Bhikhubhai @ Hiteshbhai Lakshmidas ... vs State Of Gujarat
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Gujarat High Court

Bhikhubhai @ Hiteshbhai Lakshmidas ... vs State Of Gujarat on 31 January, 2024

                                                                                  NEUTRAL CITATION




      R/CR.MA/908/2024                             ORDER DATED: 31/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

  R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - BEFORE
               CHARGESHEET) NO. 908 of 2024

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             BHIKHUBHAI @ HITESHBHAI LAKSHMIDAS GOKANI
                               Versus
                          STATE OF GUJARAT
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Appearance:
MR AFTABHUSEN ANSARI(5320) for the Applicant(s) No. 1
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                           Date : 31/01/2024

                                ORAL ORDER

1. Rule. Learned APP waives service of notice of Rule for and on behalf of respondent - State.

2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with C.R.No.11200045231995 of 2023 registered with Umargam Police Station, District Valsad for the offence punishable under Sections 469, 500, 505(1)b of the Indian Penal Code and under Section 67 of the Information Technology Act.

3. Heard learned advocate Mr. Aftabhusen Ansari for the applicant and learned APP Mr. Dhawan Jayswal for the respondent - State.

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4. Learned advocate Mr. Ansari submits that the so- called incident is occurred on 28.12.2023 and in connection with the same, applicant is arrested on 29.12.2023 and since then he is in judicial custody. The applicant is prosecuted for the offence punishable under Sections 469, 500, 505(1)b of the Indian Penal Code and under Section 67 of the Information Technology Act. Learned advocate Mr. Ansari submits that except the offence punishable under Section 67 of the I. T. Act, rest of the offences are bailable one and as per the penal provision of Section 67 of the I. T. Act, if at all the prosecuting agency would be able to prove the charges levelled against the present applicant accused, in that event, the maximum punishment prescribed could be of three years. Learned advocate Mr. Ansari further submits that age of the applicant accused is 67 years and at the time of incident, present applicant accused had gone to the hospital for taking treatment. Therefore, the bail application of the applicant may be entertained. Learned advocate Mr. Ansari submits that present applicant accused is in jail since last more than one month and virtually the investigation is completed, and therefore, bail application of the applicant may be entertained. Learned advocate Mr. Ansari submits that it is settled proposition of law that 'bail is rule and jail is an exception' and considering the penal provision mentioned in the Statute, bail application of the applicant may be entertained. Learned advocate

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Mr. Ansari has put reliance upon the following case laws and submitted that as per the law laid down by the Hon'ble Apex Court in the following cases, the applicant may be enlarged on bail by imposing suitable terms and conditions.

(1) In the case of Arnesh Kumar v. State of Bihar and Another, reported in (2014) 8 SCC 273;

(2) In the case of Jagisha Arora v. State of Uttar Pradesh and Another, reported in (2019) 6 SCC 619;

(3) In the case of Afsalbhai Kasambhai Lakhani v. the State of Gujarat rendered in Petition for Special Leave to Appeal (Cri.) No.9215 of 2023;

(4) In the case of Md. Asfak Alam v. State of Jharkhand and Another, reported in (2023) 8 SCC 632.

5. The present bail application is objected by learned APP Mr. Dhawan Jayswal for the respondent - State with vehemence. Learned APP submits that direct involvement of the present applicant accused is found out from the charge-sheet papers. Learned APP Mr. Jayswal further submits that in fact the present applicant accused has tried to tarnish the image of

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Hon'ble the Prime Minister by morphing the picture of the Hon'ble Prime Minister. The said picture he has posted in the electronic media and also forwarded it to his nearer and dearer. It is further submitted that the investigation has just commenced and it is at a nascent stage. It is further submitted that during the course of investigation, the applicant has fairly conceded before the Investigating Officer that he has morphed the picture of Hon'ble Prime Minister and posted it on his social media account and therefore direct involvement of the present applicant accused is clearly spelt out from the admitted version narrated by the applicant accused himself before the Investigating Officer during the course of investigation. It is also submitted that charge-sheet is yet not filed and therefore reliance can be placed upon the statement of the accused and investigation is also carried out on that direction on the strength of the material collected by the Investigating Officer. Learned APP Mr. Jayswal further submits that the judgments, upon which reliance is placed by learned advocate Mr. Ansari, are at all not applicable to the case on hand as the facts involved in the present case are quite different and dissimilar than the facts of those matters. Learned APP Mr. Jayswal further submits that in the judgments relied on by learned advocate Mr. Ansari for the applicant, the Hon'ble Supreme Court has exercised powers under Article 142 of the Constitution of India just to meet the ends of justice and that too after

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the submission of charge-sheet. Here in the case on hand, the investigation is still continued and at a primary stage. The applicant has come with a specific case that the age of the applicant accused is 67 years but in fact from the documents collected by the investigating officer clearly goes on to show that the age of the applicant accused is 61 years. Thus, considering the aforesaid factual aspects, applicant may not be enlarged on bail.

6. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it it found out from the record that the so-called incident is occurred on 28.12.2023 and in connection with the same, FIR came to be registered against the applicant accused with Umargam Police Station, District Valsad for the offence punishable under Sections 469, 500, 505(1)b of the Indian Penal Code and under Section 67 of the Information Technology Act. The applicant has been arrested on 29.12.2023 and since then he is in judicial custody. It is alleged that the present applicant accused has tried to tarnish the image of Hon'ble the Prime Minister by morphing the picture of the Hon'ble Prime Minister. The said picture he has posted in the electronic media and also forwarded it to his nearer and dearer. It also appears from the record that investigation is just commenced and it is at a nascent stage. Moreover, as submitted by learned APP, during the course of investigation, the

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applicant has fairly conceded before the Investigating Officer that he has morphed the picture of Hon'ble Prime Minister and posted it on his social media account and therefore direct involvement of the present applicant accused is clearly spelt out from the admitted version narrated by the applicant accused himself before the Investigating Officer during the course of investigation. It is also found out from the record that the charge-sheet is not filed.

7. There is no dispute with regard to the proposition of law laid down by the Hon'ble Supreme Court in the aforesaid cases relied on by learned advocate Mr. Ansari for the applicant. However, I am of the view that the said cases would not be applicable to the facts of the present case since the facts of the said cases are quite different than the facts of the case on hand. Thus, considering the fact that the investigation is at a primary stage and till the charge-sheet is not filed, I am not inclined to enlarge the applicant on bail. The application is, therefore, dismissed. Rule is discharged.

(DIVYESH A. JOSHI,J) LAVKUMAR J JANI