Pareshbhai Tabhabhai Chauhan vs State Of Gujarat
2022 Latest Caselaw 9152 Guj

     R/CR.MA/12303/2022                                         ORDER DATED: 17/10/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 12303 of 2022
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                          PARESHBHAI TABHABHAI CHAUHAN
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR LAXMANSINH M ZALA(5787) for the Applicant(s) No. 1
MOHIT P PATHAK(7344) for the Respondent(s) No. 1
MR K S CHANDRANI(6674) for the Respondent(s) No. 1
MR. MANAN MEHTA, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                      Date : 17/10/2022
                                        ORAL ORDER

1. Heard learned Senior Advocate Mr. N.D. Nanavaty with learned advocate Mr. Laxmansinh M. Zala for the applicant, learned advocate Mr. K.S. Chandrani for the original complainant and learned Additional Public Prosecutor Mr. Manan Mehta for the respondent - State.

2. By this application filed under Section 439 of the Code of Criminal Procedure, 1973, the applicant is seeking release on regular bail in connection with the FIR being C.R.No.11208003220447 of 2022 registered with Gandhigram-2 University Police Station, District: Rajkot City for offences punishable under Sections 302, 307, 337, 325, 324, 323, 504, 427, 114 and 120(B) of the Indian Penal Code and under Section 135(1) of the Gujarat Police Act.

R/CR.MA/12303/2022 ORDER DATED: 17/10/2022

3. Learned Senior Advocate Mr. N.D. Nanavaty assisted by learned advocate Mr. Laxmansinh M. Zala submitted that the only role which is attributed to the present applicant is that he was doing videography at the time, when the deceased person was given a brick blow by the co-accused. Except, for the role of videography of the incident, the present applicant has beaten some other accused, which is not proved to be a fatal blow, except that, there is no role attributed to the present applicant.

4. Learned Senior Advocate Mr. Nanavaty further submitted that as far as the present applicant is concerned, there are no criminal antecedents in the past and that the allegations levelled against the present applicant by the complainant that the present applicant is a member of the Bharat Sosa gang are baseless and not substantiated by any evidence. It is submitted that in the past also, there were applications against the Bharat Sosa and his aids. However, no material has been found against the present applicant and therefore, though the present applicant was present at the scene of offence and he has caused injury to the persons mentioned in the complaint, the injury caused was not fatal though. Considering the fact that the role attributed to the present applicant is mainly of doing videography at the time when the incident occurred, therefore, the present applicant is required to be enlarged on regular bail.

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5. Learned advocate Mr. K.S. Chandrani appearing for the original complainant has vehemently opposed the present application. It is because of the lengthy arguments, as if, learned advocate Mr. Chandrani was arguing a Criminal Appeal, the matter which otherwise could have been over within fifteen- twenty minutes, this Court was compelled to hear the matter for a period of three days i.e. on 13 th , 14th and 17th of October, 2022. Learned advocate Mr. Chandrani has alleged against the present applicant that he is the member of Bharat Sosa gang and that the gang is very active in purchasing the property at a very low price from the members of the Radhe Krishna Society by threatening them, as compared to the market price. Learned advocate Mr. Chandrani has further submitted that the applicant may not be enlarged on bail considering the fact that no other role, except, committing the videography and causing some injury to the persons, thus, there is no role of the present applicant in the present application. However, considering the totality of facts and circumstances and considering the larger picture, this Court may not exercise discretion in favour of the applicant as the present applicant is in the business of extortion by way of threat and compelling the innocent citizens of Radhe Krishna Society to sell their residential premises at a much lower price.

5.1 Learned advocate Mr. Chandrani submitted that in view of

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addition of Section 120(B) of the IPC to the original FIR along with Section 302 of the IPC, the role of the present applicant is akin to the role of the main accused and further considering the fact that there are 22 applications against the present applicant, therefore, the present applicant may not be enlarged on bail.

5.2 Learned advocate Mr. Chandrani gave a compilation of authorities (five in total) and relied upon those authorities, which are reproduced herein below:

I. Ram Govind Upadhyay V/s Sudarshan Singh, 2002(3) SCC 598;

II. Mehboob Dawood Shaikh V/s State of Maharashtra, 2004(2) SCC 59;

III. State Through CBI V/s Amarmani Tripathi, 2005(8) SCC 21;

IV. Neeru Yadav V/s State of U.P & Another, 2014(16) SCC 508;

V. Neeru Yadav V/s State of U.P & Another, 2016(15) SCC 422.

5.3 Learned advocate Mr. Chandrani submitted that considering the role of present applicant in the entire offence, coupled with the fact that the offence is registered under Section 120(B) of the IPC. Therefore, the present applicant may not be enlarged on bail.

