Gujarat High Court
Mapbha Virabha Sumaniya vs State Of Gujarat on 22 January, 2025
NEUTRAL CITATION
R/CR.MA/21228/2024 ORDER DATED: 22/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 21228 of 2024
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MAPBHA VIRABHA SUMANIYA
Versus
STATE OF GUJARAT
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Appearance:
MR KARTIKSINH H CHAMPAVAT(12148) for the Applicant(s) No. 1
MR TRUPESH KATHIRIYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 22/01/2025
ORAL ORDER
1. The applicant has filed this Application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) for enlarging the applicant on Regular Bail in connection with FIR being C.R. No.11185005220336 of 2022 registered with Mithapur Police Station, District:Devbhoomi Dwarka for the offences punishable under Sections 307, 323, 324, 325, 326, 143, 147, 148, 149, 504, 506(2), 427, 384, 385, 386, 387, 506(1) and 120B of the Indian Penal Code, Sections 3(1), 3(2), 3(3), 3(4), 3(5) of the GUJCTOC, and Section 135(1) of the G.P. Act.
2. Heard learned advocate Mr.Kartiksinh H. Champavat for the applicant and learned APP Mr.Trupesh Kathiriya for the Respondent - State.
3. Learned advocate for the applicant submitted that the applicant herein was arrested in connection with the present offence on 26.6.2022 and since then he is in custody. After the Page 1 of 7 Uploaded by MANSHI HARISHBHAI AMIN(HC01561) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:16 IST 2025 NEUTRAL CITATION R/CR.MA/21228/2024 ORDER DATED: 22/01/2025 undefined applications filed by the applicant on earlier occasion came to be dismissed by this court, the other co-accused came to be considered by this court for grant of regular bail and therefore, the applicant is also entitled to be enlarged on bail on the ground of parity.
3.1 He further submitted that the co-accused who came to be considered for grant of bail by the Co-ordinate Bench of this court, is having more antecedents than the present applicant and despite the same, he has been ordered to be enlarged on regular bail by the Co-ordinate Bench. The antecedents registered against the present applicant are lower in number than the said co-accused and therefore, the applicant is better placed than the said co-accused, so far as the grant of regular bail is concerned. The trial of the offence is not likely to conclude in near future and prolonged incarceration of the present applicant would amount to violation of his fundamental rights. He, therefore, submitted to allow the present application and enlarge the present applicant on bail subject to suitable conditions.
3.2 Learned advocate for the applicant has sought to rely upon the judgment of this court in the case of [Rameshbhai Batubhai Dhabi Vs. State of Gujarat 2011(3) GLR 1999].
4. The application is opposed by learned APP for the respondent contending that this is the third successive application filed by the application seeking regular, bail after the earlier bail application filed by the applicant came to be dismissed by this court by a reasoned order. The said order has Page 2 of 7 Uploaded by MANSHI HARISHBHAI AMIN(HC01561) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:16 IST 2025 NEUTRAL CITATION R/CR.MA/21228/2024 ORDER DATED: 22/01/2025 undefined also been confirmed by the Hon'ble Apex Court and merely because the other co-accused has been considered for grant of bail, it would not amount to change in circumstances. He therefore submitted that the present application should be dismissed.
5. This Court has considered the submissions canvassed by learned advocates for the parties and has also perused the material placed on record. The applicant herein had earlier preferred Criminal Misc. Application No.15585 of 2023, which was dismissed by this court vide order dated 9.10.2023 with following observations.
"6. The FIR in question came to be lodged on 6.5.2022 for an incident which had taken place on 5.5.2022. As per the FIR the accused persons named therein had assaulted the first informant brutally and he was also inflicted blows of the knife. During the course of investigation, it came to the notice of the Investigating Agency that the offence in question was committed in furtherance of the object of the organized crime syndicate. During the coruse of investigation, it was also a revealed that the present Applicant was also member of Bichchu Gang which was an organized crime syndicate. The record indicates that there are as many as 21 offences registered against the present Applicant out of which two offences have been registered against him on 29.11.2020 and 3.1.2020 respectively. These offences have been registered agaisnt him after the provisions of GCTOC Act came into operation."
5.1 Thereafter, the applicant had preferred another application being Criminal Misc. Application No.3421 of 2024, which was Page 3 of 7 Uploaded by MANSHI HARISHBHAI AMIN(HC01561) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:16 IST 2025 NEUTRAL CITATION R/CR.MA/21228/2024 ORDER DATED: 22/01/2025 undefined dismissed by this court vide order dated 22.3.2024. While dismissing the said application, this court had made following observations, "6. Learned advocate for the applicant has sought to rely upon the orders passed by the Coordinate Bench of this Court ordering to enlarge the other co-accused on regular bail. Merely, release of the other co-accused on regular bail, cannot be said to be a change in circumstance. Moreover, simply because the other co- accused have been considered for grant of regular bail, the applicant does not become entitle for being enlarged on bail on the ground of parity. The role attributed to the present applicant in commission of the offence is much more serious than the role attributed to the other co-accused, who have been considered for grant of regular bail by the Coordinate Bench of this Court.
