Utkarsh @ Akashsingh ... vs State Of Gujarat
2023 Latest Caselaw 7988 Guj

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    R/CR.A/996/2023                           ORDER DATED: 01/11/2023

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
       R/CRIMINAL APPEAL (REGULAR BAIL) NO. 996 of 2023
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         UTKARSH @ AKASHSINGH JITENDRASINGH RAJPUT
                               Versus
                       STATE OF GUJARAT
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Appearance:
MR SURAJ A SHUKLA(7185) for the Appellant(s) No. 1
MR HARDIK MEHTA, ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                         Date : 01/11/2023
                          ORAL ORDER

[1.0] Present appeal under Section 14-A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Atrocity Act") is filed challenging the judgment and order dated 27.02.2023 passed by the learned 14 th Additional Sessions Judge and Special Judge (Atrocity), Surat in Criminal Misc. Application No.1256 of 2023 whereby the learned Special Judge rejected the application filed by the present appellant under Section 439 of the Code of Criminal Procedure, 1973 seeking regular bail in connection with FIR being C.R. No.11210023221017 of 2022 registered with Khatodara Police Station, Surat City for the offences punishable under Sections 302, 34, 143, 147, 149, 323, 324 and 427 of the Indian Penal Code, 1860 and sections 3(2)(v-a) and 3(2)(v) of the Atrocity Act and Section 135 of the Gujarat Police Act.

[2.0] The complaint is filed at the instance of Sunil Kalidas Rathod wherein it is alleged that the complainant received a

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phone call from the wife of the deceased Rohitbhai Rathod that there occurred an altercation between Dipak Patel and Jainish Patel with regard to parking of vehicle, wherein decesed Rohit intervened to settle the issue and the friends of Jainish Patel i.e. Dipak Paswan and Tarachand Yadav assaulted the deceased and accused Dipak Paswan inflicted knife blow on the stomach of the deceased and thus, the offence came to be registered. After the investigation, charge-sheet came to be filed, which culminated into Special Atrocity Case and trial is pending.

[3.0] Though served, respondent No.2 has chosen not to appear before this Court.

[4.0] Learned advocate the appellant submitted that the appellant is not involved in commission of offence as alleged in the FIR and even, he is not named in the FIR but subsequently, with the aid of statement of witness, name of present appellant is implicated in the offence. Further, even if the case of prosecution is accepted as it is, the role attributed to the present appellant is that he caught hold of the deceased but there is no evidence of common intention. Even, one cross-complaint is also filed. Further, investigation is over and charge-sheet is filed and there remains nothing to be recovered or discovered from the present appellant. Further, no scientific evidence suggests that the presence of the appellant herein at the time of offence. The complainant of the cross-complaint, who is co-accused in the present case, has sustained injuries wherein the present appellant is not cited as a witness. Further, even the CCTV

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footage, which is part of investigation papers, clearly shows that the present appellant came after the occurrence of incident. Further, the role of giving knife blow to the deceased is attributed to juvenile accused, who has already been enlarged on bail. Further, the appellant is behind the bars since 02.10.2022 and therefore, now when the charge-sheet is filed, it will obviously take some time for the trial to be concluded. Therefore, looking to the role of the appellant and nature of the allegations, the appellant is required to be enlarged on regular bail by imposing suitable terms and conditions.

[5.0] Per contra, learned APP appearing for the respondent - State has vehemently opposed the present appeal and stated that the appellant is facing charge of common intention and serious charge of section 302 of the IPC and even considering the fact that the appellant belongs to another State, if the regular bail is granted to the appellant, then it may delay the trial and it will be difficult to secure the presence of appellant during the trial and hence, he has requested to dismiss the present appeal.

[6.0] I have given thoughtful consideration to the arguments canvassed by learned advocates for both the sides. The complaint is filed at the instance of Sunil Kalidas Rathod. Going through the investigation papers and the prosecution case, it appears that the accused persons had common intention to kill one Dharmesh but as he was not found, one of the accused broke open the car window because of which the deceased intervened and the juvenile accused gave knife blow to the deceased. Insofar as

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allegation of common intention against the present appellant is concerned, cross-complaint is filed and co-accused is the complainant in the said cross-complaint, wherein present appellant is not even cited as a witness. Further, even if the case of prosecution against the present appellant is accepted as it is, the only allegation is that the appellant caught hold of the deceased. Further, the juvenile accused who inflicted the fatal blow to the deceased has been enlarged on bail. The present appellant - accused was not named in the FIR and his name is implicated subsequently with the aid of statement of witness that too after three days of the incident.

[7.0] Having considered the fact that investigation qua present appellant is practically over and charge-sheet is filed, now, there remains nothing to be recovered or discovered from the present appellant. The appellant accused is behind the bars since 02.10.2022 and trial will obviously take some time. Therefore, considering the fact that appellant is not having any past antecedent and role attributed to the appellant of having caught hold of the deceased and considering the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012)1 SCC 40, without further discussing anything on merit, present appeal deserves consideration.

[8.0] Hence, the present appeal is allowed. The appellant is ordered to be released on regular bail in connection with FIR being C.R. No.11210023221017 of 2022 registered with

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Khatodara Police Station, Surat City on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of the like amount and also solvent surety of Rs.50,000/- to the satisfaction of the trial Court subject to the conditions that the appellant shall;

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

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

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

[d] not leave the territory of Surat without prior permission of the concerned trial court;

[e] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;

[f] furnish the present address of residence to the 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 concerned trial court;

[g] shall not take undue advantage of liberty for prolonging the trial by taking unnecessary adjournment;

[9.0] The authorities shall release the appellant only if the appellant is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Special Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the

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case. It will be open for the concerned Special Court to delete, modify and/or relax any of the above conditions, in accordance with law.

[10.0] At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

[11.0] Rule is made absolute to the aforesaid extent. Direct service is permitted.

(HASMUKH D. SUTHAR, J.)

Ajay