Bhurekhan @ Akramkhan Ganikhan ... vs State Of Gujarat
2023 Latest Caselaw 6733 Guj

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     R/CR.A/1540/2023                                      ORDER DATED: 13/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                  R/CRIMINAL APPEAL NO. 1540 of 2023
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             BHUREKHAN @ AKRAMKHAN GANIKHAN PATHAN
                              Versus
                        STATE OF GUJARAT
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Appearance:
MR MH SHAIKH(2457) for the Appellant(s) No. 1
TARIK M MANDLI(9482) for the Appellant(s) No. 1
MS URMILA N DESAI(5609) for the Opponent(s)/Respondent(s) No. 2
MS DP JHALA, APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                               Date : 13/09/2023
                                ORAL ORDER

Rule. Learned APP waives service of notice of Rule

on behalf of respondent-State and learned advocate

Ms.Urmila Desai waives for respondent No.2.

[2.0] 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 02.06.2023

passed by the learned Special Judge, Special Atrocity

Court No.9, Ahmedabad City in Criminal Misc.

Application No.4385 of 2023 whereby the application

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

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connection with FIR being C.R. No.11191018230152 of

2023 registered with Gomtipur Police Station, District :

Ahmedabad for the offences punishable under Sections

354, 323, 294(b), 506(2), 143, 147 and 114 of the Indian

Penal Code, 1860 and sections 3(2)(va) of the Atrocity

Act.

[3.0] Learned advocate for the appellant submitted that

applicant is falsely enroped in the offence and at the

instance and at the behest of the third party, if ulterior

motive is present, the prosecution being lodged the

complaint. It is submitted that complainant is well

educated and practicing advocate and complaint is filed

belatedly after a period of 22 days and no explanation is

given in this regard. Nonetheless, no offence is made out

against the present accused, if the co-accused are already

enlarged on bail. It is true that earlier application was

filed but it is withdrawn and no reason was assigned,

looking to the role of the appellant and nature of the

allegations, the appellant is required to be enlarged on

regular bail / successive bail by imposing suitable terms

and conditions.

[4.0] Per contra, learned APP appearing for the

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respondent - State has vehemently opposed the present

appeal and stated that the present appeal is successive

bail appeal and no circumstances are changed, without

entering into the merits of the case, present appeal is

required to be dismissed. She has further submitted

that the present appellant is having past criminal

antecedents and he is involved in the illegal activity and

he forcibly compelled to the victim to convert her

religion. He forced her to withdraw the litigations and

compelled to settle the dispute with applicant. She has

stated that this is not a fit case to exercise the

discretion in favour of the appellant.

[5.0] Learned advocate Ms.U.N. Desai for the original

complainant has also opposed the present appeal and by

adopting the submissions of the learned APP has further

stated that the role attributed to the present appellant is

clearly mentioned in the complaint and reasons for delay

is also stated, due to illness of the mother of the victim,

she could not prefer the complaint within time limit and

delay is caused, this is not a fit case to enlarge the

appellant on bail and it is stated that there is constant

threat on the part of the appellant to change her

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religion and to adopt the religion of the appellant. She

has stated that even, there is a possibility of tampering

and hampering with the evidence and there is a given

threat to viral the video clip of complainant. If the

appellant-accused is released on bail, which would

adversely affects the case of prosecution and therefore,

has submitted that the offences, which have been

charged, are serious in nature, against the women and

affecting the society at large and looking to the facts as

well as the allegations made against the appellant, no

discretion may be required in favour of applicant-accused.

[6.0] This Court has heard learned advocates, given

thoughtful consideration to the arguments canvassed by

learned advocates for both the sides. Considering the fact

that at the outset, it is required to be mentioned that

present application is successive bail after charge-sheet

and learned advocate for the appellant has failed to

show any change of circumstance. It is needless to say

that after filing the complaint, during the investigation,

sufficient material is collected against the present

accused and strengthened circumstance is against the

present accused and prima facie, it appears that

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involvement of accused and role attributed to the present

applicant in the offence.

[7.0] This court has also kept in mind the law laid down

by the Hon'ble Supreme Court in the case of

Virupakshappa Gouda vs. State of Karnataka reported in

(2017) 5 SCC 406, wherein it is held as under :

"13. .......... Needless to say, filing of the charge-sheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the charge-sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge-sheet for trial of the accused persons."

Considering the fact that after filing of the charge-

sheet, the bail application came to be filed before the

learned Sessions Judge and the same came to be withdrawn, which amounts to dismissal. After that, no

any circumstance is changed and thereafter, the present

appeal is preferred. Considering the said aspect, without

discussing further about evidence and the merits of the

case, the present appeal does not deserve any

consideration.

Further, considering the fact that one more aspect

is also required to be considered, so far concept of the

bail is concerned, purpose of the bail is not a punitive

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but a preventive. While granting bail, the Court has to

take care the availability of the accused at the time of

trial and second important aspect is that possibility of

the tampering with an evidence of prosecution herein

there is a specific case of the prosecution is that the

accused is threatening the witnesses and compelled to

withdraw the complaint and from this prosecution, prima

facie, it appears that there is a chance of tampering and hampering with an evidence. This Court is of the

considered opinion that if the present accused is enlarged

on bail, which is nothing but possibility can be ruled out

that accused will misuse his liberty and tamper with

witnesses of evidence of prosecution and appellant is

having criminal antecedents and two offence are also registered against him.

[8.0] Considering the aforesaid all facts, this is not a fit

case to exercise the discretion in favour of the appellant.

Hence, the present appeal fails against rejection of

successive bail application after filing of charge-sheet and

is accordingly dismissed. Rule is discharged.

(HASMUKH D. SUTHAR,J) KUMAR ALOK