Gujarat High Court
Mohammad Zaid Mohammad Imran Shaikh vs State Of Gujarat on 10 February, 2025
NEUTRAL CITATION
R/CR.A/2754/2024 ORDER DATED: 10/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (REGULAR BAIL - AFTER CHARGESHEET) NO.
2754 of 2024
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MOHAMMAD ZAID MOHAMMAD IMRAN SHAIKH
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. SOEB R. BHOHARIA(2205) for the Appellant(s) No. 1
VALIMOHAMMED PATHAN(6383) for the Appellant(s) No. 1
MR JIGNESH L HAJARE(3994) for the Opponent(s)/Respondent(s) No. 2
MR HARDIK MEHTA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 10/02/2025
ORAL ORDER
1. Heard learned advocates for the respective parties.
2. Rule. Learned APP waives service of notice of Rule on behalf of respondent-State.
3. Present appeal is filed 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 06.11.2024 passed by the learned 5th Additional Sessions Judge, Ankleshwar in Criminal Misc. Application No. 1497 of 2024, whereby the learned Additional Sessions Judge rejected the application filed by the present appellant under Section 483 of the Bharatiya Nyaya Suraksha Sanhita, 2023 (for short "BNSS") seeking regular bail in connection with FIR being C.R.No.11199004240574 of 2024 registered with Ankleshwar Police Station, Bharuch, for the offences punishable under Sections 108 of BNS and under Sections 3(2)(v) of the Scheduled Castes and the Scheduled Page 1 of 7 Uploaded by KUMAR ALOK(HC01091) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:39:38 IST 2025 NEUTRAL CITATION R/CR.A/2754/2024 ORDER DATED: 10/02/2025 undefined Tribes (Prevention of Atrocities) Act.
4. Learned advocate for the appellant has submitted that the appellant is not involved in commission of offence as alleged in the FIR and therefore, looking to the role of the appellant and nature of the allegations, the appellant is required to be enlarged on regular bail by imposing suitable terms and conditions.
4.1 Learned advocate for the appellant has submitted that It is submitted that the present appellant has been falsely implicated in the offence. The appellant is the nephew of Accused No.1. Initially, he was not named in the FIR, and the complaint was filed belatedly, five days after the incident. Moreover, the statement of the complainant was recorded after a delay of 29 days, at which point the name of the present appellant surfaced. It is alleged that the appellant made a statement to the son of the complainant, claiming that his wife would become his aunt and that he would take care of him. Additionally, the appellant is accused of providing a SIM card in April-May, which he activated in his phone. Afterward, he is said to have sold the phone, and this act allegedly assisted Accused No.1 in committing the offence and destroying evidence. Furthermore, the appellant is accused of harbouring the accused. Charge-sheet is filed. Nothing is required to be recovered and discovered from the accused. Appellant is having no past antecedents. Therefore, no purpose would be served to keep him behind the bar for long time. He is ready and willing to abide by all the conditions imposed upon him.
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5. Learned advocate for the respondent No.2 placed on record the affidavit-in-reply filed on behalf of the original Complainant, which is taken on record.
5.1. On the other hand, the learned APP and the learned advocate appearing for the original complainant have vehemently opposed the present appeal. They have submitted that the present appellant provided a SIM card to the accused, which was later used in a mobile phone. Subsequently, the appellant is accused of destroying evidence and assisting the accused. It is also alleged that the appellant harboured the accused, facilitated the crime, and administered threats to the son of the complainant. Considering the aforementioned facts, the severity of the punishment, and the appellant's complicity in the offence, it is significant to note that three persons lost their lives. Initially, Accused No.1, who had an illicit relationship with the wife of the deceased, caused the deceased to kill his own son and subsequently commit suicide. The entire offence is said to have been orchestrated by Accused Raja, who is the uncle of the present appellant. If he released on bail, then possibility cannot be ruled out to tamper with the evidence. It appears that allegations are serious in nature affecting the society at large and looking to the facts as well as the allegations made against the appellant, no discretion would be required to be exercised.
6. While granting bail, the Court has to consider the involvement of the accused in the alleged offence, the jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case and the following factors are to be taken into consideration while considering an application for bail: (i) the nature of accusation and the severity of the punishment and the Page 3 of 7 Uploaded by KUMAR ALOK(HC01091) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:39:38 IST 2025 NEUTRAL CITATION R/CR.A/2754/2024 ORDER DATED: 10/02/2025 undefined nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses and threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations are required to be considered.
