NEUTRAL CITATION
R/CR.A/1782/2023 ORDER DATED: 18/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1782 of 2023
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IMRANKHAN @ BHAIYA SALIMKHAN PATHAN
Versus
STATE OF GUJARAT
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Appearance:
MR NAUMAN S QURESHI(10669) for the Appellant(s) No. 1
MR SHAKEEL A QURESHI(1077) for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
MR L B DABHI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 18/09/2023
ORAL ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure by the applicant for successive regular bail in connection with an FIR being C.R.No.I-67 of 2019 registered with Dindoli Police Station, Surat, District: Surat for the offences punishable under Sections 302, 143, 147, 148, 149, 201, 144, 34 and 120(B) of the Indian Penal Code, Sections 3(1)(r)(s), 3(2)(5), 3(2)(5-a) and 3(1)(g) of the Atrocities Act and Section 135(1) of the G. P. Act, challenging the order passed by the learned Civil Judge (Atrocity) and Additional Sessions Judge, Surat in Criminal Page 1 of 6 Downloaded on : Mon Sep 25 20:30:49 IST 2023 NEUTRAL CITATION R/CR.A/1782/2023 ORDER DATED: 18/09/2023 undefined Misc. Application No.3459 of 2023, which came to be rejected by the order dated 10.05.2023.
2. Though the notice was served, the respondent no.2 is remained absent.
3. Learned advocate for the applicant submits that the present applicant is in jail since 2019. Earlier the applicant had filed one application before the Court, but the same came to be dismissed after filing of charge-sheet and successive progress has been made in the Trial and nine co-accused who have been considered by the Sessions Court as well as this Court. Keeping in mind the fact, he has also requested to enlarge the accused on bail. Considering aspect of parity further he has stated that panch witnesses are examined and no one has supported the case of the prosecution. Considering the conspectus of Article 21 of Constitution of India, he has requested to consider the case of the applicant. Learned advocate for the applicant relied upon the judgment rendered in the case of Kazi Alfaz @ Mako Yusufbhai @ Babubhai vs. State of Gujarat reported in 2021 (0) AIJEL and requested that the co-accused have been released on bail, therefore, benefit of parity would be given to the applicant. Page 2 of 6 Downloaded on : Mon Sep 25 20:30:49 IST 2023
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4. Per contra, learned APP has opposed the present application and stated that this successive regular bail application filed on merits after filing Charge-sheet and earlier the same has been dismissed or subsequently withdrawn before this Court. It is further submitted that whatever order passed by the learned sessions judge as well as this Court is prior to filing of the Charge-sheet or after Charge-sheet, hence the case of the concerned co-accused cannot be considered as after, the regular bail application came to be filed thereafter before this Court and the same came to be withdrawn by the present applicant and hence, there is no change in circumstances and the question of parity does not arise to consider the present application.
5. This Court has given thoughtful consideration. The present application is successive bail application filed after rejection of the earlier bail application that the same assailed before this Court by way of filing Criminal Misc. Application No.1340 of 2021, the same came to be withdrawn as not pressed on 11.10.2021. Prior to that earlier, bail application of the co-accused came to be considered either by the co- Page 3 of 6 Downloaded on : Mon Sep 25 20:30:49 IST 2023
NEUTRAL CITATION R/CR.A/1782/2023 ORDER DATED: 18/09/2023 undefined ordinate bench or by the learned sessions judge.
5.1 The Hon'ble Supreme Court has observed in the case of Ramesh Bhawan Rathod vs. Vishanbhai Hirabhai Makwana reported in AIR 2021 SC 2011 that "the parity while granting the bail must focus on the role of accused".
6. In view of above, question of parity does not arise as on 11.10.2021, also same circumstances were exist though the said application came to be withdrawn which is amount to dismiss. Thereafter, there is no change of circumstances. Hence, at the outset the present successive bail application is required to be dismissed.
7. So far as subsequent progress in the present case is concerned, 21 witnesses have been examined and also the case is based on circumstantial evidence. While granting bail, one of the criteria is interest of the prosecution is to tempering with evidence is an important aspect which is required to be considered.
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8. Herein in the present application, the applicant is facing charge of Sections 302, 143, 147, 148, 149, 201, 144, 34 and 120(B) of the Indian Penal Code, Sections 3(1)(r)(s), 3(2)(5), 3(2)(5-a) and 3(1)(g) of the Atrocities Act and Section 135(1) of the G. P. Act, in view of above, tempering the evidence, there is no case of vicarious liability and the common intention is there and at this stage, detailed examination of evidence is not permissible. 8.1 The Hon'ble Supreme Court has observed in the case of Ram Govind Upadhyay vs. Sudarshan reported in 2002 (3) SCC 598 that "the accused has right to make successive application for grant of bail, but while entertaining a subsequent bail application, it is the duty of Court to consider the reasons and grounds, which persuade to take a view different from the one taken in the earlier application". From the record, it appears that the applicant has inflicted the blows of knife to the deceased as a result of which the deceased received serious injuries and died and he has thrown the knife in Canal, thereby tried to disappear the evidence. Thus, the offence against the applicant is very serious in nature. Page 5 of 6 Downloaded on : Mon Sep 25 20:30:49 IST 2023
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9. This Court is not inclined to entertain present application. Rule discharged.
10. However, Trial is pending since 2019, learned Sessions Judge is directed to expedite Trial in the interest of justice.
(HASMUKH D. SUTHAR,J) NABILA Page 6 of 6 Downloaded on : Mon Sep 25 20:30:49 IST 2023