Imrankhan @ Bhaiya Salimkhan ... vs State Of Gujarat
2023 Latest Caselaw 6886 Guj

                                                                                   NEUTRAL CITATION




     R/CR.A/1782/2023                                ORDER DATED: 18/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1782 of 2023

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                 IMRANKHAN @ BHAIYA SALIMKHAN PATHAN
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR NAUMAN S QURESHI(10669) for the Appellant(s) No. 1
MR SHAKEEL A QURESHI(1077) for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
MR L B DABHI, APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                 Date : 18/09/2023

                                  ORAL ORDER

1. The present application is filed under Section 439

of the Code of Criminal Procedure by the applicant for

successive regular bail in connection with an FIR being

C.R.No.I-67 of 2019 registered with Dindoli Police Station,

Surat, District: Surat for the offences punishable under

Sections 302, 143, 147, 148, 149, 201, 144, 34 and 120(B) of

the Indian Penal Code, Sections 3(1)(r)(s), 3(2)(5), 3(2)(5-a) and

3(1)(g) of the Atrocities Act and Section 135(1) of the G. P. Act,

challenging the order passed by the learned Civil Judge

(Atrocity) and Additional Sessions Judge, Surat in Criminal

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R/CR.A/1782/2023 ORDER DATED: 18/09/2023

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Misc. Application No.3459 of 2023, which came to be rejected

by the order dated 10.05.2023.

2. Though the notice was served, the respondent no.2

is remained absent.

3. Learned advocate for the applicant submits that the

present applicant is in jail since 2019. Earlier the applicant

had filed one application before the Court, but the same came

to be dismissed after filing of charge-sheet and successive

progress has been made in the Trial and nine co-accused who

have been considered by the Sessions Court as well as this

Court. Keeping in mind the fact, he has also requested to

enlarge the accused on bail. Considering aspect of parity

further he has stated that panch witnesses are examined and

no one has supported the case of the prosecution. Considering

the conspectus of Article 21 of Constitution of India, he has

requested to consider the case of the applicant. Learned

advocate for the applicant relied upon the judgment rendered

in the case of Kazi Alfaz @ Mako Yusufbhai @ Babubhai vs.

State of Gujarat reported in 2021 (0) AIJEL and requested

that the co-accused have been released on bail, therefore,

benefit of parity would be given to the applicant.

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R/CR.A/1782/2023 ORDER DATED: 18/09/2023

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4. Per contra, learned APP has opposed the present

application and stated that this successive regular bail

application filed on merits after filing Charge-sheet and earlier

the same has been dismissed or subsequently withdrawn

before this Court. It is further submitted that whatever order

passed by the learned sessions judge as well as this Court is

prior to filing of the Charge-sheet or after Charge-sheet, hence

the case of the concerned co-accused cannot be considered as

after, the regular bail application came to be filed thereafter

before this Court and the same came to be withdrawn by the

present applicant and hence, there is no change in

circumstances and the question of parity does not arise to

consider the present application.

5. This Court has given thoughtful consideration. The

present application is successive bail application filed after

rejection of the earlier bail application that the same assailed

before this Court by way of filing Criminal Misc. Application

No.1340 of 2021, the same came to be withdrawn as not

pressed on 11.10.2021. Prior to that earlier, bail application of

the co-accused came to be considered either by the co-

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ordinate bench or by the learned sessions judge.

5.1 The Hon'ble Supreme Court has observed in the

case of Ramesh Bhawan Rathod vs. Vishanbhai Hirabhai

Makwana reported in AIR 2021 SC 2011 that "the parity while

granting the bail must focus on the role of accused".

6. In view of above, question of parity does not arise

as on 11.10.2021, also same circumstances were exist though

the said application came to be withdrawn which is amount to

dismiss. Thereafter, there is no change of circumstances.

Hence, at the outset the present successive bail application is

required to be dismissed.

7. So far as subsequent progress in the present case

is concerned, 21 witnesses have been examined and also the

case is based on circumstantial evidence. While granting bail,

one of the criteria is interest of the prosecution is to tempering

with evidence is an important aspect which is required to be

considered.

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R/CR.A/1782/2023 ORDER DATED: 18/09/2023

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8. Herein in the present application, the applicant is

facing charge of Sections 302, 143, 147, 148, 149, 201, 144,

34 and 120(B) of the Indian Penal Code, Sections 3(1)(r)(s),

3(2)(5), 3(2)(5-a) and 3(1)(g) of the Atrocities Act and Section

135(1) of the G. P. Act, in view of above, tempering the

evidence, there is no case of vicarious liability and the

common intention is there and at this stage, detailed

examination of evidence is not permissible.

8.1 The Hon'ble Supreme Court has observed in the

case of Ram Govind Upadhyay vs. Sudarshan reported in

2002 (3) SCC 598 that "the accused has right to make

successive application for grant of bail, but while entertaining a

subsequent bail application, it is the duty of Court to consider

the reasons and grounds, which persuade to take a view

different from the one taken in the earlier application". From the

record, it appears that the applicant has inflicted the blows of

knife to the deceased as a result of which the deceased

received serious injuries and died and he has thrown the knife

in Canal, thereby tried to disappear the evidence. Thus, the

offence against the applicant is very serious in nature.

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R/CR.A/1782/2023 ORDER DATED: 18/09/2023

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9. This Court is not inclined to entertain present

application. Rule discharged.

10. However, Trial is pending since 2019, learned

Sessions Judge is directed to expedite Trial in the interest of

justice.

(HASMUKH D. SUTHAR,J) NABILA