Gujarat High Court

Sufiyan Bilal Dav vs State Of Gujarat on 23 January, 2023

Bench: Samir J. Dave

         R/CR.MA/830/2023                                      ORDER DATED: 23/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 830 of 2023
  ==================================================
                                  SUFIYAN BILAL DAV
                                        Versus
                                  STATE OF GUJARAT
  ==================================================
  Appearance:
  MR MHM SHAIKH(2007) for the Applicant(s) No. 1,2
  MR.L.B.DABHI, APP for the Respondent(s) No. 1
  ==================================================
    CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                  Date : 23/01/2023
                                   ORAL ORDER

1. The present application is filed by the applicants

to get anticipatory bail under section 438 of the

Criminal Procedure Code in connection with the FIR

registered videC.R.No.11207002220364 of 2022 at

dated 13.08.2022 registered at the 'B' Division

Police Station, Godhara City for the offences

punishable under Sections 5,6(b), 8(2), 8(4) and 10

of the Gujarat Animal Preservation (Amendment) Act,

2011 and U/s 11(1)(d), 11(1)(d), 11(1)(e), 11(f) of

the Animal Cruelty Act and U/s 429 of the Indian

Penal Code, 1860 and U/s 119 of the Gujarat Police

Act.

2. The case of the prosecution is that one Shri

Virendrasinh Prajapati head Constable of the "B"

R/CR.MA/830/2023 ORDER DATED: 23/01/2023

Division Police Station Godhara had lodge the

complaint stating that PSI Shri A.J.Tadavi had

received secret information that in the open plot

behind Mariam Masjid, Vejalpur Road beneath the

trees, one shri Bilal Abdulrab and his sons Yakoob

Bilal and Sufiyan Bilal are indulged in cutting the

animals. Therefore, a raid was carried out and have

seen that some persons were found in slaughtering

the animals at the above stated place, therefore,

they tried to catch them. However, seeing police

they ran away, however, one Shri Bilal Dav who

tried to run-away, however, one Shri Bilal Dav who

tried to run-away on motor cycle No. GJ-12-CR-1341

but was caught by the police. The Police had

recovered 160 Kgs mutton, one axe, big knifes, the

small wooden table for mutton cutting and one

mobile phone ect. It is alleged in the complaint

that , at the place of incident, the mob was

gathered therefore, in the interest of law and

order, the accused and muddamal was shifted to the

police station. With these sorts of allegations,

FIR Came to be filed against the present

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applicants.

3. Learned Senior Advocate Mr.M.H.M.Shaikh appearing

for the applicants submitted that as per the secret

information, one Shri Bilal and his two sons i.e.

the applicants were cutting the animal at the place

of information. However, at the scene of offence

when raid was carried out, neither complainant nor

the father of the applicants or any witness had

disclosed that the persons ray away from the scne

scene of offence were Sufiyan and Yakub. It is

further submitted that applicants were never

indulged in animal slaughtering business at any

point of time. In fact, the applicant No.1 is doing

a business of Electrical goods in the nameof and

style of Sufiyan Trader" at the main Bazar of the

Godhara. It is further submitted that Bilal has

been enlarged on regular by this Court vide

Criminal Misc. Application No. 20982 of 2022 on

02.12.2022. It is further submitted that when the

father of applicants was taken to police station,

at about 06:15 am from Masjid on 13.08.2022, after

returning from prayer, a story of secret

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information and raid and nabbing the father of

applicants was lodged at 12:15 pm. He has further

submitted that applicants are innocent persons and

they have not committed any offence as alleged in

the complaint.

4. Learned APP Mr.R.C.Kodekar appearing for the

Respondent-State has strongly objected the present

anticipatory bail application. He submitted that

the applicants' name are already disclosed in the

FIR. They played pro vital role in commission of

the offence. He therefore submitted that looking to

the gravity of the offence, the applicants may not

be enlarged on anticipatory bail.

5. 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

R/CR.MA/830/2023 ORDER DATED: 23/01/2023

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 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."

6. 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 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

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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."

7. 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 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 that custodial interrogation can be

one of the grounds to decline anticipatory bail.