Gujarat High Court
Montu @ Namdar Sureshchandra Gandhi vs State Of Gujarat on 17 July, 2025
NEUTRAL CITATION
R/CR.MA/7049/2025 ORDER DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO.7049 of 2025
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MONTU @ NAMDAR SURESHCHANDRA GANDHI
Versus
STATE OF GUJARAT
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Appearance:
MR JAL UNWALA, SENIOR ADVOCATE WITH MR ADIT V. PANCHOLI
WITH MS TEJAL A. VASHI(2704) for the Applicant(s) No.1
MR J.M. PANCHAL, SENIOR ADVOCATE WITH MR EKANT G
AHUJA(5323) for the Original Complaiant.
MS MONALI BHATT, APP for the Respondent(s) No.1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 17/07/2025
ORAL ORDER
1. The applicant has filed this application under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 for enlarging the applicant on
regular bail in connection with FIR being CR. No.11191005220281 of 2022
registered with Khadia Police Station, Ahmedabad for the offences punishable
under Sections 143, 144, 147, 148, 149, 302, 120(b), 201 of Indian Penal Code
and Section 135(1) of Gujarat Police Act, 1951.
2. Heard learned Senior Advocate Mr. Jal Unwala with learned Advocate
Mr. Adit V. Pancholi with learned Advocate Ms. Tejal A. Vashi appearing for
the applicant. He submitted that the applicant has been arrested in connection
with the present offence on 09.06.2022. The investigation is over and charge-
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sheet has been filed. He submitted that on 09.06.2022, the applicant came to be
arrested by Police Sub-inspector of the D.C.B. Police Station, Ahmedabad city
in connection with the present offence. However, though he was required to be
produced before the concerned Court within 24 hours, the applicant was
produced before the concerned Court on 11.06.2022 at 17:45 pm. Thus, the
Investigating agency has committed breach of the provision of Article 22(2) of
the Constitution of India and this being a mandatory provision, the breach of
which, would entitle the present applicant to be enlarged on bail at once as the
arrest of the present applicant becomes illegal in this scenario. He further
submitted that in view of the decision of this Court dated 21.09.2020 passed in
Special Criminal Application No.4023 of 2020, the person who was arrested in
connection with an offence, was not required to be subjected to RTPCR test for
detection of Corona and only Rapid Antigen Test was required to be performed
and therefore, it is not open for Prosecution to argue that the time was
consumed for conducting of RTPCR test upon the present applicant. It is
further contended that the applicant is ready and willing to abide by all the
conditions that may be imposed by this Court if released on bail. Learned
Senior Advocate has sought to rely upon the following judgments in support of
his submissions :-
1. Judgment delivered by the Hon'ble Apex Court in case of
Vihaan Kumar Versus State of Haryana & Anr. reported in
2025 LiveLaw (SC) 169 and;
2. Judgment delivered by the Hon'ble Apex Court in case of
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Directorate of Enforcement Versus Subhash Sharma reported
in 2025 LiveLaw (SC) 137.
3. Though there are several grounds raised in the petition by the applicant,
learned Senior Advocate appearing for the applicant has canvassed only one
ground during the course of his arguments.
4. Learned APP has opposed the present application contending that the
trial of the offence is on the verge of completion and only five witnesses are
now required to be examined by the Prosecution in trial. She further submitted
that the applicant is a hardcore criminal and has a series antecedents. She,
therefore, submitted that looking to the nature of offence, this Court may not
exercise the discretion in favour of the applicant and the application may be
dismissed.
5. Learned Senior Advocate Mr. J.M. Panchal appearing with learned
Advocate Mr. Ekant G. Ahuja for the complainant has opposed the present
application contending that there is no breach of the provision of Article 22(2)
of the Constitution of India by the prosecuting agency. On 09.06.2022, the
applicant was arrested under the provision of Section 41(1)(ba) of Criminal
Procedure Code. The said arrest was not in connection with the present offence.
