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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1649      OF     2012   (Arising out of S.L.P. (Criminal) No. 2450 of 2012

Pratapbhai Hamirbhai Solanki          ... Appellant

Versus

State of Gujarat and another           ...Respondents

J     U     D     G     M     E     N     T       

Dipak     Misra,     J.   

Leave granted.  

2. Grieved by the order of rejection of prayer for bail for  

offences punishable under Sections 302, 201 and 120-B of  

the Indian Penal Code, 1860 (for short ‘the IPC’) and under  

Sections 25(1)(b) and 27 of the Arms Act, 1959 in Criminal  

Misc. Application No. 9576 of 2011 dated 26.7.2011 by the  

High Court of Gujarat at Ahmedabad, the appellant,

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accused No. 4, has preferred the present appeal by special  

leave under Article 136 of the Constitution.

3. The appellant was arraigned as an accused in  

crime/F.I.R. No. 163/2010 for the aforesaid offences and  

the investigation was conducted by the CID (Crime),  

Ahmedabad.  The prosecution case, in brief, is that an FIR  

was registered against two persons on 20th of July, 2010  

about 8.40 pm.  They came on a Bajaj motorcycle having  

registration No. GJ-1-DQ-2482.  At the corner of “Satyamev  

Complex-I”, Opposite Gujarat High Court at S.G. Highway,  

they fired at one Amitbhai Bhikhabhai Jethwa from their  

country made revolver on the left part of his back and  

caused injuries to which he succumbed and they  

immediately disappeared from the scene of occurrence.  

After the criminal law was set in motion, the investigating  

agency commenced investigation and after completion,  

placed the charge-sheet before the competent court.  

4. During pendency of investigation, an application was  

filed before the learned Session Judge for grant of bail  

contending, inter alia, that the name of the appellant was  

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not found in the FIR; that he had no nexus with the  

commission of crime; that the case of the prosecution that  

he had conspired for murder of the deceased who was an  

RTI activist was absolutely incredulous inasmuch as the  

allegations against the appellant were totally vague and, in  

fact, had been deliberately made to destroy his unblemished  

public image, for he had been in public life for so many  

years; that the material brought on record in no way  

implicated the appellant in the crime in question and,  

therefore, he was entitled to bail.  The learned trial Judge,  

analysing the material on record, declined to enlarge the  

appellant on bail.  Be it noted, after the charge-sheet was  

filed the doors of the learned trial Judge were again knocked  

at but the same did not meet with success.

5. As the factual narration would exposit, the accused-

appellant filed Criminal Miscellaneous Application No. 2847  

on 30th March, 2011 before the High Court for grant of bail,  

but the same was withdrawn.  Thereafter, the appellant filed  

Criminal Misc. Application No. 7505 of 2011 seeking  

temporary bail on the ground that his wife had suffered  

from acute gynaec problem and she needed to undergo  

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surgery for Fibroid in the Uterus and regard being had to  

the said assertion the High Court granted temporary bail for  

a period of 21 days.   

6. As is manifest from the material brought on record, the  

informant, after completing his duty about 8.00 p.m., was  

returning to his house on a motorcycle.  He went to  

“Satyamev Complex”  with his friend, Bhupatisinh, for the  

purpose of having tea and then they heard a gun shot  

sound and they rushed to the place where the firing took  

place.  They found that one Bajaj motorcycle No. GJ-1-DQ-

2482, one country made pistol and a plastic bag were lying  

on the road.  They also saw a white colour Maruti Gypsy.  

The informant, who was a constable, informed his superior  

inspector on his mobile phone and gathered information  

from the public around.  They were informed that two  

persons after firing drove towards Viswas City Road.  The  

emergency ambulance was called for and the staff after  

examining the injured person declared him dead.  The  

advocate present there identified the deceased to be  

Amitkumar Jethwa, an RTI activist.  In course of  

investigation, the appellant was arrested on 7.9.2010.   

