Jaydipbhai Balubhai Choudhary vs State Of Gujarat

Gujarat High Court

Jaydipbhai Balubhai Choudhary vs State Of Gujarat on 30 January, 2025

                                                                                                                 NEUTRAL CITATION




                             R/CR.MA/25779/2024                                    ORDER DATED: 30/01/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                              R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
                                          CHARGESHEET) NO. 25779 of 2024
                       ==========================================================
                                                  JAYDIPBHAI BALUBHAI CHOUDHARY
                                                               Versus
                                                         STATE OF GUJARAT
                       ==========================================================
                       Appearance:
                       MR HARSHIT TOLIA, SENIOR ADVOCATE WITH
                       DHRUV TOLIYA(9249) for the Applicant(s) No. 1
                       MR BHAVESH D HAJARE(5515) for the Respondent(s) No. 2
                       MR VIRAT G POPAT(3710), Special Public Prosecutor
                       for the Respondent(s) No. 1
                       MR NARENDRASINH JADEJA, ADVOCATE for the Respondent(s) No. 2
                       ==========================================================
                          CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
                                           Date : 30/01/2025
                                            ORAL ORDER

1. Rule. Learned Special PP Mr.Virat Popat waives service of rule for the respondent-State and learned advocate Mr.Narendrasinh Jadeja waives service of rule for the original complainant.

2. The present application is filed under Section 483 of the Bhartiya Nagrik Suraksha Sanhit, 2023, for regular bail in connection with FIR being C.R.NO.11208053240496 of 2024 registered with Rajkot Taluka Police Station, Rajkot for the offences punishable under Sections 36, 304, 308, 337, 338, 465, 466, 471, 474, 201, 120(B) and 114 of the Indian Penal Code, 1860.

3. Learned Senior Advocate appearing for the applicant has submitted that the applicant herein was transferred as an Assistant Engineer to Ward No.10 on 15.03.2024. The allegation against the present applicant is to the effect that he had received an application for regularization of the unauthorized Page 1 of 7 Uploaded by GIRISH K PARMAR(HC00954) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:55:12 IST 2025 NEUTRAL CITATION R/CR.MA/25779/2024 ORDER DATED: 30/01/2025 undefined construction of the game zone. Even if it is accepted for the sake of argument that the application, which was submitted, was not maintainable, it was the duty on the part of the present applicant to receive such application as and when it is submitted.

3.1 Learned Senior Advocate appearing for the applicant has submitted that in view of provisions of Gujarat Regulation of Unauthorized Development Act, 2022 (herein after referred to as the "GRUDA") when any such application is submitted, the proceedings as regard the removal of illegal construction under Section 260 of the Gujarat Provincial Municipal Corporation Act would get suspended till the final outcome of such application, and therefore, there was no question on the part of the applicant taking any action in this regard.

3.2 Learned Senior Advocate appearing for the applicant has submitted that the predecessors of the present applicant had been instructed by the higher officials that the demolition of the construction in question would be undertaken at the time of demolition drive, and therefore, there was no question of the applicant taking any action for removal of such construction. After the application for regularization of the construction was received by the applicant, he had made a site visit and merely because the site visit was made by the applicant, he cannot be made responsible for the incident of fire. The applicant can be held responsible at the best for dereliction of duty. No knowledge or intention, as required under Section 299 of the IPC can be attributed to the present applicant, and therefore, the offence Page 2 of 7 Uploaded by GIRISH K PARMAR(HC00954) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:55:12 IST 2025 NEUTRAL CITATION R/CR.MA/25779/2024 ORDER DATED: 30/01/2025 undefined punishable under Section 304 of the IPC cannot be said to have been made out against him.

3.3 Learned Senior Advocate has submitted that the applicant has been arrested in connection with the present offence on 15.06.2024 and since then he is in custody. There are 365 witnesses cited by the prosecution in the charge-sheet, and therefore, there is no likelihood of the trial of the offence concluding in the near future. He, therefore, submitted to allow the present application and enlarge the present applicant on bail subject to suitable conditions.

