Anas Abdulgani Badam vs State Of Gujarat
2024 Latest Caselaw 194 Guj

Gujarat High Court

Anas Abdulgani Badam vs State Of Gujarat on 9 January, 2024

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 R/CR.MA/15838/2023                                   CAV ORDER DATED: 09/01/2024

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     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION NO. 15838 of 2023
          (FOR REGULAR BAIL - AFTER CHARGESHEET)

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ANAS ABDULGANI BADAM Versus STATE OF GUJARAT ======================================================= Appearance:

MR PP MAJMUDAR(5284) for the Applicant(s) No. 1

MR AA ANSARI for original complainant =======================================================

CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

Date : 09/01/2024

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.11207002210450/2021 registered with the Godhra 'B' Division Police Station, Panchmahal for the offence punishable under Sections 143, 147, 148, 149, 307, 323, 337 and 506(2) of the Indian Penal Code and under Section 135 of the Gujarat Police Act.

2. Heard learned advocate Mr. P.P. Majmudar for the applicant, learned APP Mr. J.K. Shah for the respondent - State and learned advocate Mr. A.A. Ansari for the original complainant.

3. The brief facts leading to filing of the present application are as under,

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3.1 An FIR being C.R. No.11207002210450/2021 came to be registered with the Godhra 'B' Division Police Station, Panchmahal for the offence punishable under Sections 143, 147, 148, 149, 307, 323, 337 and 506(2) of the Indian Penal Code and under Section 135 of the Gujarat Police Act against total six accused persons, wherein the applicant is shown as accused no.2.

3.2 In connection with the aforesaid FIR, the applicant was arrested by the police and sent to judicial custody. After his arrest, the applicant had filed an application being Criminal Misc. Application No.987/2021 before the concerned Sessions Court, Panchmahala, Godhra and the learned 7th Additional Sessions Judge, Panchmahal, Godhra, by an order dated 13.12.2021, was pleased to grant bail to the applicant - accused on certain terms and conditions, more particularly, not to involve in any other offence and follow all the conditions. Thereafter in connection with the aforesaid FIR, the investigation was concluded and chargesheet came to be filed before the competent criminal court. 3.3 However thereafter, an FIR being C.R. No.1120700220330/2023 came to be registered with Godhra 'B' Division Police Station for the offences under Sections 307, 323, 324, 504, 506(2) and 114 of the Indian Penal Code

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and under Section 135 of the Gujarat Police Act against other accused persons and the applicant was not named in the said FIR, however subsequently, the applicant is arraigned as accused in the aforesaid FIR. In connection with the said FIR, the applicant had applied for bail before filing of the chargesheet but the said application was withdrawn.

3.4 Because of registration of aforesaid FIR, the State of Gujarat filed an application for cancellation of bail being Criminal Misc.

Application No.404/2023 before the learned Sessions Court, Panchmahal on the ground of breach of conditions and the learned 5th Additional Sessions Judge, Panchmahalas @ Godhra, by an order dated 26.07.2023, was pleased to allow the said application and cancelled the bail granted to the applicant - accused, which led to filing of the present application.

3.5 However in the meantime on 19.06.2023, another FIR being C.R. No.11207024230463/2023 came to be registered with Godhra Taluka Police Station, Panchmahal for the offences under Sections 323, 504, 506(2) and 114 of the Indian Penal Code and under Section 135 of the Gujarat Police Act against the applicant and other accused persons.

