Gujarat High Court
Mukeshbhai Khodabhai Solanki (Mukesh @ ... vs State Of Gujarat on 11 April, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
R/CR.MA/2016/2025 ORDER DATED: 11/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 2016 of 2025
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MUKESHBHAI KHODABHAI SOLANKI (MUKESH @ KANO @ KULDIP
KHODABHAI SOLANKI)
Versus
STATE OF GUJARAT
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Appearance:
MR.ALOK M THAKKAR(6510) for the Applicant(s) No. 1
ARBAAZKHAN A PATHAN (9532) for the Respondent(s) No. 1
MR. JAL SOLI UNWALA, SENIOR ADVOCATE with MOHAMADZAID I
SAIYED(8411) for the Respondent(s) No. 1
MR.L.B.DABHI, APP, for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 11/04/2025
ORAL ORDER
1. This application is a successive regular bail application filed by the applicant under Section 483 of Bhartiya Nagarik Suraksha Sanhita, 2023 in connection with FIR being C.R.No.I-184 of 2019 registered with Rajkot "B" Division Police Station, Rajkot for the offenses punishable under Sections 302, 323, 504 and 120B of the Indian Penal Code and under Section 135(1) of the Gujarat Police Act. The application is filed in view of the liberty reserved in favour of the applicant to file a fresh application after period of three months in the order dated 16.08.2024 passed by this Court in Criminal Misc. Application No.14281 of 2023.
2. The main argument of the learned advocate for the applicant is claiming parity, as according to the learned advocate, all the Page 1 of 11 Uploaded by SIDDHARTH(HC01065) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:14 IST 2025 NEUTRAL CITATION R/CR.MA/2016/2025 ORDER DATED: 11/04/2025 undefined accused persons, who have been charge-sheeted alongwith the applicant have been enlarged on regular bail, whereas it is only the applicant who is in jail and that too since year 2019.
3. The another argument advanced by the learned advocate is questioning the test identification of the applicant. According to learned advocate, before the test identification was carried out in the form of Panchnama, the applicant and other accused persons were paraded in public, as a result of which they were easily identified. It is also submitted that the identity of the applicant is also a mistaken identity as he is referred to in the FIR as Kuldeep. The name of the applicant is not Kuldeep, but Mukesh @ Kano. It is further submitted that on account of this mistaken identity, the prosecution cannot pinpoint that it was only the applicant who had inflicted the injury and no other person is responsible for inflicting such injury.
4. Learned Additional Public Prosecutor opposing the grant of the application submitted that after the withdrawal of the previous bail application, there is no change in the circumstances and the bail order passed in favour of other co-accused persons were already passed prior to the withdrawal of the previous bail application. He further submits that the test identification parade is questioned by the applicant only for the sake of argument, otherwise it is a case of eye witness and the test identification was Page 2 of 11 Uploaded by SIDDHARTH(HC01065) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:14 IST 2025 NEUTRAL CITATION R/CR.MA/2016/2025 ORDER DATED: 11/04/2025 undefined carried out by the eye-witnesses, who have in their further statement, categorically identified the applicant only as the assailant. Learned APP has also submitted that the role attributed to the applicant is quite different than that of the present applicant as present applicant has been attributed with the role of carrying out the actual assault on the deceased. It is lastly submitted that it is a case where there are three eye-witnesses and other circumstantial evidence in the form of recovery of knife from the applicant.
5. Learned Senior Advocate on behalf of the original complainant has referred to the affidavit filed by the respondent No.2 herein-the original complainant. It is submitted that after the previous withdrawal of the bail application, at the instance of the accused person and particularly the applicant herein that the trial has been prolonged from time to time, thereby delaying the trial. It is submitted that out of the 54 witnesses mentioned in the charge- sheet, four witnesses have already been examined, therefore the trial is in progress and therefore as is held by the Apex Court in case of X versus State of Rajasthan and another reported in 2024 INSC 909 where in Para-14, the Court has observed that in serious offences, once the trial commences and witnesses are being examined, the trial Court or the High Court should be loath in entertaining the bail applications of the accused. Learned Senior Page 3 of 11 Uploaded by SIDDHARTH(HC01065) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:14 IST 2025 NEUTRAL CITATION R/CR.MA/2016/2025 ORDER DATED: 11/04/2025 undefined Advocate has also drawn attention of this Court to Rojkam of the trial to indicate that on several occasions, the trial has been prolonged on account of the frequent adjournments. Learned senior advocate also submitted that the applicant cannot get the benefit of parity as the role attributed to the co-accused, who have been enlarged on regular bail is only for either holding the deceased victim or to be there along with the applicant whereas, the actual assault by knife was carried out by the applicant
6. In rejoinder, learned advocate for the applicant has submitted that the applicant has been in incarceration since 2019 and trial is likely to consume more time and therefore, pending the trial, the applicant be enlarged on regular bail.
