Gujarat High Court
Gabhabhai Sujabhai Sangaar vs State Of Gujarat on 20 February, 2024
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R/CR.MA/1369/2024 CAV JUDGMENT DATED: 20/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 1369 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GABHABHAI SUJABHAI SANGAAR
Versus
STATE OF GUJARAT
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Appearance:
MR MIHIR VAKHARIYA(8336) for the Applicant(s) No. 1
MS. DIVYANGNA JHALA, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 20/02/2024
CAV JUDGMENT
1. Rule returnable forthwith. Learned APP waives service of
notice of rule for and on behalf of the respondent-State.
2. The present application is filed under Section 439 of the
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Code of Criminal Procedure, 1973, for regular bail in
connection with the FIR being C.R. No.I-34 of 2019 registered
with the Mandvi Police Station, Kachchh West-Bhuj of the
offence punishable under Sections 376(1), 495 and 506(2) of
the IPC and Sections 3(a), 4, 5(1), 6 and 10 of the POCSO Act.
3. Learned advocate Mr. Ashish Dagli assisted by learned
advocate Mr. Mihir Vakhariya appearing for the applicant has
submitted that the applicant-accused was arrested on
18.08.2023 and since then he is in jail. Learned advocate Mr.
Dagli has also submitted that the investigation has already
been completed and charge-sheet has also been filed. Learned
advocate Mr. Dagli has also submitted that this is a second
round of litigation and the present matter has some checkered
history. Earlier, the applicant-accused had already been
enlarged on anticipatory bail as the matter was amicably
settled between the parties pursuant to which a consent
quashing petition was also filed before this Court wherein the
complainant has tendered an affidavit specifically stating that
the matter is now settled between herself and the applicant-
accused and the applicant-accused has already taken
customary divorce from his previous wife and as per the
prevailing customs and rituals in the community, the said
customary divorce is acceptable one and she has no grievance
so far as that aspect is concerned. It is also submitted that
thereafter again some disputes cropped up between the
applicant-accused and the victim girl pursuant to which the
complainant filed another complaint being C.R.
No.11205031200912 of 2020 under Sections 507, 506(2) and
114 of the IPC against the applicant-accused and
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simultaneously also preferred an application for cancellation of
anticipatory bail before the court below which came to be
rejected by the trial court. Being aggrieved, the complainant
approached this Court by filing an application for cancellation
of bail and a Coordinate Bench of this Court, after giving full
opportunity of hearing to all the parties, allowed the said
application cancelling the anticipatory bail granted to the
applicant-accused on the ground of registration of the
subsequent complaint, as referred to above, as also on the
ground of having past antecedents against the applicant-
accused. Pursuant to cancellation of the said anticipatory bail
application, the applicant-accused was taken into custody and
since then he is in jail. However, it is pertinent to note that in
the subsequently FIR also, as referred to herein above, the
applicant-accused has been acquitted by the trial court. It is
further submitted that, in fact, the stage of recording of
deposition of the victim-girl has already been completed and
the trial is at its fag end. It is moreso submitted that the
incident in question took place during the period between
25.05.2018 and 01.07.2019 for which the first information
report came to be registered on 01.07.2019 which indicates
that there is a gross delay in registering the first information
report. Learned advocate Mr. Dagli has also submitted that, in
fact, there were in all nine offences registered against the
applicant-accused out of which in eight offences the applicant-
accused has already been acquitted. Only one matter is
pending before the competent court for its adjudication. It is
also submitted that it is the duty upon the incumbent
Investigating Officer to bring on record the true and correct
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facts at the time of filing an affidavit before any court of law.
Here in the present case, the prosecuting agency has come
with a specific case that number of cases are pending against
the applicant-accused, however, in fact, the applicant-accused
has already been acquitted almost in all cases. In this regard,
learned advocate Mr. Dagli relies upon the observations made
a Coordinate Bench of this Court in the case of Altaf @ Altaf
Basi S/o Jabbar Khan Sardar Khan Pathan, Criminal Misc.
Application No.30392 of 2017, decided on 23.03.2018, more
particularly the observations made in Paragraphs-15 and 16,
which read thus;
"15. As noticed above in a most casual and
cavalier manner the investigator has filed an affidavit
citing even those cases where the petitioner is either
acquitted or not involved at all. Not only that, his casual
approach gets fortified by merely counting the number of
cases, without the details like case number, the
provisions of law etc. in his affidavit in the trial court and
that too only five cases against 12 cases pointed out to
this court. Affidavit is a solemnized sacred document on
which the court proposes to rely upon on the
presumption that the statements made therein on oath
are true. Such casual approach of the investigator would
shake the faith of the court and the words of the
investigator may not be trusted any more.
