Gujarat High Court
Vepari Hanif @ Jadi S/O Kadarbhai vs State Of Gujarat on 15 December, 2023
NEUTRAL CITATION
R/CR.MA/22848/2022 CAV ORDER DATED: 15/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 22848 of 2022
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VEPARI HANIF @ JADI S/O KADARBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR BHAVESH B SARODE(6454) for the Applicant(s) No. 1
MR ZUBIN F BHARDA(159) for the victim
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 15/12/2023
CAV ORDER
1. The present application is filed under Section
439 of the Code of Criminal Procedure, 1973, for
regular bail in connection with
C.R.No.11206020202700 of 2020 registered with
Kadi Police Station, District Mehsana for the
offence punishable under Sections 3(1)(ii),
3(2), 3(3), 3(4), 3(5) of the Gujarat Control of
Terrorism and Organised Crime Act (GUJCTOC Act
for short).
2. Learned advocate Mr. Bhavesh Sarode appears for
the applicant submits that the so-called
incident is occurred during the period between
01.01.2010 to 04.12.2020 and FIR is registered
on 04.12.2020. The applicant accused has been
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arrested on 30.01.2021 and since then he is in
judicial custody. Investigation is already
completed and after completion of charge-sheet,
present bail application is preferred. Learned
advocate Mr. Sarode further submits that the FIR
has been filed against total 15 accused persons
and out of those 15 accused persons, except
present applicant accused, all the 14 accused
persons have been enlarged on bail either by the
concerned Sessions Court or by the Coordinate
Bench of this Court and therefor on the basis of
principle of law of parity, present applicant
accused may be enlarged on bail. Learned
advocate Mr. Sarode further submits that after
the promulgation of the GUJCTOC Act, only one
FIR has been registered against the present
applicant accused. It is further submitted that
the role of the present applicant in that FIR is
to the effect that he has given shelter to other
accused persons and except that no role is
attributed to the present applicant accused.
3. Learned advocate Mr. Sarode has heavily put
reliance upon the judgment of the Hon'ble
Supreme Court in the case of State of Gujarat v.
Sandip Omprakash Gupta rendered in Criminal
Appeal No.2291 of 2022 and more particularly
relied on the observations made in para 51(f)
and (g) of the said judgment. Learned advocate
Mr. Sarode, therefore, submitted that applicant
may be enlarged on bail by imposing suitable
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terms and conditions.
4. Learned APP Mr. Manan Mehta has objected present
bail application with vehemence and submitted
that it is true that after promulgation of the
GUJCTOC only one offence is registered against
the applicant accused wherein it is alleged that
he has given shelter to the other accused
persons but if the past antecedents of the
applicant and seriousness of the offences
committed by the applicant accused are seen, it
appears that total 18 offences have been
registered against the present applicant
accused. Learned APP has referred to the chart
showing the offences committed by the applicant
accused and submitted that total 18 offences are
registered against the present applicant accused
of serious nature. Out of the said 18 offences
one offence is registered after the promulgation
of the GUJCTOC Act and the applicant accused is
a hardcore criminal and involved in the serious
offences of assault on police, loot, robbery and
extortion, murder etc. and therefore considering
the past antecedents as well as his continuing
unlawful activity even after promulgation of the
GUJCTOC Act, the applicant accused may not be
enlarged on bail. It is further submitted that
the applicant is the gang leader. Learned APP
Mr. Manan Mehta has also submitted that the
applicant has also involved in the offence which
occurred inside the jail wherein applicant has
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actively participated in the commission of crime
and he has made daring attack upon the jailor
and tried to kill him and he has also tried to
disturb communal harmony in the prison by acting
and behaving in a particular manner and said
fact is clearly found out from the police
papers. It is further submitted that statements
of 12 witnesses under Section 164 of the Code of
Criminal Procedure have been recorded and other
8 independent witnesses have also supported the
case of the prosecution whereby the prosecution
has invoked the provisions of GUJCTOC Act
against the applicant accused. Learned APP Mr.
Mehta has relied upon the decision of Hon'ble
Supreme Court in the case of Zakir Abdul
Mirajkar v. the State of Maharashtra & Ors,
rendered in Criminal Appeal No.1125 of 2022, and
submitted in the said case, it has been
specifically observed by the Hon'ble Supreme
Court that, 'it is settled law that more than
one charge sheet is required to be filed in
respect of the organized crime syndicate and not
in respect of each person who is alleged to be a
member of such a syndicate'. Learned APP Mr.
Mehta submits that considering the seriousness
of the offence, the conduct of the applicant
accused, who is the gang leader and a hardcore
criminal and also an offender who has assaulted
the police personnel inside and outside the jail
and has also tried to disturb the communal
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harmony and considering the role played by the
applicant accused in commission of offence, he
may not be enlarged on bail.
5. Learned advocate Mr. Zubin Bharda appears on
behalf of one of the victims has adopted the
arguments canvassed by learned APP Mr. Manan
Mehta and submits that from 2011 to 2020, total
18 serious offences have been registered against
the applicant accused. Learned advocate Mr.
