Gujarat High Court

Vishalsinh Pankajsinh Vaghela vs State Of Gujarat on 7 January, 2023

Bench: Samir J. Dave

     R/CR.MA/7/2023                                    ORDER DATED: 07/01/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 7 of 2023
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                      VISHALSINH PANKAJSINH VAGHELA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR DIGANT M POPAT(5385) for the Applicant(s) No. 1
MR H. K. PATEL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                              Date : 07/01/2023
                               ORAL ORDER

1. Rule. Learned APP waives service of notice of

Rule for and on behalf of Respondent-State.

2. The present application is filed by the

applicant to get anticipatory bail under

section 438 of the Criminal Procedure Code in

connection with the FIR registered vide C. R.

No.11216007220343 of 2022 at Gandhinagar Sector

21 Police Station, Gandhinagar for the offences

punishable under sections 307, 323 and 120B of

the IPC and section 135 of the Gujarat Police

Act, 1951.

3. The case of the prosecution is that son of the

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complainant had informed the complainant that

while he was admitted in hospital that a week

ago, the son of complainant had tried to settle

the dispute between his friend and the

applicant herein. The appellant had threatened

the son of the complainant. The complainant and

his fried one Mr. Surpalsinh Chandrasinh Chavda

were standing at the petrol pump near Sector 23

Circle, Gandhiangar. At that time one vehilce

bearing registration No.5299 had approached the

son of the complainant and his friend. That out

of that car, three persons had come out, one

Tarinsinh (alleged to be friend of the

applicant) with a steel pipe in hand and other

two with dhoko in hand. That Tarunsinh had

inflicted blow on the head of the son of the

complainant and the other two assailants had

inflicted blow on Surpalsinh who is alleged to

be friend of son of complainant. The son of the

complainant was taken to Gandhinagar Civil

Hospital in Ambulance service and was

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undergoing treatment. That the complainant had

gone to the Gandhinagar Civil Hospital when the

case as narrated in the subject FIR was

informed to the complainant by the son of the

complainant. The son of the complainant had

fell unconscious, he was admitted in K.D.

Hospital in the ICU department. With these

sorts of allegations, FIR Came to be filed

against the present applicant and other

accused.

4. Learned Advocate Mr. Digant Popat for the

applicant submitted that the applicant is

innocent and has not committed any offence as

alleged in the FIR. The applicant has been

falsely roped in the impugned FIR. That the

subject FIR has been filed by the complainant

on the basis of alleged testimony of son of

complainant who was in the state of

unconsciousness and also admitted in

Gandhinagar Civil Hospital. He submitted that

admittedly the applicant is not the person who

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had inflicted blow on son of complainant or his

friend Mr. Surpalsinh. That the applicant is

falsely roped into the subject FIR. That the

applicant has no relation with the alleged

incident leading to the son of the complainant

being admitted in hospital and registration of

FIR. He submitted that the applicant was not

even present when the present alleged incident

took place and thus only on this ground

applicant should be enlarged on anticipatory

bail. He also submitted that there is no

requirement of any fresh recovery or discovery

and therefore, custodial interrogation of the

applicant is not required. It is also submitted

that the applicant in any way shall not tamper

or induce any kind of hindrance to the evidence

and/or investigation. Learned advocate for the

applicant prayed that present applicant may be

released on anticipatory bail.

5. Learned APP Mr. H. K. Patel appearing for the

Respondent-State has strongly objected the

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present anticipatory bail application. He

submitted that the applicant's name is already

disclosed in the FIR. He played pro vital role

in commission of the offence. He therefore

submitted that looking to the gravity of the

offence, the applicant may not be enlarged on

anticipatory bail.

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), the

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,

R/CR.MA/7/2023 ORDER DATED: 07/01/2023

therefore, the order passed by the 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, has observed as under in para 8 of the

report :

"8. The jurisdiction to grant bail has to be exercised on the

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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 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. Having heard the learned advocate for the

parties and perusing the investigating papers

and as well as taking into consideration the

facts of the case, nature of allegations,

gravity of offences, role attributed to the

accused and considering the law which has been

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laid down by the apex court and considering the

averments made in the complaint filed by the

original complainant and after considering the

observations made by the learned sessions judge

concerned, this court is of the considered view