Gujarat High Court
Sohil Daud Khalifa vs State Of Gujarat on 11 October, 2023
Bench: Hasmukh D. Suthar
NEUTRAL CITATION
R/CR.A/1299/2023 ORDER DATED: 11/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (REGULAR BAIL - AFTER CHARGESHEET) NO.
1299 of 2023
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SOHIL DAUD KHALIFA
Versus
STATE OF GUJARAT
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Appearance:
MR A A ZABUAWALA(6823) for the Appellant(s) No. 1
DS AFF.NOT FILED (R) 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 : 11/10/2023
ORAL ORDER
When the matter is taken up for hearing, though served, none
present on behalf of the original complainant.
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 29.04.2023 passed by the
leaned 6th Additional Sessions Judge & Exclusive Special
Judge, Bhuj-Kachchh in Criminal Misc. Application No.465
of 2023, whereby the 6th 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 I-
C.R.No.11205036230039 of 2023 registered with Naliya
NEUTRAL CITATION
R/CR.A/1299/2023 ORDER DATED: 11/10/2023
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Police Station, District : Kachchh for the offences
punishable under Sections 376(1), 376(2)(n), 366 and 506 of
the IPC, under Sections 3(1)(w) and 3(1)(R) and 3(2)(5) 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 It is
submitted that present appellant is innocent and he has
falsely implicated in the offence. It is submitted that nothing
is required to be recovered and discovered from the
appellant. It is submitted that prosecutrix is major and there
was consensual relationship between accused and the
complainant, due to social pressure, present complaint is
filed. It is submitted that prosecutrix is married and is having
children. It is submitted that the prosecutrix went with the
accused at different places and they were found from
Lucknow. Considering the aforesaid fact, prima facie, it
appears that there was a consensual relationship between
them. Under the instructions, it is stated that investigation is
over and no objectionable material is found from his phone
and no obscene material is available, therefore, question of
NEUTRAL CITATION
R/CR.A/1299/2023 ORDER DATED: 11/10/2023
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viral the video clip does not arise. It is submitted that
applicant is sole breadwinner of his family and at present his
family is facing the financial crisis. 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
offence is against the woman and he has given threat and in
the guise of viral video clip, he has taken undue advantage. It
is submitted that offence is 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.
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 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.
NEUTRAL CITATION
R/CR.A/1299/2023 ORDER DATED: 11/10/2023
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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 having one child and she eloped with
accused and stayed together at different places;
(ii) investigation is over and charge-sheet is filed;
(iii) complaint is filed belatedly;
(iv) nothing is required to be recovered and discovered
from the appellant;
(v) no objectionable material is found from the mobile
phone of the accused;
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 I-C.R.No.11205036230039 of 2023
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R/CR.A/1299/2023 ORDER DATED: 11/10/2023
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registered with Naliya Police Station, District : Kachchh , 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 indulged in such type of activity;
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
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R/CR.A/1299/2023 ORDER DATED: 11/10/2023
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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