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6. Learned advocate Mr. K.S. Chandrani took this Court to the statement of witnesses and submitted that the role of the present applicant is of doing videography of the incident. Considering the fact that the applicant was present at the scene of offence, even prior to the occurrence of the offence and he was instrumental in provoking the complainant and his brother by throwing stone on the window glass of the cars. This provocative action, wherein, the present applicant was a party, had led to the unfortunate incident and therefore, the case of the present applicant is required to be seen in that light and therefore, the present applicant, irrespective of his role, may not be enlarged on regular bail.

6.1 Learned advocate Mr. Chandrani submitted that the present applicant who is financially incapable of purchasing one property, has purchased four properties and that shows his direct involvement in respect of the offence committed by the Bharat Sosa gang and therefore, considering the threat that he may pose, if he is enlarged on bail, therefore, the present applicant may not be enlarged on regular bail.

6.2 Learned advocate Mr. Chandrani has further submitted that as per the CCTV footage and pendrive provided along with the charge-sheet papers, the presence of the applicant is unquestionable on the date of incident and therefore,

R/CR.MA/12303/2022 ORDER DATED: 17/10/2022

considering the presence of the applicant on account of the property which the applicant has purchased, for which, there are no financial means of the present applicant, therefore, the applicant cannot be said to be an innocent person and his role is much larger as compared to what has been projected by way of the FIR and charge-sheet papers and therefore, the present applicant may not be enlarged on regular bail.

7. Learned Additional Public Prosecutor Mr. Manan Mehta also made submission on that line, infact, upon instructions from this Court, learned APP Mr. Manan Mehta has also produced on record a chart showing the details of around twenty applications filed by the residents of the Radhe Krishna Society against the Bharat Sosa gang, those applications were submitted from 09.04.2019 till 13.01.2022. However, in none of the applications, the name of the present applicant is mentioned and out of twenty, seventeen applications are filed by the Police authorities, no case is made out against the Bharat Sosa gang. Learned APP Mr. Manan Mehta also could not dispute the fact that there are no antecedents as far as the present applicant is concerned.

7.1 Learned APP Mr. Mehta has submitted that even the statement of the present applicant was also recorded pursuant to those twenty applications at regular intervals received by the

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Police authority, wherein, the applicant could not dispute the fact that he has not brought any property in the society where the incident has taken place.

8. I have heard learned Senior Advocate Mr. N.D. Nanavaty assisted by learned advocate Mr. Laxmansinh M. Zala, learned advocate Mr. K.S. Chandrani and learned Additional Public Prosecutor Mr. Manan Mehta.

9. I have perused the charge-sheet papers which are provided by learned advocate Mr. L.M. Zala, annexed along with the application as well as some other documents which are part of the charge-sheet, produced by learned advocate Mr. K.S. Chandrani and learned APP Mr. Manan Mehta.

10. Considering the submissions made by learned advocates for the parties as well as considering the details about the applications made by the residents against Bharat Sosa and his aids, what comes on record is that, pursuant to the aforesaid applications, though, the Police authority carried out preliminary inquiry but all the applications were ultimately filed, nothing was found by the Police authority. Even, the present applicant was also called for submitting the reply, which the present applicant has submitted. Upon inquiry, this Court asked learned APP Mr. Mehta to point out, if there is any material which may indicate that the owner of the property has given any statement

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indicating that under a threat given by the present applicant, the owner was compelled to sell the property at a lesser price. However, learned APP could not point out any such material, upon instructions, from the Investigating Officer who is present before the Court. Further, learned APP also could not dispute the fact that there are any antecedents against the present applicant and hence, the present application for grant of regular bail is considered by this Court, keeping in mind, the fact that there are no criminal antecedents as far as the present applicant is concerned and though, there are twenty applications filed by various residents against the members of Bharat Sosa gang, the name of the present applicant is not mentioned in any of the applications and even after preliminary inquiry by the Police authorities, nothing is found against the present applicant.

