Vijaybhai Mansukhbhai Patel vs State Of Gujarat
2022 Latest Caselaw 10332 Guj

    R/CR.MA/12019/2022                             JUDGMENT DATED: 23/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 12019 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SAMIR J. DAVE                        Sd/-
==========================================================

1     Whether Reporters of Local Papers may be allowed                 NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                          NO

3     Whether their Lordships wish to see the fair copy                NO
      of the judgment ?

4     Whether this case involves a substantial question                NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                         VIJAYBHAI MANSUKHBHAI PATEL
                                     Versus
                               STATE OF GUJARAT
==========================================================
Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1
MR DAIFRAZ HAVEWALLA(3982) for the Respondent(s) No. 1
MR J. K. SHAH, APP for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                               Date : 23/12/2022
                               ORAL JUDGMENT

1. The applicant, by way of this application filed under

Section 439 of the Code of Criminal Procedure, seeks

regular bail in connection with the FIR being C.R.

R/CR.MA/12019/2022 JUDGMENT DATED: 23/12/2022

No.11824001211106 of 2021 registered with Vyara

Police Station, District Tapi, for the offences punishable

under Section 302, 307, 120(B) of the IPC.

2. Heard learned Mr. B. M. Mangukiya for the applicant and

Mr. J. K. Shah, learned APP for the respondent-State.

3. Brief facts leading to filing of present application are

that:

3.1 That the complainant who is cousin brother of one

Nishishbhai Munabhai Shah who was a resident of Vyara,

District Tapi. One day he was standing near a shop selling

watermelons, at that time in a silver coloured car

(Mahendra KUV) having registration No.GJ-5-JP-2445

boarded by four unknown persons came there and

dashed the two-Wheeler of the deceased Nishishbhai and

he fell down. Those four persons were carrying weapons

like sword and knife, got down from the car and went to

assault the deceased. At that time one Ganeshbhai owner

of watermelon shop and his employee Digamber

intervened and they were assaulted by weapons like

R/CR.MA/12019/2022 JUDGMENT DATED: 23/12/2022

sword and knife. Thereafter, the accused persons ran

after the deceased Nishishbhai and when Nishishbhai was

on the ground, he was inflicted injuries on the head, face,

stomach and back by sword and knife. The same let to

the unfortunte demise of Nishishbhai. Primarily on these

facts on 14.05.2021, the FIR came to be registered

against four unkwon persons for the offences punishable

under section 302, 307, 324, 120B, 201, 225 and 114 of

IPC and section 135 of the Gujarat Police Act.

4. Learned advocate Mr. B. M. Mangukiya for the applicant

submitted that nobody named in the FIR, however, after

the arrest of the accused, the name of the applicant was

disclosed in course of investigation. He also submitted

that it was revealed that the applicant has conspired to

kill Nishishbhai- brother-in-law of the applicant since

Nishishbhai has married his sister. He also submitted

that there was scuffle before three months, therefore,

hatched conspiracy. It is pertinent to note that it is not

prosecution case that the applicant has taken any active

role in commission of the alleged offence and the

R/CR.MA/12019/2022 JUDGMENT DATED: 23/12/2022

applicant is shown to be conspirator, who alleged given a

contract to kill Nishishbhai. He also submitted that there

is no evidence worth the name collected by the

Investigating officer, so as to prove the charge of

conspiracy. He also submitted that the during pendency

of application of anticipatory bail, the applicant was

declared as absconder and proclamation under section

82 was obtained. He also submitted that charge-sheet

have now been filed and all the accused have been

arrested and therefore, no document, which is not

forming part of the records and copy whereof not

supplied under section 207 of the Criminal Procedure

Code can be relied upon. He submitted that the applicant

is innocent person and there is no prima facie case

against the applicant, so as to implicate him in the

alleged commission of offences. The applicant has been

falsely implicated in the commission of alleged offence

and therefore, this is a fit case where discretionary

power can be exercised to enlarge the applicant on

regular bail.

R/CR.MA/12019/2022 JUDGMENT DATED: 23/12/2022

5. Opposing the bail application, learned APP Mr. J. K. Shah

for the State contended that there is sufficient evidence

against the applicant to prove his involvement in the

alleged offence. He strongly opposes the bail application

looking to the nature and gravity of the offence. In such

circumstances, considering the seriousness of the offence

and manner in which he executed the alleged offence, no

case is made out for exercising discretion in favour of the

applicant.

6. On the other hand, learned Senior Advocate Mr. R. R.

Marshall assisted by learned Advocate Mr. Daifraz

Havewalla appearing for the original complainant

submitted that the applicant is main conspirator and

mastermind of the entire criminal act and he has crossed

all his ambits and broken the very chain of faith, relation

and family institution and has left a black spot on all the

threads of closer orbits/ relations of family. He had other

accused persons in conspiracy have murdered Mr.

Nishish Shah. He also submitted that from the beginning

and even at the conclusion of the investigation itself, the

R/CR.MA/12019/2022 JUDGMENT DATED: 23/12/2022

prima facie case, direct involvement and vital role of the

present applicant has been established cogently. The

charge-sheet was filed before the learned Sessions Court

by the Investigating agency and the Sessions Case came

to be registered before the learned Sessions Court and

the same is pending. Even the bare reading of charge-

sheet would absolutely make the case crystal clear that

the present applicant had all the reasons, motto, plan

and strength to get the deceased killed in this fashion.

