Gujarat High Court
Gopal Mafabhai Jogarana vs The State Of Gujarat on 27 October, 2023
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.MA/14739/2023 ORDER DATED: 27/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 14739 of 2023
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GOPAL MAFABHAI JOGARANA
Versus
THE STATE OF GUJARAT
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Appearance:
MR LAXMANSINH M ZALA(5787) for the Applicant(s) No. 1
MR VICKY B MEHTA(5422) for the Respondent(s) No. 1
MS CM SHAH APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 27/10/2023
ORAL ORDER
1. This successive bail application is at the instance of applicant accused Gopal Mafabhai Jogarana, who was apprehended on 17.02.2022 in connection with the offence being CR No. 11211031220012 of 2022 registered with Limdi Police Station, Dist.: Surendranagar, for the offences punishable under Section 307, 326, 323, 504, 506(2), 427, 143, 147, 148, 149 of the IPC and Section 135 of the Gujarat Police Act.
2. This Court has heard learned counsel Mr. L.M. Zala, Mr. Vicky Mehta and Ms. C.M. Shah, learned APP for the respondent State.
3. Mr. L.M. Zala, learned counsel appearing for the applicant herein has submitted that, the bail application of the applicant was rejected on merits by this Court. That, after the rejection of the bail Page 1 of 10 Downloaded on : Thu Nov 02 20:34:19 IST 2023 NEUTRAL CITATION R/CR.MA/14739/2023 ORDER DATED: 27/10/2023 undefined application, the co-accused Vanabhai Ghudabhai Jogarana had preferred bail application before the Co-ordinate Bench of this Court. That, in the said application, the trial Court was directed to complete the trial proceedings within 6 months from the date of the application submitted for separation of trial. That, till date, the trial is not separated, as no order is passed. That, instead of separating the trial, the trail Court proceeded for proclamation and attachment of the properties, as provided under Section 84 of the Cr.P.C.
4. In the aforesaid contentions, learned counsel Mr. Zala submitted that, considering this subsequent development, this successive bail application is maintainable. That, the applicant is in custody since 06.12.2023. That, he did not have participated in the offence and based on his presence, he was apprehended. That, the accused nos. 2, 8 and 9 absconded after release on temporary bail and there is no any immediate prospects of arresting them. Thus, in that view of the matter, keeping the applicant behind the bar for indefinite period would violate the fundamental rights.
5. In view of the aforesaid, learned counsel Mr. Zala submitted that if he be released on bail, the applicant will abide by whatever conditions, that may be imposed by the Court.
6. On the other hand, countering the submissions, learned State Counsel as well as the counsel Mr. Vicky Mehta, appearing for original informant have jointly opposed the bail application and have contended that, the earlier bail application was rejected on merits by this Court and thereafter, the order passed in the matter of co-
Page 2 of 10 Downloaded on : Thu Nov 02 20:34:19 IST 2023NEUTRAL CITATION R/CR.MA/14739/2023 ORDER DATED: 27/10/2023 undefined accused wherein, the direction for expeditious trial was issued, cannot be a new ground or change in fact situation, entitling the applicant to file present successive bail application. They further submitted that, there is all possibility of the offence being repeated and having danger of the accused absconding or fleeing, if released on bail.
7. Having heard the learned counsels for the respective parties and upon perusal of the material placed on record, this Court is of the considered view that, the direction issued in the matter of co-accused cannot be termed as change of circumstances and said direction has no direct impact on the earlier decision of rejection of bail. Thus, without the change in the circumstances, the present successive bail application is nothing but seeking review of the earlier rejection order, which is not permissible under the law. Thus, the ground upon which the successive bail application is filed, is not acceptable in eye of law.
