Ajay Manjibhai Ughrejiya vs State Of Gujarat
2022 Latest Caselaw 2471 Guj

    R/CR.A/136/2022                                ORDER DATED: 04/03/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 136 of 2022
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                         AJAY MANJIBHAI UGHREJIYA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR PRATIK Y JASANI(5325) for the Appellant(s) No. 1
PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 04/03/2022

                                ORAL ORDER

Learned APP has forwarded a report issued by the Assistant Police Commissioner, Rajot City dated 10.2.2022 which is taken on record.

As per report of learned Additional Sessions Judge, Rajkot, dated 1.2.2022, annexing report of Police Inspector, Pradhyuman Nagar Police Station, Rajkot dated 31 st January, 2022, notice is duly served to respondent No.2. However, today, when the matter was called out, respondent No.2 was not present to contest this appeal.

Present appellant has filed Criminal Misc. Application No. 2736 of 2021 before the court of learned 10 th Additional Sessions Judge, Rajkot u/s 439 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellant on bail after he being arrested on account of an offence being registered vide I-C.R. No. 11208044214447 of 2021 with Pradhyuman Nagar Police Station, Dist. Rajkot for the offence punishable u/s 364(A), 143, 147, 148,

R/CR.A/136/2022 ORDER DATED: 04/03/2022

149, 323, 324, 504 & 506(2) of the IPC and u/s. 135(1) of G.P.Act as well as u/s. 3(2)(V) of of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "Atrocity Act"), wherein, learned 10th Additional Sessions Judge, Rajkot dismissed the said application.

Feeling aggrieved by the said order, appellant has preferred this appeal u/s 14A of the Atrocity Act.

Heard learned advocate for the appellant and learned APP for the respondent-State.

It was submitted by learned advocate for the appellant that the appellant is wrongly involved in this case. That, there is no evidence or material on record which would connect the appellant with crime in question. That, appellant has not played any role in committing alleged offence nor he is alleged to have demanded money. That, there is also no allegation that the appellant has given any blow on the complainant with the help of any weapon. That, complainant is alleging that he has sustained injuries which are caused by using knife by co-accused. However, no such injuries are found in the Medical Report. That, there is no allegation about the appellant. That, appellant is having clean past record and does not have any criminal background. That, investigation is over, charge-sheet is also filed by the Investigating Agency. That, appellant has disclosed all the facts which are within his knowledge to the police, and nothing more to be discovered or recovered from the appellant. That, there is no possibility of tampering or hampering with prosecution evidence. That, appellant has not spoken any words which are derogatory

R/CR.A/136/2022 ORDER DATED: 04/03/2022

words to the casts of the complainant. That, other co-accused was released on bail by this Court. Hence, on the ground of parity, this is a fit case for granting regular bail to the appellant and hence, it was requested to grant bail to the appellant.

Learned APP appearing for the respondent-State has objected the submissions made by learned advocate for the appellant and submitted that present appellant was identified in the T.I.Parade. That, from the police papers itself role of the present appellant is clearly established by the prosecution as he is involved in the serious offence of kidnapping of the complainant. That, during the investigation, it is found that present appellant has played active role in extorting money from the complainant and kidnapping the complainant. That, prima facie involvement of the present appellant is established as he is involved in the serious offence. Hence, it was requested by learned APP to dismiss the appeal.

Having heard learned advocate for the applicant and learned Additional Public Prosecutor for the respondent-State as well as charge-sheet papers produced on record by learned advocate for the appellant, it appears that complaint was registered on 15.10.2021 for the alleged offence occurred on 14th October, 2021. As per the case of prosecution, one Rahul Narshibhai Boria had lodged the present complaint against the present appellant and 8 accused persons with Pradhyuman Nagar Police Station. As per the allegations made in the complaint, present appellant along with other co-accused persons kidnapped the complainant and asked him to manage ransom amount. Complainant was beaten and injured by the accused persons

R/CR.A/136/2022 ORDER DATED: 04/03/2022

with knife . Therefore, this FIR was lodged before the Pradhyuman Nagar Police Station. It appears that present appellant is in judicial custody since October, 2021. It appears from the police papers that in the complaint, the allegations are made against the present appellant to give first blow and as per charge-sheet papers except this allegations, no other role was played by the present appellant. From the record, it appears that other 4 co-accused persons are released on bail by the Sessions Court having similar role attributed by them. It further appears that investigation is now over and judicial custody of the appellant would not be required as appellant is in judicial custody since October, 2021. It also appears that charge- sheet is filed against the present appellant and looking to the whole charge-sheet papers, no other evidence is found against the present appellant except giving fist blows to the complainant. There is no criminal history pointed out by prosecution against the present appellant. No specific averments made against the present appellant to attract any provisions of 325 of Atrocity Act as charge-sheet is filed by the Investigating Agency and investigation is over.

In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 18.12.2022 passed in Criminal Misc. Application No. 2736 of 2021 by learned 10 th Additional Sessions Judge, Rajkot is hereby quashed and set aside. The appellant is ordered to be enlarged on bail on furnishing a bond of Rs. 10,000/- with surety of like amount on the following conditions that the appellant shall

(a) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so

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as to dissuade from disclosing such facts to the court or to any police officer;

(b) at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change residence till the final disposal of the case till further orders;

(c) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits;

Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the appellant. The appellant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand.

At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the appellant on bail.

(B.N. KARIA, J)

BEENA SHAH