PRATAPBHAI HAMIRBHAI SOLANKI Vs STATE OF GUJARAT
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: Crl.A. No.-001649-001649 / 2012
Diary number: 9547 / 2012
Advocates: RAKESH DAHIYA Vs
HEMANTIKA WAHI
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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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