Dashrathbhai Mangabhai Thakor vs State Of Gujarat
2022 Latest Caselaw 4658 Guj

    R/CR.A/541/2022                                ORDER DATED: 04/05/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 541 of 2022

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                      DASHRATHBHAI MANGABHAI THAKOR
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR.MRUDUL M BAROT(3750) for the Appellant(s) No. 1
NOTICE SERVED THRU CONCERNED POLICE STN for the
Opponent(s)/Respondent(s) No. 2
MS MONALI BHATT, APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 04/05/2022

                                ORAL ORDER

Present appellant has filed Criminal Misc. Application No. 73 of 2022 before the court of learned 3 rd Additional Sessions Judge, Gandhidham-Kutch u/s 439 of the Code of Criminal Procedure, 1973 requesting to enlarge him on regular bail on account of offence being C.R. No. 11993007220002 of 2022 registered with Gandhidham B Division Police Station, Gandhidham-Kutchh for the offence punishable under Sections 323, 294(b) and 506(2) of the Indian Penal Code; Sections 3(1)(r), 3(1)(s) and 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 3rd Additional Sessions Judge, Gandhidham-Kutch rejected the said application on

R/CR.A/541/2022 ORDER DATED: 04/05/2022

19.02.2022.

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

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

Learned advocate for the appellant has submitted that the present appellant is wrongly involved in the offence by the Investigating Agency. That, the appellant is absolutely innocent person and has not committed any offences whatsoever much less offences as enumerated in the FIR. That the appellant is behind the bar since his arrest and now the investigation is over and charge sheet is filed before the appropriate court. That the appellant is young aged person and who is having responsibility of family and therefore, he is not likely to abscond and case of the present appellant is required to be considered. That the appellant is only earning member in the family. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned judgment and order passed by the learned Additional Sessions Judge and release the present appellant on regular bail.

Learned APP for the respondent-State has strongly objected the submissions made by learned advocate for the appellant and submitted that learned trial court has rightly dismissed the prayer for granting bail to the present appellant.

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That the appellant is involved in the serious offence and therefore, no liberty will be shown in favour of the appellant. That, as per affidavit filed by the investigating officer before the lower court objecting the bail application of the appellant, there are 9 offences are registered against the present appellant and the appellant is having criminal antecedent. That, the appellant and the complainant are residing in the similar area therefore, if the appellant is released on bail then there are entire possibility to hamper and tamper with the evidence and witnesses by the appellant. Hence, it was requested by learned APP for the respondent-State to dismiss the present appeal.

Cause list speaks that the notice has been duly served to the respondent no.2 though today, when the matter was called out, respondent no.2 was not present to contest present appeal.

Having considered the facts of the case, submissions made by learned advocate for the appellant and learned APP for the respondent-State as well as documents produced on record, it appears that as per the case of the prosecution the appellant went near the house of the respondent no.2 and started abusing the respondent no.2 and Rameshbhai, at that time, they had tried to calm him down, but the appellant attacked with the knife on the respondent no.2 and thereby, respondent no.2 received injury near his left eye and gave the

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kick and fist blow to Rameshbhai and abused them regarding their caste and gave threat to kill him and thereby, the impugned complaint was registered.

Further it appears that investigation is over and charge sheet has been filed by the investigating agency. The persent appellant had approached the learned Sessions Court by filing Criminal Misc. Application No. 73 of 2022 which was rejected on 19th February 2022. Further it appears from the contents of the complaint that on the left eye of the complainant, simple injury was caused. Applying provisions of the Atrocity Act appears to be doubtful in the present case. Appellant has deposited Rs. 50,000/- before the office of prison, Balpadar District Jail, Gandhidham Kutch with an undertaking that he will not involve in other offences hereinafter and further amount of Rs. 50,000/-would be deposited by him before the trial court within a period of two weeks from the date of passing of this order for security purpose without prejudice his rights and contentions.

Considering the peculiar facts of the present case as well as age of the present appellant as he is aged about 22 years and considering the involvement of the present appellant in the presence case as alleged by the prosecution as well as investigation is completed and charge sheet is filed, this Court is of the view to exercise the discretion in favour of the present

R/CR.A/541/2022 ORDER DATED: 04/05/2022

appellant by releasing him on regular bail and present appeal deserves consideration.

In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 19.02.2022 passed by the learned 3rd Additional Sessions Judge, Gandhidham-Kutch in Criminal Misc. Application No. 73 of 2022 is hereby quashed and set aside. The appellant is ordered to be enlarged on regular bail on furnishing a bond of Rs. 10,000/- with one surety of like amount to the satisfaction of the trial Court and subject to the conditions that appellant 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;

[f] deposit amount of Rs. 50,000/- before the trial court within a period of two weeks from the date of passing of this order for security purpose.

[g] not enter into the Taluka Gandhidham for the

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period of four months from the date of passing of this order.

In case of any involvement of the appellant in other offences hereinafter then the amount deposited earlier to the tune of Rs. 50,000/- before the office of Prison and remaining amount of Rs. 50,000/- to be deposited by the appellant before the learned trial court means in all Rs. 1,00,000/- deposited by the appellant shall be forfeited by the State.

The authorities will release the appellant only if he is 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 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