Ajaysinh Ashwinsinh Zala vs State Of Gujarat
2023 Latest Caselaw 1387 Guj

     R/CR.MA/3002/2023                                         ORDER DATED: 09/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 3002 of 2023

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                              AJAYSINH ASHWINSINH ZALA
                                        Versus
                                  STATE OF GUJARAT
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Appearance:
MR BHARAT T RAO(697) for the Applicant(s) No. 1,2
MR HK PATEL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                   Date : 09/02/2023

                                       ORAL ORDER

1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, applicants accused have prayed to release them on anticipatory bail in case of their arrest in connection with the F.I.R.No.11209017230028 of 2023 registered with Himmatnagar Rural Police Station, District Sabarkantha for the offenses punishable under Sections 395, 143, 147, 148, 149, 323, 504, 506(2) of the Indian Penal Code as well as Section 135 of the Gujarat Police Act.

2. Learned advocate for the applicants submitted that the nature of allegations made in the FIR are such for which custodial interrogation at this stage is not necessary. Besides, the applicants are available during the course of investigation and will not flee from justice. On a bare

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reading of the FIR, ingredients of the alleged offences qua present applicants are not made out. In view of the above, the applicants may be granted anticipatory bail by imposing suitable conditions.

Learned advocate for the applicants further stated that the applicants are ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent court for remand. He further submitted that upon filing of such application by the Investigating Agency, the right of applicants to oppose such application on merits may be kept open.

3. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of anticipatory bail to the applicants accused looking to the nature and gravity of the offence alleged against the applicant. He submitted that the applicants accused are involved in the serious offence as alleged in the FIR and therefore, no lenient view would be taken in favour of the applicants accused by releasing them on anticipatory bail. He submitted that if the applicants accused are released on anticipatory bail, then they may tamper and hamper the evidences and witnesses respectively. Ultimately, it was submitted by learned APP for the respondent-State to reject present application.

4. I have heard learned advocates appearing for the

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respective parties and perused the relevant papers produced on record as well as considered the role attributed to the applicants accused in the FIR.

5. From bare reading of the FIR, it clearly transpires that the present applicants accused have played vital role in the offence alleged together with other accused persons as they have beaten the complainant with iron chain and wooden stick and snatched Rs.12,500/- from the pocket of the complainant and thereby committed loot. In the FIR, it is alleged that as the complainant was allotted block nos.3, 6 and 12 of government land near sim of village Jorapura as per the contract for mining activity but as he was not holding valid certificate from the concerned authority, he would require to take care of the land from illegal minding and thereby he was holding two persons for taking care of the same and on the date of the offence, when he went to pay the wages to the said two persons, as the accused were found doing illegal mining activities, they tried to stop the accused and in turn the accused persons beaten the complainant as aforesaid. It is also alleged in the FIR that the aforesaid two persons who have tried to save the complainant are also beaten by the accused persons and the accused persons given them threat to solve the case otherwise they will file complaint with regard to the offence punishable under the Atrocity Act. In the order of the court below, rejecting the anticipatory bail application of the applicant, the court has observed the

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same facts that the applicants herein have beaten the complainant with iron chain and wooden stick and snatched Rs.12,500/- from the pocket of the complainant and thereby committed loot, considering the facts and circumstances of the case as well as affidavit filed by the Investigating Officer and police papers. It is also observed in the said order that the present applicants accused are holding lead role in the offence alleged and they are absconders. It is further observed in the order of the court below that investigation is going on muddamal is yet not recovered. Necessity of custodial interrogation of the applicants is also mentioned in the order of the court below.

6. In case of XXX v/s Arun Kumar C.K & Anr. Reported in 2022 Live Law (SC) 870 (Criminal Appeal No.1834/2022) petition for Special Leave to Appeal (Crl.) No.7188/2022), Hon'ble Apex Court has held that:

"Be that as it may, even assuming it a case where Respondent No.1 is not required for custodial interrogation, we are satisfied that the High Court ought not to have granted discretionary relief of anticipatory bail.

We are dealing with a matter wherein the original complainant (appellant herein) has come before this Court praying that the anticipatory bail granted by the High Court to the accused should be cancelled. To put it in other words, the complainant says that the High Court wrongly exercised its discretion while granting anticipatory bail to the accused in a very serious crime like POCSO and, therefore, the order passed by the

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High Court granting anticipatory bail to the accused should be quashed and set aside.

In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment."

7. In case of Prahlad Singh Bhati versus N.C.T. Delhi and another reported in 2001 AIR SCW 1263, the Hon'ble Apex Court has observed as under in para-8:

"8. The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused

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at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purpose of granting the bail, the Legislature has used the words 'reasonable grounds for believing" instead of "the evidence" which means the court dealing with grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

8. Therefore, considering the law which has been laid down by the Hon'ble Apex Court and considering the averments made in the complaint as well as considering the observations made by the learned court below concerned, this court is of the considered view that custodial interrogation can be one of the grounds to decline anticipatory bail. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail and this is not the case where the discretion should be exercised in favour of the applicants accused for anticipatory bail.

9. For the foregoing reasons and from the facts and circumstances of the case, it appears that the prosecution has clearly established the prima facie case against the present applicants accused and the court below has rightly rejected application of the applicants accused seeking anticipatory bail considering the facts and circumstances of the case as well as relevant

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documentary evidences produced on record. This Court, therefore, is not inclined to exercise the powers vested under Section 438 of Code of Criminal Procedure Code for releasing the present applicants accused on anticipatory bail.

10. Before parting with this judgment, it is hereby clarified that the aforesaid observations made in this order have been made for the purpose of considering the present application for anticipatory bail. Therefore, the same shall not come in the way of the trial court for considering the application that may be filed by the applicants for regular bail or at the time of trial and the trial court concerned shall not be influenced by the observations made hereinabove.

11. In view of aforesaid, present application of the applicants seeking anticipatory bail is rejected. Interim relief, if any, stands vacated.

(SAMIR J. DAVE,J) ILA