7. The Court has considered the submissions of learned advocates for the parties and perused the documents placed on record. It appears to be the case, where there was an altercation previously with regard to the applying of radium strips as per the requirement of RTO, accused No.1-Amrishbhai, alias Kanubhai, the present applicant and accused No.3-Mansukhbhai, went to R.T.O. office in the noon time on 15.11.2019 for passing/fitness of the truck bearing No. GJ-3-AT-3986. When the complainant - Azazbhai, and the deceased - Sahilbhai, went to affix the radium on the truck, the accused said that we want to have passing/fitness without radium. Therefore the complainant - Azazbhai, and the Page 4 of 11 Uploaded by SIDDHARTH(HC01065) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:14 IST 2025 NEUTRAL CITATION R/CR.MA/2016/2025 ORDER DATED: 11/04/2025 undefined deceased - Sahilbhai, told that passing can not be done without radium. When the RTO officer, present at that time, was drawn his attention to this matter, the accused got excited and they quarreled with the complainant and the deceased-Sahilbhai and affixed radium perforce and left the R.T.O. office. Keeping enmity for the said matter, all the accused hatched a conspiracy. As a part of the conspiracy, the accused No. 1- Amrishbhai, alias Kanubhai, the present applicant and the accused No.3- Mansukhbhai, all the three accused came to the R.T.O. office on 15.11.2019 around 03:40 pm with VITARA BREZZA car, bearing registration No. GJ- 3-KH-7585. They made raiki in the R.T.O office about the place where the deceased-Sahilbhai, is exactly present, kept in contact via mobile phone with the other accused and kept a watch on the activities of the deceased-Sahilbhai. During, the other accused, who were in continuous contact with them via mobile phone, accused No. 4-Rahulbhai, accused No. 5 - Nitinbhai and accused No. 6-Dharmeshbhai, all the three accused came to the R.T.O. office in a BULLET bike, bearing registration No. GJ-3-KS-0907, in a triple riding around 03:45 pm. The accused No. 1 - Amrishbhai, alias Kanubhai, the present applicant, and the accused No 3- Mansukhbhai, all the three accused, who were present there, had already obtained the exact location of the deceased-Sahilbhai. The accused No.3-Mansukhbhai, accused No. 4 - Rahulbhai, accused Page 5 of 11 Uploaded by SIDDHARTH(HC01065) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:14 IST 2025 NEUTRAL CITATION R/CR.MA/2016/2025 ORDER DATED: 11/04/2025 undefined No. 5 - Nitinbhai and accused No. 6 - Dharmeshbhai, had beaten the deceased-Sahilbhai, the complainant-Azazbhai, the witnesses- Jabirbhai, Yunushbhai and Farukbhai with a wooden stick. During this, accused No.6- Dharmeshbhai put down the stick, caught hold the deceased - Sahilbhai, in collusion with the accused No. 1- Amrishbhai, alias Kanubhai. When, as a part of the pre-planned conspiracy, accused No. 1-Amrishbhai, alias Kanubhai, provoked the present applicant, by calling him as 'Kuldip', the applicant caused fatal injuries to the deceased-Sahilbhai, by blowing with the knife, he had, with one blow on his chest part, two blows on his forehead part and one blow on the thumb of left hand. After killing Sahil, the accused-Rahulbhai went out from the R.T.O. office with BULLET bike bearing No. GJ-3-KS-0907 around 03:50 pm and other accused ran away in a BREZZA car, bearing No. GJ-3-KH- 7585, in which they came.
8. Thus, from the charge-sheet, the main role of assault by knife is attributed to the present applicant. The postmortem report alongwith the charge-sheet papers also indicate that the cause of death is on account of the injuries sustained by the deceased at the hand of the assault by the applicant. Over and above, it is a case of eye-witnesses, who themselves are also injured in the incident. The statements recorded of these eyewitnesses are used and they have clearly stated in the statement about the assault Page 6 of 11 Uploaded by SIDDHARTH(HC01065) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:14 IST 2025 NEUTRAL CITATION R/CR.MA/2016/2025 ORDER DATED: 11/04/2025 undefined carried out by the applicant. Though in their statement, the name used is of Kuldip, however, upon the test identification parade being carried out, these very eyewitnesses have identified the applicant to be the person who inflicted the fatal blow, this fact is recorded in the statement recorded after the T.I. parade. Particularly statement of Ajaz, who is also the informant and has participated in identification parade carried out on 04.12.2019 before the Executive Magistrate, Rajkot City, page No.63 of the charge-sheet papers is the test identification panchama, wherein three eyewitnesses have independently identified the applicant as the assailant.
