Ishvarji Nagaji Mali vs State Of Gujarat
2022 Latest Caselaw 4268 Guj

      R/CR.MA/19848/2021                                   ORDER DATED: 20/04/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 19848 of 2021

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                             ISHVARJI NAGAJI MALI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR HRIDAY BUCH(2372) for the Applicant(s) No. 1
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR PRAVIN
GONDALIYA(1974) for the Respondent(s) No. 2
MR RONAK RAVAL, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                 Date : 20/04/2022
                                  ORAL ORDER

1. Rule. Learned advocates appearing for the respective respondents waive service of notice of rule.

2. The present application has been filed seeking the following prayer:-

"7(B) Your Lordships may be pleased to cancel the regular bail granted to the respondent no.2-Orig. Accused No.2 by quashing and setting aside the order dated 09.08.2021 passed by the Ld. 8 th (Ad Hoc) Additional Sessions Judge, Diodar, Dist. Banaskantha in Criminal Misc. Application No.188 of 2021 in connection with offence being F.I.R. No.11195008201056 of 2020 registered with Bhiladi Police Station, Dist.Banaskantha, dated 26.12.2020."

3. At the outset, learned advocate Mr.Buch appearing for the applicant has submitted that the impugned order is premised solely on the observations made by this Court with regard to granting of bail to the accused Lalitkumar Ganpatji Tank vide order dated 30.07.2021 passed in Criminal Misc. Application No.9390 of 2021 by this Court, which has been subsequently set aside by the Apex Court vide judgment dated 18.01.2022 passed in Criminal Appeal No.70 of 2022. He has submitted

R/CR.MA/19848/2021 ORDER DATED: 20/04/2022

that the trial court has granted bail to the present respondent no.2 on the ground of parity to the accused Lalitkumar Ganpatji Tank and hence, the impugned order granting bail to the present respondent no.2 is required to be cancelled. He has placed reliance on the judgment of the Supreme Court in the case of Girraj vs. Kiranpal and Another, (2021) 6 SCC 205. It is submitted by him that if the bail is granted to any accused on the ground of parity and if such bail is cancelled subsequently, such order granting bail to the other accused shall meet the same fate. He has further invited the attention of this Court to the observations made by the Apex Court in Criminal Appeal No.70 of 2022 and has submitted that the present application may be allowed.

2. In response to the aforesaid submissions, learned Senior Advocate Mr.Shalin Mehta appearing for the respondent no.2 has submitted that the case of the present respondent no.2 with regard to his complicity in the offence is absolutely different from the accused Lalitkumar Ganpatji Tank, whose bail has been cancelled by the Apex Court. He has submitted that the present respondent no.2 has good case on merits and his role cannot be equated with the accused Lalitkumar Ganpatji Tank. He has very fairly submitted that admittedly the trial court has granted bail to the present respondent no.2 only on the ground of parity to the accused Lalitkumar Ganpatji Tank, who was released by this Court on regular bail vide order dated 30.07.2021 passed in Criminal Misc. Application No.9390 of 2021. However, it is submitted by him that the trial court, while releasing the present respondent no.2 on bail, has not examined the role and complicity of the present respondent no.2. It is further submitted by him that he has a very good case on merits and if the role of the present respondent no.2 is independently examined, there are fair chances that the respondent no.2 will get bail. Thus, he has submitted

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that an opportunity is required to be granted to the respondent no.2 to explain his innocence or complicity of the role before the trial court as and when the present respondent no.2 applies for bail.

3. Learned APP Mr.Ronak Raval has adopted the arguments advanced by the learned advocate Mr.Buch appearing for the applicant.

4. I have heard the learned advocates appearing for the respective parties.

5. The facts, as narrated herienabove, are not in dispute. Initially, the accused Lalitkumar Ganpatji Tank was granted regular bail by the order dated 30.07.2021 passed in Criminal Misc. Application No.9390 of 2021. The same was challenged before the Apex Court by the present applicant. By the judgment and order dated 18.01.2022 passed in Criminal Appeal No.70 of 2022, the Apex Court, while examining the order dated 30.07.2021 passed by this court and the allegations levelled in the FIR, has cancelled the bail granted to the accused Lalitkumar Ganpatji Tank. It is also an established fact and from a bare perusal of the impugned order passed in favour of the respondent no.2 by the Sessions Court, it is apparent that the respondent no.2 has been released on regular bail on the ground of parity by considering the order dated 30.07.2021 passed by this Court in the case of accused Lalitkumar Ganpatji Tank.

6. The Supreme Court in the case of Girraj (supra) , while observing the similar issue, has held that the respondent-accused, who has claimed parity on the basis of the order granting bail to the co-accused, the cancellation of bail of the co-accused must have a similar consequence insofar as the grant of bail to the remaining accused is concerned. The Apex Court had cancelled the bail of all the other co-accused, who were

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granted the bail on the ground of parity. However, the Apex Court has granted liberty to such accused to move the High Court afresh for grant of bail.

7. Under the circumstances and in view of the aforesaid facts, the impugned order dated 09.08.2021 passed in Criminal Misc. Application No.188 of 2021 by 8th (Ad hoc) Additional Sessions Judge, Diodar, District Banaskantha granting bail to the present respondent no.2 is hereby quashed and set aside. The present respondent no.2 shall surrender within a period of 10 days from the date of receipt of the present order. It will be open for the present respondent no.2 to file fresh bail applications.

8. The present application is allowed. Rule is made absolute.

(A. S. SUPEHIA, J) ABHISHEK/105