4. Learned Senior Advocate appearing for the applicant has submitted that has relied upon the following judgments:-

1. Girishbhai Maganlal Pandya Vs. State of Gujarat reported in (2016) 1 GLH 126.

2. Nitinchandra Somnath Raval Vs. State of Gujarat & Ors. reported in (2019) 14 SCC 676.

3. Munneshbhai Indrajitlal Choksi Vs. State of Gujarat & Anr. reported in 2015 SCC Online Guj 4744.

4. Arunlal Nivalji More Vs. State of Maharashtra reported in (2006) 12 SCC 613.

5. Dipakbhai Ishwarbhai Naik Vs. State of Gujarat passed in Criminal Misc. Application No.18105 of 2019.

NEUTRAL CITATION R/CR.MA/25779/2024 ORDER DATED: 30/01/2025 undefined

5. Learned Special Public Prosecutor has opposed the present application, inter alia, contending that the applicant had been inducted as an Assistant Engineer in Ward No.10 in the month of March-2024. The applicant herein had forced one of the witnesses to put his back dated signature on a document to show that an application for regularization of unauthorized construction of the game zone had been duly processed and a query had been raised in that regard. The applicant herein had also visited the place, and therefore, had a fair knowledge that the construction in question was illegal and it was in the knowledge of the applicant that an order had already been passed for removal of the said construction and despite the same, no action whatsoever had been taken by him for removal of the construction in question.

5.1 Learned Special Public Prosecutor has submitted that it is not correct on the part of the applicant to contend that once an application for regularization of an unauthorized construction was submitted, the action for demolition of the construction could not be taken under the provisions of GRUDA. The provision of Section 5 of the GRUDA requires a notice to be issued with regard to illegal construction prior to 30.09.2022 and in present case, no such notice having been issued prior to 30.09.2022, mere submission of an application for regularization of construction would not operate as an automatic stay against the action for demolition. He, therefore, submitted to dismiss the present application.

6. Learned advocate Mr.Narendrasinh Jadeja appearing for Page 4 of 7 Uploaded by GIRISH K PARMAR(HC00954) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:55:12 IST 2025 NEUTRAL CITATION R/CR.MA/25779/2024 ORDER DATED: 30/01/2025 undefined the original complainant has opposed the present application, inter alia, contending that the act on the part of the present applicant making the witness Nirav Varu to put his back dated signature upon a document, amounts to forgery. The record of Municipal Corporation can be said to be a valuable security under Section 30 of the IPC, and therefore, the offence of forgery is clearly made out against him. He, therefore, submitted to dismiss the present application.

7. Heard learned advocates for the parties and perused the material available on record. In the present case, the investigation is over and charge-sheet has been filed. The applicant herein was working as an Assistant Engineer with Rajkot Municipal Corporation and on 15.03.2024; he was transferred to Ward No.10 in which the game zone in question was situated. It is the case of prosecution against the applicant that he had manipulated the record to show an application for regularization of construction having been processed. It appears from the record that the act alleged on the part of present applicant was committed by him upon the instructions of co- accused Mansukh Sagathiya, who was his superior officer. It is also alleged that the applicant had taken no action for removal of illegal construction. However, from the material available on record, it appears that the predecessors of the applicant had received instructions to the contrary in this regard.

8. This Court has 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.

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9. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant 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 applicant on regular bail.

10. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R.NO.11208053240496 of 2024 registered with Rajkot Taluka Police Station, Rajkot, on executing a personal bond of Rs.10,000/- (Rupees Ten 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 injurious to the interest of the prosecution & shall not obstruct or hamper the police investigation and shall not to play mischief with the evidence collected or yet to be collected by the police;

(c) surrender passport, if any, to the Trial Court within a week;

(d) not leave the State of Gujarat without prior permission of the Trial Court concerned;

(e) mark presence before the concerned Police Station once in a month for a period of six months between 11.00 a.m. and 2.00 p.m.;

(f) furnish the 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 without prior permission of Trial Court;

NEUTRAL CITATION R/CR.MA/25779/2024 ORDER DATED: 30/01/2025 undefined

11. 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 Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.

12. 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.

13. 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.

14. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

14. After pronouncement of the order, the learned Special Public Prosecutor has requested to stay the order granted to the applicant. However, the said requested cannot be acceded to.

Hence, rejected.

(M. R. MENGDEY,J) GIRISH Page 7 of 7 Uploaded by GIRISH K PARMAR(HC00954) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 04:55:12 IST 2025