Dashrathbhai Bholidas Patel vs State Of Gujarat
2021 Latest Caselaw 17072 Guj

     R/CR.MA/17332/2021                                ORDER DATED: 29/10/2021



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
       R/CRIMINAL MISC. APPLICATION NO.                17332 of 2021

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              DASHRATHBHAI BHOLIDAS PATEL
                         Versus
                    STATE OF GUJARAT
=======================================================
Appearance:
MR BB NAIK, Sr. Adv. with AKASH A SINGH(8713) for the
Applicant(s) No. 1
MR MITESH AMIN, PP with MS MAITHALI MEHTA APP (2) for
the Respondent(s) No. 1
=======================================================

 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                            Date : 29/10/2021

                                 ORAL ORDER

1. This is a successive bail application, which is

filed under Section 439 of the Criminal Procedure

Code, 1973 ('the Code' for short) for enlarging

the applicant on regular bail in connection with

FIR being C.R.No.11191020201399 registered with

Vastrapur police station, Ahmedabad city for the

alleged offences punishable under Sections 498A,

307, 365, 384, 342, 325, 354A, 323, 294(b),

506(2), 199 and 120(B) of Indian Penal Code.

CRUX OF THE FIR:

2. The first informant filed the FIR in question

against her husband and three others, wherein she

has mainly stated that she got married with the

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original accused no.1 in the year 2011 and a girl

child viz., Arya was born out of the said wedlock.

It is alleged that one year after the marriage,

the original accused no.1 started mentally and

physically harassing the first informant. It is

mainly alleged that on the occasion of the

birthday of the daughter of the first informant

i.e. on 1.8.2020 at around 11.00 p.m., when she,

along with her other relatives were present,

original accused nos.2 and 3 started taunting the

first informant that she did not bring anything

from her parental house. Thereafter, the original

accused no.4, who is the father of the first

informant, gave abuses to the first informant. It

is also alleged that because of the instigation

done at the behest of original accused no.4,

original accused no.1 started quarreling with the

first informant and gave abuses to the mother of

the first informant. When the first informant

tried to stop the original accused no.1-husband

from speaking abusive language, it is alleged that

original accused no.1-husband had given six-seven

slaps on her face and fist blow on her nose. It is

alleged that the accused persons in connivance

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with each other, thrown the first informant and

her mother out of the house and gave threats that

if she will file police complaint, she will be

done to death.

3. Heard learned Senior Counsel, Mr. B.B. Naik

assisted by learned advocate, Mr. Akash A. Singh

for the applicant and learned Public Prosecutor,

Mr. Mitesh Amin assisted by learned APP Ms.

Maithali Mehta for the respondent - State.

SUBMISSIONS ON BEHALF OF THE APPLICANT:

4. Learned Senior Counsel for the applicant submitted

that the applicant is arrested on 29.08.2020 in

connection with the FIR in question and since

then, he is in jail. It is submitted that after

his arrest, the applicant had filed an application

for bail being Criminal Misc. Application

No.17130/2020 before this Court, however during

the pendency of the said application, as the

chargesheet was filed, the said application was

withdrawn. He further submitted that after filing

of the chargesheet, the applicant filed an

application being Criminal Misc. Application

No.20180/2020 before this Court and this Court, by

an order dated 17.02.2021, rejected the said

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application, however while rejecting the said

application, this Court granted liberty to the

applicant to file fresh application after a period

of three months and, therefore, the applicant has

filed present successive bail application.

5. Learned Senior Counsel would thereafter submit

that after this Court has rejected the application

filed by the applicant, recently the co-accused,

Ramanbhai Bholidas Patel has been enlarged on bail

by this Court vide order dated 31.08.2021 passed

in Criminal Misc. Application No.10438/2021.

Learned Senior Counsel has referred to relevant

observations made by the Coordinate Bench of this

Court while enlarging the co-accused on bail.