4. Learned advocate, Mr. Majmudar for the applicant

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submitted that there is no breach of condition as alleged by the State and despite that, the bail granted to the applicant - accused has been cancelled. Learned advocate submitted that in fact, in the second FIR, which is the basis for filing of an application for cancellation of bail, the applicant is not named but only on the ground of suspicious, the applicant is arraigned as accused but in fact, he is wrongly implicated in the said offence without there being any participation in the said offence. Learned advocate submitted that however in connection with second FIR, the applicant has been granted bail by the Coordinate Bench of this Court. Learned advocate submitted that at the time of hearing of said bail application, the complainant was very much present and had objected the said bail application and despite that, the bail application was considered. Learned advocate submitted that in fact, while deciding the application for cancellation of bail, the learned Sessions Court has not properly considered the parameters of cancellation of bail and has misconstrued the provision of Section 439(2) of the Criminal Procedure Code. Learned advocate has put reliance upon the judgment of the High Court of Rajasthan in case of State of Rajasthan Vs. Mubin & Ors., reported in 2011 SCC OnLine Raj 2683 as well as judgment of the High Court of Karnataka AT Bengaluru in case of Khajim @ Khajimulla Khan S/o.

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Jiaulla Khan Vs. State of Karnataka, delivered in Criminal Revision Petition No.1364/2019. Learned advocate, therefore, urged that the present application may be allowed by imposing stringent condition.

5. On the other hand, learned APP, Mr. Shah for the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned APP submitted that while granting bail to the applicant - accused, specific condition was imposed not to indulge into any offence and to follow the terms and conditions imposed upon him but despite that, the applicant has indulged into another offence of attempting to murder. Learned advocate submitted that it is true that the applicant is not named in second FIR but during the course of investigation, his involvement is found out and, hence, he was arrested by the Police and there are sufficient material and evidence available on record, which connect him in the second offence. Learned APP submitted that generally the State is not filing an application for cancellation of bail but here in the present case, on the strength of the documents collected during the course of investigation of second FIR, the prosecution has filed an application for cancellation of bail pointing out all above facts including the conduct of the applicant and after considering the submissions made on behalf of the parties and after appreciating the documents

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produced on record, the learned Sessions Judge has rightly cancelled the bail, which this Hon'ble Court may not interfere with in the present case. Learned APP submitted that if the applicant is granted bail then, there is possibility of indulging into another offence and to prevent the applicant from indulging into such offences, the present application may be rejected.

6. Learned advocate, Mr. Ansari appearing for the original complainant has also opposed the present application. Learned advocate has tendered affidavit filed on behalf of the original complainant, which is taken on record and submitted that the applicant has flouted the conditions imposed upon him while granting bail, which ultimately led to filing of an application for cancellation of bail by the prosecuting agency and the same has rightly been allowed by the learned Sessions Court after appreciating and considering the material available on record. Learned advocate submitted that reason behind assault upon the complainant was that the complainant refused to settle the matter and, hence, he was assaulted by the accused persons and, hence, second FIR has been registered. To buttress the said contentions, attention was drawn upon the photographs annexed with the affidavit of the complainant and submitted that severity of offence can apparently be found out from the said pictures. Learned advocate submitted that in fact,

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threats were being received by the complainant from the accused persons and not only that, they have acted and made daring attack upon the complainant party in a cruel manner as per the threats administered by them and by doing so, the accused are creating an atmosphere of terror in society at large. Learned advocate submitted that the accused are headstrong persons and they are indulging into such offences frequently at regular in time. Learned advocate, therefore, urged that considering the above factual aspects, the present application may not be entertained.

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 earlier the applicant was granted bail on certain terms and conditions, which was flouted by him and, hence, an application for cancellation of bail has been filed by the Police Inspector of Godhra Town 'B' Division Police Station on behalf of the State of Gujarat and the same has been allowed, by which, bail granted to the applicant has been cancelled and, hence, the present application is preferred.

