Sipai Ajruddin Salimbhai ... vs State Of Gujarat
2023 Latest Caselaw 7392 Guj

                                                                              NEUTRAL CITATION




     R/CR.A/1702/2023                          ORDER DATED: 06/10/2023

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
 R/CRIMINAL APPEAL (REGULAR BAIL - AFTER CHARGESHEET) NO.
                         1702 of 2023
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 SIPAI AJRUDDIN SALIMBHAI PIRUMIYA @ PRINCE SOMABHAI PATEL
                            Versus
                      STATE OF GUJARAT
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Appearance:
MR TUSHAR CHAUDHARY(5316) for the Appellant(s) No. 1
B P PATEL(7510) for the Opponent(s)/Respondent(s) No. 2
MR HARDIK MEHTA, APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                          Date : 06/10/2023

                            ORAL ORDER

1. Heard learned advocate or the appellant and learned APP for the 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 17.06.2023 passed by the leaned 2nd Additional Sessions Judge, Patan in Criminal Misc. Application No.416 of 2023, whereby the learned 2 nd Additional Sessions Judge, Patan 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.11217019230193 of 2023 registered with Patan City "A" Division Police Station, District : Patan for the offences punishable under Sections 376 (2)(n), 420, 323, 470, 471 and 474 of the IPC and under

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Sections 3(1)(r), 3(2)(v), 3(1)(w)(i) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act and Section 66(d) of the Information Technology Act and Section 39 of the Aadhar Card 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 03.04.2023. It is submitted that present appellant is innocent and he has falsely enroped in the offence. It is submitted that the allegations levelled against the present appellant is far from the truth and there was consensual relationship between appellant and prosecutrix. It is submitted that present appellant has neither physically nor financially exploit her. It is submitted that allegation is merely based on some group communal rivalry, which has been given different colour and subsequently complaint is filed. It is submitted that though complainant herself on the same day disclosed before the police authority that she does not wants to pursue further with the complaint. It is further submitted that she further proceed at the instance of the leader of the community. It is submitted that nothing is required to be recovered and

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discovered from the appellant-accused as charge-sheet is filed. 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. It is further submitted that the appellant has no any past criminal antecedents. 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 by hiding his identity and forged the Adhar card and he himself disclosed his identity as Prince Patel. Though he belongs to different religion and casts. In the pretext of the false promise of marriage and he physically and financially exploit the victim. It is submitted that as the offences are against the woman and 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.

4.1. 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.

5. Learned advocate for the respondent No. 2 - original complainant has adopted the argument advanced by learned APP and strongly opposed this appeal for grant of bail. However, he could not point out anything which may indicate

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involvement of present appellant, which may result into denial of the bail.

6. I have given thoughtful consideration to the arguments canvassed by learned advocates for both the sides. Considering the fact that the present appeal is filed after filing of the charge-sheet. In this case, investigation is over and the charge-sheet is filed and nothing is required to be recovered and discovered from the appellant as the appellant is in jail since 03.04.2023. 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 fact that appellant is legal habitant of Harij Taluka and he resides at the different places, therefore, question of tampering with an evidence does not arise. Considering the fact that appellant is facing charge under Section 376 of IPC, but it appears that, appellant and victim are major as the appellant is 32 years old and victim is 39 years old divorcy. Considering the fact that she was major at the relevant time and both stayed at the different places. Considering the aforesaid fact, prima facie, it appears that as it was consensual relationship and she herself stated that she does not wants to pursue further the complaint. Further, going through the evidence, it appears that the allegations levelled against the present appellant to forge the document and

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impostor himself as Prince Patel, except this no allegation is levelled. Considering the aforesaid fact and severity of punishment of the alleged offence as investigation is over and charge-sheet is filed, 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 appellant :-

(i) appellant is in jail since 03.04.2023

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

(iii) the appellant does not have any past antecedent;

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

(v) offence is triable by the Magistrate;

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

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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 C.R.No.11217019230193 of 2023 registered with Patan City "A" Division Police Station, District : Patan, 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.;

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

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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