Gujarat High Court
Mukeshbhai Khodabhai Solanki (Mukesh @ ... vs State Of Gujarat on 11 April, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
R/CR.MA/2016/2025 ORDER DATED: 11/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 2016 of 2025
================================================================
MUKESHBHAI KHODABHAI SOLANKI (MUKESH @ KANO @ KULDIP
KHODABHAI SOLANKI)
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR.ALOK M THAKKAR(6510) for the Applicant(s) No. 1
ARBAAZKHAN A PATHAN (9532) for the Respondent(s) No. 1
MR. JAL SOLI UNWALA, SENIOR ADVOCATE with MOHAMADZAID I
SAIYED(8411) for the Respondent(s) No. 1
MR.L.B.DABHI, APP, for the Respondent(s) No. 1
================================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 11/04/2025
ORAL ORDER
1. This application is a successive regular bail application filed
by the applicant under Section 483 of Bhartiya Nagarik Suraksha
Sanhita, 2023 in connection with FIR being C.R.No.I-184 of 2019
registered with Rajkot "B" Division Police Station, Rajkot for the
offenses punishable under Sections 302, 323, 504 and 120B of the
Indian Penal Code and under Section 135(1) of the Gujarat Police
Act. The application is filed in view of the liberty reserved in favour
of the applicant to file a fresh application after period of three
months in the order dated 16.08.2024 passed by this Court in
Criminal Misc. Application No.14281 of 2023.
2. The main argument of the learned advocate for the applicant
is claiming parity, as according to the learned advocate, all the
NEUTRAL CITATION
R/CR.MA/2016/2025 ORDER DATED: 11/04/2025
undefined
accused persons, who have been charge-sheeted alongwith the
applicant have been enlarged on regular bail, whereas it is only the
applicant who is in jail and that too since year 2019.
3. The another argument advanced by the learned advocate is
questioning the test identification of the applicant. According to
learned advocate, before the test identification was carried out in
the form of Panchnama, the applicant and other accused persons
were paraded in public, as a result of which they were easily
identified. It is also submitted that the identity of the applicant is
also a mistaken identity as he is referred to in the FIR as Kuldeep.
The name of the applicant is not Kuldeep, but Mukesh @ Kano. It
is further submitted that on account of this mistaken identity, the
prosecution cannot pinpoint that it was only the applicant who had
inflicted the injury and no other person is responsible for inflicting
such injury.
4. Learned Additional Public Prosecutor opposing the grant of
the application submitted that after the withdrawal of the previous
bail application, there is no change in the circumstances and the
bail order passed in favour of other co-accused persons were
already passed prior to the withdrawal of the previous bail
application. He further submits that the test identification parade is
questioned by the applicant only for the sake of argument,
otherwise it is a case of eye witness and the test identification was
NEUTRAL CITATION
R/CR.MA/2016/2025 ORDER DATED: 11/04/2025
undefined
carried out by the eye-witnesses, who have in their further
statement, categorically identified the applicant only as the
assailant. Learned APP has also submitted that the role attributed
to the applicant is quite different than that of the present applicant
as present applicant has been attributed with the role of carrying
out the actual assault on the deceased. It is lastly submitted that it
is a case where there are three eye-witnesses and other
circumstantial evidence in the form of recovery of knife from the
applicant.
5. Learned Senior Advocate on behalf of the original
complainant has referred to the affidavit filed by the respondent
No.2 herein-the original complainant. It is submitted that after the
previous withdrawal of the bail application, at the instance of the
accused person and particularly the applicant herein that the trial
has been prolonged from time to time, thereby delaying the trial. It
is submitted that out of the 54 witnesses mentioned in the charge-
sheet, four witnesses have already been examined, therefore the
trial is in progress and therefore as is held by the Apex Court in
case of X versus State of Rajasthan and another reported in 2024
INSC 909 where in Para-14, the Court has observed that in
serious offences, once the trial commences and witnesses are
being examined, the trial Court or the High Court should be loath in
entertaining the bail applications of the accused. Learned Senior
NEUTRAL CITATION
R/CR.MA/2016/2025 ORDER DATED: 11/04/2025
undefined
Advocate has also drawn attention of this Court to Rojkam of the
trial to indicate that on several occasions, the trial has been
prolonged on account of the frequent adjournments. Learned
senior advocate also submitted that the applicant cannot get the
benefit of parity as the role attributed to the co-accused, who have
been enlarged on regular bail is only for either holding the
deceased victim or to be there along with the applicant whereas,
the actual assault by knife was carried out by the applicant
6. In rejoinder, learned advocate for the applicant has
submitted that the applicant has been in incarceration since 2019
and trial is likely to consume more time and therefore, pending the
trial, the applicant be enlarged on regular bail.
