Sakariya @ Shankarbhai ... vs State Of Gujarat
2023 Latest Caselaw 5036 Guj

     R/CR.MA/10461/2023                                      ORDER DATED: 30/06/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION NO.                        10461 of 2023

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      SAKARIYA @ SHANKARBHAI BHURJIBHAI MOHANIYA
                        Versus
                   STATE OF GUJARAT
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Appearance:
VASIMRAJA A KURESHI(8609) for the Applicant(s) No. 1
MR CHINTAN DAVE ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                 Date : 30/06/2023

                                    ORAL ORDER

1. Leave to amend. Heard learned advocate Mr. Vasimraja A. Kureshi appearing for the applicant and learned Additional Public Prosecutor Mr. Chintan Dave appearing for the respondent - State.

2. By this application filed under Section 439 of the Code of Criminal Procedure, 1973, the applicant is seeking release on regular bail in connection with the FIR being C.R.No.11821005210032 of 2021 registered with Piplod Police Station, District : Dahod for the offences punishable under Sections 2(1)(a)(i), 2(1)(a)(ii), 3(1)(ii), 3(2), 3(3), 3(4) of the Gujarat Control of Terrorism and Organized Crime Act, 2015 (herein after referred to as 'the

R/CR.MA/10461/2023 ORDER DATED: 30/06/2023

GOJCTOC Act' for short) and Section 395, 397, 412, 120B of Indian Penal Code.

3. Learned Counsel appearing for the applicant states that there is no case registered and charge sheet is filed against the present applicant after the GOJCTOC Act came into force with effect from 05.12.2019, and therefore, even if, the judgment of Hon'ble Supreme Court, in case of State of Gujarat V. Sandip Omprakash Gupta dated 15.12.2022 passed in Criminal Appeal No. 2291 of 2022, is considered, then in that case also, that judgment also would be adversely applicable only in cases, wherein, there is at least one offence against applicant is registered, pursuant to which, the charge sheet is filed after the Act came into force, and therefore, prima facie, present applicant, not being involved in any of the offences after the Act came into force, is required to be enlarged on bail by imposing suitable terms and conditions.

4. On the other hand, learned Additional Public Prosecutor has vehemently opposed the application and submitted that present applicant is arrested under the Act considering the totality of the facts and circumstances and also the past offences, wherein, the applicant was involved. He further submitted that as the

R/CR.MA/10461/2023 ORDER DATED: 30/06/2023

totality of the facts and circumstances indicates that present applicant is a habitual offender, who operates in a systematic way in organized crime, he should not be enlarged on bail.

5. In the facts and circumstances of the case and considering the nature of allegations, this Court is of the opinion that, discretion is required to be exercised to enlarge the applicant on regular bail. This Court has considered the following facts while exercising discretion in favour of the applicant :-

(i) the applicant is in jail since 19.10.2021.

(ii) the investigation is over and the charge-

sheet is filed, ;

(iii) trial may take its own time.

(iv) prima-facie, this Court, on perusal of the record, found that there is no offence registered against present applicant after the act came into force i.e. 05.12.2019, for which, the charge sheet is filed and the aforesaid facts are verified by learned APP from a person who is present along with record before this Court and as nothing could be pointed out before this that for any offence was registered for which the charge sheet is filed against present applicant after 05.12.2019, the ratio laid

R/CR.MA/10461/2023 ORDER DATED: 30/06/2023

down by the Hon'ble Supreme Court, in case of State of Gujarat V. Sandip Omprakash Gupta (Supra) would be applicable in present case.

6. In view of the aforesaid facts, without discussing the evidence in detail, this Court, prima facie, is of the opinion that, this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, present application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR being C.R.No.11821005210032 of 2021 registered with Piplod Police Station, District : Dahod on executing personal bond of Rs.10,000/- (Rupees Ten thousand only) with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injuries to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave India without prior permission of the Sessions Judge concerned;

[e] furnish latest address of residence to the

R/CR.MA/10461/2023 ORDER DATED: 30/06/2023

Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the trial Court;

[f] mark his presence before the concerned police station in the first week of every month till the trial is over;

7. The Authorities will release the applicant only if the applicant is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.

8. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(NIRZAR S. DESAI,J)

Pallavi