Ganeshbhai @ Ganpatbhai Gemubhai ... vs State Of Gujarat
2023 Latest Caselaw 8130 Guj

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     R/CR.A/2418/2023                         ORDER DATED: 08/11/2023

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
 R/CRIMINAL APPEAL (REGULAR BAIL - AFTER CHARGESHEET) NO.
                         2418 of 2023
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           GANESHBHAI @ GANPATBHAI GEMUBHAI MAKVANA
                             Versus
                       STATE OF GUJARAT
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Appearance:
SAJID Y KARIYANIYA(9619) for the Appellant(s) No. 1
NOTICE SERVED BY DS for the Opponent(s)/Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                          Date : 08/11/2023

                           ORAL ORDER

Heard learned advocates for the respective parties.

1. Rule. Learned APP waives service of notice of Rule on behalf of respondent-State.

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 20.10.2023 passed by the learned Special Judge (Atrocity) and leaned 2nd Additional Sessions Judge, Surendranagar in Criminal Misc. Application No.599 of 2023, whereby the learned 2 nd 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.11211057230833 of 2023 registered with Surendranagar City 'A' Division Police Station,

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District : Surendranagar for the offences punishable under Sections 364A, 368, 323, 324, 504, 506(2) and 114 of the IPC and under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.

3. 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.

3.1. Learned advocate for the appellant has submitted that appellant is in judicial custody since 06.08.2023. It is submitted that present appellant is innocent and he has falsely enroped in the offence. Present appellant has not played any active role in abduction and asking any ransom from the complainant. The present appellant has not administered any threat and caused injury to the complainant. It is stated that as per the allegations, present appellant is a driver of EECO Car, in which, victim has been abducted, except this no allegation is levelled against him. It is submitted that nothing is required to be recovered and discovered from the appellant. Hence, he requested to allow the present appeal. It is submitted that the allegations levelled against the present appellant is far from the truth. It is submitted that nothing is required to be

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recovered and discovered from the appellant-accused investigation is over and charge-sheet is filed. It is further submitted that the appellant is sole breadwinner of his family. If he keep behind the bar for a long time, his family has to face starvation. Therefore, no purpose would be served to keep him behind the bar for long time. It is further submitted that he is ready and willing to abide by all the conditions imposed upon him. Hence, he has requested to allow the present application.

4. 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 submitted that present appellant is not named in the FIR but eye-witness and during the TI parade, the present appellant has been identified. Present appellant is the owner of the EECO Car and he has played active role in the crime. It is stated that if the present appellant is released on bail, there may be possibility to breach of public tranquility. It appears that allegations are serious in nature affecting the society at large and looking to the facts as well as the allegations made against the appellant, no discretion would be required to be exercised. It is further submitted that if the present appellant is enlarged on bail, stringent condition is required to be imposed.

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5. It is further submitted that even after releasing the appellant, there is no possibility of standstill the trial and possibility of tampering with evidence cannot be ruled out.

6. I have given thoughtful consideration to the arguments canvassed by learned advocates for both the sides. Considering the fact that the investigation is over and charge-sheet is filed. Nothing is required to be recovered and discovered from the appellant as the appellant is in jail since 06.08.2023. While granting bail, the Court has to consider the severity of punishment, gravity of offence and to take care the availability of the accused at the time of trial and last important aspect is that possibility of the tampering with an evidence. The important aspects are required to be considered while granting the bail. Considering the aforesaid fact and severity of punishment of the alleged offence as investigation is over and charge- sheet is filed, therefore, 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.

6.1. 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

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appellant :-

(i) appellant is in jail since 06.08.2023;

(ii) investigation is over and charge-sheet is filed;

(iii) role of the present appellant is that he was driver of the EECO Car and it is stated in the complaint that victim detained at the home of the present applicant. However, going to the statement of the Victim, it appears that he slapped at the home of present appellant and when he was traveling, at that time, police caught him, except this no allegation is levelled against the present appellant;

(iv) offence is not punishable with life or death;

(v) nothing is required to be recovered and discovered from the appellant;

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.

7.1. 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 appellant on regular bail. Hence, present appeal is allowed and the appeal is ordered to be released on regular bail in connection with the FIR being FIR being

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C.R.No.11211057230833 of 2023 registered with Surendranagar City 'A' Division Police Station, District : Surendranagar, 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 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

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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.

9. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(HASMUKH D. SUTHAR,J) KUMAR ALOK