Learned Senior Counsel has urged that the role

attributed to the present applicant is lesser than

the role attributed to the said co-accused, who

has been enlarged on bail by the Coordinate Bench

of this Court and thus on the ground of parity,

the applicant be enlarged on regular bail. Learned

Senior Counsel has, thereafter, placed reliance

upon the following decisions of the Hon'ble

Supreme Court as well as this Court in support of

the aforesaid contentions,

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(i) judgment of the Hon'ble Supreme Court in case of Anwar Ali Vs. State of Chhattisgarh, reported in (2008) 16 SCC 501;

(ii) judgment of the Hon'ble Supreme Court in case of Lt. Col. Prasad Shrikant Purohit Vs. State of Maharashtra, reported in (2018) 11 SCC 458;

(iii) judgment of the Hon'ble Supreme Court in case of Ajit Singh Vs. State of Chhattisgarh, reported in (2018) 14 SCC 286;

(iv) judgment of the Hon'ble Supreme Court in case of P. Chidambaram Vs. Central Bureau of Investigation, reported in (2020) 13 SCC 337;

(v) judgment of this Court in case of Rameshbhai Batubhai Dhabi Vs. State of Gujarat, reported in 2011 (3) GLR 1999;

(vi) order dated 08.09.2017 passed by this Court in case of Vikram Anil Gautam Vs. State of Gujarat in Criminal Misc. Application No.22437/2017;

6. Learned Senior Counsel has also placed reliance

upon the decision of the Hon'ble Supreme Court in

case of Shri Gurbaksh Singh Sibbia & Ors. Vs.

State of Punjab, reported in (1980) 2 SCC 565 to

support his contention on the point of principle

for grant of bail.

7. Learned Senior Counsel, thereafter, submitted that

while opposing the case of the co-accused, the

prosecution has placed on record certain documents

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and now the said documents are part of the

chargesheet papers and, therefore, learned Senior

Counsel has placed on record separate compilation.

After referring to relevant documents from the

separate compilation, it is contended that on the

ground of change of circumstances, the present

successive bail application filed by the applicant

be considered on merits. Learned Senior Counsel

has argued the case of the applicant on merits and

referred to the statements of various witnesses

including the statement of Jankhitbhai Chandubhai

Prajapati and Aalap Somabhai Patel and further

statement of the complainant. Learned Senior

Counsel has also referred to the telephonic

conservation between the applicant and the

complainant as well as the written complaint given

by the applicant against the present complainant,

Fizu Patel on 16.08.2020. Learned Senior Counsel

has also referred to the affidavit filed by one

Mr. V.U. Jadeja, who is practicing advocate and

Notary. After referring to the aforesaid

documents, it is contended that the story put

forward by the complainant is not correct and in

fact, the applicant is not named in the FIR. At

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this stage, once again learned Senior Counsel has

referred to the observations made by the

Coordinate Bench of this Court while enlarging the

co-accused on bail. From the said observations,

learned Senior Counsel has tried to point out

about the conduct of the complainant and the fact

that the complainant and her mother have received

an amount of Rs.2.50 Crores in cash and also

received two demand drafts, one of Rs.2.00 Crores

and another of Rs.50.00 Lakhs. From the

observations made by the Coordinate Bench, it is

also contended that the first informant gave

further statement on 28.08.2020 in respect of the

alleged incident which took place on 24.08.2020

without uttering a word about the cash/demand

draft received by them and there is no whisper

about the same in the statement given by said

Jankiben on 28.08.2020 about the entrusment of the

cash amount of Rs.2.50 Crores to her sister.

8. Learned Senior Counsel, thereafter, submitted that

while rejecting earlier application filed by the

present applicant, this Court has wrongly observed

that the affidavit of the complainant with regard

to the settlement arrived at by her husband,

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Maunang was not produced by him in the said

application filed by him. In fact, the said

affidavit was produced by the complainant through

her advocate, Mr. Pathak and thereby this Court

has committed an error while rejecting earlier

application filed by the present applicant. At

this stage, learned Senior Counsel has further

contended that while rejecting earlier bail

application filed by the applicant, this Court has

observed that the present applicant has given

threats from the jail to the complainant and,

therefore, the complainant has deposited two

demand drafts, however as per the case of the

prosecution, the co-accused, Ramanbhai Patel made

telephonic call to the complainant when he was in

jail and, therefore, the present applicant has not

tried to influence the witness. Thus, the

aforesaid wrong observation was made by this Court

while passing an order dated 17.02.2021.

9. Learned Senior Counsel would thereafter submit

that after registration of the FIR in question,

two other FIRs have been filed against the

applicant, however in both cases, the applicant

has been enlarged on bail by the concerned

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Sessions Court, copies of those orders are placed

on record.

