Sarikhussain Anwarhussain ... vs State Of Gujarat

                                                                           NEUTRAL CITATION




    R/CR.A/252/2023                         ORDER DATED: 21/08/2023

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL APPEAL NO. 252 of 2023
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              SARIKHUSSAIN ANWARHUSSAIN SAIYED
                               Versus
                       STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Appellant(s) No. 1
NOTICE SERVED THRU CONCERNED POLICE STN for the
Opponent(s)/Respondent(s) No. 2
MR   HARDIK MEHTA,        ADDL.PUBLIC      PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                        Date : 21/08/2023
                         ORAL ORDER

[1.0] Present appeal under Section 14-A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Atrocity Act") challenging the judgment and order dated 08.09.2022 passed by the learned Special Judge, Special Atrocity Court, Chhota Udaipur in Criminal Misc. Application No.442 of 2022 whereby the application learned Special Judge rejected the application filed by the present appellant under Section 439 of the Code of Criminal Procedure, 1973 seeking regular bail in connection with FIR being C.R. No.11184002220140 of 2022 registered with Chhota Udaipur Police Station, District Chhota Udaipur for the offences punishable under Sections 143, 147, 148, 149, 153, 323, 324, 294(b), 120(b), 506(2) and 114 of the Indian Penal Code, 1860 and sections 3(1)(r)(s), 3(2)(5-a) of the Atrocity Act and Section 51(B) of the Disaster Management Act, 2005 and Section 3 of Epidemic Disease Act, 1897 and Section 135 of the Gujarat Police Act.

NEUTRAL CITATION R/CR.A/252/2023 ORDER DATED: 21/08/2023 undefined [2.0] The complaint is filed at the instance of Rajubhai Madhubhai Rathwa wherein it is alleged that the complainant and witnesses gathered at Ramji Temple for reciting Hanuman Chalisa in order to pay condolence for the demise of Kishan Bharwad, who was murdered. At that time, accused persons hatched a conspiracy with ulterior motive and constituted an unlawful assembly and armed with deadly weapons attacked and beaten up the original informant and the witnesses and thus, the offence came to be registered. After the investigation, charge- sheet came to be filed, which culminated into Special Atrocity Case No.8/2022 and trial is pending.

[3.0] Learned advocate Mr. Dagli for the appellant submitted that the appellant is not involved in commission of offence as alleged in the FIR. That, as material witnesses are examined, there remains no apprehension of administering threat or there is no possibility of hampering with the evidence and therefore, looking to the role of the appellant and nature of the allegations, the appellant is required to be enlarged on regular bail by imposing suitable terms and conditions. He has submitted that [4.0] Per contra, learned APP appearing for the respondent - State has vehemently opposed the present appeal and stated that the trial is at fag end and considering the criminal antecedents of the appellant, present appeal is required to be dismissed.

[5.0] Learned advocate Mr. Darshan Dave appearing for HL Patel Page 2 of 5 Downloaded on : Sun Sep 17 01:54:01 IST 2023 NEUTRAL CITATION R/CR.A/252/2023 ORDER DATED: 21/08/2023 undefined Advocates for the original complainant has also opposed the present appeal and by adopting the submissions of the learned APP has further stated that as trial is at fag end, now question to consider the present appeal does not arise as there is possibility of trial being prolonged by the appellant-accused and threat to public tranquility if the appellant-accused is released on bail and therefore, has submitted that the offences, which have been charged, are serious in nature affecting the society at large and looking to the facts as well as the allegations made against the appellant, no discretion is be required to be exercised.

[6.0] I have given thoughtful consideration to the arguments canvassed by learned advocates for both the sides. Having considered the status of trial of the special case, severity of punishment and as material witnesses have been examined and now, there is no possibility of witnesses being tampered or hampered as also considering the fact that the co-accused has been released by the coordinate Bench of this Court vide order dated 12.04.2023 passed in Criminal Appeal No.340/2023 and considering the settled proposition of law that criminal antecedent of an accused cannot be a sole criteria to refuse bail, as has also been considered by the coordinate Bench in its order dated 12.04.2023 released the co-accused, who were similarly situated, present appellant-accused is also entitled for the benefit of law of parity as per the law laid down by this Court in the case of Ramesh Batubhai Dabhi vs. State of Gujarat reported in 2011 (3) GLR 1150. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Page 3 of 5 Downloaded on : Sun Sep 17 01:54:01 IST 2023 NEUTRAL CITATION R/CR.A/252/2023 ORDER DATED: 21/08/2023 undefined Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012)1 SCC 40.

[7.0] Hence, the present appeal is allowed. The appellant is ordered to be released on regular bail in connection with FIR being C.R. No.11184002220140 of 2022 registered with Chhota Udaipur Police Station, District Chhota Udaipur on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) each with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that the appellant shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave the India without prior permission of the concerned trial court;

[e] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;

[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the concerned trial court;

[g] not enter into District Chhota Udaipur till the trial is over except to mark his presence before the concerned Investigating Officer as well as attending the trial proceedings before the Trial Court.

NEUTRAL CITATION R/CR.A/252/2023 ORDER DATED: 21/08/2023 undefined [h] shall not take undue advantage of liberty for prolonging the trial by taking unnecessary adjournment;

[8.0] The authorities shall release the appellant only if the appellant is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Special Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Special Court to delete, modify and/or relax any of the above conditions, in accordance with law.

[9.0] At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

[10.0] Rule is made absolute to the aforesaid extent. Direct service is permitted.

(HASMUKH D. SUTHAR, J.) Ajay Page 5 of 5 Downloaded on : Sun Sep 17 01:54:01 IST 2023