7. The Court has considered the submissions of learned
advocates for the parties and perused the documents placed on
record. It appears to be the case, where there was an altercation
previously with regard to the applying of radium strips as per the
requirement of RTO, accused No.1-Amrishbhai, alias Kanubhai,
the present applicant and accused No.3-Mansukhbhai, went to
R.T.O. office in the noon time on 15.11.2019 for passing/fitness of
the truck bearing No. GJ-3-AT-3986. When the complainant -
Azazbhai, and the deceased - Sahilbhai, went to affix the radium
on the truck, the accused said that we want to have passing/fitness
without radium. Therefore the complainant - Azazbhai, and the
NEUTRAL CITATION
R/CR.MA/2016/2025 ORDER DATED: 11/04/2025
undefined
deceased - Sahilbhai, told that passing can not be done without
radium. When the RTO officer, present at that time, was drawn his
attention to this matter, the accused got excited and they quarreled
with the complainant and the deceased-Sahilbhai and affixed
radium perforce and left the R.T.O. office. Keeping enmity for the
said matter, all the accused hatched a conspiracy. As a part of the
conspiracy, the accused No. 1- Amrishbhai, alias Kanubhai, the
present applicant and the accused No.3- Mansukhbhai, all the
three accused came to the R.T.O. office on 15.11.2019 around
03:40 pm with VITARA BREZZA car, bearing registration No. GJ-
3-KH-7585. They made raiki in the R.T.O office about the place
where the deceased-Sahilbhai, is exactly present, kept in contact
via mobile phone with the other accused and kept a watch on the
activities of the deceased-Sahilbhai. During, the other accused,
who were in continuous contact with them via mobile phone,
accused No. 4-Rahulbhai, accused No. 5 - Nitinbhai and accused
No. 6-Dharmeshbhai, all the three accused came to the R.T.O.
office in a BULLET bike, bearing registration No. GJ-3-KS-0907, in
a triple riding around 03:45 pm. The accused No. 1 - Amrishbhai,
alias Kanubhai, the present applicant, and the accused No 3-
Mansukhbhai, all the three accused, who were present there, had
already obtained the exact location of the deceased-Sahilbhai. The
accused No.3-Mansukhbhai, accused No. 4 - Rahulbhai, accused
NEUTRAL CITATION
R/CR.MA/2016/2025 ORDER DATED: 11/04/2025
undefined
No. 5 - Nitinbhai and accused No. 6 - Dharmeshbhai, had beaten
the deceased-Sahilbhai, the complainant-Azazbhai, the witnesses-
Jabirbhai, Yunushbhai and Farukbhai with a wooden stick. During
this, accused No.6- Dharmeshbhai put down the stick, caught hold
the deceased - Sahilbhai, in collusion with the accused No. 1-
Amrishbhai, alias Kanubhai. When, as a part of the pre-planned
conspiracy, accused No. 1-Amrishbhai, alias Kanubhai, provoked
the present applicant, by calling him as 'Kuldip', the applicant
caused fatal injuries to the deceased-Sahilbhai, by blowing with
the knife, he had, with one blow on his chest part, two blows on his
forehead part and one blow on the thumb of left hand. After killing
Sahil, the accused-Rahulbhai went out from the R.T.O. office with
BULLET bike bearing No. GJ-3-KS-0907 around 03:50 pm and
other accused ran away in a BREZZA car, bearing No. GJ-3-KH-
7585, in which they came.
8. Thus, from the charge-sheet, the main role of assault by
knife is attributed to the present applicant. The postmortem report
alongwith the charge-sheet papers also indicate that the cause of
death is on account of the injuries sustained by the deceased at
the hand of the assault by the applicant. Over and above, it is a
case of eye-witnesses, who themselves are also injured in the
incident. The statements recorded of these eyewitnesses are used
and they have clearly stated in the statement about the assault
NEUTRAL CITATION
R/CR.MA/2016/2025 ORDER DATED: 11/04/2025
undefined
carried out by the applicant. Though in their statement, the name
used is of Kuldip, however, upon the test identification parade
being carried out, these very eyewitnesses have identified the
applicant to be the person who inflicted the fatal blow, this fact is
recorded in the statement recorded after the T.I. parade.
Particularly statement of Ajaz, who is also the informant and has
participated in identification parade carried out on 04.12.2019
before the Executive Magistrate, Rajkot City, page No.63 of the
charge-sheet papers is the test identification panchama, wherein
three eyewitnesses have independently identified the applicant as
the assailant.
9. The perusal of statement dated 16.11.2019 of Ajaz and
statement dated 05.12.2019 after the test identification parade of
Ajaz is sufficient to establish the identity of the applicant as an
assailant. The Court also perused the statement of Yunus during
the course of investigation dated 16.11. 2019 and also after the
test identification on 05.12.2019.