10. It is also submitted that the allegations of the

offences punishable under Sections 498A and 307 of

the Indian Penal Code are not made against the

applicant and only allegation against the

applicant is that he has committed alleged

offences punishable under Sections 365, 384 and

342 of the Indian Penal Code. It is submitted that

when the applicant is in jail since last more than

one year, this application be allowed.

SUBMISSIONS ON BEHALF OF THE STATE:

11. On the other hand, learned Public Prosecutor

Mr.Amin appearing for the respondent-State has

vehemently opposed this application and mainly

contended that there is no change of circumstance

after this Court has rejected earlier application

by an order dated 17.02.2021 filed by the present

applicant. It is submitted that while rejecting

earlier bail application filed by the applicant,

this Court has examined the chargesheet papers and

all the documents, which are placed on record and,

thereafter, rejected the application. It is

pointed out that all those documents, which are

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placed on record by the applicant by way of

separate compilation, were also verified by this

Court at the time of rejecting earlier bail

application filed by the applicant. Learned Public

Prosecutor has referred to the order dated

17.02.2021 passed by this Court, from which, it is

pointed out that this Court has specifically

recorded the finding on the basis of the material

placed before this Court that written complaint

was given on 27.08.2020 to Police Inspector,

Vastrapur Police Station about alleged incident

which had taken place on 24.08.2020 and,

thereafter on 28.08.2020, her further statement

was recorded. This Court has further observed that

the present applicant had administered threats to

the complainant and her mother and they were

forced to sign on certain documents including the

divorce papers, affidavit and relinquishment deed.

This court has also examined the version given by

the first informant, which is supported by two

witnesses viz., Jankitbhai Prajapati and Aalap

Patel and this Court has, therefore, observed that

there is prima facie case made out against the

present applicant. It is also pointed out that

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from the said order, it is also revealed that two

demand drafts given by the applicant were issued

from the joint account of the applicant and

mother-in-law of the first informant. This Court

has specifically recorded the finding that prima

facie it is revealed that on 24.08.2020, the

applicant, under the pressure, has obtained

signature of the complainant and her mother. This

Court has also considered the conduct of the

applicant by observing that the present applicant

has given written complaint dated 16.08.2020

against the first informant and her mother with a

view to misguide the investigating agency. It is

also pointed out from the said order that threats

were given by the applicant to the first informant

and thereby the applicant has tried to influence

the witnesses. It was further observed that though

the signatures of the first informant and her

mother were obtained on various documents, the

applicant has either destroyed the said documents

or the applicant is hiding the same from the

investigating agency and only affidavit filed by

the concerned investigating officer was placed

before this Court in another proceeding. Thus this

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Court has considered the conduct of the applicant

while rejecting the bail application.

12. Learned Public Prosecutor at this stage submitted

that the applicant is claiming parity with other

co-accused, who were released on bail at the

relevant point of time and, thereafter, submitted

that the role attributed to the applicant is

strikingly dissimilar to that of co-accused. At

this stage, learned Public Prosecutor would

contend that no doubt now another co-accused viz.,

Ramanbhai Patel has been enlarged on bail by the

Coordinate Bench of this Court by an order dated

31.08.2021. However, it is contended that if the

said order is carefully seen, the Coordinate Bench

has observed that from the statements of the

concerned witnesses, which were recorded on

24.09.2020, no role is attributed to the said co-

accused or Mr. Maunang for the alleged act of

Dasharathbhai (the present applicant). It is also

pointed out from Page No.34 of the said order that

the Coordinate Bench has observed that there is

not an iota of evidence as to role played by the

said applicant (Ramanbhai Patel) and his son with

regard to incident dated 24.08.2020. Thus it is

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contended that the role attributed to the present

applicant is different than the role attributed to

the co-accused, who has been enlarged on bail by

the Coordinate Bench.

13. Learned Public Prosecutor at this stage has also

contended that the order dated 31.08.2021 passed

by the Coordinate Bench of this Court in case of

co-accused, Ramanbhai Patel is challenged by the

State by filing SLP before the Hon'ble Supreme

Court. Learned Public Prosecutor has referred to

the affidavit filed by the concerned Senior Police

Inspector of Vastrapur Police Station and in

Paragraph No.5 of the said affidavit, there is

reference of Diary Number of the said matter. It

is, therefore, urged that when the order passed by

the Coordinate Bench is challenged before the

Hon'ble Supreme Court, this Court may not consider

the ground of parity as contended by learned

Senior Counsel.

