Gujarat High Court
Shahrukh @ Bapu Hanifmiya @ Anumiya ... vs State Of Gujarat on 20 February, 2024
NEUTRAL CITATION
R/CR.MA/22860/2023 ORDER DATED: 20/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 22860 of 2023
(FOR REGULAR BAIL - AFTER CHARGESHEET)
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SHAHRUKH @ BAPU HANIFMIYA @ ANUMIYA KADRI
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
MS MAITHALI MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 20/02/2024
ORAL ORDER
1. Rule. Learned APP waives service of notice of rule
for respondent - State of Gujarat.
2. The present application is filed under Section 439
of the Code of Criminal Procedure, 1973, for
regular bail in connection with the FIR being C.R.
No.11203004220251/2022 registered with the
Junagadh 'C' Division Police Station, Junagadh for
the offence punishable under Sections 364(a), 365,
327, 324, 323, 294-b, 506(2), 386, 143, 147, 146,
148, 149, 341 and 342 of the Indian Penal Code,
under Section 135 of the Gujarat Police Act and
under Sections 3(1)(2) and 3(4) of the GUJCTOC
Act.
3. Learned advocate for the applicant submitted that
the so-called incident has taken place for the
period between 01.01.2011 to 15.02.2022, for
which, FIR has been lodged on 09.03.2022 and the
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applicant has been arrested in connection with the
same on 24.05.2022 and since then, he is in
judicial custody. Learned advocate submitted that
now the investigation is completed and after
submission of the chargesheet, the present
application is preferred. Learned advocate
submitted that FIR is filed against total 6
accused persons, wherein the applicant is shown as
accused no.5. Learned advocate submitted that
initially FIR was registered under the provision
of the IPC, however subsequently, an application
was preferred by the IO before the concerned
Magistrate for the purpose of addition of
provision of the GUJCTOC Act and at the time of
addition of said provision, the prosecution has
put reliance upon 9 cases registered against him,
however out of those 9 accused, the applicant has
been acquitted by the concerned criminal court in
5 cases and out of remaining 4 cases, one offence
pertains to prohibition case and one pertains to
chapter case and remaining two cases pertain to
the provision of the IPC, which are pending before
the competent court for adjudication. Learned
advocate submitted that the offences mentioned at
Sr. Nos.1 and 2 are connected with each other
because initially one complaint has been
registered against the accused persons and during
the course of investigation, the police authority
has filed another complaint against the accused
persons on the strength of the information
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received by them and thus in short, those two
offences are connected with each other and related
to the present FIR. Learned advocate submitted
that so far as the role of the present applicant
is concerned, the applicant was found available at
the place of occurrence along with other co-
accused persons but during the course of
investigation, no specific over tact is attributed
to him. Learned advocate, therefore, submitted
that even assuming without admitting that the
applicant was found available at the place of
occurrence, in that event, the role attributed to
the present applicant can be said to be of an
abettor and as it is found from the documents
available on record that the accused no.1 had
inflicted knife blow upon the body of the injured
victim and not by the present applicant - accused.
Learned advocate has referred to the contents of
the FIR and submitted that considering the
allegations leveled against the present applicant
as well as specific role attributed to the present
applicant, the present application may be allowed.
4. Learned advocate, at this stage, has placed
reliance upon the order of the Hon'ble Supreme
Court in case of Shivrajbhai Rambhai Vichhiya Vs.
State of Gujarat & Anr., delivered in Criminal
Appeal No.1404/2022 [@ SLP (Cri) No.4088/2022] and
submitted that in the said matter, the concerned
accused was having more than 10 offences
registered against him, however considering the
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period of incarceration spent in judicial custody,
the said accused was considered for bail. Learned
advocate, therefore, submitted that in the present
case, the applicant is in jail since last more
than 18 months and, hence, the applicant may be
enlarged on regular bail by imposing suitable
conditions.
5. Learned APP for 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 present applicant is clearly spelt out
from the papers of the chargesheet. Learned APP
submitted that FIR is filed against total 6
accused persons, wherein the applicant is shown as
accused no.5. Learned APP submitted that during
the course of investigation, it is found out that
more than 70 offences have been registered against
entire Gang and the accused no.1, Mohsin is the
Gang leader and number of offences are registered
against the said accused. Learned APP submitted
that at the time of incident, the present
applicant is found in the company of other accused
and specific name and role of the present
applicant is clearly mentioned by the complainant
in the FIR. Learned APP submitted that there is
terror in the region due to illegal activity
committed by the present applicant and even more
than 9 offences have been registered against the
present applicant, which clearly goes on to show
that the present applicant is actively involved in
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the illegal activity and the present present was
in constant touch with other co-accused. Learned
APP, therefore, urged that the present application
may not be entertained.
6. 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. It is found out from
the record that the present application is
preferred after submission of the chargesheet and
now the investigation is completed and the
applicant is in jail since 24.05.2022. It is found
out that total 9 offences have been considered by
the Police Authority at the time of registration
of FIR, however out of them, only two offences
have been registered after promulgation of the
provision of the GUJCTOC Act and further out of
those 9 cases, the applicant has been acquitted by
the competent criminal court in five cases and out
of remaining 4 cases, one offence pertains to
prohibition case and one pertains to chapter case.
I have also considered the role attributed to the
present applicant - accused at the time of
commission of crime and found that except his
presence, there is no over tact is attributed to
him. I have also considered the recent judgment of
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the Hon'ble Supreme Court in case of Shivrajbhai
Rambhai Vichhiya (supra), which was arising out of
the offence under the provisions of GUJCTOC Act,
wherein the Hon'ble Supreme Court has ordered to
enlarge the accused concerned. Here in the case on
hand, the applicant is in jail since last more
than 18 months. Therefore considering the above
factual aspects the role played by him at the time
of commission of crime and the period of
incarceration spend by him, the present
application deserves to be allowed.
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 as well
as in case of Satender Kumar Antil v. Central
Bureau of Investigation & Anr. reported in (2022)
10 SCC 51.
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 bail.
10. Hence, the present application is allowed. The
applicant is ordered to be released on regular
bail in connection with the FIR being C.R.
No.11203004220251/2022 registered with the
Junagadh 'C' Division Police Station, Junagadh on
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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, the concerned
Sessions 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
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open for the concerned Court to delete, modify
and/or relax any of the above conditions, in
accordance with law.
12. 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.
13. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(DIVYESH A. JOSHI, J.)
Gautam
