Jagdishbhai Sankabhai Ramjibhai ... vs State Of Gujarat
2022 Latest Caselaw 6053 Guj

     R/CR.MA/10813/2022                                     ORDER DATED: 07/07/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 10813 of 2022

==========================================================
                  JAGDISHBHAI SANKABHAI RAMJIBHAI DESAI
                                 Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
MR DIGANT M POPAT(5385) for the Applicant(s) No. 1
MR KISHAN R CHAKWAWALA(9846) for the Respondent(s) No. 1
MS. JIRGA ZAVERI, APP for the Respondent(s) No. 1
==========================================================
 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                 Date : 07/07/2022

                                  ORAL ORDER

1. This successive regular bail application is filed by the applicant - accused under Section 439 of the Code of Criminal Procedure, 1973 ('for short, 'the Code') for enlarging the applicant on regular bail in connection with FIR being C.R. No. 11216005220146 of 2022, registered with Dahegam Police Station, District - Gandhinagar for the offences punishable under Sections 306 and 114 of the Indian Penal Code, 1860 and under section 33(a)

(b) of the Money Lenders Act, 1946.

2. Heard learned advocate Mr. Digant M. Popat for the applicant, learned advocate Mr. Kishan Chakwawala for the respondent and learned APP Ms. Jirga Zaveri for the Respondent - State.

3. The brief facts of the case are that the mother of the complainant suffered a heart attack one year ago. That, the complainant and the deceased were in dire need of funds for his mother's medical expenses and therefore, the deceased Mr. Akashbhai had borrowed various sums of money from the accused

R/CR.MA/10813/2022 ORDER DATED: 07/07/2022

persons. That, the on 26.3.2022, the deceased left for his shop along with one Mrs. Sonalben Alkeshsingh Rajput. That, thereafter at about 10:30 A.M. the complainant was informed by one Mr. Kalpeshsingh Vikramsingh Rathod that the deceased's body was found handing in his shop - Urvashi Pan Parlor. Therefore, the FIR in question came to be lodged.

Submission of the Parties:

4. Learned advocate for the applicant - accused has submitted that this is a successive bail application. He submitted that the Court, while disposing of the Criminal Misc. Application No. 8814 of 2022 had granted liberty to file application before the appropriate Court. The applicant has filed regular bail application before the learned Sessions Court, Gandhinagar but the learned Sessions Court, Gandhingar was pleased to reject the regular bail application. Accordingly, the present application is filed. It is submitted that, the charge sheet is also filed. He submitted that the applicant is an innocent person and is falsely implicated in the crime in question.

4.1 Learned advocate for the applicant has submitted that the applicant has no past antecedents. Further, the applicant is languishing in jail since 29.04.2022. Learned advocate also submitted that initially the Investigating Agency has arraigned five persons for the so called offence under Section 306 of the IPC coupled with Section 114 of the IPC and Section 33(a)(b) of the Money Lenders Act, but subsequently, the Investigating Agency came to know about the so called role attributed to the applicant and arrested the present applicant. Learned advocate further submitted that only the role attributed to the present applicant is to the extent that he had landed money to the deceased and the complainant because they were in dire need of money and therefore, the Investigating Agency taken view that the present

R/CR.MA/10813/2022 ORDER DATED: 07/07/2022

applicant has equal role in the commission of offence as alleged.

4.2 The learned advocate for the applicant - accused has submitted that the applicant has family roots in the society and therefore, he is not likely to flee away from justice. That, the charge- sheet is filed and hence, there is no possibility of tampering and hampering with the evidence. Further, co-accused has been released by the Coordinate Bench. That, the applicant will abide by whatever conditions imposed by the Court. He has, therefore, prayed that discretion may kindly be exercised and grant bail to the applicant - accused.

5. Per contra, learned advocate Mr. Kishan Chakwawala for the respondent has opposed the bail application and submitted that there is serious role of attributed to the present applicant and therefore, discretion may not be exercised in favour of the present applicant.

6. Learned APP Ms. Jirga Zaveri for the respondent - State has also joined with the statement made by the learned advocate Mr. Kishan Chakwawala and submitted that the present applicant is involved in the serious offence under Section 306 of the IPC and therefore, discretion may not be exercised in favour of the present applicant.

