Gujarat High Court
Montu @ Namdar Sureshchandra Gandhi vs State Of Gujarat on 17 July, 2025
NEUTRAL CITATION
R/CR.MA/7049/2025 ORDER DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO.7049 of 2025
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MONTU @ NAMDAR SURESHCHANDRA GANDHI
Versus
STATE OF GUJARAT
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Appearance:
MR JAL UNWALA, SENIOR ADVOCATE WITH MR ADIT V. PANCHOLI
WITH MS TEJAL A. VASHI(2704) for the Applicant(s) No.1
MR J.M. PANCHAL, SENIOR ADVOCATE WITH MR EKANT G
AHUJA(5323) for the Original Complaiant.
MS MONALI BHATT, APP for the Respondent(s) No.1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 17/07/2025
ORAL ORDER
1. The applicant has filed this application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for enlarging the applicant on regular bail in connection with FIR being CR. No.11191005220281 of 2022 registered with Khadia Police Station, Ahmedabad for the offences punishable under Sections 143, 144, 147, 148, 149, 302, 120(b), 201 of Indian Penal Code and Section 135(1) of Gujarat Police Act, 1951.
2. Heard learned Senior Advocate Mr. Jal Unwala with learned Advocate Mr. Adit V. Pancholi with learned Advocate Ms. Tejal A. Vashi appearing for the applicant. He submitted that the applicant has been arrested in connection with the present offence on 09.06.2022. The investigation is over and charge-
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sheet has been filed. He submitted that on 09.06.2022, the applicant came to be arrested by Police Sub-inspector of the D.C.B. Police Station, Ahmedabad city in connection with the present offence. However, though he was required to be produced before the concerned Court within 24 hours, the applicant was produced before the concerned Court on 11.06.2022 at 17:45 pm. Thus, the Investigating agency has committed breach of the provision of Article 22(2) of the Constitution of India and this being a mandatory provision, the breach of which, would entitle the present applicant to be enlarged on bail at once as the arrest of the present applicant becomes illegal in this scenario. He further submitted that in view of the decision of this Court dated 21.09.2020 passed in Special Criminal Application No.4023 of 2020, the person who was arrested in connection with an offence, was not required to be subjected to RTPCR test for detection of Corona and only Rapid Antigen Test was required to be performed and therefore, it is not open for Prosecution to argue that the time was consumed for conducting of RTPCR test upon the present applicant. It is further contended that the applicant is ready and willing to abide by all the conditions that may be imposed by this Court if released on bail. Learned Senior Advocate has sought to rely upon the following judgments in support of his submissions :-
1. Judgment delivered by the Hon'ble Apex Court in case of Vihaan Kumar Versus State of Haryana & Anr. reported in 2025 LiveLaw (SC) 169 and;
2. Judgment delivered by the Hon'ble Apex Court in case of Page 2 of 9 Uploaded by RAVI SATISHKUMAR OZA(HCW0111) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:25:46 IST 2025 NEUTRAL CITATION R/CR.MA/7049/2025 ORDER DATED: 17/07/2025 undefined Directorate of Enforcement Versus Subhash Sharma reported in 2025 LiveLaw (SC) 137.
3. Though there are several grounds raised in the petition by the applicant, learned Senior Advocate appearing for the applicant has canvassed only one ground during the course of his arguments.
4. Learned APP has opposed the present application contending that the trial of the offence is on the verge of completion and only five witnesses are now required to be examined by the Prosecution in trial. She further submitted that the applicant is a hardcore criminal and has a series antecedents. She, therefore, submitted that looking to the nature of offence, this Court may not exercise the discretion in favour of the applicant and the application may be dismissed.
5. Learned Senior Advocate Mr. J.M. Panchal appearing with learned Advocate Mr. Ekant G. Ahuja for the complainant has opposed the present application contending that there is no breach of the provision of Article 22(2) of the Constitution of India by the prosecuting agency. On 09.06.2022, the applicant was arrested under the provision of Section 41(1)(ba) of Criminal Procedure Code. The said arrest was not in connection with the present offence.
