Gujarat High Court
Vashrambhai Govindbhai Miyatra vs State Of Gujarat on 8 December, 2023
NEUTRAL CITATION
R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 10602 of 2021
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VASHRAMBHAI GOVINDBHAI MIYATRA Versus STATE OF GUJARAT ========================================================== Appearance:
MR NIRUPAM NANAVATY WITH MS SHRADDHA V KANARA(8795) for the Applicant(s) No. 1 MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR MANAN MEHTA, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Date : 08/12/2023 CAV ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with C.R.No.11202008202186 of 2020 registered with Jamnagar City 'A' Division Police Station, Jamnagar for the offence punishable under Sections 3(1), 3(2), 3(3), 3(4), 3(5) and 4 of the Gujarat Control of Terrorism and Organised Crime Act, 2015 ('GUJCTOC Act' for short) and under Sections 120B, 384, 385, 386, 387, 506(2), 506(1), 507 and 201 of the Indian Penal Code.
2. Learned Senior Advocate Mr. Nirupam Nanavaty assisted by learned advocate Ms. Kanara appears for the applicant accused submits that the FIR has been filed on 15th October, 2020 and present Page 1 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023 NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined applicant has been arrested on 16th October, 2020 and since then he is in judicial custody. The investigation is already completed and after submission of charge-sheet present bail application is preferred. Learned Senior Advocate Mr. Nanavaty further submits that not a single FIR is registered against the present applicant accused before the promulgation of the GUJCTOC Act and after the promulgation of the GUJCTOC Act except the present compliant he is not involved in any other offence. Learned Senior Advocate Mr. Nanavaty submits that for the purpose of invocation of provisions of the GUJCTOC Act, certain essential ingredients are required to be fulfilled by the prosecuting agency, and more particularly, ingredients mentioned in the provisions of Section 2(1)(c) and 2(1)(f) of the GUJCTOC Act are required to be satisfied. Learned Senior Advocate Mr. Nanavaty has read the provisions of Sections 2(1)(c) and 2(1)(f) of the GUJCTOC Act and submitted that present applicant accused has neither committed any offence as alleged nor he has abetted in commission of the offence as alleged. Learned Senior Advocate Mr. Nanavaty further submits that present applicant accused was working in the police department and during his tenure during the period between 2011 to 2018 present applicant accused has carried out investigation in 11 offences against the members Page 2 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023 NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined and gang leader and at the end of the day, charge-sheet was also submitted before the competent Court and considering the services rendered by the present applicant accused at that relevant point of time he has been nominated and awarded Gallantry Award. Learned Senior Advocate Mr. Nanavaty further submits that in fact FIR has been filed against total 14 persons and name of the present applicant accused is mentioned at serial No.5. At the end of the day, after completion of investigation, investigating officer has filed charge-sheet against 12 accused persons and remaining accused persons have been shown as absconder and yet they are not arrested. Out of 12 accused persons charge-sheeted, accused Nos. 1 and 3 have been enlarged on bail by the Hon'ble Supreme Court, accused Nos. 2, 4, 6, 10 and 13 have been enlarged on default bail and accused No.12 has been enlarged on bail by the Coordinate Bench of this Court. Learned Senior Advocate Mr. Nanavaty further submits that the Hon'ble Supreme Court has not considered the bail application of accused No.9 - Atul Bhanderi considering the number of offences registered against him before and after the promulgation of the GUJCTOC Act. It is submitted that even though at the time of rejecting the bail application of the said accused, the Hon'ble Supreme Court has given specific direction that after the examination of Page 3 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023 NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined the protected witnesses and more particularly after the lapse of six months once again liberty is reserved to approach to the concerned Court for the purpose of getting bail. Learned Senior Advocate Mr. Nanavaty submits that the persons who have been enlarged on default bail are the main accused persons and grave role is attributed to them as per the case of the prosecution. Learned Senior Advocate Mr. Nanavaty further submits that the kingpin and gang leader Mr. Jayesh Patel has not been arrested. The role of the other co-accused persons whose bail applications have been considered by the Hon'ble Apex Court as well as Coordinate Bench of this Court is much graver than the present applicant accused. Considering the above stated factual aspects as well as the principle of law of parity, bail application of the applicant accused may be entertained.
