Gujarat High Court
Nizamuddin Nurmahmadbhai Hothi vs State Of Gujarat on 7 October, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
R/CR.MA/11986/2025 ORDER DATED: 07/10/2025
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IN THE HIGH Court OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR
BAIL - AFTER CHARGESHEET) NO. 11986 of 2025
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NIZAMUDDIN NURMAHMADBHAI HOTHI
Versus
STATE OF GUJARAT
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Appearance:
MR ZUBIN BHARDA WITH MR KRUNAL L SHAHI(6519) for the
Applicant(s) No. 1
MR.ALOK M THAKKAR(6510) for the Respondent(s) No. 1
MR RONAK RAVAL ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 07/10/2025
ORAL ORDER
1. Heard learned advocate Mr. Zubin Bharda with
learned advocate Mr. Krunal Shahi appearing for
the applicant, learned Additional Public
Prosecutor Mr. Ronak Raval appearing for
respondent No.1 - State, and learned advocate
Mr. Alok M. Thakkar appearing for the original
complainant.
2. By way of this successive regular bail
application filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, the
applicant seeks release on regular bail in
connection with FIR being C.R. No.
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11189008210629 of 2021, dated 20.05.2021,
registered with Wankaner Taluka Police Station,
District Morbi, for the offences punishable
under Sections 302, 323, 324, 325, 337, 341,
143, 147, 148, 149, 427, and 120B of the Indian
Penal Code, as well as under Section 135 of the
G.P. Act.
3. Learned advocate Mr. Zubin Bharda appearing for
the applicant submitted that it is true that on
earlier occasions, two bail applications were
preferred before this Court by the present
applicant -- the first being Criminal Misc.
Application No. 21151 of 2021, which was
withdrawn by the applicant vide order dated
01.04.2022, and subsequently, another bail
application being Criminal Misc. Application No.
20167 of 2022 was preferred by the same
applicant, which was also withdrawn vide order
dated 13.04.2023. The present application is,
therefore, the third successive bail application
preferred by the applicant.
3.1 Learned advocate Mr. Zubin Bharda appearing with
learned advocate Mr. Shahi submitted that at the
time when the present bail application was filed
on 10.06.2025, it was preferred on the ground of
long incarceration of the applicant, as the
applicant has been in judicial custody since
22.05.2021. It was therefore submitted that,
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upon completion of more than four years of
incarceration, the bail application came to be
filed on the ground of delay in trial. During
the pendency of the present application before
this Court, the main accused, i.e., accused No.
1, preferred an application for bail being
Criminal Misc. Application No. 11112 of 2025,
which came to be allowed by the coordinate Bench
of this Court vide order dated 08.08.2025.
Consequently, the present bail application was
also argued on the additional ground of parity,
apart from the ground of delay in trial. Learned
advocate Mr. Zubin Bharda, therefore, made the
following submissions:-
(i) The applicant has been in judicial custody
since 22.05.2021.
(ii) The investigation is over and the charge-
sheet has been filed.
(iii) Though the applicant has been behind bars
for almost four and half years, the trial is not
yet concluded. Though the charge has been
framed, out of 53 witnesses, only 7 witnesses
have been examined so far. It was further
submitted that though one offence was earlier
registered against the present applicant, the
said FIR and all consequential proceedings have
been quashed. Therefore, learned advocate Mr.
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Zubin Bharda, by pressing into service the
ground of long incarceration of the applicant,
coupled with the fact that the trial is
proceeding at a snail pace and also on the
ground of parity, prayed for grant of regular
bail to the present applicant.
3.2. Learned advocate Mr. Zubin Bharda also canvassed
before the Court that the allegations against
the present applicant and accused No. 1 are of a
similar nature, as both are alleged to have
inflicted knife blows on the neck of the
deceased. Therefore, the roles of the present
applicant and accused No. 1 can be said to be
inseparable. Unless evidence to the contrary is
led during the trial, on the basis of the FIR as
well as the charge sheet, the role of the
remains inseparable. Hence, on the ground of
parity, the present applicant deserves to be
enlarged on bail.
