Irfan Allarakhabhai Chichodara vs State Of Gujarat
2024 Latest Caselaw 929 Guj

Gujarat High Court

Irfan Allarakhabhai Chichodara vs State Of Gujarat on 5 February, 2024

                                                                                      NEUTRAL CITATION




     R/CR.MA/376/2024                                 ORDER DATED: 05/02/2024

                                                                                      undefined




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
                  CHARGESHEET) NO. 376 of 2024
==========================================================
                        IRFAN ALLARAKHABHAI CHICHODARA
                                      Versus
                                STATE OF GUJARAT
==========================================================
Appearance:
MR KRUNAL L SHAHI(6519) for the Applicant(s) No. 1
MOHAMADZAID I SAIYED(8411) for the Respondent(s) No. 1
MR. DHAWAN JAYSWAL, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
==========================================================
 CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
                  Date : 05/02/2024
                   ORAL ORDER

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 Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.11189003212003 of 2021 registered with the Morbi City 'A' Division Police Station, Morbi of the offence punishable under Sections 143, 147, 148, 149, 120-B, 34, 302, 307, 323, 341 and 427 of the IPC, Sections 25(1-b)(a) and 27 of the Arms Act, Section 135 of the G.P. Act and Sections 3(1), 3(2) and 3(4) of the GUJCTOC Act.

3. Learned senior advocate Mr. J.M. Panchal appearing for the applicant has submitted that the applicant-accused was arrested on 24.09.2021 and since then he is in jail. Learned senior advocate Mr. Panchal has also submitted that the investigation has already been completed and charge-sheet has also been filed. Learned senior advocate Mr. Panchal has further submitted that the first information report has been

NEUTRAL CITATION

R/CR.MA/376/2024 ORDER DATED: 05/02/2024

undefined

filed against total nine known persons and four unknown persons. The present applicant-accused has not been named in the first information report. Later, during the course of investigation, on the basis of the alleged incriminating material found against the applicant-accused, he has been booked in the present case. It is moreso submitted that the only role attributed to the present applicant-accused, as per statement of two eye-witnesses, is that the applicant-accused was found available at the place of occurrence by keeping iron rod in his hand. However, he has not inflicted any blow to any of the injured witnesses or the deceased. Even, as per the medical evidence in the form of postmortem report, the deceased died due to the gunshots. Learned senior advocate Mr. Panchal has submitted that the alleged incident took place in the presence of total five persons who were sitting in the car along with the deceased. They witnessed the entire incident from their bare eyes. The applicant-accused was known to the injured eye-witnesses, however, none of the them have disclosed the name of the applicant-accused at the time of recording of their statements by the Investigating Officer. Learned senior advocate Mr. Panchal has also submitted that the first information report has been registered by the son of the deceased on the basis of the information provided by the so called eye-witnesses wherein the name of the applicant- accused is not mentioned.

4. Learned senior advocate Mr. Panchal has submitted that so far as invocation of the provisions of the GUJCTOC against the present applicant-accused is concerned, the prosecuting agency has put reliance upon two offences registered under

NEUTRAL CITATION

R/CR.MA/376/2024 ORDER DATED: 05/02/2024

undefined

the Gambling Act which is punishable with imprisonment of two years whereas as per Section 2(c) of the GUJCTOC Act, for invoking the provisions of the draconian GUJCTOC Act, more than one charge-sheets must have been filed after the promulgation of the Act which is a cognizable offence punishable with imprisonment for a period of three years or more and the Court has taken cognizance of such an offence in respect of an activity which can be said to have been undertaken by one as a member of an organized crime syndicate on behalf of such syndicate. Therefore, the ingredients of the relevant provisions of the GUJCTOC Act would not be applicable in the case on hand. It is moreso submitted that the applicant-accused has not been identified in the Test Identification Parade. It is also submitted that on two occasions, the statements of the eye-witnesses were recorded by the Investigating Officer, however, in none of the statements, the name of the applicant-accused has been disclosed. The role attributed to the applicant-accused is that at the time of happening of the incident, he was standing along with iron pipe in his hand at the place of occurrence. Except that, no specific role is attributed to the applicant-accused. Learned senior advocate Mr.Panchal has submitted that the other identically situated co-accused persons have already been released on bail by this very Court. Learned senior advocate Mr. Panchal has submitted that out of two offences, in one offence the present applicant-accused has already been acquitted. Learned senior advocate Mr. Panchal has further submitted that as per the charge-sheet papers, total 205 witnesses have been shown and yet charges have not been

NEUTRAL CITATION

R/CR.MA/376/2024 ORDER DATED: 05/02/2024

undefined

framed and, therefore, considering the aforesaid factual aspect, it would take considerable long time to conclude the trial and as the applicant is behind the bar since last more than two years and four months, he may be set at liberty. Under the circumstances, learned senior advocate Mr. Panchal has submitted that the applicant-accused may be enlarged on bail on any suitable terms and conditions.

