Gujarat High Court
Alpesh Ghanshyambhai Kathiriya vs State Of Gujarat on 13 July, 2021
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/CR.A/711/2021 ORDER DATED: 13/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 711 of 2021
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ALPESH GHANSHYAMBHAI KATHIRIYA
Versus
STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA(437) for the Appellant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Appellant(s) No. 1
MS KRINA CALLA, APP (2) for the Opponent(s)/Resp.(s) No. 1
MR JAY SHAH, ADVOCATE for Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 13/07/2021
ORAL ORDER
1. Heard Mr. B.M.Mangukiya, learned counsel appearing for the appellant, Mr. Mitesh Amin, learned Public Prosecutor assisted by Mrs. Krina Calla, learned APP for the respondent State and Mr. Jay Shah, learned counsel for the informant - respondent herein.
2. The appellant, by way of this appeal filed under Section 14(A) of the Prevention of Atrocities Amendment Act, 2015 seeks regular bail in connection with the FIR being C.R.No. 11214020210316 of 2021 of registered with Kamrej Police Station, Dist. Surat (Rural), for the offences punishable under Sections 143, 147, 148, 149, 323, 325, 394, 427, 504 and 506(2) of the Indian Penal Code, 1860 and Sections 3(1)(r), 3(1)(s) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015
3. The brief facts of the prosecution case are that one Mr. Jaikishan Vasava has filed the impugned complaint against the appellant and other persons before Kamrej Police Station, Dist. Surat, for the offences under Sections 143, 147, 148, 149, 323, 325, 394, 427, 504 and 506(2) of Indian Penal Code, 1860 and Sections 3(1)(r), Page 1 of 5 Downloaded on : Wed Jul 14 05:13:53 IST 2021 R/CR.A/711/2021 ORDER DATED: 13/07/2021 3(1)(s) and 3(2)(v) of the Atrocities Act. It is alleged by the informant that, on the day of incident, voting of corporation election was going on and he being an advisor of Bhilisthan Tiger Sena was present at the polling booth of ward No.22, Surat and was busy with the election work, sitting in his vehicle - Maruti Van. It is alleged that, a mob of 150-200 persons leading by the present appellant, came at the place and at that time, his colleague Sagar Harshbhai started recording the video from his mobile phone and after seeing the video recording, the appellant and his supporters taken objection and abused him by calling his caste name. It is further alleged that, the unknown persons from the mob caused injuries to him and looted Rs.2,000/- from his pocket. Under such circumstances, the FIR came to be lodged for the above referred offences against the appellant and others and after completion of Investigation, chargesheet has been filed. The bail application filed by the appellant before the Sessions Court, which came to be rejected, observing that, there is breach of terms and conditions of the undertaking submitted before the High Court by the appellant.
4. It is the submission of learned counsel for the appellant that, he is suffering confinement since 14.03.2021. Investigation is over and chargesheet has already been filed and hence, further detention of the appellant is unwarranted. He further submitted that the appellant has played no role in the alleged offence and his name has been falsely disclosed due to political rivalry; that voting of election of Corporation was under process and the appellant being leader of PAAS movement, he along with other persons came at the place and as per the allegations alleged in the FIR, the appellant has played no role so far as the allegation of causing injury and alleged loot; that the appellant is facing several criminal offences since August, 2015 and being a leader of PAAS movement in Surat, he has been falsely implicated in the alleged crime; that prima facie no case is made out against the appellant; that the appellant has not breached any conditions of his Page 2 of 5 Downloaded on : Wed Jul 14 05:13:53 IST 2021 R/CR.A/711/2021 ORDER DATED: 13/07/2021 undertaking submitted by him before this Court.
5. On the other hand, Mr. Mitesh Amin, learned Public Prosecutor assisted by Mrs. Krina Calla, learned APP opposed the appeal, reiterating the contents of the affidavit in reply filed by the Investigating Officer to submit that, before this incident, the case was registered being C.R.No.I-135/2015 with Amroli Police Station for the offences under Sections 124, 115 and 201 of IPC, the appellant was arrested and on conditions, he was enlarged on regular bail by the Sessions Court and thereafter, his bail was cancelled on account of breach of terms and conditions of the bail and had moved an application being C.R.MA No.5725/2019 before this Court, wherein, a coordinate Bench of this Court after hearing the parties and considering the undertaking submitted by the appellant, granted regular bail. In this background facts, it was submitted that, the appellant has committed breach of condition of his undertaking given to this Court and failed to follow it scrupulously. Learned Public Prosecutor drew attention of this Court to the condition of the undertaking and would submit that, the appellant had given an undertaking in clear terms that, he shall maintain law and order situation. In this context, it was submitted that, it is evident that the appellant did not have maintained the law and order situation and involved himself in the alleged offence. Thus, looking to the conduct of the appellant and breach of the condition of the undertaking, the learned trial court has rightly rejected the bail application.
6. Original complainant - Jaikishan Vasava (Respondent No.2) has filed an affidavit, stating inter alia, that with the intervention of family members and well wishers, he has amicably resolved the dispute with the appellant and as on date, there is no heart burning with him.
7. Having heard learned counsel for the parties and on careful perusal of the record, this Court finds that, the learned Sessions Judge rejected the bail application mainly on the ground of alleged Page 3 of 5 Downloaded on : Wed Jul 14 05:13:53 IST 2021 R/CR.A/711/2021 ORDER DATED: 13/07/2021 breach of the undertaking submitted by the appellant before this Court. This Court is of the considered view that, the learned Sessions Court ought to have decided the bail application on its own merits considering the facts and circumstances of the case and materials available on record. If any breach of the condition of the undertaking on the part of the appellant, then it is the authority concerned to initiate the proceedings of cancellation of bail as provided under Section 437 (5) of the Cr.P.C. which empowers the Court to cancel the bail if it considers necessary to do so and direct such person to be arrested.
8. Considering the facts and circumstances of the present case, the only allegation alleged against the appellant is to abuse the informant by calling his caste name. Therefore, considering the role attributed to the appellant, the political background of the informant and filing of the chargesheet, without expressing anything on merit of the case, this Court is of the considered view that, the appellant has made out a case for bail and accordingly, the appeal deserves consideration.
9. It is made clear that, the authority concerned if deem it fit necessary and so advised, is at liberty to initiate appropriate proceedings for the alleged breach of conditions of the undertaking before appropriate Court in accordance with law.
10. Hence, present appeal is allowed and the appellant is ordered to be released on regular bail in connection with the FIR being C.R.No. 11214020210316 of 2021 of registered with Kamrej Police Station, Dist. Surat, on executing a personal bond of Rs.10,000/- (Rupees Ten thousands only), with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall;
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No. Conditions
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injuries to the interest of the prosecution;
(c) surrender passport, if any, to the lower court within a week;
(d) not leave India without prior permission of the Sessions Judge concerned;
(e) furnish latest address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the trial Court;
11. The authorities shall release the appellant if he is not required in connection with any other offence. If breach of any above condition is committed, the Sessions Judge concerned shall take appropriate action or issue warrant against the appellant. The bail bond to be executed before the learned trial Court having jurisdiction to try the case.
12. Nothing stated hereinabove, shall tantamount to the expression of any opinion on the merits of this case. Registry to send a copy of this order to the concerned Jail Authority as well as ld. Sessions Court forthwith through fax and e-mail. Direst Service is also permitted.
(ILESH J. VORA,J) SUCHIT Page 5 of 5 Downloaded on : Wed Jul 14 05:13:53 IST 2021