4. Learned advocate Mr. Alok Thakkar, appearing for
the original complainant, vehemently opposed the
application for bail and submitted that on two
earlier occasions, the Court was not inclined to
grant bail to the present applicant, and
therefore, the applicant had withdrawn those
applications, specific references to which --
including the application numbers and dates --
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are mentioned in the foregoing paragraph.
According to learned advocate Mr. Thakkar, at
one point of time he was inclined to submit
written arguments; however, the Court did not
accept the same on the ground that the matter
had been heard in open Court and was being
decided accordingly. This order is being
dictated in open Court. The Court, having heard
learned advocate Mr. Thakkar in person and
having considered all the judgments relied upon
by him -- copies of which were accepted by the
Court -- returned the written submissions to him.
This order is being dictated in the presence of
learned advocate Mr. Thakkar, after confirming
with him that all his submissions have been duly
recorded in the order.
4.1 Learned advocate Mr. Alok Thakkar, by relying
upon the decision in the case of Virupakshappa
Gouda and Another v. State of Karnataka and
Another, reported in (2017) 5 SCC 406, and more
particularly on paragraphs 1, 4, 5, 15, 19, and
20 thereof, submitted that once the Court has
made certain observations in respect of a
particular accused, it would not be proper for
the Court to subsequently consider the case of
that accused differently by taking into account
the observations made in relation to other co-
accused. The next decision relied upon by
learned advocate Mr. Alok Thakkar was in the
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case of Ramesh Bhavan Rathod v. Vishanbhai
Hirabhai Makwana and Another, reported in (2021)
6 SCC 230. By relying upon paragraphs 1, 14, 15,
16, and 22-23, learned advocate Mr. Alok Thakkar
submitted that bail is a matter of discretion,
and therefore, the discretionary powers of the
Court are to be exercised with ample care and
caution. He further submitted that, once the
application was withdrawn by the accused, the
Court ought not to have exercised its powers in
favour of the accused.
4.2 Then, learned advocate Mr. Alok Thakkar relied
upon the decision of the Hon'ble Supreme Court
in Tarun Kumar v. Assistant Director,
Directorate of Enforcement, reported in 2024 AIR
(SC) 169, and submitted that, in view of the
aforesaid decision, once the present applicant
had withdrawn the application for bail twice
before this Court, the Court may not exercise
its discretion in favour of the applicant to
grant bail. Lastly, learned advocate Mr. Alok
Thakkar relied upon the decision of the Hon'ble
Supreme Court in Aminuddin v. State of Uttar
Pradesh and Another, reported in 2022 AIR (SC)
4546, and submitted that the applicant must not
be enlarged on bail solely on the ground of
parity, or merely because a co-accused has been
granted bail. Relying upon the aforesaid four
decisions of the Hon'ble Supreme Court, learned
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advocate Mr. Alok Thakkar prayed for the
rejection of this bail application. No other
submissions were made by him, and when the Court
repeatedly asked whether any submissions were
left out, learned advocate Mr. Alok Thakkar
stated that all his submissions and all the
decisions relied upon by him have been recorded
in the order.
5. Learned Additional Public Prosecutor, Mr. Ronak
Raval, appearing for the respondent - State,
vehemently opposed the petition and submitted
that, in view of the role of the present
applicant and the fact that he has already
withdrawn his application for bail twice, his
case may not be considered on the ground of
parity. He further submitted that, since this is
an offence under Section 302, the trial is
ongoing, and seven witnesses have already been
examined, the present applicant may not be
enlarged on bail.
6. In the facts and circumstances of the case and
considering the nature of allegations, this
Court is of the opinion that, discretion is
required to be exercised to enlarge the
applicant on regular bail. This Court has
considered the following facts while exercising
discretion in favour of the applicant :-
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(i) The applicant is in jail since
22.05.2021;
(ii) Investigation is over and charge sheet
is filed;
(iii) The present applicant is arraigned as
accused No. 3, and the role attributed to him
is that he allegedly inflicted a knife blow
on the deceased along with the other co-
accused. However, according to learned
advocate Mr. Zubin Bharda, the present
applicant is shown as accused No. 3, whereas
the main accused, namely Aejaz @ Ajju S/O
Hanifbhai Payak, had applied for bail before
the Co-ordinate Bench by way of Criminal
Misc. Application No. 11112 of 2025. Vide
order dated 08.08.2025, the said accused No.