14. Learned Public Prosecutor, thereafter, referred to

the order passed by the Sessions Court while

rejecting an application filed by the applicant on

17.09.2021, copy of which is placed on record at

Page No.185 of the compilation. It is pointed out

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from the said order that the case is committed to

the Sessions Court, where it has been registered

as Sessions Case No.46/2021 and in fact, the

present applicant has given application before the

Sessions Court that his trial be expedited and the

matter was kept on 20.09.2021. Thus when the

applicant himself has requested before the trial

court to expedite his trial and when the

prosecution as well as the sessions court are

ready to conduct the trial, the applicant may not

be enlarged on bail.

15. Learned Public Prosecutor submits that the

decisions upon which reliance has been placed by

learned Senior Counsel for the applicant on the

issue of parity, would not be applicable to the

facts of the present case. It is, therefore, urged

that this application be dismissed.

DISCUSSION AND FINDINGS:

16. Having heard learned counsel appearing for the

parties and having gone through the material

placed on record as well as the decisions upon

which the reliance is placed by learned counsel

for the parties, it would emerge that the original

first informant has filed the FIR against her

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husband and others with Vastrapur police station,

Ahmedabad city for the alleged offences punishable

under Sections 498A, 325, 294(b), 506(2), 354A and

114 of Indian Penal Code. The said FIR has been

filed on 16.08.2020. On 17.08.2020, a report was

submitted by the Investigating Officer with a

request to add Section 307 of the Indian Penal

Code. During the course of investigation, the

present applicant has been arraigned as an accused

and on the basis of the incident which had taken

place on 24.08.2020, the investigating agency has

submitted a report to the concerned Magistrate

with a request to add the offences punishable

under Sections 365, 384, 342, 199 and 120B of

Indian Penal Code. The chargesheet is also filed

under the aforesaid provisions. It is pertinent to

note that the original first informant has given

the written complaint on 27.08.2020 to the Police

Inspector, Vastrapur police station about the

incident which had taken place on 24.8.2020 and

thereafter on 28.08.2020, her further statement

was recorded. If the further statement of the

first informant is carefully seen, it is revealed

that she has specifically alleged against the

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present applicant that threats were administered

by the applicant and thereafter signatures of the

first informant and her mother were obtained on

certain documents including the divorce paper,

affidavit and relinquishment deed. It is also

pertinent to note that the version given by the

first informant is supported by the statement of

other two witnesses namely Jankitbhai Prajapati as

well as Aalap Patel. Thus, from the aforesaid

material, it is revealed that the prosecution has

made out prima facie case against the applicant.

17. Now the present successive bail application has

been filed by the applicant mainly on two grounds,

(i) after rejection of earlier bail application

filed by the applicant by this Court, the co-

accused, Ramanbhai Patel has been enlarged on

bail by the Coordinate Bench of this Court

vide order dated 31.08.2021 and, therefore on

the ground of parity, the applicant be

enlarged on bail; and

(ii) now certain additional documents are forming

part of the chargesheet and, therefore, the

applicant has placed reliance upon the said

documents.

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Thus it is the case of the applicant that on

these grounds, the case of the applicant be

considered.

18. It is pertinent to note at this stage that the

documents, which are placed on record by the

applicant by way of separate compilation, were

already examined by this Court while rejecting

earlier application filed by the applicant on

17.02.2021 and this Court has made certain

discussion with regard to the said documents while

passing an order dated 17.02.2021. Thus, this

cannot be said to be change of circumstance as

contended by learned Senior Counsel appearing for

the applicant. It is further pertinent to note

that this Court has considered the written

complaint given by the present applicant on

16.08.2020 against the original first informant,

Fizu M. Patel and her mother-in-law and,

thereafter, made specific observation that the

applicant has tried to misguide the investigating

agency by filing the said written complaint and

now the said written complaint is forming part of

the separate compilation. This Court has also

considered the telephonic conversation between the

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applicant and the complainant while passing an

order dated 17.02.2021. This court has also

considered the affidavit of the original

complainant dated 24.08.2020, further statement

dated 28.08.2020 and note filed by the advocate,

Mr. Pathak and, therefore, when this Court has

considered the aforesaid documents, it is not open

for the present applicant to once again refer to

and rely upon the said documents.

