Gujarat High Court
Gulam Ahmad Jumman Sha vs State Of Gujarat on 21 February, 2024
NEUTRAL CITATION
R/CR.MA/3244/2024 CAV ORDER DATED: 21/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 3244 of 2024
(FOR REGULAR BAIL - AFTER CHARGESHEET)
=======================================================
GULAM AHMAD JUMMAN SHA
Versus
STATE OF GUJARAT
=======================================================
Appearance:
MR PARTH TOLIA with MR BRIJESH TRIVEDI for Application
No.1
MR AMIT D SHAH(11232) for the Applicant(s) No. 1
MS DIVYANGJA JHALA APP for the Respondent(s) No. 1
=======================================================
CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 21/02/2024
CAV ORDER
1. 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.11210012230323/2023 registered with the Chowk
Bazaar Police Station, Surat for the offence
punishable under Sections 302, 307, 387, 324, 143,
147, 148, 149, 452, 504 and 120(B) of the Indian
Penal Code, under Section 135 of the Gujarat
Police Act and under Sections 3(1)(1), 3(1)(2),
3(2) and 3(4) of the Gujarat Control of Terrorism
and Organized Crime Act, 2015.
2. Heard learned advocate, Mr. B.J. Trivedi assisted
by learned advocate, Mr. Parth Tolia for the
applicant - accused and learned APP Ms. Divyangna
Jhala for the respondent - State of Gujarat.
3. Learned advocate for the applicant submitted that
NEUTRAL CITATION
R/CR.MA/3244/2024 CAV ORDER DATED: 21/02/2024
undefined
the so-called incident has taken place on
03.03.2023, for which, the FIR has been lodged on
the very same day i.e. on 03.03.2023 and the
applicant has been arrested in connection with the
same on 04.03.2023 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 initially FIR was registered
against total 11 known and 2 unknown persons, that
too, for the offences under the provision of the
Indian Penal Code and under the provision of the
Gujarat Police Act and at that relevant point of
time, the said FIR has not been registered under
the provision of the GUJCTOC Act. Learned advocate
submitted that as per the case of the prosecution,
the accused have inflicted knife blows upon the
body of the deceased indiscriminately, due to
which, the deceased has sustained serious and
severe injuries and ultimately succumbed to the
same and the said fact is also corroborated by the
postmortem note, particularly in Column No.17, it
has been specifically mentioned that the deceased
sustained number of deceased, which clearly goes
on to show that the deceased has sustained stab
wound injuries. Learned advocate submitted that so
far as the role attributed to the present
applicant is concerned, it is alleged that the
applicant has inflicted stick blow upon the
NEUTRAL CITATION
R/CR.MA/3244/2024 CAV ORDER DATED: 21/02/2024
undefined
deceased at the time of commission of crime and
thus, the role attributed to the present applicant
is limited one. Learned advocate submitted that
during the course of investigation, the muddamal
stick was recovered from the custody of the
present applicant - accused but there was no
bloodstain found upon it.
4. Learned advocate submitted that as stated above,
at the time of registration of the FIR, the
provisions of the GUJCTOC Act were not added,
however subsequently, the provisions of the
GUJCTOC Act have been added. Learned advocate
submitted that at the time of invoking the
provision of the GUJCTOC Act, the prosecuting
agency has put reliance upon total four offences
registered against him, however out of those four
offences, in two offences, the applicant has been
acquitted by the competent criminal court, whereas
in remaining offences, the applicant has been
granted bail by the concerned court. Learned
advocate submitted that out of two remaining
offences, one offence is registered before
invocation of the provision of the GUJCTOC Act and
one offence is registered after the invocation of
the provision of the GUJCTOC Act and the said
offence is triable by the court of Magistrate and
other members of the Gang were not arraigned as
accused in the said offence. Learned advocate
submitted that for the purpose of bringing the
persons under the ambit of GUJCTOC Act, more than
NEUTRAL CITATION
R/CR.MA/3244/2024 CAV ORDER DATED: 21/02/2024
undefined
two offences are required to be registered against
the members of syndicate in the period of
preceding ten years, that too, wherein punishment
can be imposed upto three years and cognizance
would have been taken by the concerned Magistrate
and admittedly here in this case on hand, only one
offence is registered against the applicant after
the invocation of the provision of the GUJCTOC
Act. Learned advocate has put reliance upon the
decision of the Hon'ble Supreme Court in case of
State of Gujarat Vs. Sandip Omprakash Gupta,
delivered in Criminal Appeal No.2291/2022 and
submitted that the act, action and behavior of the
applicant - accused would not fall under the
definition of "continuing unlawful activity".
Learned advocate, therefore, urged that
considering ratio enunciated by the Hon'ble
Supreme Court in the aforesaid decision, the
present application may be allowed.
5. Learned advocate further submitted that co-
accused, who has been shown as unknown person, has
already been considered by the concerned Court.
Learned advocate submitted that the role of the
present applicant is slightly higher than the said
co-accused, who has been granted bail, however
admittedly, the present applicant - accused has
not actively participated in the commission of
crime. Learned advocate, therefore, urged that
considering the above facts and considering the
role attributed to the present applicant at the
NEUTRAL CITATION
R/CR.MA/3244/2024 CAV ORDER DATED: 21/02/2024
undefined
time of commission of crime and on the principle
of law of parity, the applicant may be enlarged on
regular bail by imposing suitable conditions.
