Kanji @ Kanabhai Sanjanbhai ... vs State Of Gujarat
2021 Latest Caselaw 17008 Guj

     R/CR.MA/18967/2021                                       ORDER DATED: 28/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 18967 of 2021

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                     KANJI @ KANABHAI SANJANBHAI RABARI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
Learned Senior Adv. Shri N.D. Nanavaty with MR SHAILESH T
DESAI(10670) for the Applicant(s) No. 1
MR VIJAY H NANGESH(3981) 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. 11205043203332 of 2020 registered with 'B' Division Police Station Bhuj, District- Kachchh-West- Bhuj for the offences punishable under Sections 302, 364, 120(B), 34 and 201 of the Indian Penal Code and Section 135 of the Gujarat Police Act.

2. Heard learned Senior Advocate Shri N.D. Nanavaty with learned advocate Mr. Vijay Nangesh and learned advocate Mr. Shailesh Desai for the applicant and learned APP Ms. Monali Bhatt for the Respondent-State.

3. The facts of the case in nutshell are that the first informant, who is the father of the deceased, on 15.12.2020 at about 4:00 p.m., when he was present at his farm situated at Sai Pichhana Road, he received a phone call from one- Vishalbhai Rabari, under

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whom his son was working, informing him that at about 10:00 A.M., the deceased and his friend - Durgesh Aahir were going towards Bhuj RTO and thereafter at about 1:30 PM to 2:00 PM, when he tried to call the deceased, his mobile phone was found switched off. That, therefore, said Vishalbhai called Durgesh, who infomed him that when he along with the deceased were standing at the gate of Bhuj RTO Office, between 1:00 PM to 1:30 PM, original accused no. 2 a resident of Village - Moda Rapar, whom he knows, called the present applicant. It is alleged in the FIR that it is informed by Durgesh to Vishalbhai that accused No. 3 and original accused no. 2 were talking with the deceased and the said accused persons have taken the deceased along with them. That, when the said incident was informed by Vishalbahi to the first informant, the first informant along with his relatives went to Bhuj and they reached Bhuj at about 12:00 AM in the night and they searched for the deceased near the RTO, and when the deceased was not found, the first informant had given a janvajog before the Bhuj 'B' Division Police Station. It is further contended that in the morning the first informant went to the Police Station for lodging the FIR for kidnapping, at that time, relative of the first informant i.e. Ishwarbhai Rabari called the first informant and informed him that a dead body of the deceased Jivan was lying near the pond situated at Village- Kunjisar and there are injury marks on the body of the deceased. It is further contended that therefore, the first informant did not go to Bhuj and went to Kunjisar Village, where he found dead body of his son i.e. deceased. It is also contended that since the deceased was in love relationship with the wife of the present applicant, therefore keeping a grudge against the deceased, the original accused nos. 2 and 3 have abducted the deceased from the Bhuj RTO Office.

4. Learned Senior advocate Shri N.D. Nanavaty with learned

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advocate Mr. Vijay Nangesh for the applicant has vehemently and fervently submitted in his first limb of argument that there is a difference in facts in the Janvajog and in the contents of the FIR. He also argued that as per the case of the prosecution two accused caught hold and taken the deceased in the car, not only that in the T.I. Parade (Identification Parade) wherein, also the Devabhai has been identified by the Durgesh. He further submitted that not only that but later on Devabhai was disclosed instead of present applicant, as such there is no location, phone call details neither recovery nor discovery, but only on the basis of the love affair of the deceased with the wife of the present applicant, the present applicant is implicated in the offence.

4.1 Learned Senior advocate shri N.D. Nanavaty also argued that let the trial to decide, so far as the exact and correct allegations levelled against the accused person is concerned, till then the applicant - accused may not be kept behind the bars. He also placed reliance upon the demonstration of Panchnama, for which learned Senior advocate submitted that it is hit by Section 25 of the Evidence Act, since the accused person is in the Police custody, therefore, it has no evidentiary value of the same.