8. In order to appreciate the merits of the case, it is necessary to refer to the reasons enumerated in the earlier bail application being Criminal Misc. Application No. 10788 of 2022 decided on 30.08.2022, which read thus:
"3. The brief facts giving rise to filing of present application are that;
3.1 The alleged offence took place on 13.01.2022, at Village:
Padri, Taluka: Limbdi, District: Surendranagar. The FIR in Page 3 of 10 Downloaded on : Thu Nov 02 20:34:19 IST 2023 NEUTRAL CITATION R/CR.MA/14739/2023 ORDER DATED: 27/10/2023 undefined question for the offences as referred above came to be registered against 12 persons. The applicant Gopal Jogarana has been arraigned as accused no.6 as per the charge-sheet case papers. It is the case of prosecution that, prior to the incident, a family dispute was going on between the complainant and accused. It is alleged that, on 12.01.2022, the complainant was threatened by the accused no.1, when he along with his wife went to Limbdi Court, for furnishing surety, in the case filed against cousin brother Maheshbhai. It is in this context, the accused have formed an unlawful assembly with the common object to kill the complainant. It is alleged that, when complainant was at Village: Padri, the accused along with the applicant, armed with deadly weapons like sword, iron pipes, sticks and sickle came at the scene of offence and in order to kill the complainant, he was fatally attacked by the accused, as a result of which, the complainant sustained multiple fracture injuries and his right forefoot amputated during the course of treatment. It is further case of the prosecution that, the person who accompanied to the complainant namely Mr. Ranchhodbhai also received injuries alleged to have been caused by the accused when he tried to intervene in the scuffle. It is further case of prosecution that, after seeing the incident by the villagers, the accused escaped from the scene of offence. The complainant and injured witness, were taken to Civil Hospital, Limbdi for the treatment and after primary treatment, the complainant was referred to Higher Centre and was admitted in Zydus Hospital, Ahmedabad, where he was admitted for a considerable time as due to sustaining of fatal injuries, 3 to 4 major surgeries performed by Page 4 of 10 Downloaded on : Thu Nov 02 20:34:19 IST 2023 NEUTRAL CITATION R/CR.MA/14739/2023 ORDER DATED: 27/10/2023 undefined the Doctors of Zydus Hospital. In these background facts, the FIR came to be lodged on 16.01.2022, for the offences as referred above. During the investigation, it was revealed that, the applicantaccused armed with deadly weapon have caused injuries to the complainant and same was seized by the investigating agency. The applicant has been apprehended on 17.02.2022. After filing of charge-sheet, he moved an application for regular bail before the Sessions Court, Limbdi, which came to be rejected by the Court vide its order dated 06.06.2022.
4. Mr. Hriday Buch, learned counsel for the applicant, urged that, as per the contents of FIR, except the presence of the applicant, no specific role being assigned to the applicant. The Doctor, who has noted the history, initially, eight persons being shown as assailants. The applicant is not named in the FIR. The complainant has been discharged from the hospital and as of now, he is out of danger. In such circumstances, it was submitted that, looking to the allegations made in the FIR, it clearly established that, the applicant has been falsely implicated in the alleged offence. It was further submitted that, even if the case of prosecution is accepted as it is, even then, the ingredients of Section 307 of the IPC are not attracted.
5. In view of the aforesaid contentions, learned counsel submitted that, after filing of charge-sheet, there are no chances to temper with the evidence and applicant being a permanent resident of Village: Limbdi, is easily available at the time of trial and Page 5 of 10 Downloaded on : Thu Nov 02 20:34:19 IST 2023 NEUTRAL CITATION R/CR.MA/14739/2023 ORDER DATED: 27/10/2023 undefined therefore, it was submitted that, when trial has not yet commenced, keeping the applicant behind bar for indefinite period would serve no fruitful purpose. Thus, it was submitted that, imposing suitable conditions, discretion may kindly be exercised, enlarging the applicant on bail.
6. Opposing the bail application, learned counsel Mr. Dushyant Bhatt and Mr. Manan Maheta, learned APP, reiterating the contents of sworn affidavit of the complainant, contended that, since long, family dispute is going on between both the parties and therefore, in order to take revenge, the accused formed an unlawful assembly with an object to kill the complainant and on the day of incident, armed with deadly weapons, they assembled at the scene of offence and attacked on the complainant, as a result of which, he sustained five serious fracture injuries over both the legs and his right forefoot was amputated. It was contended that, the applicant was being a member of unlawful assembly present at the scene of offence with deadly weapon and inflicted severe injuries to the complainant. In such circumstances, the presence of the applicant with specific role in causing the injuries to the complainant has been established. It was further submitted that, the contention raised by learned counsel for the applicant with respect to history before the Doctor and delay in lodging the FIR cannot be appreciated or considered at this stage as it is to be tried at the trial stage.Page 6 of 10 Downloaded on : Thu Nov 02 20:34:19 IST 2023
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7. In view of aforesaid contentions, Mr. Bhatt, learned counsel for the complainant and Mr. Maheta, learned APP for the respondent- State submitted that, the applicant having past criminal history and there is a danger to the life and liberty to the complainant and his family members as the applicant is head strong person and therefore, if bail is granted, then, there are all possibilities that the offence being repeated and reasonable apprehension of the witnesses being influenced. In such circumstances, it is prayed that, considering the role attributed to the present applicant and evidence in support of charge and he having past criminal history, no case is made out for exercising discretion enlarging the applicant on bail and therefore, present application may not be entertained.
