Gujarat High Court
Aslam @ Bodiyo Haidermiya Shaikh vs State Of Gujarat on 14 December, 2023
NEUTRAL CITATION
R/CR.MA/22490/2022 CAV JUDGMENT DATED: 14/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 22490 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ASLAM @ BODIYO HAIDERMIYA SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
MR MOHDDANISH M BAREJIA(10612) for the Applicant(s) No. 1
MR. MANAN MEHTA,, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 14/12/2023
CAV JUDGMENT
1. The present application is filed under Section 439 of the
Code of Criminal Procedure, 1973, for regular bail in
connection with the FIR being C.R. No.11196010210001 of
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2021 registered with the DCB Police Station, Vadodara of the
offence punishable under Sections 3(1)(i)(ii), 3(2), 3(4), 3(5) of
the Gujarat Control of Terrorism & Organized Crime Act (for
short "GUJCTOC Act").
2. Learned advocate Mr. M.M. Barejia appearing for the
applicant has submitted that the first information report has
been registered against the applicant-accused on 19.01.2021
and the applicant-accused came to be arrested on 01.02.2021.
It is further submitted that the investigation has already been
completed and charge-sheet has also been filed in the present
case. Learned advocate Mr. Barejia has also submitted that at
the time of submission of the charge-sheet, the prosecuting
agency has put reliance upon thirteen offences registered
against the applicant-accused. The list of such offences is
mentioned in the charge-sheet papers which clearly goes on to
show that almost all offences have been registered in the year
2013 and 2015 and out of the thirteen offences relied upon by
the Investigating Officer, three offences were registered after
the promulgation of the Act wherein as per the penal provision
of the statute, the maximum punishment is upto two years
and, therefore, considering the period of incarceration already
undergone by the applicant-accused, the present bail
application may be considered. Learned advocate Mr. Barejiya
has further submitted that the investigation has been
completed and there are more than 200 witnesses have been
cited in the charge-sheet and the charge has also yet not been
framed and therefore there is all likelihood that the trial would
not get completed in near future and the applicant-accused
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may not be kept in judicial custody for an indefinite period of
time. If the applicant-accused is not released on bail, then the
same would amount to a pre-trial conviction. It is also
submitted that the other co-accused persons have already
been enlarged on bail by the Sessions Court. Under the
circumstances, learned advocate for the applicant prays that
the applicant may be enlarged on bail on any suitable terms
and conditions.
3. The learned APP Mr. Manan Mehta appearing on behalf of
the respondent-State has opposed grant of regular bail looking
to the nature and gravity of the offence. Learned APP Mr.
Mehta has submitted that the specific role of the applicant-
accused is clearly spelt out from the compilation of the charge-
sheet papers. Learned APP Mr. Mehta has further submitted
that, in fact, 64 offences have been registered against the
applicant-accused and in all total 202 offences have been
registered against the members of the gang and the present
applicant-accused is the main person. The present applicant-
accused is a habitual offender and number of cases have been
registered against him. Learned APP Mr. Mehta has also
submitted that, in fact, the Investigating Officer has carried out
the investigation in a particular direction and it is found out
from the record that the present applicant-accused was in
constant contact with the other co-accused and the said fact is
clearly reflected from the Call Data Record collected by the
Investigating Officer which is forming part of the charge-sheet
papers. Learned APP Mr. Mehta has further submitted that
after the promulgation of the GUJCTOC Act, there are total five
offences have been registered against the applicant-accused,
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however, at the time of submission of the charge-sheet, the
Prosecuting Agency has put reliance upon three offences. It is
further submitted that the important aspect which is required
to be brought to the notice of the Hon'ble Court is that the
present applicant-accused has attended one court proceedings
through video conference, and at that point of time, in the
presence of one an all, he has administered threat to one of
the employee of the Court and, therefore, complaint had
been registered against the applicant-accused. Not only that,
when the present applicant-accused and the other co-accused
were enlarged on temporary bail, at that point of time, the co-
accused administered threat of dire consequences to the
witness and demanded Rs.70,000/- for the expenditures
incurred by him on the legal proceedings due to the fault on
the part of the said witness and, therefore, another complaint
has been registered which is also pending for final adjudication
The knife used by the co-accused at the time of administering
threat has also been recovered by the Investigating Officer at
the relevant point of time. Learned APP Mr. Mehta has
submitted that the aforesaid two first information reports have
been registered against the applicant-accused when he was in
jail and, therefore, there are all possible chances that if the
applicant-accused is released on bail, then he will administer
threat to the witnesses and try to flee from the justice.
Therefore, considering the above stated factual aspects, this
is a fit case wherein discretionary power of this Court is not
required to be exercised in favour of the applicant-accused.
4. I have heard the learned advocates appearing on behalf
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of the respective parties and perused the papers of the
investigation and considered the allegations levelled against
the applicant and the role played by the applicant.
5. It is found out from the record that at the time of invoking
provisions of GUJCTOC against the applicant-accused, the
Investigating Officer has put much emphasis upon thirteen
offences registered against the applicant-accused. It appears
that the present applicant-accused along with the other co-
accused persons as named in the FIR formed organized crime
syndicate (Bichchu Gang) to commit serious crimes relating to
bodily injuries and property related and made monetary
benefits yielded out from such crimes for their livelihoods.