4.2 Learned Senior advocate shri N.D. Nanavaty further contended that there is no material before the prosecution so far as the C.C. T.V. footage but only swift car can be seen from footage and it is very difficult to say about the persons (passengers) sitting inside the car. He also contended that the Car belong to the father of the applicant but merely on the basis of the ownership of the father of the present applicant, one may not be implicated in the serious offence.

       R/CR.MA/18967/2021                             ORDER DATED: 28/10/2021




4.3       Learned Senior advocate Shri N.D. Nanavaty in his last limb of

argument submitted that the applicant is only 24 years old boy . He has placed reliance upon the judgments of co -ordinate Bench in Criminal Misc. Application No. 14199 of 2021 whereby the accused No. 3 - Devabhai @ Devo Karshanbhai Rabari has been enlarged on regular bail by order dated 14.10.2021 and in Criminal Misc. Application No. 6790 of 2021 whereby the accused No. 4 - Shankarbhai @ Chako Budhabhai Rabari has been enlarged on regular bail by order dated 14.07.2021, therefore parity may be given to the present applicant. He further submitted that charge sheet is also filed. He has family roots in the society and therefore, he is not likely to flee away from justice. That he 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 submitted that initially two accused were implicated and later on accused Nos. 3 and 4 have been enlarged by the Co - ordinate Bench and the role attributed to the present applicant is greater than the two accused who were enlarged by the co -ordinate Bench, therefore parity is not applicable to the present applicant. She further contended that the present applicant is the main conspirator and abducted the deceased and he inflicted multiple knife blows to the deceased, therefore it is a strong prima - facie case coupled with the conspiracy, so far as the motive is concerned, learned APP has drawn the attention towards the different papers, wherein it appears that there is love affair between the wife of the applicant and the deceased. She also placed reliance on the C.C. TV footage in which swift car is also observed and the car belonged to the father of the present applicant. She further argued that three mobiles were used in the serious offence and the same were

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destroyed, for which learned APP places reliance on the statement of Hardasbhai Maru, wherein it is stated that three mobile phones were destroyed by the present applicant. She also argued that so far as the mobile of the deceased is concerned it was thrown in the canal, in support of this argument, she also referred to the statement. She lastly contended that there are three footprints of different persons at the place of the scene of offence and report of the FSL is awaited, and therefore, 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 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 has come for this application after the charged sheet is filed;

(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;

(c) the learned advocate for the applicant has submitted that the applicant is not likely to flee away;

(d) the applicant is in custody since 24.12.2020;

(e) This Court has considered the judgments passed by the co - ordinate Bench whereby the accused Nos. 3 and 4 have been

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enlarged on regular bail, therefore parity is applicable to the present applicant.

(f) 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 is implicated in the offence punishable under Section 302 of the IPC. It is an undisputed fact that prima-facie the case is based on the circumstantial evidence but, as such, prima-facie, pursuant to the Police Papers, it appears that there were two different names were disclosed. Further, so far as the allegation upon the present applicant is concerned, the demonstration Panchnama is also made in the Police custody, the story of last scene together requires trial to find out the truth in the matter, as such there is no recovery nor discovery. The learned APP has heavily relied upon the different papers, however, 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. The Court has considered the order passed by the co

-ordinate Bench in Criminal Misc. Application No. 14199 of 2021 whereby the accused No. 3 has been enlarged on regular bail by order dated 14.10.2021 and in Criminal Misc. Application No. 6790 of 2021 whereby the accused No. 4 has been enlarged on regular bail by order dated 14.07.2021 on the basis of circumstantial evidence. Least is to say that, charge-sheet in the case on hand is filed and hence, there is no possibility of tampering and/or

R/CR.MA/18967/2021 ORDER DATED: 28/10/2021

hampering with the evidence. Further, by exercising the discretion the present accused is not held guiltless, further the charge -sheet is filed and the applicant has to face the trial and therefore, on the basis of arguments and papers submitted by both the sides, including Janvajog entry, FIR, affidavit, demonstration Panchnama, statements of different persons and considering the charge-sheet 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.30,000/- 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 the sureties before the trial Court. In case of change in such

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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.

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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