LexPRATAPBHAI HAMIRBHAI SOLANKI versus STATE OF GUJARAT AND ANOTHER
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(2012] 9 S.C.R. 561 PRATAPBHAI HAMIRBHAI SOLANKI v. STATE OF GUJARAT AND ANOTHER (Criminal Appeal No. 1649 of 2012) OCTOBER 12, 2012 [K. S. RADHAKRISHNAN AND DIPAK MISRA, JJ.] CODE OF CRIMINAL PROCEDURE, 1973: A B s.439 - Bail - An RT/ activist who had exposed illegal c activities of appellant and others, got killed through a contract killer - Charge-sheet filed - Court of Session and High Court declining bail to appellant - In the instant appeal, after the judgment had been reserved, order dated 25.9.2012 passed by High Court entrusting the matter to CBI for further 0 investigation, brought to the notice of the Court - Held: On a perusal of the order dated 25.9.2012, it is demonstrable that the High Court has expressed its dissatisfaction with regard to the investigation conducted by the investigating agency - At this stage, as there is a direction for fresh investigation, it E would be inapposite to enlarge the appellant on bail - Penal Code, 1860 - ss. 120-B and 302. s.439 - Granting of bail - Parameters - Explained. PENAL CODE, 1860: F s. 120-A - Criminal conspiracy - Essence of - Explained. An FIR was registered on 20.7.2010 against two persons alleging that they came on a motorcycle and shot dead an RTI activist. The investigation was entrusted G to State CID (Crime). The appellant was arrested on 7.9.2010. A charge sheet for offences punishable u/ss 302, 201 and 120-B IPC and ss.25(1)(b) and 27 Arms Act was filed in court. The bail applications filed by appellant were 561 H 562 SUPREME COURT REPORTS [2012] 9 S.C.R. A rejected by the Sessions Judge. The application for bail filed by the appellant before the High Court was resisted by the prosecution on the ground that the deceased was an RTI activist and had exposed illegal activities of the appellant accused no. 4 and, therefore, he hatched a B conspiracy with accused no. 1 to eliminate the deceased, which ultimately resulted in hiring accused no. 2, a contract killer on payment of Rs. 11 lakhs; that there were various call details and contacts made by the accused with accused no. 2 who had absconded; that fake SIM c cards were provided by the appellant to other accused to hide their identity. The High Court declined the bail. In the instant appeal, after the judgment had been reserved, the counsel for the State filed a copy of the order dated 25.9.2012 passed by the High Court D expressing its dissatisfaction with regard to the investigation conducted by the investigating agency, and entrusting the matter to CBI to expeditiously undertake further investigation. E Disposing of the appeal, the Court HELD: 1.1 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 evidence apart F from other aspects before the restriction on liberty is lifted on imposition of certain conditions. [para 19] (572-D] State v. Capt. Jagjit Singh (1962) 3 SCR 622 and Gurcharan Singh v. State (Delhi Admn.) 1978 (2) SCR 358 G = 1978 (1) SCC 118 Jayendra Saraswathi Swamigal v. State of T.N. 2005 (1) SCR 160 = 2005 (2) SCC 13; Prah/ad Singh Bhati v. NCT, Delhi and Another 2001 (2) SCR 684 = 2001 (4) SCC 280; State of U.P. through C.B.I. v. Amarmani Tripathi 2005 (3 ) SCR 12 = 2005 (4 ) sec 21; Ash H Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr. JT 2012 PRATAPBHAI HAMIRBHAI SOLANKI v. STATE OF 563 GUJARAT (9) SC 155 - referred to. A 1.2 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 8 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. In the instant case, there is no C denial of the fact that the deceased was an RTI activist and extremely keen in exposing cel"tain matters which pertain to illegal mining and many other such arenas. It is not in dispute that the deceased was murdered at the stated time and place. The appellant is a dealer in mobile phones and there is some material on record that he had D handed over mobile phones to his friend who is a police constable and owns mines; and that a call has been traced from the mo
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