- (1.) The instant second application for bail has been filed under Section 439 Cr.P.C. on behalf of the petitioner, who is in custody in relation to F.I.R. No.353/2015, Police Station Makrana, District Nagaur (re-registered at CBI New Delhi as CBI Case No.RC4(S)/2016/CBI/SC.III/New Delhi), for the offences under Sections 201 , 203 , 326 , 302 , 307 , 458 r/w 120B IPC and Sections 25 and 27 of Arms Act. The case involves murder of Lucky Khan, the petitioner's brother and attempted murder of Parbat Khan and Reshma being the petitioner's siblings as well as gunshot injury being caused to the petitioner's niece Inaya in an incident, which took place at the Borawad Town near Makrana in the night intervening 23.10.2015/24.10.2015. The petitioner is the first informant of the case. He lodged the report at the Police Station Makrana against the local MLA Shri Ram Bhichar and a few others casting suspicion on them of perpetrating the assault because of rivalry over educational institutions. On the written report of the petitioner, an F.I.R. No.353/2015 was registered at the Police Station Makrana and investigation was commenced.
(2.) The local Police conducted the investigation of the matter and reached to a conclusion that a man named Vikesh Gaur, who used to work in the educational institution named "Geetanjali B.Ed. College" as well as "Geetanjali ITI" being run by the petitioner and his family members, was the assailant and that the petitioner was the mastermind, who conspired with him and got the attack executed through Vikesh Gaur. Vikesh Gaur was apprehended by the Police but it is stated that he passed away while being in custody during investigation. The petitioner was arrested and numerous incriminating recoveries including that of 10 live cartridges matching the bore of the two country-made pistols found at the scene of crime were effected at his instance. The Investigating Officer, filed a charge-sheet concluding that the petitioner conspired with Vikesh Gaur and hatched a design to eliminate all his family members so as to gain control of the family's riches. The petitioner moved a regular bail application (CRLMB No.3112/2016) under Section 439 Cr.P.C. in this Court and the petitioner's father Lal Mohd. submitted a Cr.Writ Petition No.35/2015 wherein, prayer was made to change and direct further investigation of the case by the CBI. While deciding the petitioner's bail application and the above criminal writ petition vide orders dated 1.6.2016, this Court directed that the further investigation of the matter be conducted by the CBI and granted conditional interim bail to the petitioner till conclusion of further investigation by the CBI. While granting conditional bail to the petitioner, this Court ordered that in case, the CBI files a charge- sheet against the petitioner after further investigation, the conditional interim bail granted to him, would automatically come to an end and he would be required to surrender before the trial court in such an event. Pursuant thereto, the CBI registered a fresh F.I.R. and conducted further investigation into the matter. The Investigating Officer of the CBI virtually expressed his concurrence with the findings recorded by the previous Investigating Officers of Rajathan Police on most of the relevant issues and proceeded to file a charge-sheet with the very same conclusion that the petitioner conspired with Vikesh Gaur and got the entire incident perpetrated. Upon filing of the above charge- sheet, the petitioner surrendered before the trial Court in compliance of the conditional interim bail order dated 1.6.2016 and thereafter, he has approached this Court by way of this fresh application for bail under Section 439 Cr.P.C.
(3.) Learned counsel Sarva Shri Farzand Ali and Vishal Shrma representing the petitioner vehemently contended that the conclusions of the Investigating Officer of CBI are totally conjectural and fictional. The Investigating Officer has virtually ratified the totally fictional, perverse and cooked up findings recorded by the local Police in the earlier charge-sheet. They submitted that the Investigating Officer failed to consider the important aspect that none of the family members of the petitioner supported the fictional theory of motive putforth by the local Police that the petitioner conspired and got the assault perpetrated with the intention of eliminating all his family members so as to gain the family's riches. They urged that there is no substratum behind this conclusion of the Investigating Officer. The petitioner was already at the helm of affairs in the family educational institutions and there is no ostensible reason as to why he would try to eliminate his own family members. They further urged that the Investigating Officer's conclusion that Vikesh was the murderer is extremely doubtful because the eye- witnesses Reshma and Parbat Khan knew Vikesh from before. They managed to catch hold of the assailant and grappled with him and both have categorically stated that Vikesh could not have been the assailant. They further urged that the belated recoveries of live cartridges and other worthless articles being a piece of the T-shirt worn by Vikesh etc. at the petitioner's instance, clearly establishes that the Investigating Officer acted in a highly prejudiced and partisan manner with the sole objective of implicating the petitioner in the case. The motive behind the Investigating Officer's biased actions was that the petitioner had dared to implicate the local MLA in the incident and thus, the Police acted at his (local MLA's) beck and call and entangled the petitioner in the offence without there being an iota of evidence to justify his arraignment in the case as the mastermind. They further urged that no significance can be attached to the Investigating Officer's observations that fact that the petitioner clicked pictures of his brother Lucky Khan while he was lying injured on the bed pointed to his guilty mind frame. They contended that the petitioner's actions were in all probability out of curiosity and the bonafide anxiety to preserve the circumstances prevailing at the scene of occurrence in case of future requirement. They further urged that the call details which the CBI has collected during investigation for drawing an inference that Vikesh went to Uttar Pradesh and Madhya Pradesh for procuring the firearms used in the incident at the petitioner's instance, are also inconsequential because Vikesh was admittedly a resident of Uttar Pradesh and thus, his visit to the said State cannot be a ground for drawing such an inference. Furthermore, the SIMs in question were not issued in the name of Vikesh. They urged that the petitioner who was granted conditional interim bail by this Court after first round of investigation, did not misuse the liberty granted to him and surrendered back as per this Court's direction immediately after submission of the fresh charge-sheet by the CBI. They thus submitted that the petitioner's fair conduct entitles him to indulgence of bail. They further urged that as per the statement of Reshma, she had inflicted injuries by a potato peeler on the fingers of the assailant and thus manifestly, if Vikesh had been the assailant, then the doctors/Investigating Officer would have noticed injuries on his hands when he was medically examined and post mortem was conducted on his body. They further drew the Court's attention to the statements of various relatives of Vikesh, who categorically stated that Vikesh returned from the petitioner's house at about 9.30 PM and then did not leave his own house on the fateful night. They thus urged that the false implication of Vikesh as the assailant is writ large on the face of record. As per them, the local Police Officers were responsible for custodial death of Vikesh and in order to cover up their criminal and prejudicial acts, the entire burden of incident has been malafide shifted on to the petitioner. As per them, even the Investigating Officer of the CBI acted in a biased manner with the intention of saving the local Police and nothing else. They thus implored the Court to accept the bail application and enlarge the petitioner on bail.;