Shailesh Dineshbhai Taviyad vs State Of Gujarat
2025 Latest Caselaw 5395 Guj

Gujarat High Court

Shailesh Dineshbhai Taviyad vs State Of Gujarat on 2 April, 2025

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                             R/CR.A/122/2025                                     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.
                                                122 of 2025
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                                       SHAILESH DINESHBHAI TAVIYAD
                                                  Versus
                                         STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR SANDIP M PATEL(5649) for the Appellant(s) No. 1
                       MS RAJAL M PANCHAL(13724) for the Appellant(s) No. 1
                       MR HARDIK MEHTA, APP for the Opponent(s)/Respondent(s) No. 1
                       UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 2
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                         CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                                           Date : 02/04/2025
                                                            ORAL ORDER

[1.0] ADMIT. Learned APP waives service of notice of Admission for and on behalf of the respondent No.1 - State of Gujarat.

[2.0] Present appeal 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 27.11.2024 passed by the learned Special Judge, Narmada at Rajpipla in Criminal Misc. Application No.482 of 2024 whereby the learned Judge rejected the application filed by the present appellant under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking regular bail in connection with FIR being C.R. No.11823009240606 of 2024 registered with Garudeshwar Police Station, District Narmada for the offences punishable under Sections 103(2), 109, 189(2), 191(2), 191(3), 190, 115(1), 117(2), 126(2) and 127(2) of the Bharatiya Nyaya Sanhita, 2023 (for short "BNS"); section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short "Atrocity Act") and section 135 of the Gujarat

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Police Act.

[3.0] Respondent No.2 has expired pending the present application.

[4.0] Learned advocate for the appellant has assailed the order of the learned Special Judge on the ground that appellant is innocent and is falsely enroped in the offence and neither in the FIR nor during the investigation any specific role is attributed to the present appellant and whatever allegations leveled are against accused Nos.1 and 4, who have played active role even as per the case of prosecution. The appellant is not having any past antecedent and none of the four eye- witnesses have stated anything about the presence or involvement of the present appellant at the scene of offence and even in the CCTV footage present appellant is not seen. Even, in the dying declaration, no names are given. Further, he has submitted that as per the case of prosecution, the complainant who subsequently succumbed to the injuries and another deceased both with intention to commit theft of iron rod from the premises at site of construction of museum were caught red-handed and thereafter they were assaulted. However, there was no intention of the accused to kill the deceased persons. Further, even in the Test Identification Parade, no one has identified the present appellant.

[4.1] Further, the appellant also belong to SC / ST community and therefore, section 3(2)(v) of the Atrocity Act will not be applicable to the present case. Even if we accept the case of the prosecution that in the history given by the complainant before the doctor, he had stated about the involvement of the present appellant but there are three different versions coming out from the case of prosecution i.e. in history given before the doctor, in dying declaration and in the complaint. He has submitted that in the present case investigation is

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over and charge-sheet is filed and the applicant is behind the bars since 07.08.2024 and as nothing is required to be recovered or discovered from the present appellant, he has submitted to enlarge the appellant on regular bail by imposing suitable terms and conditions.

[5.0] Per contra, learned APP appearing for the respondent - State has vehemently opposed the present appeal on the ground that sufficient material and evidence is collected during investigation and involvement of present appellant is found. Herein, is a case of double murder of two persons who under the temptation of getting money by stealing iron rod from the godown and were caught by the accused persons and were tied with the rope alongwith tractor and the puller and thereafter assaulted the deceased persons with PVC pipes, belt and wooden stick and one person namely Jayesh succumbed to the injuries immediately whereas another person i.e. complainant died subsequently. Herein, the offence is against State and is a serious one punishable with life sentence or death penalty and therefore, if the appellant is released on bail then the possibility of tampering with the evidence cannot be ruled out and hence, he has requested to dismiss the present appeal.

[6.0] I have given thoughtful consideration to the arguments canvassed by learned advocates for both the sides.

The allegation in the FIR is that with intention to steal iron rod, two persons i.e. deceased Jayesh and the complainant (now deceased) entered into the premises and were caught by the accused persons, who tied the deceased persons with rope alongwith tractor and puller and beaten them up with PVC pipes, wooden stick, belt etc. due to which person namely Jayesh died and complainant namely Sanjaybhai

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Tadvi died subsequently. It is pertinent to note that investigation is over and nothing is required to be recovered or discovered from the present appellant as the charge-sheet is filed. Further, the appellant is not having any past antecedent. Appellant also belongs to SC / ST community and therefore, provision of section 3(2)(v) of the Atrocity Act will not be applicable to the present appellant. The role alleged against the present appellant is of having given kick and fist blows to the deceased. In the history given before the doctor, appellant is not named as an assailant. Even, in the TI parade, no one has identified the present appellant. In the complaint it is stated that there were four unknown persons and the history before the doctor mentions name of three accused. Further, commencement of trial will take its own time. In view of the above, if the appellant is not released on bail then it will be pre-trial conviction and considering the principle of bail is rule and jail is exception and the fundamental right of right to speedy justice, present appeal deserves consideration with appropriate conditions. 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.

[7.0] Hence, the present appeal is allowed. The appellant is ordered to be released on regular bail in connection with FIR being C.R. No.11823009240606 of 2024 registered with Garudeshwar Police Station, District Narmada 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 the appellant shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injurious to the interest of the

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prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave the India without prior permission of the concerned trial court;

[e] mark presence before the concerned Police Station once in a 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 the concerned trial court;

[h] shall not take undue advantage of liberty for prolonging the trial by taking unnecessary adjournment;

[8.0] The authorities shall release the appellant only if the appellant 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 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.

[9.0] At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

[10.0] Appeal is allowed accordingly. Direct service is permitted.

(HASMUKH D. SUTHAR, J.) Ajay