Gujarat High Court
Gulamnabi Jalalbhai Momin vs State Of Gujarat on 1 August, 2024
NEUTRAL CITATION
R/CR.A/1219/2024 ORDER DATED: 01/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (FOR ANTICIPATORY BAIL) NO. 1219 of 2024
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GULAMNABI JALALBHAI MOMIN
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. YATIN N. OZA, SENIOR ADVOCATE with MR. SOEB R.
BHOHARIA(2205) for the Appellant(s) No. 1
MR. KEVAL H. MAHARAJA, ADVOCATE for the Opponent(s)/Respondent(s)
No. 2
MR. KANVA M. ANTANI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 01/08/2024
ORAL ORDER
1. By way of the present Appeal under Section 14(A) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 for
Anticipatory bail under Section 438 of the Code of Criminal Procedure,
1973, the Appellant has prayed for enlarging him on anticipatory bail in
connection with the F I R be i ng C. R. No . 11192050240249/2024
registered wit h Sanand Police Station, Ahmedabad for the offe nce s
puni sha bl e unde r S ec tions 323, 504, 506(2), 114 of the Indian Penal Code
and Sections 3(1)(r), 3(1)(s), 3(2)(va) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. Heard learned Senior Advocate Mr. Yatin N. Oza appearing with
learned Advocate Mr. Soeb R. Bhoharia for the Appellant and learned APP Mr.
Kanva M. Antani appearing on behalf of the Respondent - State.
3. Learned Advocate Mr. Keval H. Maharaja appears and states that he
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has received instructions to appear on behalf of the Original Complainant and he
would be filing his Vakalatnama during the course of the day.
3.1 Registry to accept his Vakalatnama and place it on record.
4. Rule. Learned APP waives service of notice of Rule on behalf of the
Respondent - State and learned Advocate Mr. Keval H. Maharaja waives service
of notice of Rule on behalf of the Original Complainant.
5. Learned Senior Advocate for the Appellant has submitted that the
Appellant is apprehending arrest in connection the aforesaid FIR and in this
connection the earlier application filed by the Appellant herein before the
learned Sessions Court came to be dis-allowed. He submitted that
considering the facts stated in the Application, the Appellant may be
granted anticipatory bail.
6. Learned Additional Public Prosecutor appearing on behalf of
the respondent - State has opposed grant of anticipatory bail looking to the
nature and gravity of the offence. He submitted that the Appellant was very
much present at the scene of offence along with the other co-accused and had
thus played an active role in commission of the offence in question. Learned
APP has therefore prayed that the present Appeal may be dismissed.
7. Learned Advocate Mr. Keval H. Maharaja appearing for the original
complainant has also opposed the Appeal contending that the present Appellant
had abused the first informant on the basis of his caste and had also hurled
other abuses and also assaulted the victim, because of which, the victim had to
take treatment in the government hospital. The investigation of the offence is
still in progress. He therefore submitted that the Appeal may be dismissed.
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8. Heard learned Advocates for the parties and perused the record. The
FIR in question has been lodged by the victim Vasantbhai Mahendrabhai Vania.
In the earlier part of the FIR, the name of the present appellant is not found,
where as, at the end of the FIR, the name of the present Appellant had been
added and it is also alleged that he had also used abusive words based on the
caste of the victim against him. Therefore, there is reason to believe that the
name of the Appellant is added as an afterthought. Upon perusal of the statement
of the witnesses there is nothing on record to indicate about the use of abusive
words by the present Appellant.
9. Having heard the arguments advanced by the learned advocates
for the parties and perusing the material placed on record and taking into
consideration the facts of the case, nature of allegations, gravity of offence and
the role attributed to the accused, I am inclined to grant anticipatory bail to the
Appellant.
10. This Court has considered following aspects,
(a) as per catena of decisions of Hon'ble Supreme Court there are
mainly two factors which are required to be considered by this court;
(i) prima facie case
(ii) requirement of accused for custodial interrogation.
Therefore, in the facts and circumstances of the present case, this
court is inclined to consider the case of the applicant.
11. This Court has also taken into consideration the law laid down
by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre
Vs. State of Maharashtra and Ors., reported at [2011] 1 SCC 694, wherein
the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench
in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab,
reported at (1980) 2 SCC 565. Further, this Court has also taken into
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consideration the ratio laid down in the case of Sushila Aggarwal and Ors. v.
State (NCT of Delhi) and Anr. in Special Leave Petition No. 7281-
7282/2017 dated 29.01.2020.
11.1 This court has also considered the judgment in the case of Arnesh
Kumar v. State of Bihar reported in (2014) 8 SCC 273, wherein the Hon'ble
Apex Court has observe that whenever there is punishment of 7 years, then the
court would be liberal to exercise the discretion. Further, by exercising the
discretion under Section 438 Cr.P.C, the doors of remand by the Investigating
Officer is open and therefore also this court is inclined to exercise powers
under Section 438 of Cr.P.C.
12. In the result, the present Appeal is allowed. The Appellant is
ordered to be released on anticipatory bail in the event of arrest in connection
with a F I R be i ng No . C. R. No . 11192050240249/2024 registered wit h
Sanand Police Station, Ahmedabad for the offe nce s puni sha bl e unde r
S ec tions 323, 504, 506(2), 114 of the Indian Penal Code and Sections 3(1)(r),
3(1)(s), 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989, on executing a personal bond of Rs.10,000/-
(Rupees Ten Thousand Only) with one surety of like amount on the following
conditions;
(a) shall cooperate with the investigation and make available for
interrogation whenever required;
(b) shall remain present at concerned Police Station on 6 . 0 8 . 2 0 2 4
between 12.00 Noon and 2.00 p.m.;
(c) shall not directly or indirectly make any inducement, threat or promise
to any person acquainted with the fact of the case so as to dissuade him from
disclosing such facts to the court or to any police officer;
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(d) shall not obstruct or hamper the police investigation and not to play
mischief with the evidence collected or yet to be collected by the police;
(e) shall at the time of execution of bond, furnish the address to the
investigating officer and the court concerned and shall not change residence till
the final disposal of the case till further orders;
(f) shall not leave India without the permission of the concerned trial court
and if having passport shall deposit the same before the concerned trial court
within a week; and
13. At the trial, the concerned trial court shall not be influenced by the
prima facie observations made by this Court in the present order.
14. Rule is made absolute to the aforesaid extent. Direct service is
permitted.
(M. R. MENGDEY,J)
J.N.W / 68