19. It is revealed from the record that while

rejecting the bail application filed by the

applicant by an order dated 17.02.2021, this Court

has specifically observed about the conduct of the

applicant, threats given by him to the complainant

and her mother and the fact that the applicant has

forcibly obtained the signature of the complainant

and her mother on certain documents including the

affidavit, divorce deed and relinquishment deed

and the applicant has either destroyed the said

documents or the applicant is hiding the said

documents from the investigating agency. Thus on

the basis of the same, this Court has not

exercised the discretion in favour of the

applicant. It is not in dispute that the applicant

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has not challenged the reasoned order dated

17.02.2021 passed by this Court before the Hon'ble

Apex Court and, therefore, the observations made

by this Court in the aforesaid order dated

17.02.2021 have attained finality so far as the

applicant is concerned. It is true that this Court

has granted liberty to file an application after a

period of three months, however, the applicant has

failed to point out any change of circumstance

after the rejection of his earlier bail

application.

20. Now only ground available to the applicant is that

the co-accused, Ramanbhai Patel has been enlarged

on bail by the Coordinate Bench of this Court vide

order dated 31.08.2021. However, if the said order

is carefully examined, it is clear that the

Coordinate Bench has observed in Paragraph No.20

as under,

"20. ......................... At this stage, it is very relevant to note that neither present applicant nor his son Maunag was present at the office of Jankitbhai on 24.8.2020, but said witness states that the first informant was pressurized and forced to sign the documents. It is stated by the said witness that both the first informant and Jankiben were threatened that if she does not sign the papers, her daughter would be snatched away from her. At that stage, prosecution witness Alapbhai objected such conduct of

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Dashrathbhai. Both said prosecution witness Jankitbhai and Alapbhai told Dashrathbhai that it was not reasonable and proper to get signature under threat. Thereafter, both the prosecution witnesses voluntarily stated that Dashrathbhai did all this act under the instruction of applicant and Mr. Maunag."

21. Thereafter, the Coordinate Bench has also observed

in Paragraph No.21 as under,

"21. I have carefully examined both the statements of the said witnesses recorded on 24.9.2020, wherein no role is attributed to the present applicant or Mr. Maunag for the alleged acts of Dashrathbhai. ........................................"

22. At this stage, this Court would like to refer to

the decisions upon which reliance has been placed

by learned Senior Counsel appearing for the

applicant.

22.1 judgment of the Hon'ble Supreme Court in case of

Anwar Ali Vs. State of Chhattisgarh, reported in

(2008) 16 SCC 501;

"5. We have heard learned counsel for the parties. It is not in dispute that Unush Ali, who is uncle of the appellant, is the owner of the car, which was handed over to the appellant for getting the Registration Certificate from the R.T.O., Durg. The Registration Certificate and other papers of the car were handed over by Unush Ali to the appellant.

6. It is not in dispute that co-accused Bunty @ Shahid; who is said to be an agent of the R.T.O., has been granted bail by the High Court on 01.10.2007. The evidence collected by the Investigating Officer against the appellant and Bunty @ Shahid is identical.

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The appellant is in jail since 14.06.2007. The learned counsel for the State was not in a position to state in regard to the progress and stage of the trial of the case registered against the appellant and co- accused. The custody of the appellant is not required by the Investigating Officer for further interrogation."

22.2 judgment of the Hon'ble Supreme Court in case of

Lt. Col. Prasad Shrikant Purohit Vs. State of

Maharashtra, reported in (2018) 11 SCC 458;

"29. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the court granting bail to consider, among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge.

30. Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court

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entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications."

22.3 judgment of the Hon'ble Supreme Court in case of

Ajit Singh Vs. State of Chhattisgarh, reported in

(2018) 14 SCC 286;

"3. The contention of the learned senior counsel for the appellant is that the complaint against the appellant is motivated one, with an aim to extort money and his property. He has been falsely implicated in the case. The appellant has been in custody for the past six and half months. He is ready to abide by any of the conditions which may be imposed by this Court for enlarging him on bail. He is ready to stay in Patna, till the disposal of the case. On the other hand, learned advocate appearing for the respondent has sought to justify the impugned order.