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7. Thereafter, as the factual matrix is uncurtained, the  

appellant preferred bail application under Section 439 of the  

Code of Criminal Procedure, 1973 forming the subject-

matter of Crl. Application No. 9576 of 2011.  It was urged  

before the High Court that the appellant, for no justifiable  

reasons, had remained in custody since 7.9.2010 and the  

charge-sheet had been filed under Sections 302, 201 and  

120-B of the IPC solely on the basis of the statement of  

Abhesinh Kesarsinh Zala, a Peon serving in the office of the  

appellant.  It was also canvassed that there was no iota of  

material to rope him in the crime and a maladroit effort had  

been made to demolish his political career and demolish his  

social image.

8. It was further urged that the first application for bail  

having been withdrawn, there was no bar to entertain and  

dispose of second bail application on merits in favour of the  

accused-appellant; that the appellant is a childhood friend  

of accused, Bahadursinh Vadher, a police constable, having  

business of mines and he is engaged in the business of  

mobile towers and had held the post of the ex-President of  

Kodinar Nagar Palika and Vice-President at the time of  

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incident and had been roped in such a crime solely on the  

base that the accused-Bahadursinh had met him at his  

office in Kodinar where allegedly a conspiracy was hatched  

to eliminate the deceased, which was sans substance; that  

as far as theory of conspiracy is concerned, nothing had  

been remotely brought on record to justify the allegations;  

and that the charge-sheet had been filed; and, therefore, he  

was entitled to be enlarged on bail.  It was propounded that  

a singular telephonic call from the mobile the voice of which  

was not recorded, could not form the fulcrum of the  

prosecution to book the appellant in the crime and further  

the case has been fabricated with the sole intention to  

systematically smother the liberty of a law abiding  

individual.

9. The application for bail was resisted by the learned  

counsel for the prosecution on the ground that the deceased  

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 had found the appellant to be involved in  

number of illegal activities and had exposed him in number  

of ways as a consequence of which he had hatched the  

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conspiracy with the accused No. 1 which ultimately resulted  

in hiring of accused No. 2 as a contract killer on payment of  

Rs.11 lakhs to eliminate him.  The learned counsel also  

contended that there were various call details and contacts  

made by the accused, particularly, with accused No. 2 who  

had absconded; that fake SIM cards were provided by the  

appellant to hide their identity; that the appellant had  

criminal antecedents; that no leniency should be shown  

despite the plea advanced as regards the social reputation;  

that the factum of conspiracy is quite complex and the  

prosecution had been able to gather the connecting  

materials which would go a long way to show involvement of  

the appellant and hence, it was not a fit case where  

discretion for grant of bail should be exercised.

10. The learned single Judge, considering the rival  

submissions advanced at the Bar came to hold that the  

conspiracy between the accused No. 4 and the accused No.  

1 was obvious from the number of visits of accused No. 1 to  

the office of accused No. 4; that there was conversation  

between the accused No. 4, the appellant herein, and the  

sharp-shooter, a person who had absconded and that itself  

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prima facie showed the involvement of the accused-

appellant.  The High Court taking note of all the aspects  

including the gravity of the offence declined to admit the  

appellant to bail.

11. We have heard Mr. Mukul Rohatgi, learned senior  

counsel for the appellant, Ms. Hemantika Wahi, learned  

counsel for the State of Gujarat and Ms. Kamini Jaiswal and  

Mr. Mohit D. Ram, learned counsel for respondent No. 2.

12. Mr. Rohatgi, learned senior counsel for the appellant,  

accused No. 4, has submitted that the reliance on the  

statement of the peon who had only mentioned that accused  

No. 1 Bahadursinh, was a frequent visitor to the office of the  

appellant, but he had not been able to hear any  

conversation because of glass doors, makes the impugned  

orders sensitively unsustainable as such kind of statement  

does not render any assistance to the prosecution case.  He  

would further submit that the allegation that the appellant  

provided the finance in hiring the contract killer has no  

semblance of truth inasmuch as it is manifest from the  

statement of Amarsinh, the brother of Bahadursinh, that he  

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had given rupees nine lakhs in cash to his brother for  

purchase of land in Kodinar area and thus, the appellant  

had no involvement with the alleged financing.  It is his  

submission that the voice in the mobile phone was not  

recorded and only a singular call was made by the accused  

No. 2 and such a stray incident cannot even suggest in the  

remotest manner any kind of conspiracy and, therefore,  

regard being had to the period of incarceration, he should  

be enlarged on bail.

