Shaileshbhai Hariyabhai Dangi vs State Of Gujarat
2023 Latest Caselaw 8398 Guj

Gujarat High Court

Shaileshbhai Hariyabhai Dangi vs State Of Gujarat on 5 December, 2023

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     R/CR.MA/12816/2023                                       ORDER DATED: 05/12/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 12816
                           of 2023

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                          SHAILESHBHAI HARIYABHAI DANGI
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MEHUL A SURATI(7870) for the Applicant(s) No. 1
MR IMTIYAZ I MANSURI(9159) for the Respondent(s) No. 1
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                     Date : 05/12/2023

                                      ORAL ORDER

1. By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as I-C.R.No.11821051220198 of 2022 registered with Chakaliya Police Station, Dahod.

2. Learned advocate for the petitioner submits that considering the nature of allegations, role attributed to the petitioner, the petitioner may be enlarged on anticipatory bail by imposing suitable conditions. He would submit that present FIR is counterblast to FIR filed at Annexure-B. He would further submit that the present petitioner has not played any role or inflicted any injury to the victim or first informant. He would submit that none of the victim or first informant have received serious injury and they are not taking any treatment right now.

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Pointing various orders at Annexure -F and Annexure M, he would submit that many of the co-accused are enlarged on regular bail by the concerned Trial Court or anticipatory bail by this Court. He would submit that principle of parity would apply and according to FIR, the role of the petitioner is lesser than the persons who are enlarged on regular bail or anticipatory bail. Upon instructions, it is submitted that petitioner is ready and willing to join investigation. It is submitted that practically investigation is complete and charge-sheet is filed against other accused and therefore, there is no reason of tampering or hampering the evidence. Therefore, he would submit that the petitioner may be enlarged on pre-arrest bail.

3. Learned advocate Mr. Mansuri for the first informant objecting grant of bail would submit that present petitioner is perpetrator of offence. He has played active role in commission of offence. It is submitted that three identical antecedent is registered against the petitioner. The petitioner is head strong person. He has instigated other persons to commit offence by spreading message 'Khoon ka badla Khoon' and therefore, the petitioner may not be granted pre-arrest bail considering impediment with the evidence. This submissions are argued to dismiss the petition.

4. Joining argument of learned advocate Mr. Mansuri, learned APP on behalf of the respondent - State would submit that in the FIR no role is attributed to the petitioner inflicting injury upon any person but he is mastermind to design entire offence as he has goad other person to inflict injury upon victims. Petitioner is

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head strong person and he has spread message of threat in entire area and therefore, he submits not to grant anticipatory bail to the petitioner.

5. Heard the learned Advocates for the respective parties and perused the papers. It appears that the petitioner has made out case inter-alia on the reason of nature of injury said to have been inflicted by some of the accused who are enlarged on bail either anticipatory bail or regular bail. Thus principle of parity is attracted. Whether petitioner has designed entire offence or nor is subject which can be decided during trial. Since other co- accused who according to FIR have played active role are given bail either by the learned Trial Court or by this Court, more particularly noticing order passed in Criminal Misc. Application No.4771 of 2023, Criminal Misc. Application No.8722 of 2023, Criminal Misc. Application No.8758 of 2023, I find that this is fit case to exercise discretion in favour of the petitioner.

6. At this juncture, I may also refer to judgment of Hon'ble Apex Court in the case of State of Rajasthan v/s. Balchand [AIR 1977 SC 2447], wherein it is observed that "the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstance suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. We do not intend to be exhaustive but only illustrative."

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7. On perusal of affidavit of Investigating Officer, it indicates that charge sheet is filed against other accused and practically investigation is complete. In the affidavit, it is stated that there are three antecedent of accused but on that ground, the petitioner cannot be denied pre-arrest bail more particularly considering reasons stated in para 5 of this order. To be noted that the petitioner is ready and will to join investigation.

8. This Court while exercising discretion in favour of the petitioner has taken into consideration law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. [2011] 1 SCC 694, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitutional Bench in the the case of Shri Gurubaksh Singh Sibbia & Ors. v/s. State of Punjab (1980) 2 SCC 665. This Court has also taken into consideration law laid down in the case of Sushila Agarwal v/s. State (NCT of Delhi [(2020) 5 SCC 1].

9. In the result, the present petition is allowed by directing that in the event of applicant herein being arrested pursuant to FIR registered as I-C.R.No.11821051220198 of 2022 registered with Chakaliya Police Station, Dahod, the petitioner shall be released on bail on furnishing a personal bond of Rs. 10,000/- (Rupees Ten Thousand only) with one surety of like amount on the following conditions that the petitioner :

(a) shall cooperate with the investigation and make himself available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 11.12.2023, 12.12.2023 and 13.12.2023 between

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10.00 a.m. and 4.00 p.m.;

(c) shall 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 to any police officer;

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) shall 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;

(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week;

10. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the petitioner. The petitioner 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. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the petitioner, even if, remanded to the police custody, upon completion of such period

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of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.

11. If breach of any of the above conditions is committed by the petitioner, the concerned learned Judge will be free to take appropriate action in the matter. 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 while enlarging the petitioner on bail.

12. Rule is made absolute. Direct service is permitted.

(J. C. DOSHI,J) SATISH