Chonda Valakoli vs State Of Gujarat
2022 Latest Caselaw 4362 Guj

    R/CR.A/236/2022                                ORDER DATED: 25/04/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 236 of 2022

==========================================================
                             CHONDA VALAKOLI
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MS AYUSHRI THAKKAR FOR NANAVATI & CO.(7105) for the Appellant(s)
No. 1,2
MR. NISARG D SHAH(7299) for the Opponent(s)/Respondent(s) No. 2
MR HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 25/04/2022

                                ORAL ORDER

Present appellants have filed Criminal Misc. Application No. 21 of 2022 before the court of learned 7th Additional Sessions Judge and Special Judge (Atrocity), Bhachau, Dist: Kutch u/s 439 of the Code of Criminal Procedure, 1973 requesting to enlarge them on regular bail on account of offence being C.R. No. 11993004210466 of 2021 registered with Bhachau Police Station, Dist: Kutch for the offence punishable under Sections 307, 395, 397, 120(B), 323, 324, 447, 427, 294(B), 506(2), 341 of the Indian Penal Code; Section 25(1-b)(a) of the Arms Act; Sections 3(1)(r), 3(1)(s), 3(2)(v), 3(2)(v-a), of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act") and Section 135 of the GP Act, wherein the learned 7 th

R/CR.A/236/2022 ORDER DATED: 25/04/2022

Additional Sessions Judge and Special Judge (Atrocity), Bhachau, Dist: Kutch rejected the said application on 19.01.2022.

Feeling aggrieved by the said order, appellants have preferred this 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 present appellants are wrongly involved in the offence by the Investigating Agency. That, the appellants are absolutely innocent persons and have not committed any offences whatsoever much less offences as enumerated in the FIR. That, even during the course of investigation, no material has come on record suggesting that any of the appellants have used their weapon for causing grievous injury. The investigating Officer, in the affidavit filed contesting the bail application filed by co- accused persons, has not mentioned any active role having been played by the appellants of causing grievous injury, and the said injury is alleged to have been caused by co-accused Kana Vala Ahir. That, there has been no recovery or discovery of any incriminating material at their instance and nothing has been found by the police during the course of investigation suggesting direct involvement of any of the appellants in the

R/CR.A/236/2022 ORDER DATED: 25/04/2022

alleged act of causing injury. That, the co-accused have been released on bail by the learned Sessions Court as well as by this Court. Hence, it was requested by learned advocate for the appellants to quash and set aside the impugned judgment and order passed by the learned Additional Sessions Judge and release the present appellants on regular bail.

Learned APP for the respondent-State has strongly objected the submissions made by learned advocate for the appellants and submitted that learned trial court has rightly dismissed the prayer for granting bail to the present appellants. That, the offence against the present appellants has been established by the prosecution. That, the appellants are involved in the serious offence thus, no liberty can be granted in favour of the appellants in releasing them on regular bail. Hence, it was requested by learned APP for the respondent No.1 State to dismiss the present appeal.

Learned advocate for the respondent no.2 has objected the submissions made by learned advocate for the appellants and submitted that the appellant no. 1 had beaten with pipe and appellant no.2 had beaten with Dhoko in hand of the respondent no.2 and threaten for dire consequences. The respondent no.2 was hospitalized for a period between 1 to 9 days and till date, he is taking treatment as an outdoor patient. Ultimately, it was submitted by learned advocate for the

R/CR.A/236/2022 ORDER DATED: 25/04/2022

respondent no.2 to dismiss present appeal.

Having considered the facts of the case, submissions made by learned advocate for the appellants; learned advocate for the respondent no.2 and learned APP for the respondent- State as well as documents produced on record, it appears that it is not in dispute that this appeal has been preferred after filing of the charge sheet as investigating officer has completed the investigation. It further appears that the complaint came to be given by the respondent no.2 alleging that he owns farm land and raised crop over his land but on 26.10.2021 he got information that stray cattle has grazed the standing crop, he along with his uncle Ganesh went to the field wherein accused persons armed with weapons were hiding themselves in the bushes and thereby, they suddenly sprang out and asked him as to why he had come for darshan on the occasion of installation of temple and then assaulted him and his uncle with weapons. On the basis thereof the impugned complaint was lodged. From the statements of witnesses it appears that only role attributed to the appellants is of being armed with weapons and being present when the assault was taken place. From the statements of the witnesses, it appears that the appellant no.1 has caused injury by pipe to the complainant and appellant no.2 has caused injury by dhoka to complainant. It appears from the injury certificate produced on record that

R/CR.A/236/2022 ORDER DATED: 25/04/2022

no any injury of abrasion or bruises was found, but only tenderness and CLW was found. As per MLC Certificate, the respondent no.2 was discharged from the GK General Hospital, Bhuj on 03.11.2021.

It appears from the record that the other co-accused Kanji alias Kana Sadur Koli, against whoem, graver allegations were made by the prosecutions, was already released on regular bail by learned 7th Additional Sessions Judge and Special Judge (Atrocity), Bhachau, Dist: Kutch on 29.03.2022 in Criminal Misc. Application No. 89 of 2022. Another co- accused Savabhai Valabhai Koli was also released on regular bail vide order dated 22.02.2022 passed by this Court in Criminal Appeal No. 2027 of 2021.

It further appears that no grievous injury was caused to the complainant. That, the injury caused to the complainant or injured witness is not life threatening and both of them means the complainant and the injured witness have been discharged from the Hospital. As Investigation is completed, basic ingredients to constitute the offence punishable under Section 3(i)(x) of the Atrocity Act is not satisfied in the facts of the present case.

Considering the peculiar facts of the present case, this Court is of the view to exercise the discretion in favour of the present appellants by releasing them on regular bail and

R/CR.A/236/2022 ORDER DATED: 25/04/2022

present appeal deserves consideration.

In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 19.01.2022 passed by the learned learned 7th Additional Sessions Judge and Special Judge (Atrocity), Bhachau, Dist: Kutch in Criminal Misc. Application No. 21 of 2022 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 not required in connection with any other offence for the time being. If breach of any of the above conditions is committed,

R/CR.A/236/2022 ORDER DATED: 25/04/2022

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 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.

Direct service is permitted.

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