13. Ms. Hemantika Wahi, learned counsel for the State of  

Gujarat, resisting the application for grant of bail,  

submitted that the conspiracy is always hatched in secrecy  

and there are series of circumstances from which the  

involvement of the accused-appellant is evincible and, that  

apart, the material on record would reveal that the  

appellant was in constant connection with the accused No.  

1, who was facing a lot of disadvantage because of the pro-

active crusade undertaken against his illegal activities by  

the deceased, an RTI activist, by filing PILs.  It is also urged  

by her that the deceased had been able to expose the  

involvement of the appellant in many an illegal operations  

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and, therefore, the High Court has correctly declined to  

entertain the prayer for bail.

14.  Ms. Kamini Jaiswal and Mr. Mohit D. Ram, learned  

counsel for the respondent No. 2, the father of the deceased,  

have supported the stand of the State.

15. At this juncture, we may refer with profit to certain  

authorities which lay down the considerations that should  

weigh with the Court in granting bail in non-bailable  

offences.  This Court in State v. Capt. Jagjit Singh1 and  

Gurcharan Singh v. State (Delhi Admn.)2 has held that  

the nature and seriousness of the offence; the character of  

the evidence; circumstances which are peculiar to the  

accused; a reasonable possibility of the presence of the  

accused not being secured at the trial; reasonable  

apprehension of witnesses being tampered with; the larger  

interest of the public or the State and other similar factors  

which may be relevant in the facts and circumstances of the  

case are to be considered.  The said principles have been  

1 (1962) 3 SCR 622 2 (1978) 1 SCC 118

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reiterated in Jayendra Saraswathi Swamigal v. State of  

T.N.3

16. In Prahlad Singh Bhati v. NCT, Delhi and  

Another4, this Court has culled out the principles to be  

kept in mind while granting or refusing bail.  In that  

context, the two-Judge Bench has stated that while  

granting the bail, the court has to keep in mind the nature  

of accusations, the nature of evidence in support thereof,  

the severity of the punishment which conviction will entail,  

the character, behaviour, means and standing of the  

accused, circumstances which are peculiar to the accused,  

reasonable possibility of securing the presence of the  

accused at the trial, reasonable apprehension of the  

witnesses being tampered with, the larger interests of the  

public or State and similar other considerations. It has also  

to be kept in mind that for the purposes of granting the bail  

the legislature has used the words “reasonable grounds for  

believing”  instead of “the evidence”  which means the court  

dealing with the grant of bail can only satisfy it as to  

whether there is a genuine case against the accused and  

3 (2005) 2 SCC 13 4 (2001) 4 SCC 280

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that the prosecution will be able to produce prima facie  

evidence in support of the charge. It is not expected, at this  

stage, to have the evidence establishing the guilt of the  

accused beyond reasonable doubt.

17. In State of U.P. through C.B.I. v. Amarmani  

Tripathi5, while emphasizing on the relevant factors which  

are to be taken into consideration, this Court has expressed  

thus: -

“While a vague allegation that the accused may  tamper with the evidence or witnesses may not  be a ground to refuse bail, if the accused is of  such character that his mere presence at large  would intimidate the witnesses or if there is  material to show that he will use his liberty to  subvert justice or tamper with the evidence,  then bail will be refused.”

In the said case, the Bench has also observed as follows: -

“Therefore, the general rule that this Court will  not ordinarily interfere in matters relating to  bail, is subject to exceptions where there are  special circumstances and when the basic  requirements for grant of bail are completely  ignored by the High Court.”

18. Recently, in Ash Mohammad v. Shiv Raj Singh @  

Lalla Babu & Anr.6, this Court while dealing with  

5 (2005) 8 SCC 21 6 JT 2012 (9) SC 155

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individual liberty and cry of the society for justice has  

opined as under: -

“It is also to be kept in mind that individual  liberty cannot be accentuated to such an  extent or elevated to such a high pedestal  which would bring in anarchy or disorder in  the society.  The prospect of greater justice  requires that law and order should prevail in a  civilized milieu.  True it is, there can be no  arithmetical formula for fixing the parameters  in precise exactitude but the adjudication  should express not only application of mind  but also exercise of jurisdiction on accepted  and established norms.  Law and order in a  society protect the established precepts and  see to it that contagious crimes do not become  epidemic.  In an organized society the concept  of liberty basically requires citizens to be  responsible and not to disturb the tranquility  and safety which every well-meaning person  desires.”  