The applicant was arrested in connection with the present offence on 10.06.2022 at around 19:30 hours and was produced before the concerned Court on 11.06.2022 at around 17:45 hours. Thus, the applicant was duly produced before the concerned Court within the period of 24 hours of his arrest Page 3 of 9 Uploaded by RAVI SATISHKUMAR OZA(HCW0111) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:25:46 IST 2025 NEUTRAL CITATION R/CR.MA/7049/2025 ORDER DATED: 17/07/2025 undefined and therefore, no mandatory provision as alleged, has been committed breach of. He further submitted that previously the applicant had absconded on two occasions. The applicant is hardcore criminal and the trial of the offence is on the verge of completion. He, therefore, submitted to dismiss the present application.
6. Heard learned Advocates for the parties and perused the record. It is the case of the applicant that though he was arrested in connection with the present offence on 09.06.2022, he was produced before the concerned Court on 11.06.2022 i.e. after the expiry of statutory period of 24 hours of his arrest and therefore, the arrest of the applicant becomes illegal in view of the violation of the mandatory provision of Article 22(2) of the Constitution of India. For consideration of this argument, certain facts emerging from the record are required to be taken note of. On 08.06.2022, the offence being CR. No.11191005220281 of 2022 came to be registered against the applicant as well as other co-accused for offence punishable under Section 143, 144, 147, 148, 149, 302 and 120(b) of IPC and Section 135(1) of G.P. Act with Khadia Police Station, Ahmedabad city. On the very same day, the investigation of the offence was taken over by the Police Inspector of the Khadia Police Station, Ahmedabad city. On 09.06.2022, information was received by the Police Sub- inspector of D.C.B. Police Station that the applicant was going to pass through the Ring Road with his Isuzu car bearing registration No.GJ27DB7250. It is pertinent to note that the offence in question had taken place between 16:30 Page 4 of 9 Uploaded by RAVI SATISHKUMAR OZA(HCW0111) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:25:46 IST 2025 NEUTRAL CITATION R/CR.MA/7049/2025 ORDER DATED: 17/07/2025 undefined hours to 20:00 hours on 08.06.2022 and the FIR in question came to be registered at around 20:30 hours on 08.06.2022. The applicant was on the run after commission of the present offence. Upon receipt of the information by the D.C.B. Police Station, a watch was organized and upon seeing the car mentioned in the information approaching, the same was intercepted and the applicant was found present in the said car. It is required to be noted at this stage that the Police Sub-inspector of D.C.B. Police Station who arrested the applicant on 09.06.2022, was not the Investigating Officer of the present offence. However since there was a credible information about the applicant having committed the present offence, the applicant was arrested under the provision of Section 41 (1)(ba) of Cr.P.C. The arrest of the present applicant was effected at around 18:15 hours on 09.06.2022. The Arrest Memo of the present applicant was drawn at 19:00 hours and entry in this regard was made in the Station Dairy of the D.C.B. Police Station. On the next day i.e. on 10.06.2022 at around 11:35 a.m., the custody of the present applicant was handed over to the Investigating Officer of the present offence. It is required to be noted at this stage that after the custody of the applicant handed over to Investigating Officer of the present offence, on 10.06.2022 itself, the Investigating Officer had submitted an application to the concerned Court seeking permission to handcuff the present applicant as he was a hardcore criminal and was required to be taken to different places and there was an apprehension of the applicant escaping from the Police custody. The said Page 5 of 9 Uploaded by RAVI SATISHKUMAR OZA(HCW0111) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:25:46 IST 2025 NEUTRAL CITATION R/CR.MA/7049/2025 ORDER DATED: 17/07/2025 undefined application came to be allowed by the concerned Court. On 10.06.2022 at around 06:06 p.m., the applicant was referred to V.S. Hospital for Corona Test and after receipt of the report of the present applicant, he was arrested in connection with the present offence on 19:30 hours and Arrest Memo in that regard had also been drawn which had also been signed by the present applicant, so also by his wife. Thereafter, on 11.06.2022 at around 17:45 p.m., the applicant was produced before the Court by the Investigating Officer and an application for his Police Remand was also submitted. At the time of his production, the applicant submitted two notes to the learned Court wherein in one note, the applicant had expressed his consent for him being remanded for Police custody whereas in the other note, a request made for direction to the Investigating authority to comply with the direction of the Hon'ble Apex Court given in case of D.K. Basu versus State of West Bengal reported in AIR 1997 SC 610. The applicant was therefore, remanded to Police custody till 11:00 a.m. of 15.06.2022. It will not be out of context to note here that neither the applicant nor prosecution had brought the fact of the applicant having consented for his police remand, to the notice of this court. Thereafter, on 15.06.2022, the applicant was again produced before the concerned Court upon expiry of the period of Police Remand. On none of these occasions, the applicant had raised any objection with regard to his arrest being illegal for being violative of the provision of Article 22(2) of the Constitution of India. On the contrary, as noted hereinabove, the applicant had given his consent for Page 6 of 9 Uploaded by RAVI SATISHKUMAR OZA(HCW0111) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:25:46 IST 2025 NEUTRAL CITATION R/CR.MA/7049/2025 ORDER DATED: 17/07/2025 undefined remanding him to the Police custody which indicates that the applicant had accepted his arrest to be legal. It is also required to be noted that in the application for Police remand, the fact that the applicant was arrested on 09.06.2022 by D.C.B. Police Station under Section 41 (1)(ba) of Cr.P.C., had been duly mentioned and the learned Court had also perused the Case Dairy which was produced before it by the Investigating Officer and the learned Court below after being satisfied about the legitimacy of the arrest of the applicant, had authorized his arrest and had ordered him to be remanded to Police custody. As per the law laid down by the Hon'ble Apex Court in case of Arnesh Kumar v. State of Bihar reported in (2014) 8 Supreme Court Cases 273, duty is cast upon the Magistrate to verify whether the arrest of the accused has been effected lawfully or not.