10. The Court has also perused the panchama dated
27.11.2019, by which the weapon of assault knife was recovered
from the present applicant.
11. On the issue of parity claimed by the applicant, the Court is
of the view that the role of the applicant is quite different than that
NEUTRAL CITATION
R/CR.MA/2016/2025 ORDER DATED: 11/04/2025
undefined
of the accused, who have been enlarged on bail as it is the
applicant who has directly assaulted the victim which has resulted
into death. Therefore, referred to the decision of the Apex Court in
case of Tarun Kumar v/s. Assistant Director, Directorate of
Enforcement, reported in, AIR 2024 SC 169, where in 19 and 20
has held as under:-
"19. It is axiomatic that the principle of parity is based on the
guarantee of positive equality before law enshrined in Article
14 of the Constitution. However, if any illegality or irregularity
has been committed in favour of any individual or a group of
individuals, or a wrong order has been passed by a judicial
forum, others cannot invoke the jurisdiction of the higher or
superior court for repeating or multiplying the same
irregularity or illegality or for passing similar wrong
order. Article 14 is not meant to perpetuate the illegality or
irregularity. If there has been a benefit or advantage
conferred on one or a set of people by any authority or by
the court, without legal basis or justification, other persons
could not claim as a matter of right the benefit on the basis
of such wrong decision.
20. It is also difficult to countenance the submission of
learned Counsel Mr. Luthra that the investigation qua the
appellant is complete and the trial of the cases likely to take
long time. According to him the appellant ought not to be
incarcerated indefinitely merely because the investigation is
kept open with regard to the other accused. In this regard, it
may be noted that the appellant has not been able to
overcome the threshold stipulations contemplated in Section
45 namely he has failed to prima facie prove that he is not
guilty of the alleged offence and is not likely to commit any
offence while on bail. It cannot be gainsaid that the burden of
NEUTRAL CITATION
R/CR.MA/2016/2025 ORDER DATED: 11/04/2025
undefined
proof lies on the accused for the purpose of the condition set
out in the Section 45 that he is not guilty of such offence. Of
course, such discharge of burden could be on the
probabilities, nonetheless in the instant case there being
sufficient material on record adduced by the respondent
showing the thick involvement of the appellant in the alleged
offence of money laundering under Section 3 of the said Act,
the Court is not inclined to grant bail to the appellant."
12. Following the aforesaid judgment, the Hon'ble Supreme
Court again in case of Sabita Paul v/s. State of West Bengal and
another, in Criminal Appeal No.1772 of 2024, has held in para 9 as
under:-
"9. Grant of bail based on parity is not a claim of right. The
same is well- established. While applying this principle of
parity, the Court is required, as was recently observed
in Tarun Kumar v. Assistant Director Directorate of
Enforcement, the Court is required to focus on the role
attached to the accused whose application is under
consideration. In the facts, the prime accused who is alleged
to have initially conducted the blackmail, whom the
complainant is said to have paid 'hush-money', has been
granted bail and the role played by the instant appellant was
only to further the alleged acts of her son. She has not acted
independently, to further aggravate the situation."
13. By the aforesaid order, Hon'ble Supreme Court confirmed
the grant of anticipatory bail. However, by referring to the decision
in case of Tarun Kumar (Supra), the Court in para 9 has held that
the Court is required to focus on the role attributed to the accused,
whose application is under consideration.
NEUTRAL CITATION
R/CR.MA/2016/2025 ORDER DATED: 11/04/2025
undefined
14. The Court has gone through the judgment and order of the
trial Court dated 09.12.2020 so also the trial court has referred to
the fact that the accused is having antecedents and submission
made by learned APP therein that after the offense, the accused
had absconded and after considerable period he was
apprehended and therefore, the Court had rejected the bail
application considering the applicant to be a flight risk.
15. On behalf of the applicant, though it is argued that the
identification of the applicant is doubtful as he was paraded in
public, but there is nothing to substantiate the oral argument.
Neither in the investigation case papers, this aspect is coming nor
even the applicant has made any pleadings in his bail application
or represented before any forum against such so called parading.
Only argument that the video of parade was doing rounds on
social media. With such unconfirmed nature of submission, the
Court is not ready to accept the arguments in the face of what has
come on record with regard to identification of the applicant.
16. The Court has also taken into consideration the submissions
made by referring to the Rojkam that since a substantial period,
the trial has been adjourned at the request of parties including the
applicant and therefore, the delay in trial is to some extent
attributable to the applicant himself.
NEUTRAL CITATION
R/CR.MA/2016/2025 ORDER DATED: 11/04/2025
undefined
17. In view of the above, no case is made out for exercising of
discretion in favour of the applicant for the grant of regular bail in
connection with the aforesaid C.R. Hence, the application is
hereby dismissed. Rule is discharged.
(A.Y. KOGJE, J)
SIDDHARTH