16. In the bail applications, the court may be
strongly persuaded against the grant of bail on
noticing serious antecedents against accused
persons. Therefore the statements, particularly those
relating to the antecedents of the accused not only be
not made casually but must be loaded with material
particulars briefly pointing out how the accused is
concerned and to what extent he is involved in the
offence cited as antecedents against him. At
times, it is submitted by the learned senior counsel
that the affidavits are filed during the course of hearing
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without even furnishing the relevant material relied upon
as an antecedent against the accused person and
thus denying an opportunity to the accused to meet
with the same. This cannot be countenanced as bail is
the most crucial right of a person concerning his liberty
under Article 21 of the Constitution of India and like a
present case where the petitioner is able to explain the
antecedents against him, the accused may explain
such antecedents to the court and convince the
court for bail. Therefore, it would be incumbent upon the
investigator to supply to the accused the
accurate details of antecedents relied upon by him
against the accused."
4. In such circumstances, referred to above, learned
advocate Mr. Dagli prays that there being merit in his
application, the same be allowed and the applicant-accused
may be enlarged on bail.
5. The learned APP appearing on behalf of the respondent-
State has opposed grant of regular bail looking to the nature
and gravity of the offence. It is submitted that the role of the
applicant-accused is clearly spelt out from the compilation of
the police papers. The complainant was minor at the time
when the incident took place and against her will and wish, the
applicant-accused has developed physical relationship with the
complainant by making false promise to marry her. It is also
submitted that when the applicant-accused entered into the
relationship with the complainant, he was already married
which fact, the applicant-accused did not reveal to the
complainant. Later, the complainant came to now about the
marital status of the applicant-accused as also having two kids.
It is submitted that number of offences have been registered
against the applicant-accused in the past which seems that he
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is an habitual offender. It is further submitted that after his
release on bail, the applicant-accused also administered threat
to the complainant to settle the dispute due to which the
complainant was constrained to file another complaint against
the applicant-accused wherein ultimately at the end of trial, he
has been acquitted by the trial court. It is moreso submitted
that the trial has already been commenced and the recording
of the evidence of the complainant as well as other witnesses
has also been completed and thus there are all possible
chances that the trial would be completed within a short span
of time. Learned APP has submitted that, therefore,
considering the role attributed to the applicant-accused, this is
a fit case wherein discretionary power of this Court is not
required to be exercised in favour of the applicant-accused.
6. The learned advocates appearing on behalf of the
respective parties do not press for further reasoned order.
7. I have heard the learned advocates appearing on behalf
of the respective parties and perused the papers of the
investigation and considered the allegations levelled against
the applicant and the role played by the applicant. This Court
has also considered the fact that now the investigation has
already been completed and charge-sheet has also been filed.
The applicant-accused is in jail since 18.08.2023. Previously,
the applicant-accused had already been released on
anticipatory bail pursuant to the very same FIR by the trial
court and subsequently consent quashing petition was also
filed which came to be allowed on the basis of the affidavit
filed by the complainant wherein she has very categorically
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stated that she voluntarily developed physical relationship with
the applicant-accused and there was no force or coercion to
her at the end of the applicant-accused. Later, as some
disputes cropped up between the applicant-accused and the
complainant, another complaint was filed by the complainant
against the applicant-accused under Sections 507, 506(2) and
114 of the IPC. However, it is pertinent to note that in the said
offence, the applicant-accused has already been acquitted by
the trial court. Now the trial has already been commenced and
the deposition of the victim girl as well as other witnesses have
also been recorded and, therefore, there is no likelihood of
tampering or hampering with the prosecution witnesses.
Furthermore, of the offences relied upon by the Court while
cancelling the anticipatory bail application of the applicant-
accused, almost in all offences, the applicant-accused has
already been acquitted. The applicant-accused is in judicial
custody since 18.08.2023. Thus, considering the above stated
factual aspects of the matter, I am of the view that the present
application deserves consideration.
8. This Court has also taken into consideration the law laid
down by the Hon'ble Apex Court in the case of Sanjay
Chandra v. Central Bureau of Investigation, reported in
[2012]1 SCC 40.
9. In the facts and circumstances of the case and
considering the nature of the allegations made against the
applicant in the FIR, without discussing the evidence in detail,
prima facie, this Court is of the opinion that this is a fit case to
exercise the discretion and enlarge the applicant on regular
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bail.
10. Hence, the present application is allowed and the
applicant is ordered to be released on regular bail in
connection with the FIR being C.R. No.I-34 of 2019 registered
with the Mandvi Police Station, Kachchh West-Bhuj, on
executing a personal bond of Rs.15,000/- (Rupees Fifteen
Thousand only) with one surety of the like amount to the
satisfaction of the 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 the State of Gujarat without prior
permission of the Sessions Judge concerned;
[e] mark presence before the concerned Police Station
on alternate Monday 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 this
Court;
11. The authorities will release the applicant only if he is not
required in connection with any other offence for the time
being. If breach of any of the above conditions is committed,
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the Sessions Judge concerned will be free to issue warrant or
take appropriate action in the matter.
12. Bail bond to be executed before the lower Court having
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.
13. At the trial, the 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 applicant on bail.
Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(DIVYESH A. JOSHI,J)
VAHID