4. After investigation, final report under Section 173 of the Cr.P.C. has been filed against the appellant and four other persons on 19th October, 2016. The case against the appellant is almost similar to that of other co-accused who have been enlarged on bail. The accused has been in custody for the past six and half months. No criminal antecedents have been reported against the appellant. We are of the view that it is just and proper to enlarge the appellant on bail subject to the following conditions:

1. The appellant shall not stay in the State of Chhattisgarh during the pendency of the case. He shall stay in Patna during the said period. However, he is permitted to come to the State of Chhattisgarh for

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attending the aforesaid case. He shall personally appear before the trial court on all the dates of hearing except under unavoidable circumstances.

2. Soon after release, he shall appear before the Senior Superintendent of Police, Patna, and notify his address at Patna to the SSP, Patna. The SSP, Patna, shall intimate him the jurisdictional Police Station for his attendance once in a week on every Sunday between 9.00 a.m. to 5.00 p.m.

3. The appellant shall not tamper with the evidence during the trial in any manner. He shall not pressurize or intimidate the prosecution witnesses. The appellant shall execute a personal bond of Rupees one lakh with two sureties for the like sum to the satisfaction of the trial court."

22.4 judgment of the Hon'ble Supreme Court in case of

P. Chidambaram Vs. Central Bureau of

Investigation, reported in (2020) 13 SCC 337;

"21 The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:-

             (i)       the nature of accusation and                        the
                       severity of the punishment in the                  case
                       of conviction and the nature of                     the
                       materials    relied   upon    by                    the
                       prosecution;

(ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses;

(iii) reasonable possibility of securing the presence of the accused

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at the time of trial or the likelihood of his abscondence;

(iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused;

(v) larger interest of the public or the State and similar other considerations

23 In Kalyan Chandra Sarkar v. Rajesh Ranjan and another (2004) 7 SCC 528, it was held as under:-

11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-

application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

           (a)       The nature of accusation and the
                     severity of punishment in case of
                     conviction    and    the nature of
                     supporting evidence.

           (b)       Reasonable apprehension of tampering

with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge.

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33. The appellant is not a flight risk and in view of the conditions imposed, there is no possibility of his abscondence from the trial. Statement of the prosecution that the appellant has influenced the witnesses and there is likelihood of his further influencing the witnesses cannot be the ground to deny bail to the appellant particularly, when there is no such whisper in the six remand applications filed by the prosecution. The charge sheet has been filed against the appellant and other co- accused on 18.10.2019. The appellant is in custody from 21.08.2019 for about two months. The co-accused were already granted bail. The appellant is said to be aged 74 years and is also said to be suffering from age related health problems. Considering the above factors and the facts and circumstances of the case, we are of the view that the appellant is entitled to be granted bail."

22.5 judgment of this Court in case of Rameshbhai

Batubhai Dhabi Vs. State of Gujarat, reported in

2011 (3) GLR 1999;

"9. All the above aspects along with order passed by the coordinate Bench in the case of two co-accused having similar role like the applicant, on 5.8.2010 and 13.8.2010 in Criminal Misc. Application Nos.8237 of 2010 and 9316 of 2010 were brought to the notice of the learned Sessions Judge by which the co-accused were granted anticipatory and regular bail. Inspite of the above factual scenario, learned Sessions Judge has refused to exercise the powers under Section 439 of the Code on the ground that the applicant was not traceable, while nothing is brought on the record that under what circumstances the applicant was not available or any effort was made by the investigating agency to trace him out. Though, two orders granting bail to co- accused passed by the High Court were brought to the notice of the learned

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Sessions Judge, it is held that ground of parity can be claimed by co-accused only before the High Court. The above approach of the learned Judge is not only illegal but contrary to settle practice of considering the order of superior Court in proper perspective. That, in the set of facts and circumstances almost similar or identical, when superior courts exercise the powers either under Sections 438 or 439 of the Code, the subordinate Courts are duty bound to consider the same and apply if the same sets of facts are in existences and unless there being any extra ordinary circumstances or striking dissimilarities exist to deviate from the law of parity, the Courts below should consider the same in accordance with law.