The applicant was arrested in connection with the present offence on
10.06.2022 at around 19:30 hours and was produced before the concerned
Court on 11.06.2022 at around 17:45 hours. Thus, the applicant was duly
produced before the concerned Court within the period of 24 hours of his arrest
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and therefore, no mandatory provision as alleged, has been committed breach
of. He further submitted that previously the applicant had absconded on two
occasions. The applicant is hardcore criminal and the trial of the offence is on
the verge of completion. He, therefore, submitted to dismiss the present
application.
6. Heard learned Advocates for the parties and perused the record. It is the
case of the applicant that though he was arrested in connection with the present
offence on 09.06.2022, he was produced before the concerned Court on
11.06.2022 i.e. after the expiry of statutory period of 24 hours of his arrest and
therefore, the arrest of the applicant becomes illegal in view of the violation of
the mandatory provision of Article 22(2) of the Constitution of India. For
consideration of this argument, certain facts emerging from the record are
required to be taken note of. On 08.06.2022, the offence being CR.
No.11191005220281 of 2022 came to be registered against the applicant as
well as other co-accused for offence punishable under Section 143, 144, 147,
148, 149, 302 and 120(b) of IPC and Section 135(1) of G.P. Act with Khadia
Police Station, Ahmedabad city. On the very same day, the investigation of the
offence was taken over by the Police Inspector of the Khadia Police Station,
Ahmedabad city. On 09.06.2022, information was received by the Police Sub-
inspector of D.C.B. Police Station that the applicant was going to pass through
the Ring Road with his Isuzu car bearing registration No.GJ27DB7250. It is
pertinent to note that the offence in question had taken place between 16:30
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hours to 20:00 hours on 08.06.2022 and the FIR in question came to be
registered at around 20:30 hours on 08.06.2022. The applicant was on the run
after commission of the present offence. Upon receipt of the information by the
D.C.B. Police Station, a watch was organized and upon seeing the car
mentioned in the information approaching, the same was intercepted and the
applicant was found present in the said car. It is required to be noted at this
stage that the Police Sub-inspector of D.C.B. Police Station who arrested the
applicant on 09.06.2022, was not the Investigating Officer of the present
offence. However since there was a credible information about the applicant
having committed the present offence, the applicant was arrested under the
provision of Section 41 (1)(ba) of Cr.P.C. The arrest of the present applicant
was effected at around 18:15 hours on 09.06.2022. The Arrest Memo of the
present applicant was drawn at 19:00 hours and entry in this regard was made
in the Station Dairy of the D.C.B. Police Station. On the next day i.e. on
10.06.2022 at around 11:35 a.m., the custody of the present applicant was
handed over to the Investigating Officer of the present offence. It is required to
be noted at this stage that after the custody of the applicant handed over to
Investigating Officer of the present offence, on 10.06.2022 itself, the
Investigating Officer had submitted an application to the concerned Court
seeking permission to handcuff the present applicant as he was a hardcore
criminal and was required to be taken to different places and there was an
apprehension of the applicant escaping from the Police custody. The said
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application came to be allowed by the concerned Court. On 10.06.2022 at
around 06:06 p.m., the applicant was referred to V.S. Hospital for Corona Test
and after receipt of the report of the present applicant, he was arrested in
connection with the present offence on 19:30 hours and Arrest Memo in that
regard had also been drawn which had also been signed by the present
applicant, so also by his wife. Thereafter, on 11.06.2022 at around 17:45 p.m.,
the applicant was produced before the Court by the Investigating Officer and an
application for his Police Remand was also submitted. At the time of his
production, the applicant submitted two notes to the learned Court wherein in
one note, the applicant had expressed his consent for him being remanded for
Police custody whereas in the other note, a request made for direction to the
Investigating authority to comply with the direction of the Hon'ble Apex Court
given in case of D.K. Basu versus State of West Bengal reported in AIR 1997
SC 610. The applicant was therefore, remanded to Police custody till 11:00
