Ronakbhai Nathabhai Vadher vs State Of Gujarat
2021 Latest Caselaw 2642 Guj

              R/CR.MA/16592/2020                           ORDER




                IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                R/CRIMINALMISC.APPLICATIONNO. 16592of 2020

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                        RONAKBHAI NATHABHAI VADHER
                                   Versus
                            STATE OF GUJARAT
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Appearance:
MR K S CHANDRANI(6674)for the Applicant(s)No. 1
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR (2) for the Respondent(s)No. 1
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 CORAM: HONOURABLE MS. JUSTICE GITA GOPI

                                   Date: 19/02/2021

                                    ORALORDER

RULE. Mr. Pranav Trivedi, learned Additional Public Prosecutor, waives service of notice of rule on behalf of the respondent-State.

Leave to amend the Police Station in the prayer clause.

1. This application is a successive bail application filed in connection with the complaint being FIR No.11208002200050 registered with Aaji Dam Police Station, Rajkot City for the offence punishable under Sections 302, 324, 143, 147, 148, 149 and 120B of IPC.

Earlier, the applicant herein, Original Accused No.16 in the impugned complaint, had preferred Criminal Misc. Application No.12658 of 2020 seeking regular bail in connection with the impugned First Information Report; however, the same was disposed of, as having been withdrawn after effective hearing, by order dated 08.10.2020.

2. Mr. K. S. Chandrani, learned advocate for the applicant, submitted that the earlier application being Criminal Misc. Application No.12658 of

R/CR.MA/16592/2020 ORDER

2020 seeking regular bail was disposed of as withdrawn without observing anything on the merits of the case. He, however, candidly admitted that the matter had been withdrawn after effective hearing. During the course of hearing of said Criminal Misc. Application No.12658 of 2020, over and above the merits of the case, the applicant had also claimed parity with co-accused, Nathabhai Jerambhai Vadher, Original Accused No.13, who had been granted regular bail by the Coordinate Bench in Criminal Misc. Application No.6045 of 2020 dated 30.04.2020. However, one of the relevant factors which weighed with the Coordinate Bench for exercising discretion in favour of Original Accused No.13 was his age, which was reported to be 65 years at that time and therefore, the applicant could not pursue further for seeking the benefit of the principle of parity, during the earlier hearing. Subsequently, another co-accused, Bhupatbhai Nathabhai Vadher, Original Accused No.15, was granted regular bail by another Coordinate Bench in Criminal Misc. Application No.13447 of 2020 dated 23.10.2020.

2.1 It is the case of the applicant herein that the role attributed to him in the impugned complaint is that of a conspirator, which is similar to that of co-accused, Bhupatbhai Nathabhai Vadher, who has been released on regular bail and therefore, on the ground of parity, the applicant may also be released on bail. It is submitted by learned advocate Mr. Chandrani that in all, 21 persons have been arraigned as accused in the impugned complaint and that all the accused are members of the same family. Original Accused Nos.1 to 12 are alleged to be present at the scene of offence when the crime was committed whereas, Original Accused Nos.13 to 21 have been named as the conspirators of the crime. Original Accused Nos.7 to 10 have already been released on bail and therefore, the case of the applicant is on a much better footing, as he is alleged to be one of the conspirators of the crime.

R/CR.MA/16592/2020 ORDER

2.2 It was also pointed out by the learned advocate for the applicant that while granting regular bail to co-accused, Bhupatbhai Nathabhai Vadher, vide order passed in Criminal Misc. Application No.13447 of 2020 dated 23.10.2020, the Coordinate Bench had also taken note of the earlier order dated 08.10.2020 passed by this Court in Criminal Misc. Application No.12658 of 2020 in respect of the applicant herein. It was, therefore, prayed that the applicant herein may be released on bail on the ground of parity. In support of his submissions, learned advocate for the applicant placed reliance upon the following decisions:-

      (I)    Kalyan Chandra Sarkar V. Rajesh Ranjan @ Pappu
      Yadav reported in 2005 (2) SCC 42.


      (II)   Prasad Shrikant Purohit            V. State of Maharashtra
      reported in 2018 (11) SCC 458.

(III) Virupakshappa Gouda V. State of Karnataka reported in 2017 (5) SCC 406.

(IV) Suketu @ Sunni Harshadbhai Modi V. State of Gujarat reported in 2018 JX (Guj) 434.

(V) Vinod Bhandari V. State of Madhya Pradesh reported in 2015 (11) SCC 502.

(VI) Sanjay Chandra V. C.B.I. reported in 2012 (1) SCC 40.

3. Mr. Pranav Trivedi, learned Additional Public Prosecutor, took the Court to the allegations made against the applicant in the impugned complaint and submitted that the present application is a successive bail

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application and that the applicant has not been able to point out any change in circumstances or fact situation, as would require fresh consideration of his bail application. He placed reliance upon the decision of this Court in the case of State of Gujarat v. Ashish B. Gandhi, 1993 (1) GLH 268 and submitted that once a bail application is disposed of, as having been withdrawn, it would amount to rejection of the application and the subsequent application seeking similar relief of bail, in absence of fresh grounds or change of circumstances, would not be maintainable. The law relating to consideration of a successive application for bail, as laid down in the cases of Kalyan Chandra Sarkar V. Rajesh Ranjan @ Pappu Yadav and Virupakshappa Gouda V. State of Karnataka (supra), is subject to the accused bringing out a case of change in circumstances or fact situation. In the present case, the applicant has failed to show that there is any such change in circumstance or fact situation and hence, the present application deserves to be rejected.