At the same time the principle of law laid down by the Apex Court in the case of Gudikanti Narasimbulu (supra) about exercise of powers under Section 439 of the Code namely that 'bail is a rule and jail is an exception' is held to be 'outdated' by learned Sessions Judge. That the above declaration by the learned Judge is contrary to the law laid down by this Court in the case of Bai Jasud wd/o Kantilal alias Fulchand Anopchand & Ors. V/s. Railal Anopchand Shah & Ors. [1997(2) GLH 493]. In the above decision learned Single Judge has deprecated the approach of the sub-ordinate Court in misconstruing and misinterpreting the decision of law by the higher Court and, therefore, in the facts of this case, a casual and cursory remark on the part of the learned Sessions Judge about declaration of principle of law of bail in the case of Gudikanti Narasimbulu (supra) is nothing but an attempt to transgress all basic canons of judicial discipline and it was not open to a subordinate Court to misconstrue and misread a judgment of the Supreme Court and terming a

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principle of 'bail is a rule and jail is an exception' as an outdated, when no decision either of the Supreme Court or this Court has stated so.

12. In view of the facts, prima facie, noticed by this Court and recorded in earlier paragraphs, I deem it just and proper to extend the parity to the applicant herein and enlarge him on bail in exercise of powers under Section 439 of the Code of Criminal Procedure, 1973. Under the circumstances, the applicant is ordered to be released on bail in connection with C.R. No.I-16 of 2010 with Bagodra Police Station, on his furnishing bond of Rs. 5000/-(Rupees Five Thousand) with one surety of like amount to the satisfaction of the lower Court and subject to following conditions :

not take undue advantage of his liberty or abuse his liberty;

not act in a manner injurious to the interest of the prosecution;

maintain law and order;

mark his presence before the concerned Police Station on every 1st and 15th day of English Calendar month between 11:00 am to 2:00 pm:

not leave the State of Gujarat without prior permission of the Sessions Judge concerned;

furnish the address of his residence at the time of execution of the bond and shall not change the residence without prior permission of this Court;

surrender his passport, if any, to the Lower Court immediately."

22.6 order dated 08.09.2017 passed by this Court in

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case of Vikram Anil Gautam Vs. State of Gujarat in

Criminal Misc. Application No.22437/2017;

"6. Thus, in absence of striking dissimilarity between two cases, if the parity is brought to the notice of the Court pointing out that the High Court has exercised the discretion under Sections 438 - 439 of the Criminal Procedure Code in relation to the identically including situated their of accused individual in conduct all or aspects individual identical facts like their behaviour in the society and their ability and capacity to interfere in the investigation or trial or their ability or capacity to flee from justice or they being threat to the witnesses, it would not be appropriate for the trial Court to distinguish the case considered by the High Court under Sections 438-439 of the Criminal Procedure Code merely on the basis of the factum of the charge-sheet having not been filed. Of course, non-filing of the charge-sheet would be relevant if it is pointed out to the Court the likelihood of collection of material distinguishing the case of the applicant, in the course of pending investigation. Unless the said aspects are pointed to the trial Court on the basis of which two cases can be distinguished, in the opinion of this Court, on the mere ground that the charge- sheet is not filed, identical case cannot be rejected by the trial Court when the High Court has exercised the powers under Sections 438-439 of the Criminal Procedure Code.

7. Although despite there being similarity of role of the accused released on bail and the one seeking bail, the Court would be justified in declining the bail to later on the ground of well founded apprehension like accused's likelihood of fleeing from justice; or being threat to the witnesses or being able to obstruct the trial or investigation or being able to tamper with

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the evidence and the likes; in absence of distinguishing features, it would not be within its rights to revoke the orders passed by High Court under Section - 438 or 439 of the Cr.P.C.

9. Learned APP submits that in absence of the papers, it would not be possible for her to state as to whether two cases are similarly situated or not. However, having considered the order passed by the trial Court, it is obvious that two cases are similarly situated and therefore, this Court exercises the discretion under Section 439 of the Criminal Procedure Code in favour of the applicant."

23. This Court has considered the aforesaid decisions

rendered by the Hon'ble Supreme Court, however as

observed hereinabove, the case of the present

applicant is different from the case of the co-

accused, who has now been enlarged on bail by the

Coordinate Bench of this Court on 31.08.2021.