7. It is the case of the Prosecution that on 09.06.2022, the applicant was arrested by the D.C.B. Police Station under the provision of Section 41(1)(ba) of Cr.P.C. and therefore, it cannot be termed as an arrest in connection with the present offence. On the contrary, it is sought to be argued on behalf of the applicant that in all the documents pertaining to the arrest of the present applicant on 09.06.2022, the number of the present FIR has been referred to and therefore, the same would invariably be the arrest in connection with the present offence. The provision of Section 41(1)(ba) of Cr.P.C. authorizes the Police Officer to arrest a person without warrant if there is a credible information against him for having committed a cognizable offence punishable Page 7 of 9 Uploaded by RAVI SATISHKUMAR OZA(HCW0111) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:25:46 IST 2025 NEUTRAL CITATION R/CR.MA/7049/2025 ORDER DATED: 17/07/2025 undefined with imprisonment for a term which may extend to more than Seven year or with death sentence. Before the arrest of the present applicant on 09.06.2022, the present FIR was already registered against him and therefore, there was a credible information in the form of the present FIR against the present applicant for having committed the offence punishable with death sentence. It was in this regard that the reference of the present FIR was given in the documents prepared with regard to the arrest of the present applicant on 09.06.2022. Merely because the reference of the present FIR had been made in those documents, it cannot be said that the arrest of the present applicant 09.06.2022 was in connection with the present FIR.
8. At the request of the repetition, it is required to be observed that at no stage prior to present application, the applicant had raised this ground before learned Court before whom he was produced. This ground has been raised by the present applicant for the very first time at the fag end of the trial when only few witnesses remain to be examined during the course of trial. The applicant therefore, cannot be allowed to raise these grounds at such belated stage that too when he had consented for his Police Remand at the time of his production before the concerned Court.
9. The conduct on the part of the present applicant after commission of the offence is also required to be taken note of. As noted earlier, after commission of the offence on 08.06.2022, the applicant was on the run and was apprehended by Police on 09.06.2022. The record further indicates that the Page 8 of 9 Uploaded by RAVI SATISHKUMAR OZA(HCW0111) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:25:46 IST 2025 NEUTRAL CITATION R/CR.MA/7049/2025 ORDER DATED: 17/07/2025 undefined applicant herein had managed to escape from the Police custody on 20.06.2024 and a separate offence was registered against him at a Aslali Police Station, Ahmedabad and the applicant could be apprehended after a period of one month thereafter. Thereafter, the applicant was ordered to be enlarged on temporary bail vide Order dated 11.06.2023 and thereafter, the applicant had absconded for a period of Three months. Thus, there are all chances that if released on bail, the applicant would again abscond which would affect the trial which is otherwise on the verge of completion. The applicant is a hardcore criminal and there are several other antecedents registered against him. Having regard to the aforesaid aspects, no case is made out in favour of the present applicant and hence, the present application is dismissed.
(M. R. MENGDEY,J) RAVI OZA Page 9 of 9 Uploaded by RAVI SATISHKUMAR OZA(HCW0111) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:25:46 IST 2025