Merits of the Case:

7. This court has considered the following aspects:

(a) in the present case it is an admitted fact that the applicant - accused has come for this application after the charged sheet is filed;

R/CR.MA/10813/2022 ORDER DATED: 07/07/2022

(b) It is undisputed fact that the in the present case transactions of money lending, not only that learned advocate for the applicant has drawn attention of this Court that there were 5 accused out of which three accused I.e. accused Nos. 1, 2 and 5 were protected by the co - ordinate Bench in the anticipatory bail under Section 438 of the Cr.P.C. for not having prima- facie case. Further, the accused No. 5 is also protected by the Co - ordinate Bench in the quashing petition to the extent that no charge sheet is required to be filed without permission of the Court.

(c)      the applicant has no past antecedents;


(d)      as per catena of decisions of Hon'ble Supreme Court, there

are mainly three factors which are required to be considered by the court i.e. prima facie case, availability of applicant - accused at the time of trial and hampering and tampering with the witnesses by the accused;

(e) the learned advocate for the applicant has submitted that the applicant is not likely to flee away;

(f) the applicant is in custody since 29.04.2022;

(g) law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. C.B.I., (2012) 1 SCC 40, wherein it is held that bail is a rule and jail is an exception and there should not be pre-trial punishment.

8. Having heard the learned advocates for the parties and perusing the papers available on record as well as taking into consideration the facts of the case, it appears that the applicant is

R/CR.MA/10813/2022 ORDER DATED: 07/07/2022

implicated in the offence punishable under section 306 r/w. section 114 etc. of the IPC as well as under Section 3(a)(b) of the Money Lendering Act. However, at this stage, the Court is not required to go deep into the evidence as it is purely a matter of trial. As per the settled principles of law on the basis of the judgment of the Apex Court that in such cases of money lendering is concerned, everybody has right to call for money and everybody has right to demand money back from the loan as given by the so called accused to the complainant and therefore, it is a matter of trial for abatement under Section 107 coupled with Section 306 of the IPC. The Court may reiterate the principle laid down by the Hon'ble Apex Court in Sanjay Chandra (supra), there should not be pre-trial punishment. Least is to say that, charge-sheet in the case on hand is filed and hence, there is no possibility of tampering and/or hampering with the evidence. Considering the charge-sheet papers as well as the nature of allegations, gravity of accusation, availability of the applicant - accused at the time of the trial etc. and last but not the least, the role attributed to the present applicant - accused, the present application deserves to be allowed and is accordingly, allowed. The applicant - accused is ordered to be released on bail in connection with the aforesaid FIR on executing a personal bond of Rs.25,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the following conditions that he shall:

(a) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence;

(b) maintain law and order and not to indulge in any criminal activities;

R/CR.MA/10813/2022 ORDER DATED: 07/07/2022

(c) furnish the documentary proof of complete, correct and present address of his residence to the Investigating Officer and to the trial Court at the time of executing the bond and shall not change his residence without prior permission of the trial Court;

(d) provide his contact numbers as well as the contact numbers of the sureties before the trial Court. In case of change in such numbers inform in writing immediately to the trial Court;

(e) file an affidavit stating his immovable properties whether self acquired or ancestral with description, location and present value of such properties before the trial Court, if any;

(f) not leave India without prior permission of the trial Court.

(g) surrender passport, if any, to the trial Court within a week. If he does not possess passport, he shall file an affidavit to that effect;

(h) shall maintain all the rules and regulations framed by the Corporation regarding contemporary status of corona virus/Covid- 19, State Government or by any competent authority, including social distancing.

9. Bail bond to be executed before the trial Court having jurisdiction to try the case. It would be open for the trial Court concerned to give time to furnish the solvency certificate if prayed for.

10. If breach of any of the above conditions is committed, the trial Court concerned will be free to issue warrant or take appropriate

R/CR.MA/10813/2022 ORDER DATED: 07/07/2022

action according to law. The authorities will release the applicant forthwith only if he is not required in connection with any other offence for the time being.

11. At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.

12. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(A. C. JOSHI, J) Prk - 41