9. The perusal of statement dated 16.11.2019 of Ajaz and statement dated 05.12.2019 after the test identification parade of Ajaz is sufficient to establish the identity of the applicant as an assailant. The Court also perused the statement of Yunus during the course of investigation dated 16.11. 2019 and also after the test identification on 05.12.2019.
10. The Court has also perused the panchama dated 27.11.2019, by which the weapon of assault knife was recovered from the present applicant.
11. On the issue of parity claimed by the applicant, the Court is of the view that the role of the applicant is quite different than that Page 7 of 11 Uploaded by SIDDHARTH(HC01065) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:14 IST 2025 NEUTRAL CITATION R/CR.MA/2016/2025 ORDER DATED: 11/04/2025 undefined of the accused, who have been enlarged on bail as it is the applicant who has directly assaulted the victim which has resulted into death. Therefore, referred to the decision of the Apex Court in case of Tarun Kumar v/s. Assistant Director, Directorate of Enforcement, reported in, AIR 2024 SC 169, where in 19 and 20 has held as under:-
"19. It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision.
20. It is also difficult to countenance the submission of learned Counsel Mr. Luthra that the investigation qua the appellant is complete and the trial of the cases likely to take long time. According to him the appellant ought not to be incarcerated indefinitely merely because the investigation is kept open with regard to the other accused. In this regard, it may be noted that the appellant has not been able to overcome the threshold stipulations contemplated in Section 45 namely he has failed to prima facie prove that he is not guilty of the alleged offence and is not likely to commit any offence while on bail. It cannot be gainsaid that the burden of Page 8 of 11 Uploaded by SIDDHARTH(HC01065) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:14 IST 2025 NEUTRAL CITATION R/CR.MA/2016/2025 ORDER DATED: 11/04/2025 undefined proof lies on the accused for the purpose of the condition set out in the Section 45 that he is not guilty of such offence. Of course, such discharge of burden could be on the probabilities, nonetheless in the instant case there being sufficient material on record adduced by the respondent showing the thick involvement of the appellant in the alleged offence of money laundering under Section 3 of the said Act, the Court is not inclined to grant bail to the appellant."
12. Following the aforesaid judgment, the Hon'ble Supreme Court again in case of Sabita Paul v/s. State of West Bengal and another, in Criminal Appeal No.1772 of 2024, has held in para 9 as under:-
"9. Grant of bail based on parity is not a claim of right. The same is well- established. While applying this principle of parity, the Court is required, as was recently observed in Tarun Kumar v. Assistant Director Directorate of Enforcement, the Court is required to focus on the role attached to the accused whose application is under consideration. In the facts, the prime accused who is alleged to have initially conducted the blackmail, whom the complainant is said to have paid 'hush-money', has been granted bail and the role played by the instant appellant was only to further the alleged acts of her son. She has not acted independently, to further aggravate the situation."
13. By the aforesaid order, Hon'ble Supreme Court confirmed the grant of anticipatory bail. However, by referring to the decision in case of Tarun Kumar (Supra), the Court in para 9 has held that the Court is required to focus on the role attributed to the accused, whose application is under consideration.
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14. The Court has gone through the judgment and order of the trial Court dated 09.12.2020 so also the trial court has referred to the fact that the accused is having antecedents and submission made by learned APP therein that after the offense, the accused had absconded and after considerable period he was apprehended and therefore, the Court had rejected the bail application considering the applicant to be a flight risk.
15. On behalf of the applicant, though it is argued that the identification of the applicant is doubtful as he was paraded in public, but there is nothing to substantiate the oral argument. Neither in the investigation case papers, this aspect is coming nor even the applicant has made any pleadings in his bail application or represented before any forum against such so called parading. Only argument that the video of parade was doing rounds on social media. With such unconfirmed nature of submission, the Court is not ready to accept the arguments in the face of what has come on record with regard to identification of the applicant.
16. The Court has also taken into consideration the submissions made by referring to the Rojkam that since a substantial period, the trial has been adjourned at the request of parties including the applicant and therefore, the delay in trial is to some extent attributable to the applicant himself.
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17. In view of the above, no case is made out for exercising of discretion in favour of the applicant for the grant of regular bail in connection with the aforesaid C.R. Hence, the application is hereby dismissed. Rule is discharged.
(A.Y. KOGJE, J) SIDDHARTH Page 11 of 11 Uploaded by SIDDHARTH(HC01065) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:14 IST 2025