Gujarat High Court

Dharmik Rasikbhai Pabari vs State Of Gujarat on 28 October, 2021

Bench: Ashokkumar C. Joshi

     R/CR.MA/19091/2021                                       ORDER DATED: 28/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC. APPLICATION NO. 19091 of 2021

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                             DHARMIK RASIKBHAI PABARI
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MILAN R MARUTI(7338) for the Applicant(s) No. 1
MR PM LAKHANI(1326) for the Applicant(s) No. 1
MRS R P LAKHANI(3811) for the Applicant(s) No. 1
MS. MONALI BHATT, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                    Date : 28/10/2021

                                     ORAL ORDER

1. This application is filed by the applicant - accused under Section 439 of the Code of Criminal Procedure for enlarging the applicant on regular bail in connection with C.R. No. 11213022211285 of 2021 registered with Jetpur City Police Station, District- Rojkot (Rural) for the offences punishable under Sections 170, 406, and 419 of the IPC and Section 66(C)(D) of the Information Technology Amendment Act, 2008.

2. Heard learned advocate Mr. P.M. Lakhani for the applicant and learned APP Ms. Monali Bhatt for the Respondent-State.

3. The factual matrix of the case is that the applicant is a boy aged about 24 years has introduced (impersonated) himself as Police Sub Inspector - Jaydipsinh Parmar to the father of the complainant and told that he is investigation your case because the complainant had sent some photographs to the woman and thereby obtained Facebook link and ID and password of the complainant and by using this Facebook ID- password obtained login of "Tinpatti"

R/CR.MA/19091/2021 ORDER DATED: 28/10/2021

game and transferred 400 crore chip and by the same mathod the applicant obtained 400 crore chip of "Tinpatti" game of other relative of the complainant, therefore the FIR in question came to be lodged.

Submission of the Parties:

4. Learned advocate for the applicant -accused has heavily and fervently submitted that in the present case the offence is under the ection 66(C)(D) of the Information Technology Amendment Act, 2008 where the maximum punishment is 7 years, therefore the judgment delivered in the case of Arnesh Kumar vs. State of Bihar reported in (2014) 8 SCC 273, wherein the Hon'ble Apex Court has observe that whenever there is punishment of 7 years, then the court would be liberal to exercise the discretion. He also submitted that though there are two offence upon the present applicant, in fact as such there is no serious role attributed to the applicant. He further submitted that the applicant has family roots in the society and therefore, he is not likely to flee away from justice. That the applicant will abide by whatever conditions imposed by the Hon'ble Court. He has therefore prayed that discretion may kindly be exercised and grant bail to the Applicant Accused.

5. Per contra, learned APP has vehemently opposed this bail application and drawn the attention of this Court to the observations made by the learned Additional Sessions Judge, Jetpur that earlier the applicant was involved in similar offence. She further argued that the present applicant has acted (impersonated) as Police Officer, therefore it is a serious offence and looking to the nature and gravity of offence, involvement of the Applicant / Accused discretion may not be exercised in favour of the applicant and if the Hon'ble Court is inclined to grant bail then in such case strict

R/CR.MA/19091/2021 ORDER DATED: 28/10/2021

conditions may be imposed to secure the presence of the Applicant Accused.

Merits of the Case:

6. This court has considered the following aspects:

(a) in the present case it is an admitted fact that the applicant - accused is a boy of 24 years;

(b) as per catena of decisions of Hon'ble Supreme Court, there are mainly three factors which are required to be considered by the court i.e. prima facie case, availability of applicant - accused at the time of trial and hampering and tampering with the witnesses by the accused;

(d) the applicant is in custody since 26.09.2021;

(e) law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. C.B.I., (2012) 1 SCC 40, wherein it is held that bail is a rule and jail is an exception and there should not be pre-trial punishment.

7. Having heard the learned advocates for the parties and perusing the papers available on record as well as taking into consideration the facts of the case, it appears that the applicant has approached to the learned Additional Sessions Judge, Jetpur for regular bail, which came to be dismissed and the applicant is implicated in the offence punishable under the Information Technology Amendment Act. Further the present applicant involved in two offence of similar nature, therefore it cannot be said that his is habitual offender and this Court has considered the judgment

R/CR.MA/19091/2021 ORDER DATED: 28/10/2021

delivered in the case of Arnesh Kumar vs. State of Bihar (Supra), wherein the Hon'ble Apex Court has observe that whenever there is punishment of 7 years, then the court would be liberal to exercise the discretion. Further, at this stage, the Court is not required to go deep into the evidence as it is purely a matter of trial. The Court may reiterate the principle laid down by the Hon'ble Apex Court in Sanjay Chandra (supra), there should not be pre-trial punishment. Considering the relevant papers as well as the nature of allegations, gravity of accusation, availability of the applicant - accused at the time of the trial etc. and last but not the least, the role attributed to the present applicant - accused, the present application deserves to be allowed and is accordingly, allowed. The applicant - accused is ordered to be released on regular bail in connection with the aforesaid FIR on executing a personal bond of Rs.20,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the following conditions that he shall:

(a) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence;

(b) maintain law and order and not to indulge in any criminal activities;

(c) furnish the documentary proof of complete, correct and present address of his residence to the Investigating Officer and to the trial Court at the time of executing the bond and shall not change his residence without prior permission of the trial Court;

(d) provide his contact numbers as well as the contact numbers of

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the sureties before the trial Court. In case of change in such numbers inform in writing immediately to the trial Court;

(e) file an affidavit stating his immovable properties whether self acquired or ancestral with description, location and present value of such properties before the trial Court, if any;

(f) not leave India without prior permission of the trial Court;

(g) surrender passport, if any, to the trial Court within a week. If he does not possess passport, he shall file an affidavit to that effect;

(h) mark presence before the concerned police station on every 1st day of each English calendar month between 12:00 p.m. to 2:00 p.m. for a period of one year or till the trial is concluded, whichever is earlier;

(I) shall maintain all the rules and regulations framed by the Corporation regarding contemporary status of corona virus/Covid- 19, State Government or by any competent authority, including social distancing.

8. Bail bond to be executed before the Trial Court having jurisdiction to try the case. It would be open for the Trial Court concerned to give time to furnish the solvency certificate if prayed for.

9. If breach of any of the above conditions is committed, the Trial Court concerned will be free to issue warrant or take appropriate action according to law. The Authorities will release the Applicant forthwith only if he is not required in connection with any other offence for the time being.

R/CR.MA/19091/2021 ORDER DATED: 28/10/2021

10. At the trial, the concerned trial court shall not be influenced by the prima-facie observations made by this Court in the present order.

11. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(A. C. JOSHI,J) prk