Gujarat High Court
Kishanbha Tapubha Manek vs State Of Gujarat on 22 January, 2024
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.MA/29/2024 ORDER DATED: 22/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 29 of 2024
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KISHANBHA TAPUBHA MANEK
Versus
STATE OF GUJARAT
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Appearance:
MR HB CHAMPAVAT(6149) for the Applicant(s) No. 1
MR KARTIKSINH H CHAMPAVAT(12148) for the Applicant(s) No. 1
MS CHETNA SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 22/01/2024
ORAL ORDER
1. This successive bail application is filed under Section 439
of Cr.P.C., 1973 in connection with the FIR being C.R.
No.11185005220336 of 2022 registered with Mithapur Police
Station, Dist: Devbhumi-Dwarka for the offences punishable
under Sections 307, 326, 325, 324, 323, 143, 147, 148, 149,
504, 506(2), 427, 120B, 384, 385, 386, 387 and 506(1) of the
Indian Penal Code and Sections 3(1), 3(2), 3(3), 3(4) and 3(5)
of the Gujarat Control of Terrorism and Organized Crime Act,
2015 (hereinafter referred to as "GujCTOC") and Section
135(1) of the Gujarat Police Act.
2. Facts and circumstances giving rise to filing of present
application are that, on 05.05.2022, the applicant and others
formed an unlawful assembly and being a member of unlawful
assembly, have assembled at the place of offence with deadly
weapons with intention to kill the complainant and others and
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caused grievous injuries to the witnesses. On the next day of
the incident, the offence under Section 307 and other relevant
provisions of Indian Penal Code were registered against 8
persons and subsequently, i.e. on 25.06.2022, the provisions of
GujCTOC as referred above were added and accordingly, the
Magesterial Court at Mithapur by order permitted to add the
provisions of GujCTOC. The investigating agency has after
thorough investigation, filed the chargesheet against 12
persons including the applicant who has been arraigned as
accused no.12. At the initial stage of investigation, the
applicant was apprehended on 08.05.2022 and since then, he
is in judicial custody. Earlier bail application came to be
rejected by the Court concerned and against it, the bail
application was filed before this Court. At the time of filing the
bail application and at the stage of hearing, the provisions of
GujCTOC were not brought to the notice of the Court and
accordingly, considering the offence under the provisions of
Indian Penal Code, this Court vide its order dated 01.07.2022,
released the applicant on bail. Learned Additional Public
Prosecutor drew attention of this Court that applicant is facing
the charges under the provisions of GujCTOC and therefore,
vide order dated 23.08.2022, by recalling the earlier order of
bail application, the main petition of bail came to be disposed
of as withdrawn. At relevant time, liberty was reserved to file a
fresh application before the Court concerned. In view of
aforesaid liberty, the applicant moved his bail application
before the Special Court at Rajkot and same came to be
rejected on 19.07.2023.
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3. Being aggrieved with the said order, the applicant by way
of this successive bail application, is before this Court.
4. This Court has heard learned counsel Mr. H.B. Champavat
and Ms. Chetna Shah, learned Additional Public Prosecutor for
the respondent-State.
5. Mr. Champavat, learned counsel has submitted that,
since 08.05.2022, the applicant is in judicial custody. The
injured is out of danger. So far role attributed to the applicant
herein, he assaulted the injured by inflicting wooden log and
therefore, when investigation is over and further custody of the
applicant is not necessary, his case may be considered for bail.
So far applicability of provisions of GujCTOC Act are concerned,
he submitted that, the provisions have been subsequently
added with malafide intention and there is no evidence to
indicate that the applicant is in any manner associated with
the alleged organized crime syndicate. Relying on the case of
Mohamad Iliyas Mohamad Bilal Kapadiya vs. State of
Gujarat (2022 13 SCC 817), he contended that, in order to
attract the provisions of GujCTOC, the condition referred in the
judgment will have to be fulfilled such as, the cognizable
offence punishable with imprisonment of 3 years or more is
require to be registered; that such an activity is undertaken
either singly or jointly as a member of an organized crime
syndicate or on behalf of such syndicate; that in respect of
such an activity more than one chargesheet must have been
filed within a preceding period of ten years; that the Courts
have taken cognizance of such offences. In these background
facts, it is submitted that, in the case of applicant, the
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conditions as referred above are not fulfilled and thus, prima-
facie, the offence under the provisions of GujCTOC are not
made out.
