ORDER
Anant S. Dave, J.
1. This successive bail application is filed by the applicant accused No. 4-Pratapbhai Hamirbhai Solanki, son of Hamirbhai Solanki under Section 439 of the Code of Criminal Procedure, 1973 [for short, 'the Code'] in connection with first information report registered at CR No. I-163/2010 with Sola Police Station, Ahmedabad, for the offences punishable under Sections 302, 201, 120-B of Indian Penal Code and under section 25(1)(b), 27 of the Arms Act. Earlier, the applicant filed Criminal Misc. Application No. 3451 of 2010, which was came to be rejected by the trial court on 27.10.2010. Thereafter, the applicant preferred Criminal Misc. Application No. 532 of 2011 after the charge sheet was filed, which also came to rejected vide order dated 11.02.2011. Thereafter, the applicant filed Criminal Misc. Application No. 2847 of 2011 before this Court, which was withdrawn on 30.03.2011 since Special Criminal Application filed by father of the deceased for transfer of investigation to CBI was pending before the High Court. That Special Civil Application filed by father of the deceased is now admitted as per earlier order dated 7.4.2011 with a clarification that no stay operates against any proceedings connected with the present case and final hearing expedited. Thus, the petition for further investigation and/or handing over investigation to CBI by father of the deceased is pending before this Court.
2. In the above backdrop, brief facts of the FIR are stated as under.
2.1. The FIR came to be registered on 20.07.2010 at 22.05 hours by one Indrajitsinh Hatubha Waghela who is working as unarmed Police Constable at Sola Station, Ahmedabad.
2.2. In the FIR, it is alleged that after completing his duty on mobile van at around 20.00 hours, he was returning to his house on a motorcycle. He went to Satyam Complex with his friend Bhupatsinh for the purpose of having tea and, while they were talking near Satyam Parlour, they heard a sound of firing and went to the place where the firing took place. They saw one man lying on the road. They found one Bajaj Discover motorcycle bearing No. GJ-1-DQ-2482 lying on the road and one country made pistol (Tammancha) and a plastic bag. They also saw a white colour Maruti Gypsy. On seeing this, the informant informed his superior Inspector on mobile phone and gathered information from the public which had gathered around. They were informed that two persons after firing went towards Viswas City road
2.3. That Emergency Ambulance 108 was called for and the staff of 108 after examining the person upon whom firing took place, declared him dead. The advocate present there identified the dead person to be Amitkumar Jethva.
2.4. The applicant was arrested on 07.09.2010 and was remanded to police custody for the period of 13 days and after the remand period the applicant is sent to judicial custody.
2.5. From the charge sheet filed as well as the affidavit filed by the Investigating Officer during the hearing of the previous bail application, the role attributed to the applicant is that the applicant-accused No. 4 is a childhood friend of one Bahadursinh Vadher, a police constable and having business of mines and mobile towers. The applicant himself is also doing the business of mobile towers and is Ex President of Kodinar Nagar Palika and Vice President at the time of incident. The deceased used to make frequent applications under the Right to Information Act, seeking details regarding the business of Shiva and was thus harassing him. Bahadursinh's family had purchased a mine, which he could not operate on account of the objections raised by the deceased and therefore had to sell off the mine by incurring huge loss. On account of this, the said accused Bahadursinh met the applicant at his office in Kodinar and planned to murder the deceased. It is alleged that the finance will be given by the applicant.
3.1. In view of the above backdrop of allegations and charges, Mr. P.M. Thakkar, learned Senior Advocate, appearing for the applicant, submits that though this is a successive bail application, earlier, by an order dated 30.03.2011 passed in Criminal Misc. Application No. 2847 of 2011, this Court had permitted the applicant to withdraw the application for bail since writ petition filed by the father of the deceased with a prayer to transfer investigation to CBI and/or to order for further investigation was pending. Now the said petition is admitted and final hearing is expedited. The accused applicant, who is in jail pursuant to his arrest on 07.09.2010 against whom no material surfaces on record, cannot be kept behind the bars and deserves to be enlarged on bail by imposing suitable conditions as deemed fit and proper by this Court.
3.2. It is next submitted that, so far as theory of conspiracy, as surfaced on record from the papers of charge sheet for the offences punishable under sections 302, 201 and 120-B of the IPC, is concerned, it is based on a statement of Shri Abhesinh Kesarsinh Zala, a Peon serving in the cable office of the applicant-accused No. 4, who simply stated to have seen Shri Bahadursinh-accused No. 1 visiting the said office frequently, but at the same time the said witness had made it clear that he had no knowledge about what transpired inside the glass cabin between accused No. 1 and accused No. 4. The presumption about theory of conspiracy is further based on the childhood friendship, acquaintance and contacts of the applicant with accused No. 1 and that circumstance by itself, would by no stretch of imagination constitute a conspiracy to kill the deceased. The applicant was not involved in any mining activity but mobile tower was erected in a private land and further, by virtue of order passed by the High Court, the State Government has banned mining activities in and around 5 kms. area of Gir Forest Sanctuary and thus the applicant had no motive whatsoever to enter into the conspiracy to kill the deceased, an RTI activist and a whistle-blower, who was actively serving in the area for protection of environment. That the second circumstance-about a call of 2 1/2 minutes received from the accused No. 2 on 04.05.2010, about two months prior to the date of incident-would not go to show that the applicant had in any manner talked about any furtherance of the conspiracy Since the applicant is a leader of the community and also Vice President of Kodinar Municipality and had arranged many community marriages he used to receive such telephone calls and has no idea about such telephonic call. That barring the above two circumstances, no other circumstance appeared on record implicating the applicant with the alleged crime. Since the charge sheet is filed and investigation is over, it is submitted that the applicant may be enlarged by imposing suitable conditions.