11. The opposition of learned advocate Mr. Chandrani is required to be taken into consideration in light of aforesaid discussion. As far as the judgments cited and relied upon by the learned advocate Mr. Chandrani are concerned, I have perused those judgments which are referred in foregoing paragraph and which are broadly in respect of various aspects to be kept in mind while granting bail or considering the application for cancellation of bail. Some of the judgments are in respect of threat by the accused person to the witnesses. In the instant case, though, learned advocate Mr. Chandrani tried to point out

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that the present applicant is a headstrong person and he is a history-sheeter and having past antecedents, that submission is not supported by Police papers, as there is not a single antecedent qua the present applicant. Further, the bone of contention of learned advocate Mr. Chandrani is that in view of addition of Section 120(B) of the IPC, which is about criminal conspiracy. The applicant may not be enlarged on bail in view of addition of Section 120(B) of the IPC, the applicant is equally responsible for an offence punishable under Section 302 of the IPC, as he is one of the conspirator. However, neither those judgments cited by the learned advocate Mr. Chandrani nor the facts of this case would support the submission of learned advocate Mr. Chandrani, as those judgments relied upon by learned advocate Mr. Chandrani are in respect of different set of facts, whereas, merely by addition of Section 120(B) of the IPC, a person cannot be believed to be a conspirator. A criminal conspiracy is required to be established by leading evidence at the stage of trial and till now that stage has not yet reached. Therefore, the case of the applicant is required to be considered on the basis of material available before this Court. Hence, the judgments relied upon by learned advocate Mr. Chandrani will not help Mr. Chandrani.

12. As far as the law and order situation is concerned, the aspect raised by learned advocate Mr. Chandrani who appears on behalf of the complainant as well as it was also contended

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by learned advocate Mr. Chandrani that the Police authorities are not taking sufficient action to protect the interest of the complainant. As far as those aspects are concerned, by imposing appropriate conditions, the interest of the complainant and safety and security of the complainant can be protected by directing the present applicant to stay outside the city limits of Rajkot City, as the incident which is reported by way of this FIR is confined only to Radhe Krishna Society and not in respect of any other area of Rajkot City.

13. On perusal of the case papers and on ascertaining the role of the present applicant, this Court finds that, except, for the fact that the present applicant was present at the time when the offence was committed and that he was one of the persons who pelted stones on the window glass of the cars, which has led to the unfortunate incident of a free fight between two sides, for which, cross-complaints are filed and the deceased person had lost his life on account of a brick blow by the co-accused. Also, taking into consideration, the fact that the allegation against the present applicant is that he caused injury to Divyarajsinh Barad and Amitaben Barad, which is not very serious in nature.

14. In the facts and circumstances of the case and considering the nature of allegations, this Court is of the opinion that, discretion is required to be exercised to enlarge the applicant on

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regular bail. This Court has considered the following facts while exercising discretion in favour of the applicant :-

(i) the applicant is in jail since 16.02.2022;

(ii) the investigation is over and the charge-sheet is filed;

(iii) The only role attributed to the present applicant, which comes out from the charge-sheet papers is that the present applicant who was present at the scene of offence was doing videography of the incident of free fight between the two groups and that the present applicant has caused injury to Divyarajsinh Barad and Amitaben Barad which were not very serious in nature as alleged and as it can be seen from the charge-sheet papers;

(iv) There are no past criminal antecedents as far as the present applicant is concerned;

(v) There are cross-complaints by the two groups against each other;

(vi) The apprehension of the complainant that the applicant is a headstrong person and his release may pose a threat upon him can be taken care of by imposing suitable condition upon the applicant of staying out of Rajkot City till the completion of trial.

15. In view of the aforesaid facts, without discussing the evidence in detail, this Court, prima facie, is of the opinion

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that, this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, present application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR being C.R.No.11208003220447 of 2022 registered with Gandhigram-2 University Police Station, District: Rajkot City on executing personal bond of Rs.50,000/- (Rupees Fifty thousand only) with two sureties of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injuries 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
      Sessions Judge concerned;

     [e]      furnish latest 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 the trial Court;

[f] mark his presence before the concerned police station in the first week of every month till the trial is over;

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[g] not enter into Rajkot City till the completion of trial, except, for the purpose of attending the Court;

16. The Authorities will release the applicant only if the applicant 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 learned 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, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.

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

(NIRZAR S. DESAI,J) SLOCK BAROT