Rahul @ Buliyo Rameshbhai Parmar vs State Of Gujarat
2023 Latest Caselaw 6416 Guj

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     R/CR.A/1533/2023                                     ORDER DATED: 02/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1533 of 2023

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                   RAHUL @ BULIYO RAMESHBHAI PARMAR
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Appellant(s) No. 1
MS DIVYANGANA JHALA, APP 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 : 02/09/2023
                                  ORAL ORDER

1. Present appeal 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 23.01.2023 passed by the learned 3 rd Additional Sessions Judge, Junagadh in Criminal Misc. Application No.26 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.11203023211183 of 2021 registered with 'A' Division Police Station, Junagadh for the offences punishable under Sections 302, 120(B), 143, 147, 148, 149 and 201 read with Section 34 of the Indian Penal Code, 1860 and section 3(2)(v) of the The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Atrocity Act") and Section 135 of the Gujarat Police Act.

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R/CR.A/1533/2023 ORDER DATED: 02/09/2023

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2. Heard learned advocates for the respective parties.

3. Learned advocate Mr. Dagli for the appellant submitted that the appellant is not involved in commission of offence as alleged in the FIR. The appellant is falsely enroped in the offence and he has not played any role in the alleged offence. Even on the face of it, if the allegations leveled in the FIR are accepted to be true then also, considering that charge-sheet is filed and the prosecution has changed the genesis of the offence and alleged that the applicant was involved in hatching conspiracy and alleged that prior to commission of offence, for the purpose of defence of alibi, accused persons gathered at Bhavnath, Junagadh and then they fled to Haridwar. The accused were in contact with each other and by hatching conspiracy the accused persons have committed the offence and except this no any allegation is leveled against the present applicant-accused and there is no active role played by the present applicant-accused. He has submitted that trial will obviously take some time and this is the first application seeking regular bail after filing of the charge-sheet and thus, there is no possibility of tampering with the evidence and applicant will be readily available and applicant do not have any criminal antecedent as the applicant-accused is acquitted in all the three offences registered against him. Further, he has stated that accused having similar role of having hatched conspiracy are released by the coordinate Bench of this Court.

In view of the above, he has requested to allow the present appeal and grant regular bail to the present appellant.

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R/CR.A/1533/2023 ORDER DATED: 02/09/2023

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4. Per contra, learned APP appearing for the respondent - State has vehemently opposed the present appeal and stated that present appellant has actively participated in the offence and with a view to create defence of alibi, applicant and other accused gathered at Bhavnath, Junagadh and then fled away to Haridwar. Even considering the investigation papers and the fact that main accused Sanjay had hatched conspiracy and present applicant was in his company and he was actively in the conspiracy and commission of offence. Considering the severity of the punishment and possibility of fleeing from justice as also criminal antecedents, he has requested to dismiss the present appeal.

5. Though served, none appears for respondent No.2 - original complainant.

6. I have given thoughtful consideration to the arguments canvassed by learned advocates for both the sides.

Prima facie, it appears that the allegation leveled against the present appellant is of hatching conspiracy. Considering the fact that similarly situated accused persons, attributed with similar role to that of present appellant, have been released by the coordinate Bench of this Court and considering the fact that investigation is over and charge-sheet is filed and there remains nothing to be recovered or discovered from the present appellant and there being no possibility of tampering with the evidence and witnesses and also considering the fact that present appellant-accused has been acquitted in all the three offences

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R/CR.A/1533/2023 ORDER DATED: 02/09/2023

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registered against him, present appellant-accused is also entitled for the benefit of law of parity as per the law laid down by this Court in the case of Ramesh Batubhai Dabhi vs. State of Gujarat reported in 2011 (3) GLR 1150. This Court has also taken into consideration 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.

7. Hence, the present appeal is allowed. The appellant is ordered to be released on regular bail in connection with FIR being C.R. No.11203023211183 of 2021 registered with 'A' Division Police Station, Junagadh on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the trial Court and 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 India 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;

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R/CR.A/1533/2023 ORDER DATED: 02/09/2023

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8. 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 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.

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

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

(HASMUKH D. SUTHAR,J) ALI