3. Learned Senior Advocate Mr. Nirupam Nanavaty has also placed reliance upon the judgment of Hon'ble Apex Court in the case of State of Gujarat v. Sandip Omprakash Gupta rendered in Criminal Appeal No.2291 of 2022, and more particularly, relied on the observations made in para 51(f) and (g) of the said judgment and submitted that this is the only FIR filed against the present applicant accused and not a single FIR before the promulgation and after the promulgation of the GUJCTOC Act is registered Page 4 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023 NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined against the present applicant accused except the present FIR and therefore as observed by the Hon'ble Supreme Court in the aforesaid decision, the case of the applicant accused would not fall under the definition of 'continuing unlawful activity' as provided in the GUJCTOC Act.
4. Learned Senior Advocate Mr. Nanavaty has also placed reliance upon the judgment dated 04.05.2023 rendered in Criminal Appeal No.1391 of 2023 in the case of Mukeshbhai Vallabhbhai Abhangi v. the State of Gujarat by the Hon'ble Apex Court and more particularly observations made by the Hon'ble Apex Court in para nos. 7 and 8 of the said judgment.
5. Learned Senior Advocate Mr. Nanavaty has also relied upon the decision of the Hon'ble Apex Court in the case of Anilbhai @ Mehtaji Dineshbhai Dangariya v. The State of Gujarat, rendered in Criminal Appeal No.3286 of 2023 and submits that recently the co-accused Anilbhai @ Mehtaji Dineshbhai Dangariya has been enlarged on bail by the Hon'ble Apex Court and at the time of releasing the said co-accused, the Hon'ble Apex Court has very succinctly observed that, besides the instant case, he does not have any other criminal antecedent. Learned Senior Advocate Mr. Nanavaty thereafter draws the attention of this Court to the role played by the said accused person and submits that the Hon'ble Supreme Court has further observed that Page 5 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023 NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined there are 77 FIRs registered against the members of the organized crime syndicate. It is further observed that the appellant herein was in constant contact with Jayesh Patel over VOIP calls and used to collect and route the extorted money from various persons on the directions of the main accused, Jayesh Patel. Learned Senior Advocate Mr. Nanavaty, therefore, submits that very serious allegations were levelled against the said co-accused person. However, considering the fact that only one FIR has been registered against the said accused person, the Hon'ble Supreme Court has granted bail to the said co- accused person.
6. Learned Senior Advocate Mr. Nanavaty has also read the provisions of Sections 2(1)(a), 2(1)
(c), 2(1)(e) and 2(1)(f) of GUJCTOC Act and submitted that the present one is the only FIR registered against the applicant accused and no other FIRs have been registered against the present applicant accused before or after the promulgation of the GUJCTOC Act and therefore the case of the applicant accused would not fall under the definition of 'continuing unlawful activity' as defined under section 2(1)(c) of the Act. Moreover, as per the definition of 'continuing unlawful activity', the condition precedent is that more than one charge-sheets have been filed before a competent court within the preceding period of ten years. However, in Page 6 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023 NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined the instant case, except the present one no other charge-sheets have been filed against the present applicant accused.
7. Learned Senior Advocate Mr. Nanavaty has further submitted that in number of cases the Hon'ble Supreme Court has recently released the accused persons on bail wherein the accused persons have remained in jail for more than two and half years. Learned Senior Advocate Mr. Nanavaty further submits that the applicant accused is not praying for discharge from the charge or quashing of the FIR but he is praying for enlarging him on bail on account of the fact that investigation is already completed and charge-sheet is also filed and more than 258 witnesses have been cited in the charge-sheet papers and out of them only one complainant has been examined. Not only that, after passing of an order of framing of charge, certain co- accused have preferred a revision application assailing the said order and at the time of considering the said revision application, the Coordinate Bench of this Court has given specific direction to the concerned trial Court to consider the request made by the concerned applicant accused to adjourn the matter sympathetically during the pendency of the said revision application. Therefore, on the strength of the above stated factual aspect, trial would be delayed and without any fault on the part of Page 7 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023 NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined the applicant accused, he cannot be kept behind the bars for an indefinite period.
