Gujarat High Court
Krushnarajsinh @ Kano Bharatsinh ... vs State Of Gujarat on 7 November, 2023
Bench: Hasmukh D. Suthar
NEUTRAL CITATION
R/CR.A/354/2023 ORDER DATED: 07/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (REGULAR BAIL - AFTER CHARGE-SHEET) NO.
354 of 2023
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KRUSHNARAJSINH @ KANO BHARATSINH JADEJA
Versus
STATE OF GUJARAT
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Appearance:
ANURAG R RATHOR(9315) for the Appellant(s) No. 1
ADITYA A CHOKSI(7835) for the Opponent(s)/Respondent(s) No. 3
MS SHRUTI PATHAK, APP for the Opponent(s)/Respondent(s) No. 1
UNSERVED EXPIRED (R) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 07/11/2023
ORAL ORDER
1. Heard learned advocate for the respective parties.
2. Present appeal is filed under Section 14-A of the Scheduled
Caste and Scheduled Tribe (Prevention of Atrocities) Act,
1989 (hereinafter referred to as "Atrocity Act") challenging
the judgment and order dated 29.07.2022 passed by the
learned 3rd Additional Sessions Judge in Criminal Misc.
Application No.465 of 2022, whereby the learned 3rd
Additional Sessions 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.11202045200672 of 2020 registered
with Panch 'A' Division Police Station, Jamnagar for the
offences punishable under Sections 326, 325, 323, 294(b),
506(2) and 114 of the Indian Penal Code and Sections 3(1)(r)
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and 3(1)(s) of the Prevention of Atrocities Act, 1989.
3. It is the case of the appellant that after arraigning the
appellant as an accused, he was arrested. Thereafter, bail
application has been filed. The said application came to be
allowed by the Special (Atrocity) Judge vide order dated
22.02.2021 passed in Criminal Misc. Application No.233 of
2021. While enlarging the accused on bail in connection
with the impugned FIR registered under Section 326 of IPC,
learned Trial Court had released the appellant on condition
No.8 was imposed, which reads thus :
"8.applicant shall not indulge into any activity."
3.1. It is the case of the applicant that a false FIR under section
306, 114 of IPC and Section 3(1)(r)(s), 3(2)(5) of the Atrocity
Act being FIR No. 11994005220010 of 2022 before
Jamnagar Railway Police Station, Jamnagar dated
19.03.2022 was filed against the present Appellant,
whereby the Appellant was arrested in the present case on
20.03.2022. In the present case, after completion of
investigation, the investigation officer has filed charge
sheet against the present Appellant and other accused
persons. Subsequently, new offence of Section 306 of IPC
came to be registered against the present Appellant. Due
to this registration of said complaint, the present
application came to be filed by the State of Gujarat before
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R/CR.A/354/2023 ORDER DATED: 07/11/2023
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the Learned Trial Court as Criminal Misc. Application No.
465 of 2022 and the learned Trial Court vide order dated
29.07.2022 without appreciating the true facts on record
was pleased to allow the cancellation of bail application
filed by the State. Hence, the present application is filed.
4. Learned advocate for the appellant has submitted that the
appellant is not involved in commission of offence as
alleged in the FIR and 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.
4.1. Learned advocate for the appellant submitted that case of
the co-accused viz. Mayursinh was also considered and
thereafter, his bail was also cancelled. Then he preferred
bail application, the same was allowed vide order dated
19.01.2023 passed in Criminal Appeal No.2368 of 2022.
5. Being aggrieved and dissatisfied with the same, the original
Complainant has preferred Special Leave to Appeal (crl.)
No(s).6824-6825/2023 before the Hon'ble Supreme Court,
wherein order passed by this Court is upheld and said
Special Leave to Appeal came to be dismissed. In view of
above, he seeks parity.
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6. On the other hand, learned APP appearing for the
respondent - State vehemently opposed the appeal and
submits that the appellant has played active role. It is
stated that due to breach of Condition No.8, "he shall not
indulge in such type of illegal activity". Hence, this is not a
fit case to exercise the discretion.
7. Learned advocate for the respondent No. 3 - original
complainant has adopted the argument advanced by
learned APP and strongly opposed this appeal for grant of
bail. Learned advocate for the Complainant has stated that
by suppressing material fact, he preferred Special Leave to
Appeal and the applicant has preferred to challenge the
said order and the bail application, due to registration of
new offence under Section 306 of IPC, of Mayur Singh as
well as the present applicant has also dismissed and
question does arise to allow the present application as the
applicant has remained in judicial custody after long period.
8. I have given thoughtful consideration to the arguments
canvassed by learned advocates for both the sides.
Considering the aforesaid fact and severity of punishment
of the alleged offence, no purpose would be served to keep
the appellant behind the bar for long period, obviously, trial
would take some time. Hence, discretion may be exercised
in favour of the appellant.
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9. 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
appellant on regular bail. This Court has considered the
following facts while exercising discretion in favour of the
appellant :-
(i) Once bail was granted in Criminal Misc. Application
No.233 of 2021 on 22.02.2021. Subsequently, on
19.03.2022 offence under Section 306 came to be
registered and due to this, bail of present applicant
and co-accused came to be cancelled;
(ii) Co-accused Mayursinh has challenged the said order
by way of appeal before this Court. Co-ordinate Bench
of this Court was pleased to enlarged the co-accused
on bail and also the said order is upheld by the
Hon'ble Apex Court in the Special Leave to Appeal
vide order dated 01.11.2023.
(iii) In view of above, as the present appellant is also
similarly situated and by cancellation of bail by the
learned Sessions Judge and appropriate reason has
not been assigned by the learned Sessions Judge. It is
needless to say that grant of bail and cancellation
bail, the criteria are different.
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7. The Supreme Court established the principle that "bail is
the rule and jail is exception." This Court has also taken into
consideration the law laid down by the Hon'ble Apex Court
in the case of Sanjay Chandra versus Central Bureau of
Investigation reported in (2012)1 SCC 40.
7.2. In view of the aforesaid facts, without discussing the
evidence in detail, considering the settled principles of law,
this Court, prima facie, is of the opinion that, this is a fit
case to exercise the discretion in favour of the appellant.
The present appeal deserves consideration and the same is
allowed. Order dated 29.07.2022 passed by the learned
3rd Additional Sessions Judge in Criminal Misc.
Application No.465 of 2022 deserves to be quashed and
set aside and the same is hereby quashed and set aside.
The appellant is ordered to be released on regular bail in
connection with the FIR being C.R.No.11202045200672 of
2020 registered with Panch 'A' Division Police Station,
Jamnagar, 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;
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[d] not leave India without prior permission of the Sessions
Judge concerned;
[e] 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;
[f] 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.;
[g] shall not indulge in such type of illegal activity. If
appellant is found in such type of activity, his bail
shall be cancelled and warrant shall be issued
against him;
8. The Authorities will 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 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 appellant on
bail.
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9. Rule is made absolute to the aforesaid extent. Direct
service is permitted.
(HASMUKH D. SUTHAR,J)
KUMAR ALOK