19. We are absolutely conscious that liberty is a greatly  

cherished value in the life of an individual, and no one  

would like to barter it for all the tea in China, but it is  

obligatory on the part of court to scan and scrutinize,  

though briefly, as regards the prima facie case, the  

seriousness and gravity of the crime and the potentiality of  

the accused to tamper with the evidence apart from other  

aspects before the restriction on liberty is lifted on  

imposition of certain conditions.

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20. The submission of Mr. Rohtagi is that there is total  

absence of material to connect the appellant with the crime  

in question but due to maladroit endeavour of the  

prosecution he has been falsely implicated.  The learned  

senior counsel would emphatically urge that certain visits  

by a friend of accused No. 1, a singular telephone call and  

filing of a public interest litigation where the appellant is  

not involved cannot form the foundation of a prima facie  

case relating to conspiracy.

21. At this stage, it is useful to recapitulate the view this  

Court has expressed pertaining to criminal conspiracy. In  

Damodar v. State of Rajasthan7, a two-Judge Bench after  

referring to the decision in Kehar Singh v. State (Delhi  

Admn.)8, State of Maharashtra v. Somnath Thapa9, has  

stated thus: -

“The most important ingredient of the offence  being the agreement between two or more  persons to do an illegal act. In a case where  criminal conspiracy is alleged, the court must  inquire whether the two persons are  independently pursuing the same end or they  have come together to pursue the unlawful  object. The former does not render them  

7 (2004) 12 SCC 336 8 (1988) 3 SCC 609 9 (1996) 4 SCC 659

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conspirators but the latter does. For the offence  of conspiracy some kind of physical  manifestation of agreement is required to be  established. The express agreement need not be  proved. The evidence as to the transmission of  thoughts sharing the unlawful act is not  sufficient. A conspiracy is a continuing offence  which continues to subsist till it is executed or  rescinded or frustrated by choice of necessity.  During its subsistence whenever any one of the  conspirators does an act or series of acts, he  would be held guilty under Section 120-B of the  Indian Penal Code.”

22. In Ram Narayan Popli v. Central Bureau of  

Investigation10, while dealing with the conspiracy the  

majority opinion laid down that the elements of a criminal  

conspiracy have been stated to be: (a) an object to be  

accomplished, (b) a plan or scheme embodying means to  

accomplish that object, (c) an agreement or understanding  

between two or more of the accused persons whereby, they  

become definitely committed to cooperate for the  

accomplishment of the object by the means embodied in the  

agreement, or by any effectual means, and (d) in the  

jurisdiction where the statute required an overt act. It has  

been further opined that the essence of a criminal  

conspiracy is the unlawful combination and ordinarily the  

10 (2003) 3 SCC 641

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offence is complete when the combination is framed. No  

overt act need be done in furtherance of the conspiracy, and  

that the object of the combination need not be  

accomplished, in order to constitute an indictable offence.  

Law making conspiracy a crime is designed to curb  

immoderate power to do mischief which is gained by a  

combination of the means.  The encouragement and  

support which co-conspirators give to one another  

rendering enterprises possible which, if left to individual  

effort, would have been impossible, furnish the ground for  

visiting conspirators and abettors with condign  

punishment. The conspiracy is held to be continued and  

renewed as to all its members wherever and whenever any  

member of the conspiracy acts in furtherance of the  

common design. The two-Judge Bench proceeded to state  

that for an offence punishable under Section 120-B, the  

prosecution need not necessarily prove that the  

perpetrators expressly agree to do or cause to be done  

illegal act; the agreement may be proved by necessary  

implication. Offence of criminal conspiracy has its  

foundation in an agreement to commit an offence. A  

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conspiracy consists not merely in the intention of two or  

more, but in the agreement of two or more to do an  

unlawful act by unlawful means.  

