Khetabhai Parbatbhai Makwana (Koli) vs State Of Gujarat
2025 Latest Caselaw 5846 Guj

Gujarat High Court

Khetabhai Parbatbhai Makwana (Koli) vs State Of Gujarat on 17 April, 2025

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                             R/CR.MA/1643/2025                                       ORDER DATED: 17/04/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                             R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
                                         CHARGESHEET) NO. 1643 of 2025

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                                           KHETABHAI PARBATBHAI MAKWANA (KOLI)
                                                          Versus
                                                    STATE OF GUJARAT
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                       Appearance:
                       MR PRATIK B BAROT(3711) for the Applicant(s) No. 1
                       MR.MEET THAKKAR, APP for the Respondent(s) No. 1
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                          CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY

                                                            Date : 17/04/2025

                                                             ORAL ORDER

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

2. This application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita for regular bail in connection with F.I.R. No.11993005200314 of 2020 registered with Aadeshar Police Station, District Kutchh (East) Gandhidham.

3. Learned advocate for the applicant has submitted that the applicant herein is in custody in connection with the present offence since 20.02.2021. The prosecution has cited as many as 110 witnesses in the Charge-sheet and as per the information available with him, only 3 to 4 witnesses have been examined by now. The applicant

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herein had been ordered to be enlarged on bail by the Coordinate Bench of this Court. However, the Honorable Apex Court had quashed the order of bail granted to the applicant and cancelled the bail. Having regard to the number of witnesses cited by the prosecution, there are no chances of the trial getting over in the near future. He has, therefore, submitted that the applicant may be enlarged on regular bail by imposing suitable conditions.

4. The learned APP appearing for the respondent State has vehemently submitted that the applicant is main accused in the present offence and the trial of the offence has commenced and four witnesses have already been examined by the prosecution. He has further submitted that the bail once granted by the Co-ordinate Bench of this Court, was cancelled by the Hon'ble Apex Court, the present application should not be entertained.

5. Learned advocate Mr. Kirtidev Dave has submitted that he has received instructions to appear on behalf of the original complainant and he may be permitted to file his Vakalatnama before the Registry. He has also opposed the grant of present application inter-alia contending that the others four co-accused were ordered to be enlarged on temporary bail. However, after being enlarged on temporary bail, the said co-accused have absconded and because of their absence, the trial had been delayed. He has further submitted that there are all chances, if the applicant is ordered to be enlarged on bail, he may not be available for

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facing the trial. He has further submitted that in the present offence, the present applicant is the main accused who along with the other co-accused had caused death of 5 victims. The bail granted to the present applicant by the Coordinate Bench of this Court, had been cancelled by the Honorable Supreme Court. He has, therefore, submitted that the present application may not be entertained and the same should be dismissed.

6. Heard learned advocates appearing for the parties and perused the material available on record. Investigation is over and Charge-sheet has already been filed.

7. From the record it appears that the applicant herein was arrested in connection with the present offence and thereafter, the applicant had preferred Criminal Misc. Application No.19395 of 2020 before this Court. The said application was allowed by the Coordinate Bench of this court vide order dated 21.12.2020 and the applicant was ordered to be enlarged on bail. The said order was taken to the Hon'ble Supreme Court by filing appeal being Criminal Appeal No.422 of 2021 and Hon'ble Apex Court vide judgment dated 20.04.2021 had been pleased to allow the said criminal appeal and order granting bail to the present applicant was quashed and set aside and resultantly, the bail granted to the present applicant got cancelled and thereafter, the applicant is in custody since 20.04.2021. Thus, the applicant herein has undergone incarceration of almost 4 years by now.

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8. This Court vide order dated 27.03.2025 had directed the trial Court to submit its report as regards the current of trial. Accordingly, the learned trial Court has submitted its report which indicates that as on the date of report, four witnesses had been examined and their depositions were recorded. The prosecution has cited as many as 110 witnesses in the Charge-sheet and out of them, only 4 witnesses have been examined by now. Therefore, it appears that there is no possibility of trial getting over in the near future. The cause for delay in trial is not attributable to the applicant.

9. The Hon'ble Apex Court in its recent judgment rendered in the case of Tapas Kumar Palit vs. State of Chhattisgarh has observed thus:-

"If an accused is to get a final verdict after incarceration of six to seven years in jail as an undertrial prisoner, then, definitely, it could be said that his right to have a speedy trial under Article 21 of the Constitution has been infringed."

10. Having regard to the aforesaid aspect, the present application deserves consideration and the same is hereby allowed.

11. This court has also considered the following aspects:

(a) As per catena of decisions of Hon'ble Supreme Court, there are mainly 3 factors which are

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required to be considered by this court i.e. prima facie case, availability of Applicant accused at the time of trial and tampering and hampering with the witnesses by the accused.

(b) That the learned Advocate for the Applicant has submitted that the Applicant Accused is not likely to flee away.

(c) That the Applicant is in custody since 20.04.2021.

(d) The law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. C.B.I. Reported in (2012) 1 SCC 40.

12. In the facts and circumstances of the case and considering the nature of allegations made in the FIR and without discussing the evidence in details as well as without going into details, prima-facie, this Court is of the opinion that this is a fit case to exercise the discretion to enlarge the applicant on bail. Hence, the application is allowed and the applicant is ordered to be released on bail in connection with the aforesaid FIR, on executing a bond of Rs.10,000/- (Ten Thousand) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that;

(a) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade from disclosing such facts to the Court or any Police Officer or tamper with the evidence.

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(b) shall maintain law and order and not to indulge in any criminal activities.

(c) shall furnish the documentary proof of complete, correct and present address of residence to the Investigating Officer and to the Trial Court at the time of executing the bond and shall not change residence without prior permission of the trial Court.

(d) shall provide contact numbers as well as the contact numbers of the sureties before the Trial Court. In case of change in such numbers inform in writing immediately to the trial Court.

(e) shall file an affidavit stating immovable properties whether self acquired or ancestral with description, location and present value of such properties before the Trial Court, if any.

(f) shall not leave India without prior permission of the Trial Court

(g) surrender passport, if any, to the Trial Court within a week. If accused does not possess passport, shall file an Affidavit to that effect.

(h) shall 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.

13. The authorities concerned shall 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

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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.

14. At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

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

(M. R. MENGDEY,J) NABILA