8. Heard at length learned counsel for the respective parties and perused the charge-sheet case papers along with affidavit of the complainant and medical case papers.
9. Upon careful examination of the medical case papers, it appears that, the following fracture injuries sustained by the complainant:
(i) right forefoot, totally amputated;
(ii) fractures in proximal phalanx of the thumb and second metacarpal;
(iii) fractures in upper and lower shaft of tibia with overlapping of the fracture fragments and displaced fracture in the lateral malleous;
(iv) fractures in shaft of all metatarsal and fracture in navicular bone;Page 7 of 10 Downloaded on : Thu Nov 02 20:34:19 IST 2023
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(v) fracture in upper shaft and head of radius and cortical fracture is also seen in middle shaft of radius on posterior and medial aspect;
(vi) fracture in the middle shaft of tibia with posterior angulation;
It is to be noted that, the complainant was admitted as an indoor patient for about twelve days and during his treatment, he was underwent 3 to 4 surgical operations by the various teams of Doctors.
10. In view of the aforesaid facts considering the nature of injury, various kind of deadly weapons used in the offence, it demonstrate that, the applicant was part of the alleged unlawful assembly. In such circumstances, this Court is of the view that there is a reasonable ground to believe that the accused has committed the offence.
11. The applicant has sought regular bail invoking the provisions of Section 439 of the Cr.P.C. It is settled position of law that, the jurisdiction to grant bail has to be exercised cautiously on the basis of well settled principles having regard to the facts and circumstances of each case.
12. In the facts of the present case, considering the contents of the FIR, statement of injured witness and medical case papers, this Court is of prima-facie view that the applicant armed with deadly weapon was present at the scene of offence and being a member of unlawful assembly, assaulted the injured complainant. It is on Page 8 of 10 Downloaded on : Thu Nov 02 20:34:19 IST 2023 NEUTRAL CITATION R/CR.MA/14739/2023 ORDER DATED: 27/10/2023 undefined record that, the applicant herein having criminal history in his discredit, the complainant and the accused are belonging to same community and since long, family dispute between them is going on. Prior to the incident, the complainant was threatened by the accused no.1. In such circumstances, considering the nature and gravity of the circumstances in which the offence was committed, if benefit is granted, then, possibilities of repeating the offence cannot be ruled out. Considering the family dispute and past criminal record of the applicant, this Court is agreed with the contention raised by the complainant in his affidavit that, if bail is granted, then, there is reasonable apprehension of tempering with the witnesses and threat to his own life. It is to be noted that, the bail application of one of the accused was withdrawn by him before the Coordinate Bench of this Court.
13. For the foregoing reasons, considering the role attributed to the present applicant, nature of offence and evidence, without expressing any opinion on merits of the case, it is not a case to exercise discretion granting bail to the applicant. Thus, present application stands dismissed."
9. In the aforesaid background facts, this successive bail application for the reasons mentioned in the para-7 of this order, is not maintainable. It needs to be noted that, out of 12 accused, the accused nos. 2, 8 and 9 are absconding as they have jumped the temporary bail granted by the co-ordinate Bench of this Court. In such circumstances, the apprehension shown by the prosecution that, there is all possibility of the offence being repeated and having Page 9 of 10 Downloaded on : Thu Nov 02 20:34:19 IST 2023 NEUTRAL CITATION R/CR.MA/14739/2023 ORDER DATED: 27/10/2023 undefined danger of the accused absconding or fleeing, if released on bail, cannot be ruled out and on that count, the judicial discretion granting benefit of bail is not required to be exercised in favour of the applicant.
10. However, considering the peculiar facts and circumstances of the present case, the trial Court shall consider and pass necessary order below Exh. 17 for separation of the trial and decide the same on its own merits.
11. For the reasons recorded, this successive bail application is devoid of merits and accordingly same fails and is dismissed.
(ILESH J. VORA,J) P.S. JOSHI/01/11 Page 10 of 10 Downloaded on : Thu Nov 02 20:34:19 IST 2023