Gujarat High Court
Sherkhan @ Bhura Sattarkhan @ Dadhi ... vs State Of Gujarat on 28 April, 2025
NEUTRAL CITATION
R/CR.MA/6221/2025 CAV JUDGMENT DATED: 28/04/2025
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Reserved On : 21/04/2025
Pronounced On : 28/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 6221 of 2025
(FOR SUCCESSIVE REGULAR BAIL - AFTER CHARGESHEET)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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Approved for Reporting Yes No
- √
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SHERKHAN @ BHURA SATTARKHAN @ DADHI PATHAN
Versus
STATE OF GUJARAT
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Appearance:
MR IH SYED, Sr. Adv. with MR AMIT D SHAH(11232) for the
Applicant(s) No. 1
MS. SHRUTI PATHAK, LPP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. Rule. Learned APP waives service of notice of rule for respondent - State of Gujarat.
2. The present application, which is a successive bail application preferred by the applicant pursuant to the liberty granted by this Court while passing an order dated 07.02.2024 in Criminal Misc. Application No.878/2024, is filed under Section 439 of Criminal Procedure Code, 1973, for regular bail in connection with the FIR being C.R. No.11210055200624/2020 registered with Salabatpur Police Station, Surat for the offence Page 1 of 9 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 10:22:08 IST 2025 NEUTRAL CITATION R/CR.MA/6221/2025 CAV JUDGMENT DATED: 28/04/2025 undefined punishable under Sections 302, 307, 143, 147, 148, 149, 120(B), 269 and 188 of the Indian Penal Code, under Section 135 of the Gujarat Police Act and under Section 3 of the Epidemic Disease Act, 1897.
3. Heard learned Senior Counsel, Mr. I.H. Syed assisted by learned advocate, Mr. Amit Shah for the applicant and learned APP Ms. Shruti Pathak for the respondent - State of Gujarat.
4. Learned Senior Counsel, Mr. Syed submitted that the present application is a successive bail application preferred by the applicant after withdrawal of earlier bail application being Criminal Misc. Application No.878/2024, however, liberty was reserved to file fresh application if the trial does not conclude till march, 2024, therefore the present application is preferred as the trial has not been concluded and it is in progress. He submitted that the FIR has been filed against total 8 known and 2 unknown persons and pursuant to registration of the FIR, the investigation was commenced and ultimately at the end of conclusion, the chargesheet has been filed against total 8 accused persons, however out of those 8 accused persons, 6 accused persons have already been enlarged on bail either by this Hon'ble Court or by the learned Sessions Court concerned and the role attributed to the co- accused is identical one with the present applicant. He has produced on record the orders passed by this Hon'ble Court as well as the Page 2 of 9 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 10:22:08 IST 2025 NEUTRAL CITATION R/CR.MA/6221/2025 CAV JUDGMENT DATED: 28/04/2025 undefined learned Sessions Court concerned in case of the co-accused and referring to the order dated 19.01.2021 passed by the Coordinate Bench of this Court in case of Salauddin @ Kalu Sattarkhan Pathan, more particularly, the observation made by the Coordinate Bench of this Court while releasing him on bail, he submitted that the role attributed to the co-accused as per the chargesheet is to be part of the group armed with the weapon and giving indiscriminate blows to the witness and the deceased. He, therefore, submitted that the applicant is also one of the members of the mob and thus, identical role is attributed to him also. He, therefore, submitted that on the ground of parity, the applicant may also be granted bail.
5. Learned Senior Counsel, Mr. Syed submitted that at the time of submission of the chargesheet, total 37 witnesses have been cited as witnesses and, thereafter, the trial has commenced and the charge has been framed against the accused persons by the court concerned on 05.04.2024, however thereafter, there is no substantial progress in the trial. He submitted that the applicant is arrested in connection with the aforesaid FIR on 16.04.2020 and since then, he is in judicial custody and thus, more than five years have been passed and as stated above, there is no substantial progress in the trial, therefore for indefinite period, the applicant may not be kept behind the bar for no fault on the part of the applicant and he may not Page 3 of 9 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 10:22:08 IST 2025 NEUTRAL CITATION R/CR.MA/6221/2025 CAV JUDGMENT DATED: 28/04/2025 undefined be made to suffer incarceration for indefinite period at the pre-trial stage. He, therefore, submitted that denying the bail to the applicant would also violate the fundamental right under Article 21 of the Constitution of India.