5. Learned APP for the respondent-State has heavily relied upon the decision of Hon'ble Supreme Court in the case of Zakir Abdul Mirajkar v. the State of Maharashtra & Ors, rendered in Criminal Appeal No.1125 of 2022, and submitted that so far as the controversy involved in the present case, the aforesaid judgment will hold the field. Learned APP refers to the provisions of Section 2(1)(a) of the GUJCTOC Act and submits that so far as the act of 'abet' is concerned, any facilitation of commission of organized crime would amount to abetting the offence of organized crime. Learned APP further submits that one may be a principal offender and remaining persons of the syndicate would be the members of the syndicate but if some offence is committed by any accused person and someone has merely conspired and has committed some act of a nature of conspiracy then that section will be attracted. Learned APP further submits that thereafter the gravity of the offence also need to be seen while dealing with the application of bail. Learned APP further submits that when the Court examines the term 'continuing unlawful activity', there has to be more than one offence where the cognizance has been taken. Learned APP further submits that say for example if there are 10 members in an organized crime

NEUTRAL CITATION

R/CR.MA/376/2024 ORDER DATED: 05/02/2024

undefined

syndicate and one is the leader of the syndicate and others are the members then it is not prerequisite that against all the 10 members there has to be more than one offence requires to be registered and wherein cognizance is being taken by the competent Court. Learned APP has, at this juncture, relied upon the observations made by the Hon'ble Apex Court in para 77 and 78 in the case of Zakir Abdul Mirajkar (supra) and submitted that in the aforesaid 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'.

6. Learned advocate Mr.Mohamadzaid Saiyed appearing for the original complainant has also opposed the present bail application and adopted all the submissions made by the learned APP. However, he further added that the present applicant-accused, in connivance with the other co-accused, hatched a criminal conspiracy to eliminate the deceased. He has played an active role in the commission of the offence and is involved in the crime since very beginning. It is further submitted that statements of two independent eye-witnesses came to be recorded by the Investigating Officer wherein they have very specifically stated that they saw the applicant- accused along with the deadly weapon in his hand at the scene of offence and thus the active involvement of the present applicant-accused is clearly found out from the statements of those two independents witnesses. He further submitted that

NEUTRAL CITATION

R/CR.MA/376/2024 ORDER DATED: 05/02/2024

undefined

the complaint is lodged by the son of the deceased and if the applicant-accused is released on bail, there will be a threat to the life of the complainant as the applicant-accused is a head strong person and a member of the organized crime syndicate. Therefore, considering the above stated factual aspects of the matter, the present bail application deserves to be rejected and the applicant-accused may not be enlarged on bail.

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 at the time of invoking provisions of GUJCTOC against the applicant-accused, the Investigating Officer has put much emphasis upon two offences registered against the applicant-accused. In this regard, I would like to refer to the provisions of the GUJCTOC Act, more particularly, Section 2(c) and Section 3(1)(ii) of the Act. Section 2(c) reads thus;

Section 2(c):- 'continuing unlawful activity means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment for a term of three years or more, undertaken either singly or jointly, as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence."

8. Section 3(1)(ii) reads as under;

"In any other case, be punishable with imprisonment for a term which shall not be less

NEUTRAL CITATION

R/CR.MA/376/2024 ORDER DATED: 05/02/2024

undefined

than five years but which may extent to imprisonment for life and shall also be liable to fine which shall not be less than rupees five lakhs."

9. From a bare perusal of the aforesaid provisions, it clearly appears that for invoking the provisions of draconian GUJCTOC Act, more than one charge-sheets must have been filed before a competent court within the preceding period of ten years which is a cognizable offence punishable with imprisonment for a term of three years or more, undertaken either singly or jointly as a member of an organized crime syndicate or on behalf of such syndicate and that court has taken cognizance of such offence. From the materials available on record, it appears that out of the two offences relied upon by the Investigating Agency, in one offence, the applicant-accused has already been released on bail and, therefore, only one offence can be said to be pending against the applicant- accused and, therefore, the ingredients of the provisions of the GUJCTOC Act would not be attracted in the present case. In the present case, now the investigation has already been completed and charge-sheet has also been filed. It also appears that the other identically situated co-accused persons has already been released on bail by this very Court. This Court has also taken into consideration the period of incarceration already undergone by the applicant-accused. The applicant-accused is in jail since 24.09.2021, i.e, since more than two years. The applicant-accused has not been identified in the Test Identification Parade. The only role attributed to the applicant-accused is that he was having iron pipe in his hand at the time of occurrence of the incident and

NEUTRAL CITATION

R/CR.MA/376/2024 ORDER DATED: 05/02/2024

undefined

as per the medical evidence available on record, the deceased succumbed to the gunshot injuries. Therefore, considering the role attributed to the applicant-accused, I am of the view that the present application deserves consideration.

10. 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.

11. 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.

12. 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.11189003212003 of 2021 registered with the Morbi City 'A' Division Police Station, Morbi, 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




                                                                                 NEUTRAL CITATION




        R/CR.MA/376/2024                         ORDER DATED: 05/02/2024

                                                                                undefined




                  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;

13. 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 Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.

14. 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.

15. 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