Therefore, the aforesaid decisions would not be

applicable to the facts of the present case.

24. This Court has also considered the judgment in

case of Shri Gurbaksh Singh Sibbia (supra) while

considering the present successive bail

application. This Court cannot dispute the

proposition of law laid down by the Hon'ble

Supreme Court. However, this is a successive bail

application filed by the applicant and the

applicant has failed to point out any change of

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circumstance after the rejection of earlier bail

application. In the aforesaid judgment, the

Hon'ble Apex Court has observed in Paragraph

Nos.27 to 30 as under,

"27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High court of Calcutta in Nagendra V/s. King Emperor that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that It is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the 'Meerut Conspiracy cases' observations are to be found regarding the right to bail which deserve a special mention. In K. N. Joglekar V/s. Emperor it was observed, while dealing with sec. 498 which corresponds to the present sec. 439 of the Code, that it conferred upon the Sessions Judge or the High court wide powers to grant bail which were not handicapped by the restrictions in the preceding sec. 497 which corresponds to the present sec. 437. It was observed by the court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by sec. 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor V/s. Hutchinson it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High court, having regard to the fact that the legislature itself left the discretion of the court

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unfettered. According to the High court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various section in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.

28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu V/s. Public Prosecutor that:

. . . the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. . . . After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Art. 21 are the life of that human right.

29. In Gurcharan Singh V/s. State (Delhi Administration) it was observed by Goswami, J., who spoke for the court, that :

There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.

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30. In AMERICAN JURISPRUDENCE (2d. Volume 8, page 806, para 39), it is stated:

Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.

It if thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."

25. This Court cannot dispute the proposition of law

laid down by the Hon'ble Supreme Court as well as

this Court in the aforesaid decisions. Further as

discussed hereinabove, while granting bail to the

co-accused, Ramanbhai Patel, the Coordinate Bench

has specifically observed that the case of the

said co-accused, Ramanbhai Patel and his son,

Maunang is different from the case of the present

applicant. Further as contended by learned Public

Prosecutor, the State has already challenged the

said order by filing SLP before the Hon'ble

Supreme Court. Thus, this Court is of the view

that the case of the applicant cannot be

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considered on the ground of parity.

26. At this stage, this Court would like to refer to

the observations made by the Hon'ble Supreme Court

in case of Lt. Col. Prasad Shrikant Purohit

(supra), wherein the Hon'ble Supreme Court in

Paragraph No.30 has observed as under,

"30. Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications."

27. Thus from the aforesaid observations, it can be

said that though the accused has a right to make

successive applications for grant of bail, the

court entertaining such subsequent bail

applications has a duty to consider the reasons

and grounds on which the earlier bail applications

were rejected and in such cases, the court also

has a duty to record the fresh grounds which

persuade it to take a view different from the one

taken in the earlier applications.

CONCLUSION:

28. Thus keeping in view the aforesaid observations

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made by the Hon'ble Supreme Court as well as this

Court, if the facts of the present case are

examined, it can be said that the applicant has

right to file successive bail application, however

while considering the successive bail application,

this Court has to consider the reasons given by

this Court while rejecting the bail application

filed by the applicant vide order dated

17.02.2021. It is not in dispute that the said

order has attained finality and, therefore, it is

not open for this Court to indirectly review the

said order in absence of any change of

circumstance. Once again, it is pertinent to note

that the applicant has failed to point out any new

ground/ changed circumstances and, therefore, this

Court is not inclined to exercise the discretion

in favour of the present applicant.

29. Moreover, apprehension has been voiced by learned

Public Prosecutor that if the applicant is

enlarged on bail, he will tamper with the

witnesses and, therefore also, I am not inclined

to consider the case of the applicant though in

two other FIRs, which have been filed against him,

he has been enlarged on bail by the concerned

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Sessions Court.

30. In view of the aforesaid discussions, the present

application is dismissed. Rule is discharged.

However looking to the facts of the present case,

when the applicant himself has requested before

the concerned trial court that the trial be

expedited and when the concerned Sessions Court

has shown willingness to expedite the trial and

even learned Public Prosecutor has assured that

the State will cooperate with the trial court, the

concerned trial court is directed to expedite the

trial of the present case and try to complete the

same as expeditiously as possible.

Sd/-

(VIPUL M. PANCHOLI, J.)

Gautam