be presumed in a reasonable period.

15) Coming to parity, it is pointed out that some persons arrayed as accused have been granted either regular bail or anticipatory bail. In order to appreciate the above argument, we culled out the following details from the impugned order of the High Court:

“(A) Regular Bail

(a) Ajay Parmar (accused No. 10), by the High Court of Gujarat, in Criminal Miscellaneous Application No. 5703/2012, by common order dated 30/07/2012

(b) Santram Sharma (accused No. 11), by the Gujarat High Court, in Criminal Miscellaneous Application No. 5703/2012, by common order dated 30/07/2012.

(c) N.K. Amin (accused No. 12), by Bombay High Court in Criminal Bail Application No. 1770/2012.

(d) N.V. Chauhan (accused No. 13), by Hon’ble Supreme Court in SLP (Crl.) No. 1627/2011, by order dated 19/10/2012.

(e) V.A. Rathod (accused No. 14) by Hon’ble Supreme Court, in SLP (Crl.) No. 8318/2011, by order dated 02/03/2012.

(f) Amitbhai Shah (accused No. 16), by Gujarat High Court, in Criminal Miscellaneous Application No. 1770/2012, which order has been confirmed by the Apex Court, by rejecting the SLP (Crl.) filed by CBI for cancellation of said bail.

(B) Anticipatory bail:

(a) Ajay Patel (accused No. 17), by Gujarat High court, which order came to be continued by way of interim order passed by the Apex Court.

(b) Yashpal Chudasama (accused No. 18), by Gujarat High Court, which order came to be continued by way of interim order passed by the Apex Court.

(c) Vimal Pattani (accused No. 20) by Special Judge, CBI, Greater Mumbai (Sessions) on 05/07/2013 in Anticipatory bail Application No. 773/2013.

(d) Gulabchand H. Kataria (accused No. 21), by Special Judge, CBI, Greater Mumbai (Sessions) on 05/07/2013 in Anticipatory Bail Application No. 788/2013.

(e) Narasinhulu Balasubramaniam (accused No. 22) by Special Judge, CBI, Greater Mumbai (Sessions), on 05/07/2013 in Anticipatory Bail Application No. 781/2013.

(f) Ghattamaneni Srinivasa Rao (accused No. 23), by Special Judge, CBI, Greater Mumbai, on 05/07/2013, in Anticipatory bail Application No. 781/2013.”

16) A perusal of the reason(s) for grant of bail or anticipatory bail shows that some of the accused were granted bail by the trial court and some by the High Court and by this Court. Apart from pointing out various orders, learned counsel for the appellants has brought to our notice the order passed by this Court in Naresh Vishnu Chauhan vs. State of Gujarat & Anr. in SLP (Crl.) No. 1627 of 2011 wherein Naresh Vishnu Chauhan, who was one of the co-accused, at the relevant time posted as sub-Inspector of Police and was attached to the Anti-Terrorist Squad, Ahmedabad. In spite of the fact that the counsel for the State has pointed out that the case against the said person (A-13) is not only confined to Section 201 IPC but also includes Section 302 read with Section 120B IPC, this Court, taking note of the fact that he was in jail for over five years and three months, directed to release him on bail forthwith.

17) Likewise, another co-accused, viz., Vijay Arjunbhai Rathod, who was in custody in connection with the encounter case and whose name was included in the list of the accused, was released on bail by this Court, by order dated 02.03.2012, in Vijay Arjunbhai Rathod vs. CBI & Anr. SLP (Crl.) No. 8318 of 2011.

18) In addition to the same, another co-accused, by name, Amitbhai Shah (A-16) was granted bail by the High Court. This Court, by order dated 27.09.2012, in Criminal Appeal No. 1503 of 2012 – Central Bureau of Investigation vs. Amitbhai Anil Chandra Shah and Another refused to interfere with the said order.

19) It is also brought to our notice that another co-accused Dr. N.K. Amin (A-12) was also granted bail by the High Court of Bombay. According to the CBI, the said accused was a part of what is called as ‘Stage 3’ conspiracy. According to the CBI, he was sitting in the jeep in which the dead body of Kausarbi was kept. No doubt, he was granted bail due to his ailments.

20) In the case of Balkrishan Rajendraprasad Chaubey (A-6), the appellant herein, this Court, by order dated 06.08.2012 in SLP (Crl.) No. 5166 of 2012, granted him interim bail for a period of one month. Even before that, earlier, on two occasions, he was released on bail for short periods and he never misused the privilege granted to him by the Court.

21) We need not go into the reasonings of grant of anticipatory bail to some of the accused since no serious allegations have been levelled against them.

22) In the light of the details, allegations in the charge-sheet filed before the court, many of the co-accused were granted bail by the trial court/High Court and this Court and of the fact that both the appellants are in custody for nearly 7 years pending trial and also in view of the fact that it would not be possible for the special Court to conclude the trial within a reasonable period as claimed by learned ASG, we inclined to consider their claim for bail.

23) In the light of the statement made by learned ASG, we direct that all the materials pertaining to these cases which are lying in the original Court at Gujarat as well as the records relating to the same under the custody of the High Court of Gujarat, if any, be transferred to the Special Court, CBI, Mumbai within a period of one month from the date of receipt of copy of this order. After receipt of all the required materials, the Special Court, CBI at Mumbai have to get the relevant documents alone translated within a period of three months thereafter. The Special Court, CBI at Mumbai is directed to take the assistance of the Registrars of the High Courts of Bombay and Gujarat for completion of the translation work as fixed. By this order, we also direct the Registrars of the Bombay and Gujarat High Courts to render all assistance to the Special Judge, CBI Mumbai for early completion of the translation work within the time stipulated by this Court. After receipt of the required material and completion of translation work, we direct the special Judge to take all endeavor for early completion of the trial.

24) In the light of what is stated above, we are satisfied that both the appellants have made out a case for bail on executing a bond with two solvent sureties, each in a sum of Rs 1 lakh to the satisfaction of the Special Judge, CBI, Mumbai on the following conditions: 

(i) The appellants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the court or to any other authority.

(ii) The appellants shall remain present before the court on the dates fixed for hearing of the case, for any reason due to unavoidable circumstances for remaining absent they have to give intimation to the court and also to the officer concerned of the CBI and make a proper application for permission to be present through counsel. 

(iii) The appellants shall surrender their passports, if any, if not already surrendered and if they are not holder of the same, that fact should be supported by an affidavit.

(iv) In case they have already surrendered the passport before the Special Judge, CBI, that fact should be supported by an affidavit. (v) On such release, both of them (A-2 & A-6) have to stay at Mumbai and report at 11.00 a.m. on alternate working days before the Special Judge, CBI Mumbai.

(vi) Liberty is given to the CBI to make an appropriate application for modification/recalling the present order passed by us, if the appellants violate any of the conditions imposed by this Court. 

25) Under these circumstances, the appellants are ordered to be released on bail subject to the conditions mentioned hereinabove to the satisfaction of the court concerned. 

With the above directions, the appeals are disposed of.
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