4. Per contra, Ms. Shah, learned APP for the respondent-State of Gujarat, vehemently opposed grant of bail and heavily relied upon the affidavit filed by the Police Inspector, Crime Branch, Ahmedabad city and submitted that due to grievances raised by the deceased, who was the President of Gir Nature Youth Club, an NGO and also Editor of a magazine "Around the Nature" and an active RTI activist, he was disliked by the accused applicant, who found him an obstacle in their illegal activities and hatched a conspiracy with accused No. 1. That during the course of investigation, the investigating officer has recovered motorcycle used in commission of crime and statement of owner of the said motorbike was recorded. As per his statement, upon a request made by accused No. 1, the bike was given. That there are ample material to show that applicant-accused No. 4 also engaged in the business of mining, including installation of mobile tower in prohibited area and earlier also the deceased was put to harassment since business carried out by the applicant suffered substantial losses. Learned APP also referred to hiring contract shooters to kill the deceased and amount of Rs. 11 lakhs in total paid by accused No. 1 and out of which Rs. 6 lakhs was sent by accused No. 2 from Jasdan to Rajkot through Angadia M/s. Amrut Kantilal, where accused No. 6 started to reside in another name, who along with accused No. 5 executed the plan and killed the deceased. The statement of the employee of the Angadia/courier services also recorded and Rs. 3.75 lakhs was recovered from accused No. 1 during the course of investigation. Learned APP also referred to various call details and contacts made by accused and particularly accused No. 2 called the applicant when he was absconding from the jail and thereafter accused No. 2 called accused No. 1 and fake SIM cards were used in commission of crime so as to suppress the crime. It is further submitted that considering the gravity of offence and manner in which conspiracy was hatched and RTI activist is silenced forever and therefore, this court may not exercise discretionary powers in favour of the applicant.
4.1. Mr. B.B. Naik, learned Senior advocate, appearing for the father of the deceased, supported submissions of the learned APP and contended that this application for bail in succession, in absence of change of circumstances or law, is not maintainable and since Special Criminal Application No. 1925 of 2010 filed by father of the deceased for transfer of investigation to CBI is pending before the Court, at this stage, the accused involved in heinous crime is not to be considered for relief of discretionary nature.
4.2. It is next contended that the accused No. 4 had entered into conspiracy with accused No. 1 and he being influential person and directly involved in the crime and, at the end of the investigation and on filing of the charge sheet, ample material surfaced on record, showing his involvement, as submitted by learned APP, this court would resist from considering the case of the accused for bail, as prayed for.
4.3. Mr. Naik, learned Senior Advocate also referred to previous incidents of attack on the deceased in the month of February, 2008 for which a complaint was filed before the police at Veraval and statements of father, mother, brother and widow of the deceased recorded by the investigating agency on 21/23.07.2011 respectively would also go to show that the deceased used to get threats from the accused and, therefore, when the accused applicant was annoyed due to public spirited activities of the deceased, who was a hindrance in carrying out illegal activities by the accused, a strong motive is established to commit the crime and no leniency can be shown on any ground. Further, it is submitted that the whole aspect about conspiracy, as defined under the IPC and as per the decision of the Apex Court in the case of Ajay Agarwal v. Union of India [AIR 1993 SC 1637], can be examined by the trial court and considering the overall circumstances, the application be rejected.
5. In a rejoinder, Mr. Thakkar, learned Senior Advocate, emphatically reiterated that there is no evidence or material surfaced on record about transfer of Rs. 11 lakhs by accused No. 1 and except the statement in the affidavit, no material appears in the papers of charge sheet, which snaps the theory of conspiracy of applicant with accused No. 1 and prima facie the writ petition filed for handing over investigation to CBI is only admitted keeping it open that issuance of rule would have no bearing on any proceedings pending with regard to subject matter of the petition and therefore, this court can certainly consider the material appeared on record and by imposing suitable conditions, the applicant may be enlarged on bail. Having considered rival submissions made by learned advocates for the parties and on perusal of the record of the case including charge sheet and orders passed by this Court, I am of the opinion that no case is made out to exercise discretionary power under section 439 of the code in favour of the accused, who is involved in a heinous crime punishable under section 302 r/w. Section 120-B of the IPC.
5.1. The aspect of conspiracy about statement of Abheysinh, peon of accused No. 4 and the applicant recorded during the course of investigation reveals frequent visits of accused No. 1 to the office of accused No. 4, but the same is also subject to scrutiny by the trial court along with other material if necessary and it can also be considered in light of section 10 of the Evidence Act.
5.2. In a case like this, even after investigation also clear material may not surface on the record, but circumstances attended to such crime in the backdrop of allegations would desist the court from exercising discretionary powers under section 439 of the code. In furtherance to the conspiracy, sufficient material is placed on record by the investigating officer including the statement recorded by an employee of Angadia service. The sharp shooter who is also a co-accused and alleged transaction of amount is also a circumstance, which goes against the applicant.
5.3. Earlier, bail application being Criminal Misc. Application No. 2847 of 2011 was withdrawn on 30.03.2011 on the ground that the writ petition being Special Criminal Application No. 1925 of 2010 filed by the father of the deceased for transfer of investigation was pending. That writ petition is admitted on 07.04.2011 with a clarification that, "No stay operates against any proceedings connected with the present case". Hence, there is no change in fact or law and, therefore also, this successive bail application deserves to be rejected.
Accordingly this application stands dismissed. Rule discharged.
However, it is made clear that the observations made in this order are only for arriving at a prima facie opinion with regard to the guilt of the applicant and same shall have no bearing on any proceedings pending before this court or any other authority.