Committing such crimes in public frequently, they create an
atmosphere of fear and terror in order to put the public at
large under their coercion and not become obstacle in their
criminal activities and to carry on their activities without any
obstructions. The applicant-accused has been shown as an
accused No.1 and he is the main leader of the said Bichchu
Gang. As per discrete information, in many cases apart from
the offenses of extortion and robbery mentioned in the table of
the complaint, the gang collects ransom money from the
trader or business class but due to the fear and terror of the
said gang, the victim trader, business class or common man
avoid the police action or to lodge the complaint against them.
It is imperative to pull down such activities mentioned above of
such criminals in order to maintain the law and order in the
city and for maintaining peace and public order.
6. Considering the F.I.R. of the offence, names and
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addresses of all the members of the gang and details of
offences registered against each accused in the last ten years
have been mentioned in the impugned FIR. Name of the
present applicant-accused is mentioned as accused No.1.
Considering the F.I.R., many offences under section-307, 201,
386, 395, 120(B), 143, 147, 148, 149, 387, 506(2) etc. of
Indian Penal Code, section - 135 of Gujarat Police Act and
section - 25(1)(A), 1B(A) and 29 of the Arms Act have been
registered against him. In the same way, in addition to the
sections mentioned above, offences under the different
provisions of the IPC have been registered against other
members of the gang. Thirteen offences have been registered
against the present applicant-accused, out of which, three
offences have been filed after the promulgation of the Act. In
fact, there are in all total five offences have been registered
against the applicant-accused after the promulgation of the
Act, out of which, the Investigating officer has relied upon
three offences. It is worth noting that the other two offences
have been committed by the applicant-accused while he was in
jail. It has also come on record from the papers of the
investigation that at one point of time, while the applicant-
accused had attended the court proceedings through video
conference, he had administered threat to the employee of the
court due to which a complaint came to be registered against
him. Similarly, the co-accused also administered threat to one
of the witnesses while on temporary bail and demanded
Rs.70,000/- to meet with the expenditures of the court
proceedings. The aforesaid conduct of the applicant-accused
and the other co-accused itself shows the criminal mind set of
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the applicant-accused and his gang members. He is the leader
of the organized crime syndicate and seems to be the
headstrong person. In all total more than 200 cases have been
registered against the said syndicate, out of which, 64 offences
are against the applicant-accused and out of those 64
offences, 13 offences have been relied upon by the
Investigating Agency.
7. Thus, there is a prima facie material on record to believe
that the applicant-accused is a leader of this organized crime
syndicate and is connected with the other accomplices.
Statements of police witnesses and some other witnesses in
connection with the offences registered against them as
mentioned above are available on record. It is necessary to
record that, prima facie it appears from some of the crucial
statements on record that the applicant-accused is a leader of
this organized crime syndicate and has been engaged in such
criminal activities prior to and after enactment of this act.
From these statements, such fact emerges on record that, the
witnesses know all the members of this gang full well, who are
gangsters and ruffians. The gang acts under the direction of
the present applicant-accused. The witnesses have also stated
that, the members of this gang are engaged in offences such
as murder, extortion, loot, robbery, abduction for ransom,
grabbing someone's land or property by occupying it, grabbing
a land property forcefully by entering into a deal, giving token
amount and threatening the land owner, recovery of due
amount for any person etc.
8. It is noteworthy that, the only material representation
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made for the applicant-accused is that, the offences registered
against the applicant-accused in the past cannot be considered
for registering offence under the GUJCTOC Act and provision of
this act is attracted only if a fresh offence is committed by him
on the date of F.I.R.. This Court is of the view that if any
accused has committed numerous offences prior to enactment
of this act and is engaged in criminal activities as a member of
a gang committing organized crimes even after enactment of
this act, then police can proceed to file a complaint. It is
natural that members of a gang committing organized crimes
are ruffians and used to commit offences relating to body and
property. It is comprehensible that, in such circumstances, no
person dares to file a complaint against them. With respect to
the present applicant-accused, even after enactment of this
act, total five offences have been registered against him. In
such circumstances, provision of section-2(C) and section-2(E)
of the GUJCTOC Act are attracted against the present
applicant-accused.
9. It appears from the record that total 64 offences have
been registered against the applicant-accused, out of which,
thirteen serious offenses have been relied upon by the
Investigating Agency in its affidavit. Three out of the thirteen
offenses have been registered after promulgation of the
GUCTOC Act. In fact, there are two other offences registered
against the applicant-accused while he was in jail which have
not been relied upon by the Investigating Officer at the time of
invoking the provisions of the GUJCTOC Act.
10. The Court is of the view that If the provisions of Section-
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2(C) of the GUJCTOC Act are read with the judgment in the
case of Sandip Omprakash Gupta case, the fact is clear that
there are two main requirements for attracting provisions of
the GUJCTOC Act against the applicant-accused. Firstly; More
than one offense punishable with imprisonment of three years
and more should have been registered against the accused in
last ten years, wherein charge-sheet has been filed and the
court has taken a cognizance of an offense and secondly;
where the accused has committed any offense punishable with
imprisonment of three years or more after this act has come
into force. Both these requirements are met with in the case of
present applicant-accused.
11. In view of the foregoing reasons, no case is made out to
exercise discretion in favour of the applicant more particularly
when the present applicant-accused is the leader of the gang
and have committed two offences while he was in jail.
12. in the result, the present application fails and is hereby
rejected. Rule is discharged.
(DIVYESH A. JOSHI,J)
VAHID
