Kanjibhai Ranchhodbhai Boliya vs State Of Gujarat
2022 Latest Caselaw 3990 Guj

     R/CR.A/98/2022                                  ORDER DATED: 05/04/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 98 of 2022

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                      KANJIBHAI RANCHHODBHAI BOLIYA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR PRATIK Y JASANI(5325) for the Appellant(s) No. 1,2,3
MR PREMAL S RACHH(3297) for the Opponent(s)/Respondent(s) No. 2
MR HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                                Date : 05/04/2022

                                 ORAL ORDER

The appellants preferred one Criminal Misc. Application No.1229 of 2021 before the Court of learned Special (Atrocity) Judge, Jamnagar u/s. 439 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellants on regular bail on account of offence being registered vide C.R. NO. 11202014210117 of 2021 registered with Dhrol Police Station, Jamnagar for the offence punishable under Sections 395, 397 and 504 of the Indian Penal Code; Section 3(1)(r)(s), 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act") and Section 135(1) of the GP Act wherein, learned learned Special (Atrocity) Judge, Jamnagar rejected the said application on 30.10.2021.

R/CR.A/98/2022 ORDER DATED: 05/04/2022

Feeling aggrieved by the said order, the appellants preferred present appeal u/s 14A of the Atrocities Act.

Heard learned advocate for the appellants, learned advocate for the respondent no.2 and learned APP for the respondent No.1-State.

Learned advocate for the appellants has submitted that the appellants are absolutely innocent persons and have not commuted any offence as alleged in the complaint. That the appellants are falsely roped into the present crime and nothing to do with the said offence. That, there is no evidence or material on record which would connect the appellants with the crime in question. No case is made out against the appellants for the offences alleged against the appellants. That, on perusal of charge sheet would demonstrate that no exact role has been attributed to the appellants. From the perusal of charge sheet, it does not appear that the appellants have played any active role in commission of alleged offence and the said fact has been recorded by the Hon'ble trial Court in the impugned order. That, the charge sheet is filed and therefore, there are no possibilities of tampering or hampering with evidence by the appellants. That, the appellants are not having any criminal antecedents in the past. Hence, it was requested by learned advocate for the appellants to quash and set aside

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the impugned judgment and order passed by learned Sessions Judge and release the appellants on bail.

Learned APP for the respondent No.1-State and learned advocate for the respondent no.2 have strongly objected the arguments advanced by learned advocate for the appellants, . Referring the contents of the affidavit filed by the investigating officer produced on record, it is submitted that all the accused persons were with weapons in their hands as mentioned in column no. 11 and ingredients of the Atrocities Act are also incorporated in the complaint by the complainant. That, involvement of the present appellants is clearly made out as they have used weapons and they caused injuries. Thus, prayer made by the appellants cannot be granted by this court Hence, it was requested by learned APP for the respondent-State as well as learned advocate for the respondent no.2 to dismiss present appeal.

Having heard learned advocate for the appellants and learned advocate for the respondent no.2 as well as learned APP for the respondent no.1-State, it appears that the impugned complaint was lodged on 12.03.2021 for the offence punishable under Sections for the offence punishable under Sections 395, 397 and 504 of the Indian Penal Code; Section 3(1)(r)(s), 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 on account

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of the alleged incident. That, the present appellants are the original accused no, 8, 9 and 11 in the complaint. From the contents of the complaint, it appears that on account of business rivalry accused named in the complaint have assaulted brother of the complainant Shaileshbhai Parmar on 11.03.2021 and amount of Rs. 70,000/- as well as 2 mobile phones were also looted by the said persons named in the complaint. From the record, it appears that the allegations made in the complaint about Rs. 70,000/- as well as 2 mobile phones looted by the said persons shown in the FIR was not correct, which is supported by the affidavit of the Investigating Officer.

From the injury certificate produced on record by the appellants, it appears that there is no such a serious injury caused to the complainant. Complainant was admitted in the hospital on 12.03.2021 and was discharged from the hospital on 5th April 2021. It appears that the names of the present appellants were not disclosed by the complainant in his history given before the Doctor. As per the submissions made by learned advocate for the appellants, no weapons were recovered by the investigating officer during the investigation from the present appellants. Allegations against the present appellants no.2 and 3 were made by the complainant that by iron pipe assault was made and thereby, injury was caused.

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From the injury certificate produced on record by the appellants, no such injuries are found in such certificate. It appears that the appellants are in judicial custody since 14.03.2021. However, the previous appeal No. 913/2021 preferred by the appellants was withdrawn on 23.09.2021 and present appeal is the successive appeal preferred by the appellants praying for bail.

This court would like to refer the judgment passed in Lt Col. Prasad Shrikant Purohit v. State of Maharashtra reported in (2018) 11 SCC 458, wherein Hon'ble Supreme Court has observed in para 30 and 31 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.

31. At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused.

Considering the role allegedly played by the present appellants in the offence and perusing the investigation papers produced on record, prayer made by the present appeal requires consideration.

In the result, present Criminal Appeal is allowed and the

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impugned judgment and order dated 30.10.2021 passed by learned Special (Atrocity) Judge, Jamnagar in Criminal Misc. Application No. 1229 of 2021 is hereby quashed and set aside.

The appellants are ordered to be enlarged on regular bail on furnishing a bond of Rs. 10,000/- each with one surety of like amount to the satisfaction of the trial Court and subject to the conditions that appellants 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 Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;

The authorities will release the appellants only if they are 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. It will be open for the concerned Court to delete, modify and/or

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relax any of the above conditions, in accordance with law.

At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. Notice is discharged.

Registry to communicate this order to the concerned jail authorities and learned Sessions Court concerned through Email/Fax.

(B.N. KARIA, J) K. S. DARJI