a.m. of 15.06.2022. It will not be out of context to note here that neither the
applicant nor prosecution had brought the fact of the applicant having
consented for his police remand, to the notice of this court. Thereafter, on
15.06.2022, the applicant was again produced before the concerned Court upon
expiry of the period of Police Remand. On none of these occasions, the
applicant had raised any objection with regard to his arrest being illegal for
being violative of the provision of Article 22(2) of the Constitution of India. On
the contrary, as noted hereinabove, the applicant had given his consent for
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remanding him to the Police custody which indicates that the applicant had
accepted his arrest to be legal. It is also required to be noted that in the
application for Police remand, the fact that the applicant was arrested on
09.06.2022 by D.C.B. Police Station under Section 41 (1)(ba) of Cr.P.C., had
been duly mentioned and the learned Court had also perused the Case Dairy
which was produced before it by the Investigating Officer and the learned
Court below after being satisfied about the legitimacy of the arrest of the
applicant, had authorized his arrest and had ordered him to be remanded to
Police custody. As per the law laid down by the Hon'ble Apex Court in case of
Arnesh Kumar v. State of Bihar reported in (2014) 8 Supreme Court Cases
273, duty is cast upon the Magistrate to verify whether the arrest of the accused
has been effected lawfully or not.
7. It is the case of the Prosecution that on 09.06.2022, the applicant was
arrested by the D.C.B. Police Station under the provision of Section 41(1)(ba)
of Cr.P.C. and therefore, it cannot be termed as an arrest in connection with the
present offence. On the contrary, it is sought to be argued on behalf of the
applicant that in all the documents pertaining to the arrest of the present
applicant on 09.06.2022, the number of the present FIR has been referred to
and therefore, the same would invariably be the arrest in connection with the
present offence. The provision of Section 41(1)(ba) of Cr.P.C. authorizes the
Police Officer to arrest a person without warrant if there is a credible
information against him for having committed a cognizable offence punishable
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with imprisonment for a term which may extend to more than Seven year or
with death sentence. Before the arrest of the present applicant on 09.06.2022,
the present FIR was already registered against him and therefore, there was a
credible information in the form of the present FIR against the present
applicant for having committed the offence punishable with death sentence. It
was in this regard that the reference of the present FIR was given in the
documents prepared with regard to the arrest of the present applicant on
09.06.2022. Merely because the reference of the present FIR had been made in
those documents, it cannot be said that the arrest of the present applicant
09.06.2022 was in connection with the present FIR.
8. At the request of the repetition, it is required to be observed that at no
stage prior to present application, the applicant had raised this ground before
learned Court before whom he was produced. This ground has been raised by
the present applicant for the very first time at the fag end of the trial when only
few witnesses remain to be examined during the course of trial. The applicant
therefore, cannot be allowed to raise these grounds at such belated stage that
too when he had consented for his Police Remand at the time of his production
before the concerned Court.
9. The conduct on the part of the present applicant after commission of the
offence is also required to be taken note of. As noted earlier, after commission
of the offence on 08.06.2022, the applicant was on the run and was
apprehended by Police on 09.06.2022. The record further indicates that the
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applicant herein had managed to escape from the Police custody on 20.06.2024
and a separate offence was registered against him at a Aslali Police Station,
Ahmedabad and the applicant could be apprehended after a period of one
month thereafter. Thereafter, the applicant was ordered to be enlarged on
temporary bail vide Order dated 11.06.2023 and thereafter, the applicant had
absconded for a period of Three months. Thus, there are all chances that if
released on bail, the applicant would again abscond which would affect the trial
which is otherwise on the verge of completion. The applicant is a hardcore
criminal and there are several other antecedents registered against him. Having
regard to the aforesaid aspects, no case is made out in favour of the present
applicant and hence, the present application is dismissed.
(M. R. MENGDEY,J)
RAVI OZA
