NEUTRAL CITATION
R/CR.A/1540/2023 ORDER DATED: 13/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1540 of 2023
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BHUREKHAN @ AKRAMKHAN GANIKHAN PATHAN
Versus
STATE OF GUJARAT
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Appearance:
MR MH SHAIKH(2457) for the Appellant(s) No. 1
TARIK M MANDLI(9482) for the Appellant(s) No. 1
MS URMILA N DESAI(5609) for the Opponent(s)/Respondent(s) No. 2
MS DP JHALA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 13/09/2023
ORAL ORDER
Rule. Learned APP waives service of notice of Rule on behalf of respondent-State and learned advocate Ms.Urmila Desai waives for respondent No.2. [2.0] 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 02.06.2023 passed by the learned Special Judge, Special Atrocity Court No.9, Ahmedabad City in Criminal Misc. Application No.4385 of 2023 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 Page 1 of 6 Downloaded on : Mon Sep 18 20:35:57 IST 2023 NEUTRAL CITATION R/CR.A/1540/2023 ORDER DATED: 13/09/2023 undefined connection with FIR being C.R. No.11191018230152 of 2023 registered with Gomtipur Police Station, District : Ahmedabad for the offences punishable under Sections 354, 323, 294(b), 506(2), 143, 147 and 114 of the Indian Penal Code, 1860 and sections 3(2)(va) of the Atrocity Act.
[3.0] Learned advocate for the appellant submitted that applicant is falsely enroped in the offence and at the instance and at the behest of the third party, if ulterior motive is present, the prosecution being lodged the complaint. It is submitted that complainant is well educated and practicing advocate and complaint is filed belatedly after a period of 22 days and no explanation is given in this regard. Nonetheless, no offence is made out against the present accused, if the co-accused are already enlarged on bail. It is true that earlier application was filed but it is withdrawn and no reason was assigned, looking to the role of the appellant and nature of the allegations, the appellant is required to be enlarged on regular bail / successive bail by imposing suitable terms and conditions.
[4.0] Per contra, learned APP appearing for the Page 2 of 6 Downloaded on : Mon Sep 18 20:35:57 IST 2023 NEUTRAL CITATION R/CR.A/1540/2023 ORDER DATED: 13/09/2023 undefined respondent - State has vehemently opposed the present appeal and stated that the present appeal is successive bail appeal and no circumstances are changed, without entering into the merits of the case, present appeal is required to be dismissed. She has further submitted that the present appellant is having past criminal antecedents and he is involved in the illegal activity and he forcibly compelled to the victim to convert her religion. He forced her to withdraw the litigations and compelled to settle the dispute with applicant. She has stated that this is not a fit case to exercise the discretion in favour of the appellant. [5.0] Learned advocate Ms.U.N. Desai for the original complainant has also opposed the present appeal and by adopting the submissions of the learned APP has further stated that the role attributed to the present appellant is clearly mentioned in the complaint and reasons for delay is also stated, due to illness of the mother of the victim, she could not prefer the complaint within time limit and delay is caused, this is not a fit case to enlarge the appellant on bail and it is stated that there is constant threat on the part of the appellant to change her Page 3 of 6 Downloaded on : Mon Sep 18 20:35:57 IST 2023 NEUTRAL CITATION R/CR.A/1540/2023 ORDER DATED: 13/09/2023 undefined religion and to adopt the religion of the appellant. She has stated that even, there is a possibility of tampering and hampering with the evidence and there is a given threat to viral the video clip of complainant. If the appellant-accused is released on bail, which would adversely affects the case of prosecution and therefore, has submitted that the offences, which have been charged, are serious in nature, against the women and affecting the society at large and looking to the facts as well as the allegations made against the appellant, no discretion may be required in favour of applicant-accused. [6.0] This Court has heard learned advocates, given thoughtful consideration to the arguments canvassed by learned advocates for both the sides. Considering the fact that at the outset, it is required to be mentioned that present application is successive bail after charge-sheet and learned advocate for the appellant has failed to show any change of circumstance. It is needless to say that after filing the complaint, during the investigation, sufficient material is collected against the present accused and strengthened circumstance is against the present accused and prima facie, it appears that Page 4 of 6 Downloaded on : Mon Sep 18 20:35:57 IST 2023 NEUTRAL CITATION R/CR.A/1540/2023 ORDER DATED: 13/09/2023 undefined involvement of accused and role attributed to the present applicant in the offence.
[7.0] This court has also kept in mind the law laid down by the Hon'ble Supreme Court in the case of Virupakshappa Gouda vs. State of Karnataka reported in (2017) 5 SCC 406, wherein it is held as under :
"13. .......... Needless to say, filing of the charge-sheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the charge-sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge-sheet for trial of the accused persons."
Considering the fact that after filing of the charge-
sheet, the bail application came to be filed before the learned Sessions Judge and the same came to be withdrawn, which amounts to dismissal. After that, no any circumstance is changed and thereafter, the present appeal is preferred. Considering the said aspect, without discussing further about evidence and the merits of the case, the present appeal does not deserve any consideration.
Further, considering the fact that one more aspect is also required to be considered, so far concept of the bail is concerned, purpose of the bail is not a punitive Page 5 of 6 Downloaded on : Mon Sep 18 20:35:57 IST 2023 NEUTRAL CITATION R/CR.A/1540/2023 ORDER DATED: 13/09/2023 undefined but a preventive. While granting bail, the Court has to take care the availability of the accused at the time of trial and second important aspect is that possibility of the tampering with an evidence of prosecution herein there is a specific case of the prosecution is that the accused is threatening the witnesses and compelled to withdraw the complaint and from this prosecution, prima facie, it appears that there is a chance of tampering and hampering with an evidence. This Court is of the considered opinion that if the present accused is enlarged on bail, which is nothing but possibility can be ruled out that accused will misuse his liberty and tamper with witnesses of evidence of prosecution and appellant is having criminal antecedents and two offence are also registered against him.
[8.0] Considering the aforesaid all facts, this is not a fit case to exercise the discretion in favour of the appellant. Hence, the present appeal fails against rejection of successive bail application after filing of charge-sheet and is accordingly dismissed. Rule is discharged.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 6 of 6 Downloaded on : Mon Sep 18 20:35:57 IST 2023