Bharda has also read the statements of witnesses
and one statement of DSP and submitted that even
the applicant accused has assaulted police
personnel. Learned advocate Mr. Bharda further
submits that the applicant accused is a hardcore
criminal and if he is enlarged on bail, the
peace of Kadi town will be disturbed. Learned
advocate Mr. Bharda has also shown photograph
of one of the victims and submitted that the
said victim has been beaten mercilessly by the
applicant and other members of the gang and this
is not the only victim but there are many other
victims who have been beaten mercilessly by the
applicant and other members of his gang. Learned
advocate Mr. Bharda has, during the course of
hearing of this application, tendered an
affidavit of the victim. The same is taken on
record. Learned advocate Mr. Bharda therefore
submits that to maintain peace and harmony of
the area, till the conclusion of trial, the
applicant accused may not be enlarged on bail.
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6. I have perused the police papers and other
documents produced by the applicant accused
along with the memo of the application. It is
found out from the record that applicant accused
has been arrested on 30.01.2021 and since then
he is in judicial custody. Investigation is
already completed and after completion of
charge-sheet, present bail application is
preferred. It is also found from the record that
the FIR has been filed against total 15 accused
persons and out of those 15 accused persons,
except present applicant accused, all the 14
accused persons have been enlarged on bail
either by the Coordinate Bench of this Court or
by the concerned Sessions Court. It is also
found out from the record that after the
promulgation of the GUJCTOC Act, only one FIR
has been registered against the present
applicant accused, wherein, as submitted by
learned advocate Mr. Sarode, yet charge-sheet
has not been filed against the present applicant
accused. The role of the present applicant in
the said FIR is to the effect that he has given
shelter to other accused persons.
It is found out from the record that total 18
offences have been registered against the
present applicant accused. Out of the said 18
offences, one offence is registered after the
promulgation of the GUJCTOC Act.
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Now, I would like to refer to and rely upon the
following decision rendered by the Hon'ble Apex
Court. In the case of Sandip Omprakash Gupta
(supra), in para 51(f) & (g), the Hon'ble Apex
Court has observed as under:
"(f) There would have to be some act or
omission which amounts to organised crime
after the Act came into force, in respect
of which the accused is sought to be
tried for the first time, in the Special
Court (i.e. has not been or is not being
tried elsewhere).
(g) However, we need to clarify something
important. Shiva alias Shivaji Ramaji
Sonawane (supra) dealt with the
situation, where a person commits no
unlawful activity after the invocation of
the MCOCA. In such circumstances, the
person cannot be arrested under the said
Act on account of the offences committed
by him before coming into force of the
said Act, even if, he is found guilty of
the same. However, if the person
continues with the unlawful activities
and is arrested, after the promulgation
of the said Act, then, such person can be
tried for the offence under the said Act.
If a person ceases to indulge in any
unlawful act after the said Act, then, he
is absolved of the prosecution under the
said Act. But, if he continues with the
unlawful activity, it cannot be said that
the State has to wait till, he commits
two acts of which cognizance is taken by
the Court after coming into force. The
same principle would apply, even in the
case of the 2015 Act, with which we are
concerned."
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The Hon'ble Apex Court, vide order dated
02.09.2022 rendered in Criminal Appeal No.1404
of 2022 in the case of Shivrajbhai Rambhai
Vichhiya v. the State of Gujarat, while
enlarging the concerned appellant accused on
bail, observed as under:
"Leave granted.
Heard learned counsel for parties.
We would not like to record any detailed order
at this stage which may prejudice the either of
the sides, but suffice to say that out of 10
cases alleged against the appellant, there is
one serious case which is stated to be of a
murder where the appellant is already enjoying
anticipatory bail.
The appellant has been held under the
Gujarat Control of Terrorism and
Organized Crime Act, 2015 and he has
already spent about two and a half years
in custody."
Thus, considering the ratio enunciated by the
Hon'ble Apex Court in the aforesaid decisions as
well as the provisions of law incorporated in
the statute and considering the period of
incarceration undergone by the applicant accused
which is more than 2 years and 10 months,
without discussing anything on merits and
demerits of the case, I am inclined to consider
the present bail application.
7. This Court has also taken into consideration the
law laid down by the Hon'ble Apex Court in the
case of Sanjay Chandra v. Central Bureau of
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Investigation, reported in [2012]1 SCC 40 as
well as in case of Satender Kumar Antil v.
Central Bureau of Investigation & Anr. reported
in (2022)10 SCC 51.
8. In the facts and circumstances of the case and
considering the nature of the allegations made
against the applicant in the FIR, without
discussing the evidence in detail, prima facie,
this Court is of the opinion that this is a fit
case to exercise the discretion and enlarge the
applicant on regular bail.
9. Hence, the present application is allowed and
the applicant is ordered to be released on
regular bail in connection with
C.R.No.11206020202700 of 2020 registered with
Kadi Police Station, District Mehsana, on
executing a personal bond of Rs.15,000/- (Rupees
Fifteen Thousand only) with one surety of the
like amount to the satisfaction of the 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 the State of Gujarat without prior
permission of the Sessions Judge concerned;
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[e] not enter into the territorial limits of
Mehsana, Patan, Banaskantha, Sabarkantha,
Ahmedabad, Gandhinagar, Surendranagar and
Baroda District till the conclusion of trial
except for marking presence and attending
the Court proceedings.
[f] mark presence before the concerned Police
Station on alternate Monday of every English
calendar month for a period of one year
between 11:00 a.m. and 2:00 p.m.;
[g] 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;
10. The authorities will release the applicant 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.
11. At the trial, the 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.
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12. The present application stands allowed
accordingly. Direct service is permitted.
(DIVYESH A. JOSHI,J)
LAVKUMAR J JANI