4. Learned advocate Mr. Vicky B. Mehta appears for the original complainant along with the learned Additional Public Prosecutor. Registry to accept his Vakalatnama. He has adopted the submissions advanced by the learned Additional Public Prosecutor. Over and above, he pointed out that regular bail application of co-accused, Akshitbhai Chhayabhai Vadher, Original Accused No.21, has been rejected up to the Apex Court. He placed reliance upon the following decisions:-

(I) State of Maharashtra V. Budhikota Subbarao reported in AIR 1989 SC 2292.

(II) Virupakshappa Gouda V. State of Karnataka (supra).

(III) The judgment rendered by the Division Bench of Rajasthan High Court in S.B. Criminal Misc. 2nd Bail

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Application No.5755 of 2009 in the case of Nizamuddin @ Raju V. The State of Rajasthan.

5. Having heard the learned counsels on both the sides, it appears that the case against the applicant herein arises out of an old enmity in connection with the succession rights of some land. It is alleged that the applicant and other accused persons hatched a conspiracy and in furtherance of such conspiracy, they constituted an unlawful assembly with the intention to do away the deceased with deadly weapons like sword, sickle, axe, etc. It is alleged in the complaint that Original Accused Nos.1 to 3 had inflicted injuries on the head, legs and hands of the deceased in the presence of Original Accused Nos.4 to 12. The remaining Original Accused Nos.13 to 21 are alleged to be the conspirators of the crime.

6. The Original Accused No.13, Nathabhai Jerambhai Vadher, was granted regular bail by the Coordinate Bench vide order passed in Criminal Misc. Application No.6045 of 2020 dated 30.04.2020. The applicant herein had preferred Criminal Misc. Application No. 12658 of 2020 for regular bail, which came to be disposed of as withdrawn, by order dated 08.10.2020. Another co-accused, Bhupatbhai Nathabhai Vadher, Original Accused No.15, who happens to be the brother of the applicant herein, had preferred Criminal Misc. Application No.13447 of 2020 for regular bail, which came to be allowed, by order dated 23.10.2020. It appears from the said order dated 23.10.2020 that the Coordinate Bench has considered the role played by the said co-accused as one of the conspirators of the crime and also the fact that another co- accused, Nathabhai Jerambhai Vadher, has been granted regular bail, which is evident from the observations made in paragraph-7 of the said order. The applicant herein has sought regular bail on the ground that after the withdrawal of the earlier bail application in Criminal Misc.

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Application No.12658 of 2020 vide order dated 08.10.2020, another co- accused, Bhupatbhai Nathabhai Vadher, who is also attributed with similar role to that of the applicant herein, has been granted regular bail by the Coordinate Bench vide order passed in Criminal Misc. Application No.13447 of 2020 dated 23.10.2020 and therefore, on the ground of parity, the applicant may also be released on bail.

7. It is to be noted that the earlier application preferred by the applicant for regular bail in Criminal Misc. Application No.12658 of 2020 was disposed of, as having been withdrawn and was not a reasoned order on merits. There is no denial to the proposition that a successive bail application could be entertained only on the ground of change of circumstances or fact situation. The applicant herein has sought to invoke the principle of parity for considering his case in line of co-accused, Bhupatbhai Nathabhai Vadher, Original Accused No.15, who has been released on bail by the Coordinate Bench after the withdrawal of the earlier application filed by the applicant for regular bail. The passing of an order of bail is discretion but has to be passed on the established principles of precedence.

8. In this case, the earlier application for regular bail in Criminal Misc. Application No.12658 of 2020 had been withdrawn after effective hearing. It appears that after the disposal of the aforesaid matter on 08.10.2020, the case of the co-accused for regular bail was considered by the Coordinate Bench on merits in Criminal Misc. Application No.13447 of 2020 and after taking into consideration the allegations made against the co-conspirator, co-accused, Bhupatbhai Nathabhai Vadher, the said co-accused was granted regular bail. On a perusal of the allegations made in the impugned complaint, the applicant herein appears to be similarly situated with co-accused, Bhupatbhai Nathabhai Vadher, as the allegations made against both the accused persons are almost similar. The

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case of the applicant herein is not distinguishable with that of co-accused, Bhupatbhai Nathabhai Vadher and therefore, the applicant is well within his rights to pray for bail on the ground of parity. Judicial consistency requires that if a similarly situated co-accused is released on bail, then the accused before the Court, who appears to be in similar lines to that of the co-accused already on bail, then on the ground of parity, the accused before the Court also deserves to be enlarged on bail. Even those co- accused, who were allegedly present at the time of commission of the crime, have been granted bail.

9. Considering the nature of allegations, the role attributed to the applicant-accused and on the ground of parity, this Court deems it fit to allow the application. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with the complaint being FIR No.11208002200050 registered with Aaji Dam Police Station, Rajkot City on executing a personal bond of Rs.15,000/- (Rupees Fifteen 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;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave India without prior permission of the concerned trial court;

      [e]    furnish the present address of residence to the Investigating






                  R/CR.MA/16592/2020                       ORDER

Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the concerned trial court;

10. The authorities shall adhere to its own Circular relating to COVID- 19 and, thereafter, 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. Bail bond to be executed before the lower Court having jurisdiction to try the case.

11. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.

( GITA GOPI, J )

PRAVIN KARUNAN