7. From the record, it appears that initially, the present FIR was registered on 06.05.2022 for offences punishable under Sections 307, 323, 324, 325, 326, 342 & other allied offences under the IPC. During the course of investigation of the said offence, certain material was received by the Investigating Agency, which indicated the involvement of the present applicant in other unlawful activities. It had been revealed during thecourse of investigation that the present applicant was running an extortion racket and previously, FIR being I.C.R.No.0763/2020 registered with Okha Marine Police Station had been registered against the present applicant along with some of the present co-accused for offence punishable under Section 307 of the IPC and other allied offences. It was revealed during the course of investigation that the present applicant along with other co-accused used to receive protection money from some of the secret witnesses every month. The present applicant is alleged Page 4 of 7 Uploaded by MANSHI HARISHBHAI AMIN(HC01561) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:16 IST 2025 NEUTRAL CITATION R/CR.MA/21228/2024 ORDER DATED: 22/01/2025 undefined to have received sum of Rs.20,000/- every month from the witnesses. With this material, the Investigating Agency had approached the Court of Magistrate by submitting a report for addition of an offence punishable under the provisions of GujCTOC Act. On the basis of the said report, the Magistrate appears to have added the offence punishable under the provisions of the GujCTOC Act to the FIR.
8. It is sought to be contended on behalf of the applicant that since the Magistrate was not authorized in law to take cognizance of the offence under the provisions of the GujCTOC Act, the Magistrate had committed a material illegality in accepting the report submitted by the Investigating Officer and adding an offence punishable under the provisions of the GujCTOC Act to the FIR. It is a matter of common understanding that the cognizance of an offence can only be taken by the Court only after investigation is over and charge-sheet is filed. In present case, the charge-sheet has been filed by the Investigating Officer before the Special Court, and thereafter, the Special Court, who has taken the cognizance of an offence. Merely byaccepting the report submitted by the Investigating Officer to add the offence to the FIR, the Magistrate cannot be said to have taken cognizance of an offence punishable under the provisions of the GujCTOC Act.
9. Even if it is accepted for the sake of argument that the Magistrate ought not to have accepted the report submitted by the Investigating Officer, the Magistrate, at best, can be said to have committed a procedural irregularity by which no prejudice appears to have been caused to the present applicant.
10. From the record, it appears that the present applicant was part of a syndicate, which was involved in commission of several unlawful activities. The present Page 5 of 7 Uploaded by MANSHI HARISHBHAI AMIN(HC01561) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:16 IST 2025 NEUTRAL CITATION R/CR.MA/21228/2024 ORDER DATED: 22/01/2025 undefined applicant along with other coaccused in present FIR were involved in another offence registered in the Year- 2020, as mentioned herein above, which indicates that the present applicant was part of a syndicate involved in commission of offences. Moreover, even prior to GujCTOC having come into force, several offences have been registered against the present applicant, which indicates that the present applicant and the other co- accused had continued their activities as a members of the syndicate even after commencement of the Act.
11. Learned advocate for the applicant has sought to rely upon the judgment of the Apex Court in case of Mohd.Iliyas Mohamad Bilal Kapadiya (Supra). In Paragraph No.9 of the said judgment, the Apex Court has enumerated following conditions, which are required to be fulfilled for the purpose ofinvoking the provisions of the GujCTOC.
"9.1 that such an activity should be prohibited by law for the time being in force;
9.2 That such an activity is a congnizable offence punishable with imprisonment of three years or more;
9.3 That such an activity is undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate; 9.4 That in respect of such an activity more than one charge-sheet must have been filed before a competent Court;
9.5 That the charge-sheet must have been filed within a preceding period of ten years; and 9.6 That the Courts have taken cognizance of such offences.""
5.2 The order of this court dated 22.3.2024 was carried by the present applicant to the Hon'ble Apex Court by filing Special Leave to Appeal (Criminal) No.6273 of 2024. The applicant withdrew the said application from the Hon'ble Apex Court on Page 6 of 7 Uploaded by MANSHI HARISHBHAI AMIN(HC01561) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:16 IST 2025 NEUTRAL CITATION R/CR.MA/21228/2024 ORDER DATED: 22/01/2025 undefined 9.5.2024. Thus, the present is the third successive bail application filed by the applicant before this court.
5.3 It is contended by learned advocate for the applicant that after the petition came to be withdrawn from the Hon'ble Apex Court, the other co-accused had been considered for grant of bail by the Co-ordinate Bench of this court in the month of August, 2024. This court in its order dated 22.3.2024 has elaborately discussed the role played by the present applicant in commission of the offence in question. Except bare assertion to the effect that the applicant is better placed then the other co- accused, who has been considered for grant of bail, learned advocate for the applicant is at loss to demonstrate that the role attributed to the applicant is either similar or lesser than the role attributed to the said co-accused.
6. Considering all these aspects, no case is made out to exercise discretion in favour of the applicants. Accordingly, the present Applications are dismissed.
(M. R. MENGDEY,J) Manshi Page 7 of 7 Uploaded by MANSHI HARISHBHAI AMIN(HC01561) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:16 IST 2025