Ghanshyambhai Vaghela ... vs State Of Gujarat
2023 Latest Caselaw 2931 Guj

   R/CR.MA/3094/2023                          ORDER DATED: 13/04/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 3094 of 2023

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  GHANSHYAMBHAI VAGHELA (GHANSHYAMBHAI S/O PRATAPSINH
                       VAGHELA)
                         Versus
                   STATE OF GUJARAT
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Appearance:
MR. BRIJENDRA CHAHAL, SENIOR ADVOCATE with MS. KETKI P
JHA(9864) for the Applicant(s) No. 1
MS. KRINA CALLA, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                         Date : 13/04/2023

                           ORAL ORDER

1. Heard learned Senior Advocate Mr. Brijendra Chahal for learned advocate Ms. Ketki P. Jha for the applicant and learned APP Ms. Krina Calla for the respondent - State.

2. Learned advocate Mr. Sanjay Prajapati states that he is appearing on behalf of the original complainant. He may be permitted to file his Vakalatnama.

3. Permission as prayed for is granted.

4. The Registry is directed to accept the Vakalatnama of learned advocate Mr. Sanjay Prajapati.

5. By way of the present application under Section 438 of the

R/CR.MA/3094/2023 ORDER DATED: 13/04/2023

Code of Criminal Procedure, 1973, the applicant - accused has prayed for anticipatory bail in connection with the FIR being C. R. No. 11216010220324 of 2022 registered with Pethapur Police Station, Dist. Gandhinagar for the offences punishable under Sections 302 and 114 of the Indian Penal Code and section 135 of the G. P. Act and section 25 (1-b) (a) and 27 (2) of the Arms Act.

6. By way of FIR in question, which is registered on 14.08.2022 under sections 302 and 114 of the Indian Penal Code and section 135 of the G. P. Act and section 25 (1-b) (a) and 27 (2) of the Arms Act by one Robinsingh Dilipsingh Vaghela against unknown person alleging that he is residing along with his father and mother i.e. Dilipsinh and Nirubha and he is the only son. His father had earlier remarried and he happens to be the son of Vinaba. He is having three other siblings viz Vishalsinh, Kajalba and Payalba who the son of Niruba. Except brother Vishalsinh, everyone were married. On the date of incident, at around 02:15, he received a phone call on his mobile and one Jaydipsinh informed him that the father of the first informant was found in the unconscious condition near the railway line and he was bleeding. Upon receiving such information, the complainant called his uncle and both of them went to the spot of offence and found his father bleeding. There were injury marks on his neck and on both the sides of

R/CR.MA/3094/2023 ORDER DATED: 13/04/2023

his head and on his stomach and it was noticed by the first informant that injuries were caused by sharp-edged weapon and ultimately, they found that father of the first informant dead and accordingly, the complaint against the unknown person was registered.

7. As per learned Senior Advocate Mr. Chahal appearing for the applicant, the allegations against the present applicant who has not been named in the FIR are politically motivated and though he has not played any role in the aforesaid murder and and though he is a reputed person in the society, he has falsely been implicated.

8. Learned Senior Advocate Mr. Chahal relied upon the judgment of the Hon'ble Supreme Court in case of Siddharam Satlingappa Mhetre V/s State of Maharashtra and Others reported in (2011) 1 SCC 694 and by relying upon the paragraphs no. 90 to 94 of the aforesaid judgment, learned Senior Advocate submitted that the Court has powers to grant anticipatory bail under section 438 of the Criminal Procedure Code and those powers are required to be exercised and considering the facts of the matter, leanred Senior Advocate submitted that there is an alibi in favour of the present applicant as he was found in 10 km away at the time of incident and there are CCTV footage to that effect.

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9. Learned Senior Advocate Mr. Chahal submitted that until a person is found guilty, there is a presumption of his innocence which should be considered by the Court and as the entire framing of the present applicant is politically motivated as the present applicant is ready and willling to cooperate with the investigation and he is ready to abide by most stringent condition and therefore, he should be enlarged on bail.

10. According to learned Senior Advocate Mr. Chahal, though the case of the prosecution is that the applicant was involved in carrying racky of the deceased person in a car having particular registration number but that car does not belong to the present applicant and therefore, he should be enlarged on bail.

11. Learned APP vehemently opposed this application and submitted that upon preliminary investigation, there is some material found against the present applicant. He drew the attention of the order dated 28.12.2022 passed by the Principal Sessions Judge, in Criminal Misc. Application No. 1594 of 2022 whereby the present applicant had prayed for anticipatory bail and while rejecting the anticipatory bail application by taking into consideration, the preliminary investigation carried out by the Investigating Officer, the Court below had observed that the present applicant - accused kept continuous watch over the movement of the victim and as

R/CR.MA/3094/2023 ORDER DATED: 13/04/2023

soon as he got opportunity with the help of co-accused he committed the murder of the victim. There were call details of the applicant-accused with the co-accused clearly shows direct involvement of applicant-accused in the commission of offence.

12. Further investigation also revealed that there were past enmity between the present applicant and victim and as the present applicant is serving in the police department and his wife is a corporator and, if any, relief is granted in favour of the present applicant, considering their influential position of the present applicant as well as the position of wife of the present applicant, they may influence the investigation as well

13. Further learned APP drew the attention of this Court that qua co-accused viz. Dharmendrasinh @ Kadiyo Vikramsinh Vaghela and Prakash @ Gathiyo @ Ragho Vitthalbhai Barot both were arrested and on 02.10.2022, charge-sheet is already filed and the present applicant is shown as absconder in the charge-sheet.

14. Further learned advocate Mr. Sanjay Prajapati as well as learned APP drew attention of this Court to the affidavit filed by Investigating Officer on 16.12.2022 before the Sessions Court indicating that in the past also the present applicant had given threat on telephone to the deceased person and that call

R/CR.MA/3094/2023 ORDER DATED: 13/04/2023

recording was also procured by the Investigating Agency and therefore, considering the overall material against the present applicant, he should not be enlarged on bail.

15. I have heard the learned counsels appearing for the parties and perused the material on record. The material on record indicates that there is some prima facie material against the applicant in the form of call recording which indicates that the applicant in the past also had given threat to the deceased person. Further call recording has already been collected by the Investigating Officer and there were call records between co-accused and the present applicant. Further as per the submission of learned advocate Mr. Sanjay Prajapti appearing for the original complainant, there were past antecedents against the present applicant as well. However, the aforesaid aspect is not been supported by learned APP and therefore, the same has not been considered by this Court.

16. However, this Court has considered the fact that there were phone calls between the present applicant and the co- accused persons and the call details formed a part of preliminary investigation. Further the preliminary investigation also reveals that there were enmity between the present applicant and the deceased person and considering the position of the present applicant who is a serving police officer as well as considering the fact that his wife is also Corporator,

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they are in a position that if the anticipatory bail is granted to the present applicant, to influence the investigation and therefore, I do not see any reason to grant the anticipatory bail to the present applicant.

17. Further as far as judgment relied upon by learned Senior Advocate Mr. Chahal is concerned, the aforesaid judgment takes care about the presumption of innocence. However, in view of the fact that there is sufficient material at this stage against the present applicant, the judgment relied upon by learned advocate Mr. Chahal, would not help the applicant.

18. In view of above, I do not see any reason to grant the anticipatory bail and accordingly the present application is required to be dismissed and the same is dismissed accordingly.

(NIRZAR S. DESAI,J) VARSHA DESAI