23. In the said case it has been highlighted that in the  

case of conspiracy there cannot be any direct evidence. The  

ingredients of offence are that there should be an agreement  

between persons who are alleged to conspire and the said  

agreement should be for doing an illegal act or for doing by  

illegal means an act which itself may not be illegal.  

Therefore, the essence of criminal conspiracy is an  

agreement to do an illegal act and such an agreement can  

be proved either by direct evidence or by circumstantial  

evidence or by both, and it is a matter of common  

experience that direct evidence to prove conspiracy is rarely  

available. Therefore, the circumstances proved before,  

during and after the occurrence have to be considered to  

decide about the complicity of the accused.

24. The present factual matrix is required to be tested on  

the aforesaid touchstone of law.  There is no denial of the  

fact that the deceased was an RTI activist and extremely  

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keen in exposing certain matters which pertain to illegal  

mining and many other such arenas.  It is not in dispute  

that the deceased was murdered about 8.30 p.m. on the  

Public Road just opposite the High Court and near the  

corner of “Satyamev Complex-I” where situates the office of  

Bar Council of Gujarat.  The appellant is a dealer in mobile  

phones and there is some material on record that he had  

handed over mobile phones to his friend who is a police  

constable and owns mines; and that a call has been traced  

from the mobile of the contract killer to the appellant.  Mr.  

Rohtagi would argue with vehemence that the aforesaid  

circumstances are sketchy and the prosecution has tried to  

rope the appellant in conspiracy basically on the ground  

that he had provided the finance but the said story does  

collapse like a pack of cards inasmuch as the accused No. 1  

had taken a substantial sum from his brother towards his  

share in the profit from the family property.  It is also borne  

out on record that the appellant is an influential man in the  

society and he claims to be a friend of a constable and has  

urged that as a friend he was visiting his office and nothing  

has been stated to have been heard by the office peon.  It is  

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argued with immense emphasis that the sketchy connection  

does not make out a prima facie case against the appellant  

and further there is no material to infer that he would  

tamper with evidence or would not make himself available  

for trial.

25. Ordinarily, we would have proceeded to express our  

opinion on the basis of analysis of the material available on  

record but, a pregnant one, after order was reserved, Ms.  

Arora, learned counsel appearing for respondent No. 2 filed  

an order dated 25.9.2002 passed by the Division Bench of  

the High Court of Gujarat in Special Criminal Application  

No. 1925 of 2010.  On a perusal of the said order, it is  

luculent that the High Court after referring to its number of  

earlier orders and surveying the scenario in entirety has  

passed the following order:-

“13.  As discussed in detail in paragraphs 6,  7 and 9 herein, investigation into the  murder of the petitioner’s son does not  appear to have been carried out in  conformity with the legal provisions  discussed in paragraph 11 and the control  exercised by one police officer of a very high  rank, all throughout and even after the  orders for further investigation by this  Court, provides sufficient ground to  

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conclude that the investigation was  controlled and the line of investigation was  determined and supervised so as to put to  naught the allegations made and the  suspicion raised by the acquaintances and  family members of the deceased.  As  discussed in detail earlier in paragraph 9,  the investigation would hardly inspire  confidence not only in the minds of the  bereaved and aggrieved family members,  but even general public on taking an  objective view of the matter.  On the other  hand, the deceased having been an active  RTI activist, so-many people whose vested  interests may have been affected by his  applications under the RTI Act, could have a  motive to contribute into his killing.  Therefore, a perfunctory investigation on the  basis of statements of the accused persons  themselves may not unearth the whole truth  and meet the ends of justice.  Therefore, it is  imperative that proper and comprehensive  investigation is undertaken by an agency  which is not under the control of the State  Government.