8. It is found out from the order dated 13.12.2021 passed by the concerned Sessions Court while granting bail, specific condition was imposed upon the applicant prohibiting him from indulging into

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any other criminal activity and not to repeat such sort of criminal activity and despite that, the applicant has indulged into similar type of offence, for which, another FIR being C.R. No.1120700220330/2023 came to be registered with Godhra 'B' Division Police Station for the offences under Sections 307, 323, 324, 504, 506(2) and 114 of the Indian Penal Code and under Section 135 of the Gujarat Police Act has been registered against the applicant. It is true that the applicant is not named in the said FIR, however during the course of investigation, the involvement of the applicant - accused is found out from the statements of the witnesses and on the strength of it, the applicant - accused is arraigned as accused in the aforesaid offence and even thereafter also, another FIR being C.R. No.11207024230463/2023 came to be registered with Godhra Taluka Police Station, Panchmahal for the offences under Sections 323, 504, 506(2) and 114 of the Indian Penal Code and under Section 135 of the Gujarat Police Act has been registered, wherein the applicant has also been shown as accused no.1. I have also considered the documents produced on record as well as the documents supplied by learned APP during the course of hearing and found that there are ample material and evidence connecting him with the alleged commission of crime, which were available at the time of deciding an application for cancellation

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of bail before the concerned Sessions Court and on the strength of the documents available on record, the learned Sessions Judge has cancelled the bail granted to the applicant - accused, which in the opinion of this Court can be said to be justified order.

9. I have also gone through the first FIR registered against the applicant, in which, the present applicant sought bail by filing present application and also second FIR, wherein the applicant has already been granted bail by the Coordinate Bench of this Court and found that almost similar type of offence has been committed by the applicant of assaulting with an intention to kill the victim with an intention to achieve his personal score. The conduct of the applicant is also required to be taken into consideration because just to save his skin in the first offence, another offence has been committed by him in connivance with other accused persons and the said fact can be substantiated from the documents available on record. I have also considered the photographs as well as medical papers produced by the complainant along with the affidavit filed by him.

10. At this stage, this Court would like to put reliance upon the decision of the Hon'ble Supreme Court in case of Abdul Basit Vs. Mohammad Abdul Kadir Choudhary, reported in (2014) 10 SCC 754, wherein the Hon'ble Supreme Court has made

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observation with regard to the grounds for cancellation of bails, which are as under, "(i) the accused misuses his liberty by indulging in similar criminal activity,

(ii) interferes with the course of investigation,

(iii) attempts to tamper with evidence or witnesses,

(iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation,

(v) there is likelihood of his fleeing to another country,

(vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency,

(vii) attempts to place himself beyond the reach of his surety, etc."

11. Thus from the observations made by the Hon'ble Supreme Court in the aforesaid decision, it is clear that there is clear violation of the conditions imposed upon the applicant and because of which, the bail granted to the applicant - accused has been cancelled by the learned Sessions Judge by assigning detailed reasons. It is found out from the record that only with a view to settle the matter, the applicant along with other accused have assaulted the very same complainant and thereby tried to influence the witness and indulge into another offence, which can be said to be violation of conditions imposed upon him.

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12. The Court has also gone through the decisions relied upon by the learned advocate for the applicant. There cannot be any dispute with regard to the ratio and proposition of law laid down in the same. However, in the facts and circumstances of the case on hand and this being discretionary relief, which requires to be granted judiciously, the said decisions would be of no help to the present applicant at this juncture.

13. From the aforesaid discussion, it appears that as per the prosecution case, the applicant has violated the condition imposed upon him at the time of releasing him on bail and has indulged himself into another serious offence of attempting to murder just to compromise the matter. Over and above that, strong apprehension has been shown by prosecution that if the applicant is once again released on bail then, there is possibility of tampering with the evidence and fleeing away from the trial as also indulging into such type of offences to create an atmosphere of terror in public. Therefore considering the nature of offence, role attributed to the applicant and played by him, I am of the opinion that the present application deserves to be rejected.

14. Accordingly, the present application is rejected.

Rule is discharged.

15. Needless to say that observations made herein above are confined to decision of the present bail application.

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16. However considering the facts of the present case, the concerned trial court is hereby direct to complete the trial as expeditious as possible preferably within a period of eight months from the date of receipt of this order.

Sd/-

(DIVYESH A. JOSHI, J.) Gautam