1 was granted bail by the Co-ordinate Bench,
which made the following observations in para
7, as under:
"7. Heard learned Advocates for the
parties and perused the record. The
investigation is over and charge sheet is
filed. From the record it appears that the
Applicant has been arrested in connection
with the present offence on 22.05.2021 and
since then the Applicant is in the
custody. In the charge sheet, the
prosecution has cited as many as 52
witnesses and, as reported, out of those
52 witnesses, only 2 witnesses have been
examined till date. As per the case of the
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prosecution the role attributed to the
present Applicant in commission of the
offence in question is to the effect that
he had inflicted a blow on the neck of the
victim which had resulted into his death.
For that purpose the prosecution seeks to
rely upon the statement of the eyewitness
Nitin. The two statements of the said
witness - Nitin came to be recorded on
21.09.2021 and in both the statements he
has narrated a different version as
regards the role played by the present
Applicant in commission of the offence in
question. Considering these aspects, the
Application deserves consideration. 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 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
22.05.2021.
(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."
7. Considering that the role attributed to accused
No.1 is that he also inflicted a blow on the
neck of the victim, resulting in death, and
noting that the aforesaid accused is similarly
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situated, if the role of the present applicant
vis-à-vis accused No.1 is considered, both have
been in custody since 22.05.2021. At the
relevant point in time, two witnesses had been
examined in August, and even after almost three
months from the passing of the aforesaid order,
only five additional witnesses have been
examined out of 52 witnesses to be examined by
the prosecution and therefore, I deem it
appropriate to enlarge the present applicant on
bail on the ground of parity. Prima facie,
according to this Court, the nature of the
allegations against the present applicant and
accused No.1 are almost identical. Considering
that the present applicant has been in
incarceration for more than four years--a fact
already considered by the Co-ordinate Bench--and
that the order granting bail to the applicant of
that application has not been challenged by the
complainant or the State Government, denying
bail to the present applicant, in light of the
circumstances vis-à-vis accused No.1, would
amount to discrimination. Accordingly, I am
inclined to enlarge the present applicant on
bail.
8. In view of the aforesaid facts, and without
discussing the evidence in detail, this Court,
prima facie, is of the opinion that this is a
fit case to exercise discretion and enlarge the
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applicant on regular bail. Accordingly, the
present application is allowed, and the
applicant is ordered to be released on regular
bail in connection with FIR C.R. No.
11189008210629 of 2021, dated 20.05.2021,
registered with Wankaner Taluka Police Station,
District Morbi, upon executing a personal bond
of Rs. 10,000/- (Rupees Ten Thousand Only) with
one surety of the like amount, to the
satisfaction of the learned Trial Court, and
subject to the following conditions:
(a) not directly or indirectly make any
inducement, threat or promise to any person
acquainted with the fact of the case so as to
dissuade him from disclosing such facts to
the Court or any Police Officer or tamper
with the evidence.
(b) maintain law and order and not to indulge
in any criminal activities.
(c) 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 the residence
without prior permission of the trial Court.
(d) provide contact numbers as well as the
contact numbers of the sureties before the
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Trial Court. In case of change in such
numbers inform in writing immediately to the
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 pm.
(f) file an affidavit stating his immovable
properties whether self acquired or ancestral
with description, location and present value
of such properties before the Trial Court, if
any.
(g) not leave India without prior permission
of the Trial Court.
(h) surrender passport, if any, to the Trial
Court within a week. If the Applicant does
not possess passport, shall file an Affidavit
to that effect.
(i) not enter the Wankaner Taluka till the
conclusion of the Trial except for marking
presence before the concerned Police Station
and for attending the Trial Court concerned.
9. The Authorities will release the applicant only
if the applicant is not required in connection
with any other offence for the time being. If
breach of any of the above conditions is
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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 learned 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. At the
trial, learned 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 applicant on
bail.
10. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(NIRZAR S. DESAI,J)
Pallavi
