Gujarat High Court

Kamlesh Kalidas Sonara vs State Of Gujarat on 4 January, 2023

Bench: Samir J. Dave

    R/CR.MA/24/2023                                    ORDER DATED: 04/01/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 24 of 2023
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                      KAMLESH KALIDAS SONARA
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR MIRENKUMAR K PRIYADARSHI(11023) for the Applicant(s) No. 1
MS RATNA VORA(2251) 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 : 04/01/2023
                               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 bearing 1st C.R.

No.11191041221291/2022 registered with Shehar

Kotda Police station, Ahmedabad City at about

3:00 p.m. on 21.10.2022 for the offences

punishable under sections 354(A), 323, 294(B),

506(2), 114 of the Indian penal code and u/s 7

and 8 of the Prevention of Children from Sexual

R/CR.MA/24/2023 ORDER DATED: 04/01/2023

Offence Act, 2012.

3 The brief facts of the case are that on

20.09.2020 applicant's wife lodged FIR bearing

C.R. No.11191041200944/2020 with the Shehar

Kotda Police Station, Ahmedabad City for the

offence under sections 143, 147, 148, 149, 323,

294(B), 427 of the Indian Penal code and u/s

135(1) of the Gujarat Police Act read with

Sections 3(1)(R)(S), 3(2)(5A) of the Atrocities

Act against the complainant and her husband

Rajaram Gupta which has culminated into

Atrocity Case No.80/2020 which is pending.

Subsequently, the complainant and her family

started harassing the applicant and his family

falsely and pressurized them to enter into an

amicable settlement. Complainant's daughter

also threatened witness Mamtaben Rahulbhai for

which Mamtaben alongwith applicant's wife on

13.10.2020 lodged a criminal complaint against

complainant and her family bearing C.R.No.

11191041201006 /2020 with Shehar Kotda Police

R/CR.MA/24/2023 ORDER DATED: 04/01/2023

Station for the offence punishable u/s 506(2)

of the Indian Penal Code read with sections

3(1)(R), 3(2), 5(A) of the Atrocities Act

against Anandi @ Tannu Rajaram Gupta- daughter

of the complainant which has culminated into

Juvenile Case no.257/2020 which is also

pending.

3.1 Anandi @ Tannu - the elder daughter of the

complainant with the complainant filed cross

complaint bearing C.R.No.11191041201005/2020 on

13.10.2020 against the applicant and his family

alongwith witness Mamtaben with Shehar Kotda

Police station for the offence u/s 143, 147,

149, 323, 354(A), 452, 506(2), 427 of the

Indian Penal Code read with sections 7 and 8 of

the POCSO Act which culminated into POCSO Case

No.246/2020 which is also pending. In the said

matter applicant and other accused preferred an

application for bail being Criminal Misc.

Application No. 6403/2020 before the Hon'ble

Sessions Court, Ahmedabad City which was

R/CR.MA/24/2023 ORDER DATED: 04/01/2023

allowed and they were enlarged on bail by order

dated 22.10.2020.

3.2 On 13.01.2021 wife of the applicant lodged a

FIR bearing 1st C.R.No. 11191041210186/2021 with

Shehar Kotda Police Station for the offence u/s

294(B), 506(1), 427 and 114 of the Indian Penal

Code read with section 3(1)(R)(S), 3(2)(5) of

the Atrocities Act against the complainant and

her husband Rajaram Gupta and others as they

started harassing the applicant and his family.

It has also culminated into Atrocities Case

No.25/2021 and is also pending. Again on

26.07.2022 the applicant filed FIR bearing

No.11191041221132/2022 with the Shehar Kotda

Police Station for the offence u/s 294(B), 114

of the IPC read with section 3(1)(S) of the

Atrocity Act against the complainant and her

husband Rajaram Gupta and the elder daughter of

the complainant Anandi @ Tannu which culminated

into Atrocity Case No.100/2022. However on

30.07.2022 complainant and other accused

R/CR.MA/24/2023 ORDER DATED: 04/01/2023

persons were enlarged on bail vide Criminal

Misc. Application no.5288/2022 with a direction

to not reside within 500 mtrs, near the family

of the applicant. In case of breach of said

condition by the complainant and other accused

persons, wife of the applicant preferred

Criminal Misc. Application No.5997/2022 for

cancellation of their bail wherein the Trial

Court issued warning to the accused vide order

dated 20.10.2022. For the modification of the

aforesaid condition complainant and other

accused persons filed Criminal Misc.

Application no.6708/2022 which was dismissed by

the Court vide its order dated 20.10.2022.

3.3 Thereafter as complainant along with her

husband Rajaram Gupta @ Malik and their

daughter Anandi @ Tannu uttered filthy abuses

against applicant and his family and also beat

them up and threatened to do away with them on

18.10.2022, applicant lodged a FIR on

19.10.2022 at about 11.30 against them at

R/CR.MA/24/2023 ORDER DATED: 04/01/2023

Shehar Kotda Police Station for the offence

punishable u/s 323, 114, 294(B) and 506(2) of

the Indian Penal Code. As a counterblast to

aforesaid FIR dated 19.10.2022 lodged by the

applicant against the complainant and her

family, the present complaint has been lodged

against the applicant and her family.