6. In view of the aforesaid contention made hereinabove,
learned counsel has submitted that, the case is pending before
the Special Court at Rajkot and it will take considerable time to
proceed further and therefore, considering the peculiar facts
and circumstances of the case, Court may exercise its judicial
discretion by imposing suitable conditions.
7. On the other hand, opposing the bail application, learned
State counsel has contended that, there is sufficient material
to believe that the applicant-accused being a member of an
organized crime syndicate, has committed the alleged offence
and considering the past records, the conditions for invoking
the provisions of GujCTOC Act are fulfilled and therefore,
considering the restrictions imposed in the Act itself, at this
stage, it cannot be said that the applicant-accused has not
committed any offence. The other contention raised is that, on
earlier occasion, the necessary facts with regard to invocation
of the GujCTOC provisions had been suppressed by the
applicant and thus, she would urge that on the ground alone,
the application deserves to be dismissed.
8. Having heard the learned counsel for the respective
parties and on perusal of the material placed on record, it
appears that, the provisions of GujCTOC have been added by
the Judicial Magistrate Court, Mithapur. At relevant time, when
the hearing of bail application took place before this Court, the
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applicant was behind the bar and he was represented another
lawyer. In such circumstances, the prosecution failed to point
out that at relevant time the applicant was having knowledge
about the order passed by the Court in relation to addition of
provisions of GujCTOC. Thus, the contention with respect to
suppression of facts do not have any merits. So far as
applicability of the GujCTOC is concerned, this Court is of
prima-facie view that the Magesterial Court at Mithapur having
no jurisdiction to take cognizance of the report submitted by
the investigating officer for addition of provisions of GujCTOC.
Even otherwise on merits, prima-facie, it appears that, the
conditions for invoking the provisions of GujCTOC as laid down
by the Apex Court in Mohd. Iliyas (supra) are not fulfilled as in
respect of activity of organized crime syndicate, the
prosecution failed to point out the pendency of more than one
chargesheet for the offence punishable with the imprisonment
of 3 years and more. The affidavit filed by Deputy
Commissioner of Police, Jamkhambhaliya before the Special
Court, Rajkot clearly establish that out of two criminal offences,
one was registered under Section 188 of the Indian Penal Code
and another one was registered under Section 66(b) and 81 of
the Prohibition Act. Thus, therefore, prima-facie this Court is of
considered view that, the ingredients of "continuing unlawful
activity" as defined under Section 2(1)(c) of the Act are not
attracted. The learned Special Court while rejecting the bail
application observed that, the applicant is member of
organized syndicate and he is involved in various offences.
However, the affidavit of the investigating agency do not
disclose such kind of various offences as observed by the
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Special Court.
9. Hence, present application is allowed and the applicant is
ordered to be released on regular bail in connection with the
FIR being C.R. No.11185005220336 of 2022 registered
with Mithapur Police Station, Dist:Devbhumi-Dwarka, on
executing a personal bond of Rs.10,000/- (Rupees Ten
thousands only), with one surety of the like amount to the
satisfaction of the learned Trial Court and subject to the
conditions that he shall;
No. Conditions
(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 India without prior permission of the
Sessions Judge concerned;
(e) furnish latest 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
the trial Court;
(f) shall not enter into District: Devbhumi-
Dwarka for a period of 2 years, except to
attend the Court proceedings and marking
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presence before the concerned police
station, if any and shall not attempt to
influence the witnesses or temper with the
records and directed to mark his presence
before the nearest police station of his new
residence on first Monday of every month
between 11:00 a.m. to 1:00 p.m.
10. 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. Bail bond to be executed
before the learned 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. At the trial, learned 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.
11. The observations made hereinabove are tentative in
nature and being observed to decide the present bail
application. The trial Court shall not be influenced by the
observations made hereinabove while dealing with the trial
proceedings or the bail application of co-accused. Direct
service is permitted.
(ILESH J. VORA,J)
TAUSIF SAIYED
