Hakubhai Rahimbhai Rathod vs State Of Gujarat

                                                                                 NEUTRAL CITATION




     R/CR.MA/18806/2023                            ORDER DATED: 07/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
                 CHARGESHEET) NO. 18806 of 2023
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                          HAKUBHAI RAHIMBHAI RATHOD
                                    Versus
                              STATE OF GUJARAT
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Appearance:
SAJID Y KARIYANIYA(9619) for the Applicant(s) No. 1
MR BHAVIK R SAMANI(8339) for the Respondent(s) No. 1
MR LB DABHI APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY

                               Date : 07/11/2023

                                 ORAL ORDER

Rule. Mr.Dabhi, learned APP waives service of notice of Rule on behalf of respondent State.

1. The applicant has filed this Application under Section 439 of the Code of Criminal Procedure for enlarging the applicant on Regular Bail in connection with FIR being C.R.No.11190005230036 of 2023 registered with Paliyad Police Station, Dist.Botad for the offences punishable under Sections 302, 307, 323, 120(B), 201, 143, 147, 148, 149 and 34 of the Indian Penal Code and Section 135 of G.P. Act.

2. Learned advocate for the applicant submitted that, the applicant is not involved in commission of offence Page 1 of 6 Downloaded on : Tue Nov 07 20:50:08 IST 2023 NEUTRAL CITATION R/CR.MA/18806/2023 ORDER DATED: 07/11/2023 undefined as alleged in the FIR and therefore, looking to the role of the applicant and nature of the alleged allegations, the applicant is required to be enlarged on regular bail by imposing suitable terms and conditions.

3.1 Learned advocate Mr.Bhavik Samani appearing for the original complainant opposed the application inter alia contending that the applicant was part of an unlawful assembly and, therefore, no specific or individual role is required to be attributed to him. He further submitted that there are as many as 27 injuries found on the body of deceased. He submitted that the present applicant was armed with weapon like knife. Learned advocate sought to rely upon judgment of the Hon'ble Apex Court rendered in Criminal Appeal No.524 of 2021 in the case of Parshuram vs. State of M.P. He, therefore, prayed to dismiss the present application.

3.2 Learned APP appearing for the resopndent State authority opposed the present application and prayed to dismiss the present application.

NEUTRAL CITATION R/CR.MA/18806/2023 ORDER DATED: 07/11/2023 undefined

4. Heard learned advocates for the parties and perused the record.

5.1 The investigation is over and the charge-sheet is also filed. The role attributed to the present applicant in commission of the offence is to the effect that he was armed with weapon like knife. The record does not indicate about the applicant having inflicted or caused any injury either to deceased or any of the witness with the weapon like knife.

5.2 Insofar as the judgment of the Hon'ble Apex Court is concerned, in the said judgment, the Hon'ble Has observed as under:

"14. It could thus clearly be seen that the Constitution Bench has held that it is not necessary that every person constituting an unlawful assembly must play an active role for convicting him with the aid of Section 149 of IPC."

The judgment of the Hon'ble Apex Court pertains to conviction of an accused person and therefore the same is not applicable in the present case. Considering these facts and the fact that other co-accused persons Page 3 of 6 Downloaded on : Tue Nov 07 20:50:08 IST 2023 NEUTRAL CITATION R/CR.MA/18806/2023 ORDER DATED: 07/11/2023 undefined have been considered for grant of bail, the present application deserves consideration and accordingly stands allowed. The Applicant Accused is ordered to be released on bail in connection with the aforesaid FIR on executing a personal bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the following conditions that the applicant shall:

(a) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence.

(b) maintain law and order and not to indulge in any criminal activities.

(c) furnish the documentary proof of complete, correct and present address of residence to the Investigating Officer and to the Trial Court at the time of executing the bond and shall not change the residence without Page 4 of 6 Downloaded on : Tue Nov 07 20:50:08 IST 2023 NEUTRAL CITATION R/CR.MA/18806/2023 ORDER DATED: 07/11/2023 undefined prior permission of the trial Court.

(d) provide contact numbers as well as the contact numbers of the sureties before the Trial Court. In case of change in such numbers inform in writing immediately to the trial Court.

(e) file an affidavit stating his immovable properties whether self acquired or ancestral with description, location and present value of such properties before the Trial Court, if any.

(f) not leave India without prior permission of the Trial Court

(g) surrender passport, if any, to the Trial Court within a week. If the Applicants do not possess passport, shall file an Affidavit to that effect;

(h) shall not enter into limits of local concerned police station till the trial is over except for the purpose of marking presence and Page 5 of 6 Downloaded on : Tue Nov 07 20:50:08 IST 2023 NEUTRAL CITATION R/CR.MA/18806/2023 ORDER DATED: 07/11/2023 undefined attending the trial.

6. Bail bond to be executed before the Trial Court having jurisdiction to try the case. It would be open for the Trial Court concerned to give time to furnish the solvency certificate if prayed for.

7. If breach of any of the above conditions is committed, the Trial Court concerned will be free to issue warrant or take appropriate action according to law. The Authorities will release the Applicants forthwith only if the Applicants are not required in connection with any other offence for the time being.

8. At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

9. Rule is made absolute. Direct service permitted.

(M. R. MENGDEY,J) MISHRA AMIT V.