Gujarat High Court

Shehjad @ Gotiyo Hanifbhai Julani vs State Of Gujarat on 21 December, 2023

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     R/CR.MA/21381/2022                                           CAV ORDER DATED: 21/12/2023

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                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
                 CHARGESHEET) NO. 21381 of 2022

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SHEHJAD @ GOTIYO HANIFBHAI JULANI Versus STATE OF GUJARAT ========================================================== Appearance:

MOHAMADZAID I SAIYED(8411) for the Applicant(s) No. 1 MS SAHISTA S KHOKHAR(11116) for the Applicant(s) No. 1 MR MANAN MEHTA, APP for the Respondent(s) No.1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

Date : 21/12/2023

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.11208056201233 of 2020 registered with Thorala Police Station, Rajkot City for the offence punishable under Sections 3(2) and 3(4) of the Gujarat Control of Terrorism and Organised Crime Act (GUJCTOC Act for short).

2. Learned advocate Mr. Saiyed for the applicant submits that the so-called incident is occurred during the period between 01.01.2010 to 18.06.2020 and FIR is registered on 19.08.2020. The applicant accused has been arrested on 21.08.2020 and since then he is in judicial custody. The investigation is already completed

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and after submission of charge-sheet, present bail application is preferred. It is further submitted that the FIR has been filed against total 11 accused persons. Learned advocate Mr. Saiyed further submits that in the present case, the investigating officer has considered five offences registered against the applicant accused for attracting the provisions of GUJCTOC Act. Out of the said five offences, four offences have been registered before the promulgation of the GUJCTOC Act and only one FIR has been registered against the present applicant accused after the promulgation of the GUJCTOC Act.

3. Learned advocate Mr. Saiyed 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 upon the observations made in para 51(f) and (g) of the said judgment. Learned advocate Mr. Saiyed, therefore, submitted that applicant may be enlarged on bail by imposing suitable terms and conditions.

4. Learned advocate Mr. Saiyed thereafter put reliance upon the decision of the Hon'ble Apex Court in the case of Shivrajbhai Rambhai Vichhiya v. the State of Gujarat rendered in Criminal Appeal No.1404 of 2022 and submitted that though in the said case, 10 offences were

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registered against the said accused, the Hon'ble Supreme Court has enlarged the said accused only on the ground of period of incarceration undergone by the said accused. It is submitted that herein the present case also the applicant is behind the bars since last more than 3 years and 3 months and therefore also the applicant may be enlarged on bail by imposing suitable terms and conditions.

5. Learned APP Mr. Manan Mehta has objected present bail application with vehemence and submitted that it is true that after promulgation of the GUJCTOC Act only one offence is registered against the applicant accused but if the past antecedents of the applicant and seriousness of the offences committed by the applicant accused are seen, it appears that total 5 offences have been registered against the present applicant accused. Learned APP Mr. Mehta has submitted that the applicant accused is the active member of the organized crime syndicate and the said fact is clearly established from the CDR collected by the Investigating Officer during the course of investigation. It is further submitted that applicant accused was in constant touch with the gang leader and other members of the syndicate and therefore he is the active member of the syndicate. Learned APP Mr. Mehta has relied upon the decision of Hon'ble Supreme Court in the case of Zakir Abdul Mirajkar v. the

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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 and considering the role played by the applicant accused in commission of offence, he may not be enlarged on bail.

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 21.08.2020 and since then he is in judicial custody. The FIR has been registered against total 11 accused persons. The investigation is already completed and after submission of charge-sheet, present bail application is preferred. It is also found from the record that the investigating officer has filed the FIR in question attracting the provisions of GUJCTOC Act based on five previous offences registered against the present applicant accused, out of which, only one FIR has been registered against the present applicant accused after the promulgation of the

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GUJCTOC Act.

Now, I would like to refer to 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

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case of the 2015 Act, with which we are concerned."

The Hon'ble Apex Court in the case of Shivrajbhai Rambhai Vichhiya (supra), 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 3 years and 3 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 Investigation, reported in [2012]1 SCC 40 as

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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.11208056201233 of 2020 registered with Thorala Police Station, Rajkot City 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;

[e] mark presence before the concerned Police Station on alternate Monday of every English

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calendar month for a period of one year between 11:00 a.m. and 2:00 p.m.;

[f] 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.

12. The present application stands allowed accordingly. Rule is made absolute. Direct service is permitted.

(DIVYESH A. JOSHI,J) LAVKUMAR J JANI