Gujarat High Court
Mahendrasinh @ Gani Rahubha Rathod ... vs State Of Gujarat on 6 November, 2023
NEUTRAL CITATION
R/CR.MA/18609/2023 ORDER DATED: 06/11/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - BEFORE
CHARGESHEET) NO. 18609 of 2023
==========================================================
MAHENDRASINH @ GANI RAHUBHA RATHOD (DARBAR)
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR MAHESHKUMAR K PUROHIT(10627) for the Applicant(s) No. 1
MS. RUKSHMANI D GOSWAMI(14152) for the Applicant(s) No. 1
MR KARAN C HARWANI(13327) for the Respondent(s) No. 2
MR L B DABHI, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 06/11/2023
ORAL ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being C.R.NO. 11195007230641 of 2023 registered with Bhabhar Police Station, Banaskantha.
2. Learned Advocate appearing on behalf of the applicant submits that in present case, the role attributed to the present applicant is to the effect that he had videographed the other co- accused and the victim when they were talked to each other in the car and on the basis of the said video recording, the applicant had asked the victim to give Rs. 5 lacs or he will circulate the said video clipping on social media.
2.1 Learned advocate for the applicant has submitted that the other co-accused persons, who had actually physically Page 1 of 6 Downloaded on : Tue Nov 07 20:43:07 IST 2023 NEUTRAL CITATION R/CR.MA/18609/2023 ORDER DATED: 06/11/2023 undefined misbehaved with the victim has been considered for grant of regular bail by Sessions Court. Therefore, on the ground of parity, the applicant is also entitled to be enlarged on bail. He, therefore, submitted to allow the present application and enlarge the present applicant on bail subject to suitable conditions.
3. Learned advocate for the original complainant has opposed the present application, inter alia, contending that since the offence under the provisions of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (herein after referred to as the "Atrocities Act") is also made out against the present applicant, the present application under Section 439 of the Code of Criminal Procedure would not be maintainable. The applicant instead would be required to file an appeal under Section 14 of the Atrocities Act.
3.1 Learned advocate for the original complainant has submitted that the present applicant had video-graphed the victim as well as other co-accused and on the basis of the said video cliping, the applicant had demanded a sum of Rs.5 lacs from the victim and had threatened that if she does not give Rs.5 lacs, he would circulate the said video clipping on social media. Thus, there is a active participation on the part of the present applicant in commission of offence in question. Therefore, the present application should be dismissed.
4. Learned APP has opposed the present application, inter alia, contending that there is active participation on the part of the present applicant in commission of the offence in question, Page 2 of 6 Downloaded on : Tue Nov 07 20:43:07 IST 2023 NEUTRAL CITATION R/CR.MA/18609/2023 ORDER DATED: 06/11/2023 undefined and therefore, the present application should be dismissed.
5. Heard learned advocates for the respective parties and perused the material available on record. First of all, the contention as regard the maintainability of the present application is raised by learned advocate for the original complainant, which requires consideration. In his submission, learned advocate for the original complainant has submitted that since the offence punishable under the provisions of Atrocities Act is involved in the present case, the applicant is required to file an appeal under Section 14 of the Act for the purpose of bail and the present application in its present form is not maintainable.
6. The issue sought to be raised by learned advocate for the original complainant is no more res-integra. This Court in its order dated 05.10.2020 passed in Criminal Misc.Application No.11014 of 2020 has clearly held that even in case of an offence involving POCSO and Atrocities Act, the application under Section 439 of the Code of Criminal Procedure would be maintainable. On the basis of the said decision by this Court, a circular dated 30.08.2022 has also been issued by the Registrar (Judicial) of this Court, wherein an instruction is issued directing the office to register the bail applications pertaining to offences of POSCO and Atrocities Act as Criminal Misc.Application only. In that view of the matter, the contention as regard the maintainability of the present application raised by the learned advocate for the original complainant is put to rest.
Page 3 of 6 Downloaded on : Tue Nov 07 20:43:07 IST 2023NEUTRAL CITATION R/CR.MA/18609/2023 ORDER DATED: 06/11/2023 undefined
7. So far the merits of the matter are concerned, from the record, it appears that the victim was having a love affair with co-accused Vishal Soni. On the day of incident, the said Vishal Soni had asked the victim to accompany him, and therefore, on that day, instead of going to school, she along with one another friend of her, had accompanied the said Vishal Soni in a car. When there were travelling in the car, the said Vishal Soni started physical misbehaving with her. On that point of time, the present applicant, who was following the car on a two wheeler, approached the car and started videographing what was going on between the said Vishal Soni and the victim.
8. As per the case of prosecution, the present applicant had thereafter threatened the victim and had tried to extort money from her on the basis of the said video clipping. The record also indicates that the said Vishal Soni is considered for grant of regular bail by Sessions Court. Considering the same, the application deserves consideration.
9. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012]1 SCC 40.
10. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
Page 4 of 6 Downloaded on : Tue Nov 07 20:43:07 IST 2023NEUTRAL CITATION R/CR.MA/18609/2023 ORDER DATED: 06/11/2023 undefined
11. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R.NO. 11195007230641 of 2023 registered with Bhabhar Police Station, Banaskantha, on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution & shall not obstruct or hamper the police investigation and shall not to play mischief with the evidence collected or yet to be collected by the police;
(c) surrender passport, if any, to the Trial Court within a week;
(d) not leave the State of Gujarat without prior permission of the Trial Court concerned;
(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 p.m.;
(f) furnish the present address of his 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 Trial Court;
12. The authorities will 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.
Page 5 of 6 Downloaded on : Tue Nov 07 20:43:07 IST 2023NEUTRAL CITATION R/CR.MA/18609/2023 ORDER DATED: 06/11/2023 undefined
13. Bail 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 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.
15. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(M. R. MENGDEY,J) GIRISH Page 6 of 6 Downloaded on : Tue Nov 07 20:43:07 IST 2023