6. Learned Senior Counsel submitted that in view of the number of decisions of the Hon'ble Supreme Court including recent decisions, bail is a rule and jail is exceptional. In support of the said submission, he has referred to following decisions, (1) the judgment of the Hon'ble Supreme Court in case of Tapas Kumar Palit Vs. State of Chhattisgarh, reported in 2025 INSC 222; (2) the judgment of the Hon'ble Supreme Court in case of Sangram Sadashiv Suryaavanshi Vs. State of Maharashtra, reported in 2024 INSC 899;
(3) the judgment of the Hon'ble High Court of Delhi in case of Tamir Ali Vs. Narcotics Control Bureau, reported in 2023 LasSuit (Del) 1825;
7. Referring to the aforesaid decisions of the Hon'ble Supreme Court, it is submitted that the case of the applicant is squarely covered by those decisions as in the said decisions, the Hon'ble Supreme Court has considered the liberty of the accused guaranteed under Article 21 of the Constitution of India as also period of incarceration and considered the case of the Page 4 of 9 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 10:22:08 IST 2025 NEUTRAL CITATION R/CR.MA/6221/2025 CAV JUDGMENT DATED: 28/04/2025 undefined accused concerned on bail. It is, therefore, urged that considering the nature of the offence, the period of incarceration spent by the applicant so far as also on the ground of parity, there being merit in this application, the applicant may be enlarged on regular bail by imposing suitable conditions.
8. Learned APP, Ms. Pathak appearing for the respondent - State of Gujarat has opposed the present application with a vehemence and submitted that in fact, this is a successive bail application preferred by the applicant after the withdrawal of earlier bail application, that too, without there being any chance of circumstance. She further submitted that except delay in trial and period of incarceration, there is no change of circumstance, therefore on that ground alone, the applicant may not be entitled for bail. She further submitted that there are antecedents reported against the applicant and from the papers of the chargesheet, the involvement of the applicant in the commission of crime is found out and he was actively participated in the commission of crime, therefore, no leniency may be shown upon him. It is, therefore, urged that considering the above facts, the present application being successive bail application may not be entertained.
9. Learned advocates appearing on behalf of the respective parties do not press for further Page 5 of 9 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 10:22:08 IST 2025 NEUTRAL CITATION R/CR.MA/6221/2025 CAV JUDGMENT DATED: 28/04/2025 undefined reasoned order.
10. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. It is found out from the record that the present application is a successive bail application preferred by the applicant after the withdrawal of earlier bail application being Criminal Misc. Application No.878/2024 by an order dated 07.02.2024. It is, however, required to be noted that at the time of withdrawal of said application, liberty was granted to file afresh if the trial does not conclude till March, 2025. I have considered the stage of trial, which clearly goes on to show that the charge has been framed on 05.04.2024 i.e. one year before and in the present case, at the time of submission of the chargesheet, the concerned Investigating Officer has cited 37 witnesses, therefore considering the number of witnesses and voluminous record, trial will take considerable time to conclude. I have considered the role attributed to the present applicant and the co- accused, who have been considered for bail by the Coordinate Bench of this Court as well as the learned Sessions Court concerned. I have also considered the order dated 19.01.2021 passed by the Coordinate Bench of this Court in case of Salauddin @ Kalu Sattarkhan Pathan, wherein it has Page 6 of 9 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 10:22:08 IST 2025 NEUTRAL CITATION R/CR.MA/6221/2025 CAV JUDGMENT DATED: 28/04/2025 undefined been specifically observed that the role of the said accused as per chargesheet is to be part of the group armed with the weapon and giving indiscriminate blows to the witness and the deceased, therefore, the role attributed to the present applicant is identically same to the said co-accused. Further, there are voluminous record and as stated above, there are 37 witnesses cited in the papers of the chargesheet, therefore, it would take considerable time to conclude the trial.
11. I have taken into consideration the decisions upon which reliance has been placed by learned Senior Counsel for the applicant as well as other recent decisions of the Hon'ble Supreme Court in the matter of regular bail as also successive bail application, wherein it has been categorically observed that "bail is the rule and refusal is an exception" and specific observations have been made with regard to the grant of bail. I have 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. Therefore in the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR as also considering the period of incarceration spent by Page 7 of 9 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 10:22:08 IST 2025 NEUTRAL CITATION R/CR.MA/6221/2025 CAV JUDGMENT DATED: 28/04/2025 undefined the applicant in jail, 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. The applicant is ordered to be released on regular bail in connection with the FIR being C.R. No.11210055200624/2020 registered with Salabatpur Police Station, Surat on executing a personal bond of Rs.25,000/- (Rupees Twenty Five 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 concerned court within a week;
[d] not leave the State of Gujarat without prior permission of the concerned court; [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;
Page 8 of 9 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 10:22:08 IST 2025NEUTRAL CITATION R/CR.MA/6221/2025 CAV JUDGMENT DATED: 28/04/2025 undefined [g] not enter into Surat district till conclusion of trial except for marking presence as also for attending court proceedings;
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 concerned 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. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 9 of 9 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 10:22:08 IST 2025