Imrankhan @ Bhaiya Salimkhan Pathan vs State Of Gujarat
2025 Latest Caselaw 5387 Guj

Gujarat High Court

Imrankhan @ Bhaiya Salimkhan Pathan vs State Of Gujarat on 2 April, 2025

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                             R/CR.A/176/2025                             ORDER DATED: 02/04/2025

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                                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                         R/CRIMINAL APPEAL (REGULAR BAIL - AFTER CHARGESHEET) NO.
                                                 176 of 2025
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                                         IMRANKHAN @ BHAIYA SALIMKHAN PATHAN
                                                        Versus
                                               STATE OF GUJARAT & ANR.
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                      Appearance:
                      MR DARSHANKUMAR P VEGAD(11612) for the Appellant(s) No. 1
                      PRAKASH R MORI(7760) for the Appellant(s) No. 1
                      NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
                      MR HARDIK MEHTA, APP for the Opponent(s)/Respondent(s) No. 1
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                           CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                                     Date : 02/04/2025

                                                      ORAL ORDER

1. Pursuant to the notice issued by this Court, respondent No.2 remain present and Investigating Officer has identified him.

2. Rule. Learned APP waives service of notice of Rule on behalf of respondent-State.

3. Present appeal is filed under Section 14-A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Atrocity Act") challenging the judgment and order dated 31.07.2024 passed by the leaned 11th Addl. District & Sessions Judge, Surat in Criminal Misc. Application No. 5361 of 2024, whereby the learned Additional District & Sessions Judge rejected the application filed by the present appellant under Section 483 of the Bharatiya Nyaya Suraksha Sanhita, 2023 (for short "BNSS") seeking regular bail in connection with FIR being C.R.No.I-67 of 2019 registered with

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R/CR.A/176/2025 ORDER DATED: 02/04/2025

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Dindoli Police Station, Surat, for the offences punishable under Sections 302, 143, 147, 148, 149, 120B, 201, 144 and 34 of the IPC read with Sections 3(1)(R)(S), 3(2)(5), 3(2)(5-A) and 3(1)G of the Atrocity Act and Section 135(1) of the Gujarat Police Act.

4. Learned advocate for the appellant has submitted that the appellant is not involved in commission of offence as alleged in the FIR and therefore, looking to the role of the appellant and nature of the allegations, the appellant is required to be enlarged on regular bail by imposing suitable terms and conditions.

4.1. Learned advocate for the appellant has submitted that appellant is arrested on 09.04.2019. Since five years, there is no progress in the trial. Out of 110 witnesses, only 33 witness are examined and most of the witnesses have turned hostile. No role is attributed to the appellant. The co-accused is released on bail. On the ground of parity, the present appeal deserves consideration. Considering the delay in the trial, the present apeal may be allowed. Therefore, no purpose would be served to keep him behind the bar for long time. He is ready and willing to abide by all the conditions imposed upon him.

5. On the other hand, learned APP has vehemently opposed the present appeal and submitted that present appellant is not entitled to claim the benefit of parity as serious charges are levelled against him. It is submitted that this apeal is successive bail apeal, earlier it was dismissed. Prima facie, material and evidence is collected. Serious allegations are levelled against

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R/CR.A/176/2025 ORDER DATED: 02/04/2025

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him. Only panch witnesses have turned hostile and material witnesses yet to be examined. 17 evidence is corroborated the case of the prosecution and sufficient material is collected. It appears that allegations are serious in nature affecting the society at large and looking to the facts as well as the allegations made against the appellant, no discretion would be required to be exercised. Hence, he has requested to dismiss the present appeal as there is no change in the circumstances.

6. Respondent No.2 personally present and submits, he has no objection if the present appeal is allowed.

7. While granting bail, the Court has to consider the involvement of the accused in the alleged offence, the jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case and the following factors are to be taken into consideration while considering an application for bail: (i) the nature of accusation and the severity of the punishment and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses and threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations are required to be considered.

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R/CR.A/176/2025 ORDER DATED: 02/04/2025

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8. I have heard the learned advocates appearing on behalf of the respective parties and perused the investigation papers. In present case, the investigation is over and charge-sheet has been filed. Following aspects have been considered:

                               (i)     appellant is arrested on 09.04.2019;
                               (ii)     Commencement of trial will take its own time;

(iii) offence is not punishable with life or death;

(iv) nothing is required to be recovered and discovered from the appellant;

(v) It appears that the trial is progressing at a snail's pace and out of 110 witnesses, only 33 witnesses have been examined by the prosecution;

Perusing the report submitted by the learned 11th Additional Sessions Judge, the accused No.1 remained absent and prosecution has failed to secure the presence of the prosecution witnesses and has not served the summons to witnesses and time and again, matter is adjourned Considering the aforesaid facts and the fundamental right of the accused to a speedy trial as appellant is in jail since more than 5 years and there is no possibility to tamper with the evidence and present apeal has not been objected by the original Complainant;

Without discussing in detail, the present appeal deserves consideration;

9. In view of the law laid down in the cases of (i) Amar Sadhuram Mulchandani Vs. Directorate of Enforcement, 2024, (ii) Mohd. Muslim @ Hussain Vs. State (NCT of Delhi), reported in AIR

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R/CR.A/176/2025 ORDER DATED: 02/04/2025

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2023 SC 1648 and (iii) Union of India Vs. Najeeb, reported in 2021 (3) SCC 713, as well as considering other aspects like long incarceration period of the appellant, gravity of offence and as trial is prolonged since long, bail can be granted to the accused as speedy trial is right of the accused under Article 21 of the Constitution of India. Hence, present apeal deserves consideration.

9.1. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra vs. Central Bureau of Investigation reported in [2012]1 SCC 40 as well as in the case of Gudikanti Narasimhulu And Ors vs. Public Prosecutor, High Court of Andhra Pradesh reported in (1978)1 SCC 240. Obviously, the conclusion of trial will take time and keeping the accused behind the bars is nothing but amounts to pre-trial conviction and therefore, considering the celebrated principle of bail jurisprudence is that "bail is a rule and jail is exception" as well as the concept of personal liberty guaranteed under Article 21 of the Constitution of India, present apeal deserves consideration.

10. In the facts and circumstances of the case and considering the nature of the allegations made against the appellant 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 appellant on regular bail. Hence, the present appeal is allowed. The appellant is ordered to be released on regular bail in connection with FIR being C.R.No.I-67 of 2019 registered with Dindoli Police Station, Surat, on executing a

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R/CR.A/176/2025 ORDER DATED: 02/04/2025

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personal bond of Rs.25,000/- (Rupees Twenty-five 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 State of Gujarat without prior permission of the Sessions Judge concerned;

[e] furnish the UIDAI Number, Contact Number/s, Passport Number (if he is having the passport), E-mail address and present address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence address as well as contact number without prior permission of Trial Court;

[f] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;

11. The authorities will release the appellant 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.

12. 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.

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R/CR.A/176/2025 ORDER DATED: 02/04/2025

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13. 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 appellant on bail.

14. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(HASMUKH D. SUTHAR,J) KUMAR ALOK