He therefore, prayed that the present applicant may not

be released on bail.

7. Heard learned Advocate for the parties and perused the

FIR and charge-sheet papers. During the course of

investigation, it was revealed that the deceased

Nishishbhai Shah had solemnized love marriage with the

sister of the applicant herein. The same was not liked by

the applicant and from the day of the marriage, he had

developed hatred towards the deceased and on account

of the same, time and again there were attempts made

by the applicant to harass and harm the deceased.

R/CR.MA/12019/2022 JUDGMENT DATED: 23/12/2022

Applicant and accused no.7 alongwith other accused no.1

and accused no.2 went to take possession of hotel in

Saputara, but for some reason the said work could not

be completed and therefore, on the next day i.e. on

11.05.2021, the applicant told accused no.7 to direct his

men accused nos.1 and 2 to murder Nishishbhai. The

applicant has also assured that he would make payments

for the work, thus upon instructions of applicant, accused

no.7 instructed accused no.2 to murder deceased and

also told him that accused no.7 would pay him an

amount of Rs.80,000/- towards contract killing. On

12.05.2021, accused no.2 Pratik Chudasama sent back

his three friends and called accused no.3, accused no.5

and accused no.6. Thereafter, accused no.7

telephonically called accused no.2 to come near the

graveyard as he had spotted the deceased there driving

a white Suzuki access vehicle. Immediately accused

no.2, accused no.3, accused no.5 and accused no.6 came

there in the car and they rammed the vehicle with the

two-wheeler of the deceased and got down to kill the

deceased. Upon intervention by the shop owner and his

R/CR.MA/12019/2022 JUDGMENT DATED: 23/12/2022

employee they were also assaulted and thereafter the

accused fled from the spot. Therefore, present FIR is

filed.

8. It is well settled that though the power to grant bail

under section 439 of the Cr.P.C is discretionary, such

discretion has to be exercised judiciously, as held by the

Hon'ble Supreme Court in Ram Govind Upadhyay Vs.

Sudarshan Singh and Ors. reported in (2002) 3 SCC

598 has observed that:-

"3. Grant of bail though being a discretionary order -- but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail -- more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.

4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same

R/CR.MA/12019/2022 JUDGMENT DATED: 23/12/2022

are only illustrative and not exhaustive, neither there can be any. The considerations being:

(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

9. In case of Prasanta Kumar Sarkar v. Ashis

Chatterjee and Anr. reported in (2010) 14 SCC 496,

the Hon'ble Supreme Court has laid down the following

principles for examining the correctness of orders

granting bail to an accused:-

"9. ...It is trite that this Court does not, normally, interfere with an order [Ashish Chatterjee v. State of W.B., CRM No. 272 of 2010, order dated 11-1-2010 (Cal)] passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent

R/CR.MA/12019/2022 JUDGMENT DATED: 23/12/2022

upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non- application of mind, rendering it to be illegal."

10. The Hon'ble Supreme Court in the case of Mahipal v.

Rajesh Kumar and Anr. reported in (2020) 2 SCC

118, held that:-

"14. The provision for an accused to be released on

R/CR.MA/12019/2022 JUDGMENT DATED: 23/12/2022

bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-by-case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding."

11. In view of the above, it appears that the applicant

accused has played important role in commission of

alleged offence. There is possibility that if the applicant

accused is released on regular bail then applicant-

accused will not remain present before the Court during

trial in the alleged offence and it amounts to hampering/

R/CR.MA/12019/2022 JUDGMENT DATED: 23/12/2022

tempering with the evidence or witnesses, when such a

serious offence of murder is committed. From the

beginning and even at the conclusion of the investigation

itself, the prima facie case, direct involvement and vital

role of present applicant has been established cogently.

It appears that the present applicant had all the reasons,

plan and strength to get the deceased killed in this

fashion. The applicant was never a cooperative to the

investigating agency rather, he was absconding and

running away from the investigation and even the

proceedings under section 82 of the Criminal Procedure

Code, warrant was issued against him and even the

property had to attach as per the due process of law.

Even the wife of the deceased and real sister of the

applicant Mrs. Mamta Shah had also placed her

opposition by way of an affidavit before the learned

Sessions Court showcasing how his real brother himself

has ruined her life and has stated grounds in it. It

appears from the charge-sheet that there is clear nexus

of the involvement of the present applicant which act,

offence, other accused persons and would definitely

R/CR.MA/12019/2022 JUDGMENT DATED: 23/12/2022

establish the motto, reason and direct involvement of the

present applicant. Even the statements of witnesses and

other documents would logically and aptly demonstrate

that money, weapons and other assets used in the said

criminal offence were directly or indirectly cogently

connected and/or arranged/ managed by the present

applicant.

12. For the foregoing reasons and from the facts and

circumstances of the case, it appears that the

prosecution has clearly established the prima facie case

against the present applicant and thus, this Court is not

inclined to exercise the powers vested under section 439

of Code of Criminal Procedure Code for releasing the

present applicant on bail.

13. Accordingly, present application stands rejected. Rule is

discharged.

Sd/-

(SAMIR J. DAVE,J) MEHUL B. TUVAR