7. I have heard the learned advocates appearing on behalf of the respective parties and perused the investigation papers. In present case, the investigation is over and charge-sheet has been filed. Following aspects have been considered:
(i) appellant is arrested on 22.08.2024;
(ii) Commencement of trial will take its own time;
(iii) offence is not punishable with life or death;
(iv) nothing is required to be recovered and discovered from the appellant;
(v) no antecedent is reported against the appellant;
(vi) nothing reveals from the investigation papers that the present appellant has played any direct or active role for the commission of the offence and due to instigation and incitement on the part of the present appellant, the deceased has committed suicide.
Initially the appellant is not named in the FIR. Subsequently, FIR is registered belatedly after 5 days and, after 29 days, the statement of complainant is recorded, wherein his name is surfaced. The allegations against the Page 4 of 7 Uploaded by KUMAR ALOK(HC01091) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:39:38 IST 2025 NEUTRAL CITATION R/CR.A/2754/2024 ORDER DATED: 10/02/2025 undefined present appellant is that he has facilitated his uncle and after commission of offence and provided the sim-card and harboured the offender. Subsequently, he destroyed the evidence and sold out the mobile;
8. In view of the law laid down in the case of Mahendra Awase versus the State Of Madhya Pradesh reported in 2025 INSC 76, wherein the Hon'ble Apex Court has held that "Apex Court has, over the last several decades, repeatedly reiterated the higher threshold, mandated by law for Section 306 IPC [Now Section 108 read with Section 45 of the Bharatiya Nyaya Sanhita, 2023] to be attracted. They however seem to have followed more in the breach. Section 306 IPC appears to be casually and too readily resorted to by the police. While the persons involved in genuine cases where the threshold is met should not be spared, the provision should not be deployed against individuals, only to assuage the immediate feelings of the distraught family of the deceased. The conduct of the proposed accused and the deceased, their interactions and conversations preceding the unfortunate death of the deceased should be approached from a practical point of view and not divorced from day-to-day realities of life. Hyperboles employed in exchanges should not, without anything more, be glorified as an instigation to commit suicide. It is time the investigating agencies are sensitised to the law laid down by this Court under Section 306 so that persons are not subjected to the abuse of process of a totally untenable prosecution. The trial courts also should exercise great caution and circumspection and should not adopt a play it safe syndrome by mechanically framing charges, even if the investigating agencies in a given case have Page 5 of 7 Uploaded by KUMAR ALOK(HC01091) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:39:38 IST 2025 NEUTRAL CITATION R/CR.A/2754/2024 ORDER DATED: 10/02/2025 undefined shown utter disregard for the ingredients of Section 306."
8.1. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra vs. Central Bureau of Investigation reported in [2012]1 SCC 40 as well as in the case of Gudikanti Narasimhulu And Ors vs. Public Prosecutor, High Court of Andhra Pradesh reported in (1978)1 SCC 240. Obviously, the conclusion of trial will take time and keeping the accused behind the bars is nothing but amounts to pre-trial conviction and therefore, considering the celebrated principle of bail jurisprudence is that "bail is a rule and jail is exception" as well as the concept of personal liberty guaranteed under Article 21 of the Constitution of India, present application deserves consideration.
9. In the facts and circumstances of the case and considering the nature of the allegations made against the appellant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the appellant on regular bail. Hence, the present appeal is allowed. The appellant is ordered to be released on regular bail in connection with FIR being C.R.No.11199004240574 of 2024 registered with Ankleshwar Police Station, Bharuch, 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;
Page 6 of 7 Uploaded by KUMAR ALOK(HC01091) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:39:38 IST 2025NEUTRAL CITATION R/CR.A/2754/2024 ORDER DATED: 10/02/2025 undefined [c] surrender passport, if any, to the lower court within a week; [d] not leave State of Gujarat without prior permission of the Sessions Judge concerned;
[e] furnish the UIDAI Number, Contact Number/s, Passport Number (if he is having the passport), E-mail address and present address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence address as well as contact number without prior permission of Trial Court; [f] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;
10. The authorities will release the appellant 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 Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.
11. 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.
12. 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 appellant on bail.
13. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 7 of 7 Uploaded by KUMAR ALOK(HC01091) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:39:38 IST 2025