Suresh @ Anna S/O Muthhaiya Pujari vs State Of Gujarat
2023 Latest Caselaw 5185 Guj

   R/CR.MA/6482/2023                                 ORDER DATED: 05/07/2023




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    R/CRIMINAL MISC.APPLICATION NO. 6482 of 2023
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          SURESH @ ANNA S/O MUTHHAIYA PUJARI
                        Versus
                   STATE OF GUJARAT
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Appearance:
MR JAPAN V DAVE(5947) for the Applicant(s) No. 1
MR UTKARSH SHARMA ADDITIONAL PUBLIC PROSECUTOR for
the Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                           Date : 05/07/2023

                               ORAL ORDER

1. By way of this application filed under Section

439 of the Code of Criminal Procedure, 1973 the

present applicant is seeking regular bail in

connection with FIR being I-06/2017 registered

with Borsad City Police Station, Anand for the

offences punishable under Section 307, 120(B),

507 of the Indian Penal Code and Section25(1)(b)

(a), 27(1) of Arms Act.

2. As per the FIR registered by one first informant

Sankentkumar alias Sitlo Jayantibhai Patel, in

the FIR he has stated that his elder brother

Pragnesh was once upon a Municipal Councilor and

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thereafter, become a Party Precedent for a

period of one year.

2.1 However thereafter, in the year 2011, as he

was not given ticket by that political party, he

could not contest the Municipal Election and

ultimately, contested as independent candidate

and elected. In that municipal election from

Ward No.1 one Chandresh Rameshbhai Patel

contested against the brother of the first

informant but lost and in ward No.5 one Mehul @

Moras Patel and from Ward No.1 one Dushyant @

D.C. Patel also contested the election but they

also lost and therefore, due to their grudge

over the brother of the first informant and

because of that they had grudged against the

brother of the first informant.

2.2 As per the FIR on the date of incident i.e.

on 13.1.2017 at around 8:30 in the morning, his

brother Pragnesh went for hair cut on his

motorbike and as the first informant was tying

the lace of his shoes, he heard the noise of

R/CR.MA/6482/2023 ORDER DATED: 05/07/2023

firing and therefore, he ran to the spot and

found that the firing had taken place over on

his elder brother Pragnesh and he has received

injury on his jaw as well as on the left hand

side of his stomach.

2.3 Two persons who fired at his elder brother

had covered the face and ran away. His elder

brother told him that when he was going on

motorbike those two persons came to him and

asked that whether he is Pragneshbhai and upon

confirming his identity they pointed out

revolver at him and fired about three to four

round firing, which resulted in injury to his

elder brother.

3. Pursuant to which the FIR was registered and

investigation had taken place and ultimately,

charge-sheet was filed against in all eleven

persons. Present applicant is accused No.10 who

was not named in the FIR but his name figured in

the charge-sheet as accused No.10.

4. Heard learned advocate Mr. Japan Dave appearing

R/CR.MA/6482/2023 ORDER DATED: 05/07/2023

for the applicant who submitted that role of the

present applicant is negligible and he is not

the one who has fired at the witness Pragnesh.

The only role attributed even as per the charge-

sheet papers is that the present applicant was

present when a conspiracy was hedged to kill

witness Pragnesh.

4.1 Even as per the charge-sheet papers, the

only role attributed to the present applicant is

that when a conspiracy was hatched in a hotel at

Bombay namely the Legend Hotel on 12.8.2016, the

room was booked by the present applicant who is

shown as accused No.10 and as per the charge-

sheet papers, before the incident of firing on

Pragnesh Patel took place, present applicant was

present along with one Ramesh Kitta Pujari at

the farm house of Ghanshyam and he inspected the

weapon which was used for firing at Pragnesh and

said that the weapon is proper for carrying out

assault. Except that even as per the charge-

sheet papers, there is no role attributed to the

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present applicant and even the role mentioned in

the charge-sheet papers is also not supported by

any material.

5. Learned advocate Mr. Japan Dave further

submitted that there are as many as eight co-

accused are enlarged on regular bail by Co-

ordinate Bench of this Court as well as by Trial

Court and the role attributed to those co-

accused persons are either graver than the role

attributed to the present applicant or similar

to that of the present applicant.

5.1 Learned advocate Mr. Japan Dave further

submitted that the present applicant is in jail

since 2017 and therefore considering the fact

that the present applicant is in jail since

23.2.2017 as since more than six years he is in

jail and as the trial is going on but not yet

completed, the present applicant may be enlarged

on bail in view of the fact that as such there

is no material against the present applicant

coming out from the charge-sheet papers.

R/CR.MA/6482/2023 ORDER DATED: 05/07/2023

5.2 Learned advocate Mr. Japan Dave relied upon

judgment of the Hon'ble Supreme Court dated

28.3.2023 in case of Mohd Muslim @ Hussain

Versus State (NCT of Delhi) passed in Special

Leave Petition (Crl.) Nos. 915 of 2023 and by

relying upon the aforesaid judgment, learned

advocate Mr. Japan Dave submitted that the

Hon'ble Supreme Court has categorically taken a

view that merely because the rigors of Section

37 of NDPS Act are there that should not be the

sole consideration while considering the bail

application, when the Court is satisfied that

the accused is not guilty.