14. The Right to Information Act, 2005  declared in its Preamble that, whereas the  Constitution of India has established  democratic Republic and democracy  requires an informed citizenry and  transparency of information which are vital  to its functioning and also to contain  corruption and to hold Governments and  their instrumentalities accountable to the  governed; and to preserve the paramountcy  of the democratic ideal, that it was enacted.  The Constitutional powers conferred upon  the highest judicial institution in the State  to entertain public interest litigation and  issue necessary direction was also a step  forward in enforcing the fundamental rights  

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of the citizens and ensuring the rule of law.  These progressive steps cannot be allowed  to be nullified and no one should face a  threat to his life when he approaches a  court of law to exercise his right of access to  justice.  In such milieu, murder of a  petitioner in a PIL and an RTI activist, in  front of the High Court, could be read as a  clear message to the concerned citizens that  they may have to pay by their lives, if they  insist upon using the tools placed in their  hands by law and approach the Court for  redressal of public grievance against some  individuals.  The commission of murder, in  the facts of the present case, amounted to  an affront to the judicial system and a  challenge to implementation of an Act of  Parliament, with national repercussions and  has to be viewed seriously.  Therefore, it is  of utmost importance that the case on hand  is thoroughly investigated and properly  prosecuted by independent and competent  officers, so as to inspire confidence and  reaffirm faith of the people in rule of law.

15. In the facts and for the reasons  discussed hereinabove, while concluding  that the investigation into murder of the son  of the petitioner was far from fair,  independent, bona fide or prompt, this  Court refrain from even remotely suggesting  that the investigating agency should or  should not have taken a particular line of  investigation or apprehended any person,  except in accordance with law.  It is clarified  that the observations made herein are only  for the limited purpose of deciding whether  further investigation was required to be  handed over to CBI, and they shall not be  construed as expression of an opinion on  any particular aspect of the investigation  carried out so far.  However, in view of the  

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peculiar facts and circumstances, following  the ratio of several judgments of the Apex  Court discussed hereinabove and in the  interest of justice and to instill confidence in  the investigation into a serious case having  far reaching implications that we order that  further investigation into I-C.R.No. 163 of  2010 shall be transferred to the Central  Bureau of Investigation (CBI), with the  direction that the CBI shall immediately  undertake an independent further  investigation, and all the officers and  authorities under the State Government  shall co-operate in such investigation so as  to facilitate submission of report of  investigation by the CBI as early as  practicable and preferably within a period of  six months.  The police authorities of the  State are directed to hand over the records  of the present case to the CBI authorities  within ten days and thereafter the CBI shall  take up comprehensive investigation in all  matters related to the offence and report  thereof shall be submitted to the Court of  competent jurisdiction and, in the  meantime, further proceeding pursuant to  the charge-sheets submitted by respondent  No. 5 shall remain stayed.”

26. On a perusal of the aforesaid order, it is demonstrable  

that the High Court has expressed its dissatisfaction with  

regard to the investigation conducted by the investigating  

agency.  It has called it perfunctory.  After ascribing  

reasons, it has directed the C.B.I. to expeditiously  

undertake further investigation.  We may hasten to add that  

the legal propriety of the said order is not the subject  

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matter of challenge in the present appeal.  It has only been  

brought to our notice that C.B.I. has been directed to  

conduct a comprehensive investigation.  Needless to state, it  

is open to the appellant to challenge the legal substantiality  

of the said order.  But for the present, suffice it to say, as  

there is a direction for fresh investigation, it should be  

inapposite to enlarge the appellant on bail.  We may add  

that in case the order for reinvestigation is annulled by this  

Court, it would be open for the appellant to file a fresh  

application for bail before the competent Court.  If the order  

of the High Court withstands scrutiny, after the C.B.I.  

submits its report, liberty is granted to the appellant to  

move the appropriate court for grant of bail.  We may clarify  

that though we have narrated the facts, adverted to  

parameters for grant of bail under Section 439 of the Code,  

dwelled upon the view of this Court relating to criminal  

conspiracy and noted the submissions of the learned  

counsel for the parties, we have not expressed our final  

opinion on entitlement of the appellant to be released on  

bail or not because of the subsequent development i.e.  

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direction by the High Court for comprehensive investigation  

by the C.B.I.

27. The appeal, is accordingly, disposed of.

……………………………….J.     [K. S. Radhakrishnan]

……………………………….J. [Dipak Misra]

New Delhi; October 12, 2012.   

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