6. Learned APP for the respondent-State has opposed
grant of regular bail looking to the nature and
gravity of the offence. Learned APP submitted that
the name as well as specific role of the present
applicant is clearly spelt out from the body of
the chargesheet papers. Learned APP submitted that
it is the specific case of the prosecution that
all the accused persons have hatched a criminal
conspiracy conspiracy and as part of the said
conspiracy, they have acted in a particular manner
and they had gone to the house of the deceased by
keeping deadly weapons in their hands and they
have made daring attack upon the victims and in
the said incident, two innocent persons have lost
their valuable lives. Learned APP submitted that
specific role of each accused persons have
independently categorized by the complainant in a
very graphical manner as to which accused has
given which blow, which accused was possessing
which weapon and which accused has given which
blows on which part of the body of the deceased.
Learned APP submitted that admittedly since from
the beginning at the time of hatching conspiracy
to eliminate the deceased, the involvement of the
present applicant - accused is found out and there
was also presence at the place of occurrence along
with other accused is also found out at the time
NEUTRAL CITATION
R/CR.MA/3244/2024 CAV ORDER DATED: 21/02/2024
undefined
of execution of the offence. Learned APP submitted
that during the course of investigation, recovery
of muddamal stick, which was used by the present
applicant was also found out at the instance of
the present applicant and in fact, the present
applicant is active member of the syndicate and
number of offences have been registered against
entire Gang, which is known as "Diwan Gang" and
all the accused persons were in live contact with
each other and the said fact is also clearly found
out from the CDR collected by the IO during the
course of investigation. Learned APP further
submitted that initially FIR was registered under
the provision of the IPC, however subsequently,
considering the seriousness and gravity of the
offence as well as involvement of members of the
"Diwan Gang", the provision of GUJCTOC Act were
added.
7. Learned APP has relied upon the decision of
Hon'ble Supreme Court in the case of Zakir Abdul
Mirajkar Vs. the State of Maharashtra & Ors,
rendered in Criminal Appeal No.1125 of 2022 and
submitted in the said case, it has been
specifically observed by the Hon'ble Supreme Court
that, 'it is settled law that more than one charge
sheet is required to be filed in respect of the
organized crime syndicate and not in respect of
each person who is alleged to be a member of such
a syndicate'. Thus, from the aforesaid decision,
it is clear that requirement of registration of
NEUTRAL CITATION
R/CR.MA/3244/2024 CAV ORDER DATED: 21/02/2024
undefined
more than one charge-sheet, as per the provisions
of GUJCTOC Act, would be in respect of organized
crime syndicate and not in respect of each person
who is alleged to be a member of such syndicate.
It is, therefore, urged that the present
application may not be entertained.
8. Learned advocates appearing on behalf of the
respective parties do not press for further
reasoned order.
9. 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 04.03.2023. It is found
out that initially FIR has been registered against
the accused persons under the provision IPC and
subsequently, provision of GUJCTOC has been added.
I have considered the statements recorded by the
IO during the course of investigation as also
postmortem report of the deceased, more
particularly, Column No.17, wherein the details of
the injuries have been mentioned by the concerned
Medical Officer after performing postmortem upon
the dead body of the deceased and it is found out
that the deceased sustained stab wound injuries. I
have considered the role attributed to the present
NEUTRAL CITATION
R/CR.MA/3244/2024 CAV ORDER DATED: 21/02/2024
undefined
applicant at the time of commission of crime,
which suggests that the applicant has inflicted
stick blow to the deceased and except this, there
is no other role attributed to him. Further, the
co-accused, who has been attributed with blow of
knife to the deceased, has been considered by the
Coordinate Bench of this Court.
10. Now, I would like to refer to the following
decisions rendered by the Hon'ble Apex Court. In
the case of Sandip Omprakash Gupta (supra), in
Paragraph No.51(g), the Hon'ble Apex Court has
observed as under:
"(g) However, we need to clarify something
important. Shiva alias Shivaji Ramaji
Sonawane (supra) dealt with the situation,
where a person commits no unlawful activity
after the invocation of the MCOCA. In such
circumstances, the person cannot be
arrested under the said Act on account of
the offences committed by him before coming
into force of the said Act, even if, he is
found guilty of the same. However, if the
person continues with the unlawful
activities and is arrested, after the
promulgation of the said Act, then, such
person can be tried for the offence under
the said Act. If a person ceases to indulge
in any unlawful act after the said Act,
then, he is absolved of the prosecution
under the said Act. But, if he continues
NEUTRAL CITATION
R/CR.MA/3244/2024 CAV ORDER DATED: 21/02/2024
undefined
with the unlawful activity, it cannot be
said that the State has to wait till, he
commits two acts of which cognizance is
taken by the Court after coming into force.
The same principle would apply, even in the
case of the 2015 Act, with which we are
concerned."
11. Therefore considering the above ratio laid down by
the Hon'ble Supreme Court in the aforesaid
judgment, role played by the applicant at the time
of commission of crime and on the principle of law
of parity, the present application deserves to be
allowed.
12. 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.
13. 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.
14. Hence, the present application is allowed. The
applicant is ordered to be released on regular
bail in connection with the FIR being C.R.
NEUTRAL CITATION
R/CR.MA/3244/2024 CAV ORDER DATED: 21/02/2024
undefined
No.11210012230323/2023 registered with the Chowk
Bazaar Police Station, Surat 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 nearby 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. where he is going to
stay;
[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;
[g] shall not enter into Surat district for a
period of twelve months;
15. 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
NEUTRAL CITATION
R/CR.MA/3244/2024 CAV ORDER DATED: 21/02/2024
undefined
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
open for the concerned Court to delete, modify
and/or relax any of the above conditions, in
accordance with law.
16. 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.
17. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