5.3 Learned advocate Mr. Japan Dave also relied

upon an order dated 22.9.2022 passed in Criminal

Misc. Application NO. 12941 of 2022 in case of

Amit @ Lalu Zalim Mahendrasingh Rajput Versus

State of Gujarat and submitted that in paragraph

No.5 of that order by relying upon three

judgments of the Hon'ble Supreme Court as well

as by this Court, the Court took a view that

merely on the basis of criminal antecedent the

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claim of the accused for grant of bail cannot be

rejected.

6. Learned APP Mr. Utkarsh Sharma vehemently

opposed the bail application and submitted that

the role of present applicant is not as simple

as it is being projected. The present applicant

is a close aid and associate of an international

gangster viz. Ravi Pujari and he is involved in

four other similar offences which shows his

criminal mindset as the present applicant was

instrumental in hatching the conspiracy to kill

witness Pragnesh who somehow survive the attack

and it was the present applicant along with

other co-accused person viz. Suresh Kitta Pujari

who tested the weapon which was used for

carrying out and assault on the witness

Pragnesh, the present applicant has played an

active part in the aforesaid assault.

6.1 Considering the fact that the present

applicant is involved in four other very serious

offences as well as he is a member of gang of

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international gangster - Ravi Pujari. If, the

present applicant enlarged on bail, that would

cause a serious threat to the society at large

and therefore, even if the advocate for the

applicant has pointed out the fact that some

other accused persons who are enlarged also are

having antecedents, considering the specific

role of present applicant as well as his

background the present applicant may not be

enlarged on bail.

6.2 Learned APP Mr. Utkarsh Sharma states that

the fact that the present applicants were

present on the previous day when the offence

took place and opined that the weapon was

perfect and capable of carrying on assault on

the witness Pragnesh, itself suggest that the

present applicant is hardcore criminal and as he

is member of a gang of international gangster -

Ravi Pujari, considering the totality of the

fact and circumstances, even if the present

applicant is in jail since last six years,

considering the fact that the trial is going on

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at present as also, considering the background

of the present applicant, if the present

applicant is enlarged on bail in that case,

there is all likelihood that the present

applicant may try to tamper with the witnesses

or may threaten them and therefore, considering

the totality of facts and circumstances, the

present applicant may not be enlarged on bail.

7. I have heard learned advocates appearing for the

parties and perused the material on record. I

have considered the fact that some co-accused

persons are enlarged on bail. I have also

considered the fact that the present applicant

is not the one who has fired at the witness

Pragnesh but at the same time, while considering

the bail application, the background and

antecedent of an accused person is also one of

the important consideration. When there is a

specific objection raised by the learned APP

indicating that the present applicant is

involved in past four serious offences as well

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as considering the role of the present applicant

of certifying the weapon and opining that those

weapons are perfect and capable of carrying

assault on the witness Pragnesh, as well as his

presence at the time when the conspiracy was

hedged at Bombay on 12.8.2016 in Hotel Legend,

prima-facie indicates involvement of the present

applicant. Further, as the trial is going on at

present and considering the background of the

present applicant as he happens to be a hardcore

criminal as it seems to be prima-facie from the

material on record in form of counter of charge-

sheet, the apprehension of the learned APP that

if, when the trial is going on, the present

applicant is enlarged on bail, there are all the

chances that he may try to win over the

witnesses or may threaten them has substance in

it.

7.1 As far as the judgments relied upon by the

learned advocate appearing for the applicants in

that matter though the rigors of Section 37 were

there despite that the accused persons was

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granted bail, as far as that submission is

concerned, I am of the view that a case

involving an accused who is alleged to be an

associate of an international gangster and who

was in instrumentally hatching the conspiracy of

Section 302 of Indian Penal Code stands on a

different footing as compared to an accused for

the offence under NDPS Act and therefore,

considering the facts and circumstances a

person's case for bail is required to be

evaluated. On evaluation of material available

on record as I am satisfied that the present

applicant if, enlarged on bail that would not

only affect the ongoing trial but also may cause

a great threat to the society. The aforesaid

submissions of learned advocate Mr. Japan Dave

cannot be accepted.

7.2 As far as the judgments relied upon by

learned advocate Mr. Japan Dave in respect of

antecedent of an accused person is concerned,

the ratio of the judgments can never be

disputed. However, the fact remains that if a

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person is alleged to be close aid and associate

of an international gangster, the case of the

said accused person cannot be considered by

equating himself with an accused person of any

other offence and therefore, as the background

of both the accused persons are different, the

threat apprehended by learned APP in respect of

both those accused persons and its gravity are

different and therefore, considering the

totality of facts and circumstances of the

present applicant's application for bail is

required to be dismissed.

7.3 In view of over all facts and circumstance

of the present case, I do not deem it

appropriate to exercise the jurisdiction under

Section 439 of the Code of Criminal Procedure to

enlarge the present applicant on bail. In view

of above, the present application is required to

be dismissed and the same is dismissed. Rule is

discharged.

(NIRZAR S. DESAI,J) Pallavi