3.4 That two families were neighbors and had

quarrels twice or thrice due to which there

were complaints and cross complaints, which are

pending. Prior about one and half months

applicant lodged criminal complaint i.e.

Atrocity Case No.100/2022 against the present

complainant, her husband and their daughter

Anandi under Schedule Caste and Scheduled Tribe

(Prevention of Atrocities) Act, 1989 however,

they were enlarged on bail with condition not

to reside in 500 meters. Hence, they started

residing at Bapunagar in a rented premises. At

complainant's house at Bansi Ni Chawl they had

a grocery shop which was looked after by their

R/CR.MA/24/2023 ORDER DATED: 04/01/2023

younger daughter Radhika and brother-in-law

Niranjan Ramchandra Gupta. On 20.10.2022 at

about 11:30 p.m. complainant received a call

from Radhika who stated that Kamlesh Sonara and

his wife Parulban and their daughter Kwaish

quarreled with her and beaten her up so she

called the police. Accused thereafter

threatened her to vacate the premises or she'll

be framed in Atrocity complaint like her

parents and also will face dire consequences if

she opens her house. Upon filing the aforesaid

complaint, the applicant with other accused

preferred Application before the Learned

Sessions Judge, Ahmedabad u/s 438 of Criminal

Procedure Code, 1973 for anticipatory bail on

01.11.2022 which was rejected vide order dated

10.11.2022. Later on accused no.3 was dropped

from the said proceedings being minor who later

preferred anticipatory bail which was accepted

by order dated 11.11.2022. Therefore being

aggrieved by the rejection order of

R/CR.MA/24/2023 ORDER DATED: 04/01/2023

anticipatory bail dated 10.11.2022 the present

application is preferred before this Hon'ble

Court.

4 Heard learned Advocate for the applicant and

learned APP for the respondent-State.

5 It was submitted by the learned advocate for

the applicant that applicant has been wrongly

implicated in the said FIR and that he has not

committed any offence. That learned Court below

has erred in not appreciating the fact that it

is merely a cross- complaint filed as a counter

blast to the complaint filed by the applicant

against the complainant. Also incident occurred

at 11:00 p.m. on 20.10.2022 as stated in the

FIR while complaint was lodged at about 3:00

p.m. on 21.10.2022. Also on 19.10.2022

complaint was filed by the applicant against

the complainant therefore this complaint was

nothing but a cross complaint made as an

afterthought. No reason for delay in filing FIR

R/CR.MA/24/2023 ORDER DATED: 04/01/2023

has also been explained. That Learned Trial

Court failed to appreciate that both families

had enmity between them and hence to wreak

vengeance against applicant and his family the

FIR was lodged. That their teenage daughter is

all alone at house depending on neighbors. That

applicant has deep roots in the society and

properties at Ahmedabad therefore he is not

likely to jump the bail. Also undertakes to co-

operate with the investigation and not to

tamper with evidence or witness. He is ready to

abide by any terms and conditions that may be

imposed by the Hon'ble Court while granting

anticipatory bail.

6 Learned APP appearing for the Respondent-State

has strongly objected the present anticipatory

bail application. He submitted that as per

contents of FIR, police was informed at once by

the victim and registration of FIR being a

mechanical process not in their hands, it is

not their fault that police had not come there.

R/CR.MA/24/2023 ORDER DATED: 04/01/2023

Also as per affidavit, accused is involved in

another offence punishable under sections 392,

323, 143, 147 etc of the IPC registered with

Saher Kotda Police Station. It has also been

pointed out that five other cases are lodged

against the accused as per report submitted in

the court. He prayed that accused had molested

the victim at midnight and that allegations are

of serious nature. He therefore submitted that

looking to the gravity of the offence, the

applicant may not be enlarged on anticipatory

bail.

7 The Hon'ble Supreme Court in the case of Ram

Govind Upadhyay v. Sudarshan Singh and Ors.

reported in (2002) 3 SCC 598 has held as

under:-

"3. Grant of bail though being a discretionary order -- but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained.

Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being

R/CR.MA/24/2023 ORDER DATED: 04/01/2023

dealt with by the court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail.

The nature of the offence is one of the basic considerations for the grant of bail --more heinous is the crime, the greater is the chance of rejection of the bail, though,however, dependent on the factual matrix of the matter. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any.

The considerations being:

(a) While granting bail he court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

R/CR.MA/24/2023 ORDER DATED: 04/01/2023

doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

8 In the case of The State of Kerela Vs. Mahesh,

in Criminal Appeal No.343 of 2021, the Hon'ble

Supreme Court has laid down as under:

"17. In Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr. reported in (2010) 14 SCC 496, D.K. Jain, J., speaking for a two-Judge Bench of this Court laid down the principles for examining the correctness of orders granting bail to an accused. This Court held:-

"9. ...It is trite that this Court does not, normally, interfere with an order [Ashish Chatterjee v. State of W.B., CRM No. 272 of 2010, order dated 11-1-2010 (Cal)] passed by the High Court granting or rejecting bail to the accused.

However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well

R/CR.MA/24/2023 ORDER DATED: 04/01/2023

settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; "

9 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