8. Learned Public Prosecutor Mr. Mitesh Amin assisted by learned APP Mr. Manan Mehta for the respondent - State submits that the modus operandi of this organized crime syndicate principally is to grab land. So far as the role played by the present applicant accused is concerned, he was police officer and as per the case of prosecution, one of the victims viz. Mr. Kotecha borrowed few lakhs from co-accused Sunil Changani. The said accused Mr. Cangani started demanding money from Mr. Kotecha. However, somehow Changani could not receive the money back and therefore he involved applicant accused. The applicant accused involved main gang leader Jayesh Patel in the matter and ultimately deal was struck by intimidating and threatening the said victim and few crores were extorted against the recovery of few lakhs and that extortion is on the intimidation of the present applicant accused at the instance of Jayesh Patel. Learned Public Prosecutor Mr. Amin has drawn attention of this Court to the modes operandi adopted by the syndicate against the aforesaid victim person. Learned Public Prosecutor Mr. Amin further submits that the present applicant accused has been implicated on the basis of the telephonic conversion between co-accused Sunil Changani and one of the secret Page 8 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023 NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined witnesses wherein the name of the present applicant accused has been revealed. Learned Public Prosecutor Mr. Amin further submits that the present applicant accused was also managing the affairs of the syndicate with co-accused Sunil Changani and few other co-accused persons. It is further submitted that one Sadhna Forex is a company which routes the extortion money of the syndicate from one place to another and going back to gang leader Jayesh Patel. Learned Public Prosecutor Mr. Amin further submits that there are two other Angadiya firms viz. P. M. Angadiya and R. C. Angadiya and witnesses from the said Angadiya firms have also given their statements stating that they hold one account viz. K. J. Account where this ill-gotten monies were coming and going and thereafter submits that the said K. J. Account is run by the applicant accused and other accused which are named in the FIR. It is also alleged against the present applicant accused that he has administered threat to one of the witnesses for settling the money transaction, for which a complaint is lodged. Lastly, learned Public Prosecutor Mr. Amin submits that for getting temporary bail, the applicant accused has placed before the concerned Sessions Court a false certificate and finding to that effect is also there in the order of the learned Sessions Judge. In support of the aforesaid contentions, Page 9 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023 NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined learned Public Prosecutor has referred to and relied upon certain documents. Learned Public Prosecutor Mr. Amin, therefore, submits that in view of the aforesaid facts, bail application of the applicant accused may not be entertained.
9. I have perused the police papers and other documents produced by the applicant along with the memo of the application. It is found out from the record that applicant has been arrested on 16th October, 2020 and since then he is in judicial custody. The investigation is already completed and after submission of charge-sheet present bail application is preferred. It is also found out from the record that not a single FIR is registered against the present applicant accused after the promulgation of the GUJCTOC Act. It is also stated that the applicant accused was working in the police department and he has been nominated and awarded Gallantry Award.
It is also found out from the record that in fact the FIR has been filed against total 14 persons and name of the present applicant accused is mentioned at serial No.5. At the end of the day, after completion of investigation, investigating officer has filed charge-sheet against 12 accused persons and remaining accused persons have been shown as absconder and yet they are not arrested. Out of 12 accused persons Page 10 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023 NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined against whom charge-sheet is filed, accused Nos. 1 and 3 have been enlarged on bail by the Hon'ble Apex Court, accused Nos. 2, 4, 6, 10 and 13 have been enlarged on default bail and accused No.12 has been enlarged on bail by the Coordinate Bench of this Court. As submitted by learned Senior Advocate Mr. Nanavaty, the persons who have been enlarged on default bail are the main accused persons and grave role is attributed to them as per the case of the prosecution. It is also found out from the record that the kingpin and gang leader Mr. Jayesh Patel has not been arrested.
Before adverting to the issue involved in the present case, I would like to refer to and rely upon the following decisions rendered by the Hon'ble Apex Court. In the case of Sandip Omprakash Gupta (supra), in para 51(f) & (g), the Hon'ble Apex Court has observed as under:
"(f) There would have to be some act or omission which amounts to organised crime after the Act came into force, in respect of which the accused is sought to be tried for the first time, in the Special Court (i.e. has not been or is not being tried elsewhere).
(g) However, we need to clarify something important. Shiva alias Shivaji Ramaji Sonawane (supra) dealt with the situation, where a person commits no unlawful activity after the invocation of the MCOCA. In such circumstances, Page 11 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023 NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined the person cannot be arrested under the said Act on account of the offences committed by him before coming into force of the said Act, even if, he is found guilty of the same. However, if the person continues with the unlawful activities and is arrested, after the promulgation of the said Act, then, such person can be tried for the offence under the said Act.
