Thakore Kishanji Somaji vs State Of Gujarat
2022 Latest Caselaw 4440 Guj

    R/CR.A/692/2022                                ORDER DATED: 27/04/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 692 of 2022

==========================================================
                          THAKORE KISHANJI SOMAJI
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR AMRISH S BAROT(3551) for the Appellant(s) No. 1,2
MS NEHA C SHUKLA(6172) 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 : 27/04/2022

                                ORAL ORDER

Present appellants have filed Criminal Misc. Application No. 332 of 2022 before the court of learned 4 th Additional Sessions Judge, Mahesana 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.11206008220107 of 2022 registered with Becharaji Police Station, Dist: Mahesana for the offence punishable under Sections 323, 324, 325, 504, 506(2) and 114 of the Indian Penal Code; Section 25(1-b)(a) of the Arms Act; Sections 3(1)(r), 3(1)(s), 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 4 th Additional Sessions Judge Mahesana rejected the said application on 23.03.2022.

R/CR.A/692/2022 ORDER DATED: 27/04/2022

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, false accusations are made by the complainant with the object of humiliating the appellants by having them so arrsted and in the facts of the present case, no more further custodial interrogation is required as the complainant is now discharged from the hospital and having no more complication and is back to his routine. That, even the essential ingredients of the alleged offences are not made out for the alleged offence punishable under the provisions of the IPC and Atrocity Act as such offences are added without application of mind. That, the appellants are having deep roots in the society and also having movable and immovable properties and therefore, they are not likely to be absconded. Hence, it was requested by learned advocate for the appellants to quash and set aside the impugned judgment and order passed by the learned

R/CR.A/692/2022 ORDER DATED: 27/04/2022

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 present appellants are the highly influenced people. They used to pick quarrels with anyone and they crossed their limit to pressurize anyone. That, considering the gravity of offence and role played by the appellants in the offence, no liberty can be granted in favour of the appellants while releasing them on bail. Ultimately, it was submitted by learned advocate for the respondent no.2 to dismiss present appeal.

Having considered the facts of the case, submissions made by learned advocate for the appellants; learned advocate

R/CR.A/692/2022 ORDER DATED: 27/04/2022

for the respondent no.2 and learned APP for the respondent- State as well as documents produced on record, it appears that the charge sheet has been filed by the prosecution. It appears that the complainant is doing labour work and belonging to the SC/ST community. It is alleged in the complaint by the complainant that on 14.03.2022 when complainant was present at his house, one of the accused person used to play his mobile phone with loud sound and as the complainant advised him to go to ahead of his house, the alleged accused persons came with weapon in his hand and inflicted to the complainant on his head and also used bad words against his case. It is also alleged in the complaint that at that time, his brother also came with stick in his hand and inflicted on the hand of the complainant and as the complainant fell down, they gave kick and first blows and subsequently, with the help of the friend, he was admitted in the hospital through 108 ambulance and thereby complaint was lodged on the next date ie. on 15.03.2022.

If we consider the entire FIR lodged against the present appellants by the respondent no.2, there is no pleading that accused is not a member of SC/ST community and derogatory words were used in open place and in the presence of other people and no such plea has been taken in the FIR itself. Further, there is no disclosure in the complaint that victim was

R/CR.A/692/2022 ORDER DATED: 27/04/2022

a member of SC/ST and it was known to the present appellants. From the affidavit filed by the Investigating Officer before the trial court, there no criminal antecedents are disclosed in the affidavit.

Final Certificate issued by the General Hospital, Mahesana on 15.03.2022 shows that two fractures were received by the injured persons and injured is discharged from the hospital. Looking to the seriousness of the offence and gravity of the offence, in absence of the ingredients of provisions of the Atrocity Act as alleged by the prosecution, present appeal requires consideration for releasing them on bail as they are aged about 18 and 19 years respectively 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 present appeal deserves consideration.

In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 23.03.2022 passed by the learned learned 4th Additional Sessions Judge, Mahesana in Criminal Misc. Application No. 332 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;

R/CR.A/692/2022 ORDER DATED: 27/04/2022

[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;

[f] not enter into village Shankhalpur for the period of three months from the date of passing of this order.

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, 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

R/CR.A/692/2022 ORDER DATED: 27/04/2022

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