If a person ceases to indulge in any unlawful act after the said Act, then, he is absolved of the prosecution under the said Act. But, if he continues with the unlawful activity, it cannot be said that the State has to wait till, he commits two acts of which cognizance is taken by the Court after coming into force. The same principle would apply, even in the case of the 2015 Act, with which we are concerned."
In the case of Mukeshbhai Vallabhbhai Abhangi (supra), the Hon'ble Apex Court has observed in para nos. 7 and 8 as under:
"7. The learned counsel drew the Court's attention to State of Gujarat v. Sandip Omprakash Gupta, 2022 SCC OnLine SC 1727, dated 15.12.2022, the relevant being at paras 49, 56 and 57, which affirms State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane, (2015) 14 SCC 272, which stipulates that the offence? of "organised crime" could be said to have been constituted by at least one incident of continuation apart from continuing unlawful activity evidenced by more than one charge- sheets in the preceding ten years.
8.Learned counsel also referred to the decision dated 30.05.2022 passed by this Court in SLP (Crl.) No. 1815 of 2022 titled 'Mohammed Iliyas Mohammed Bilal Kapadiya v. State of Gujarat', since reported as 2022 SCC OnLine SC 713, wherein also Section 2(c) of the GCTOC Act was Page 12 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023 NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined involved and bail was granted on the ground that "only one charge-sheet was filed in respect of an activity which can be said to have been undertaken by the appellant/applicant as a member of an organised crime syndicate on behalf of such syndicate" as opposed to the requirement of "more than one charge-sheets" under Section 2(c) of the GCTOC Act.
In the case of Anilbhai @ Mehtaji Dineshbhai Dangariya (supra), the Hon'ble Apex Court has observed in para no. 9 as under:
"9. Having examined the records and on perusing the stand taken by the respondentState in the counter affidavit, we are of the opinion that undisputedly, there is only one case, that is the instant case, where the appellant has been made an accused. No other chargesheet has been filed against the appellant in the preceding ten years alleging offences punishable with more than three years' imprisonment. So, there is no "continuing unlawful activity" qua the appellant for attracting the provisions of the GCTOC Act. The appellant has remained in custody since 29th January, 2021, for two years and nine months and he does not have any other criminal antecedents.
Now, I would like to refer to the relevant provisions of the GUJCTOC Act. Sections 2(1)(a) provides as under:
"(a) "abet" with its grammatical variations and cognate expression, includes-
(i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner an organised crime Page 13 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023 NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined syndicate;
(ii) the passing on or publication of without any lawful authority, any information likely to assist the organised crime syndicate and the passing on or publication of or distribution of, any document or matter obtained from the organised crime syndicate; and
(iii)the rendering of any assistance, whether financial or otherwise, to the organised crime syndicate for committing an offence under this Act;"
Sections 2(1)(c) provides as under:
"(c) "continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment for a term of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence;"
Sections 2(1)(e) provides as under:
"organised crime" means any continuing unlawful activity including extortion, land grabbing, contract killing, economic offences, cyber crimes having severe consequences, human trafficking racket for prostitution or ransom by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion or other unlawful means."Page 14 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023
NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined Section 2(1)(f) provides as under:
"(f) "organised crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulging in activities of organised crime;"
Considering the ratio laid down by the Hon'ble Supreme Court in the aforesaid decisions and considering the aforesaid provisions of GUJCTOC Act as well as period of incarceration undergone by the applicant accused, I am inclined to consider the bail application of the applicant accused without discussing anything on merits and demerits of the matter.
10. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012]1 SCC 40 as well as in case of Satender Kumar Antil v. Central Bureau of Investigation & Anr. reported in (2022)10 SCC 51.
11. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
12. Hence, the present application is allowed and Page 15 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023 NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined the applicant is ordered to be released on regular bail in connection with C.R.No.11202008202186 of 2020 registered with Jamnagar City 'A' Division Police Station, Jamnagar, on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injuries to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
[e] mark presence before the concerned Police Station on alternate Monday 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 this Court;
13. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Page 16 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023 NEUTRAL CITATION R/CR.MA/10602/2021 CAV ORDER DATED: 08/12/2023 undefined Sessions 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 Court to delete, modify and/or relax any of the above conditions, in accordance with law.
14. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail.
15. The present application stands allowed accordingly. Direct service is permitted.
(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 17 of 17 Downloaded on : Fri Dec 08 20:46:32 IST 2023