Gujarat High Court
Dilubha Navubha Jadeja vs State Of Gujarat on 14 July, 2023
NEUTRAL CITATION
R/CR.MA/5408/2023 ORDER DATED: 14/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5408 of 2023
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DILUBHA NAVUBHA JADEJA
Versus
STATE OF GUJARAT
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Appearance:
DARSHAN M VARANDANI(7357) for the Applicant(s) No. 1,2
MR PRAVIN GONDALIYA(1974) for the Respondent(s) No. 1
MR JK SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 14/07/2023
ORAL ORDER
1. By way of this successive bail application under Section 439 of the Code of Criminal Procedure, 1973 (for short, "the Cr.P.C."), the present applicants - original accused Nos.10 and 9 have approached this Court seeking regular bail in connection with FIR being I-C.R.No.11993005210243 of 2021 registered with Adesar Police Station, District - Kutch on 13.8.2021 for the offence punishable under Sections 302, 307, 326, 325, 324, 323, 147, 148, 149, 120-B, 34, 294B and 506(2) of the Indian Penal Code, Section 135 of the Gujarat Police Act and Sections 25(1-B) a and 27 of the Arms Act.
2. I have heard learned advocate Mr.Darshan M. Varandani for the applicants, learned Additional Public Prosecutor Mr.J.K. Shah for the respondent - State of Gujarat and learned advocate Mr.Pravin Gondaliya for the original Page 1 of 13 Downloaded on : Sat Sep 16 21:27:08 IST 2023 NEUTRAL CITATION R/CR.MA/5408/2023 ORDER DATED: 14/07/2023 undefined complainant.
3. Learned advocate for the applicants has made the following submissions for grant of regular bail to the present applicant under the provisions of Section 439 of the Cr.P.C.:
(i) The applicants are in jail since 20.8.2021 and the investigation is over and the charge-sheet has been filed and the trial may take its own course and now, since the charge-
sheet has been filed, no fruitful purpose would be achieved by keeping the present applicants in custody during the pendency of trial.
(ii) The allegation against the present applicants is that they alleged to have given dhariya and stick blows to one of the witnesses, namely, Saktabhai and the said Saktabhai is said to have received the abrasions. Learned advocate, therefore, submitted that the weapons alleged to have carried by the applicants and the injuries received by the victim are completely not tallying with each other. According to learned advocate for the applicants, if the Dhariya blow would have been given, there would be deep cuts and wounds and certainly, no abrasions. Under the circumstances, learned advocate for the applicants submitted that the allegation of holding the weapons by the applicants is not correct and nothing can be attributed to the present applicants.
(iii) There is no discovery and/or recovery of weapons from the present applicants. However, the discovery alleged to Page 2 of 13 Downloaded on : Sat Sep 16 21:27:08 IST 2023 NEUTRAL CITATION R/CR.MA/5408/2023 ORDER DATED: 14/07/2023 undefined have been made at the instance of one Manoharsinh Jadeja.
(iv) That there are no criminal antecedents of the present applicants and, therefore, the case of the present applicants may be considered for enlarging them on regular bail on appropriate terms and conditions.
(v) Considering the lodgment of FIR and thereafter, addition and deletion of accused persons, which suggest the falsehood on the part of prosecution and connivance with the investigating agency. Further, no motive on the part of applicants can be gathered from the investigation papers. Under the circumstances, learned advocate for the applicants urged this Court to release the present applicants on regular bail on the conditions that may be imposed by this Court.
(vi) The present successive bail application is preferred on the ground of serology report produced before the trial court which mentions that there are no blood stains found on the weapons. Thus, according to learned advocate for the applicants, present bail application is maintainable being filed after material change in circumstance. Learned advocate further pointed out that since the charge-sheet has been filed, there is no apprehension of tampering with the evidence and, therefore, the present applicants may not be allowed to languish in jail during the pendency of the trial.
Page 3 of 13 Downloaded on : Sat Sep 16 21:27:08 IST 2023NEUTRAL CITATION R/CR.MA/5408/2023 ORDER DATED: 14/07/2023 undefined 3.1 By making above submissions, the learned advocate for the applicants has prayed this Court to grant regular bail to the present applicants.
[5] Per contra, learned advocate Mr.Pravin Gondaliya for the original complainant, while opposing the bail application, has made the following submissions :
(i) The present bail application is successive in nature and thereby, in absence of any material change in circumstance, more particularly while withdrawing the earlier application before this Court, no specific permission or liberty was reserved, in that case, the present application is not maintainable and deserves to be dismissed. To substantiate the said contention, learned advocate for the original complainant has placed heavy reliance on the ratio laid down by the Apex Court in case of Kalyan Chandra Sarkar v.
Rajesh Ranjan @ Pappu Yadav, reported in 2005 (2) GLR
921.
(ii) Without prejudice to the aforesaid preliminary objection, it is submitted that the present applicants were part of criminal conspiracy and were armed with deadly weapons to commit murder of Danabhai Vajabhai and they assaulted the complainant and other persons and eye witness to the incident and that the said offence of murder has been committed in the broad day-light. Learned advocate, therefore, submitted that the present applicants do not deserve any sympathy and leniency.
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(iii) Admittedly, the present applicants were the members of the criminal conspiracy hatched to commit murder with deadly weapons. Learned advocate submitted that there are 4 eye witnesses, who have in their statement before the Investigating Officer, in no uncertain terms, named the present applicants i.e. (i) Ashokbhai Dudabhai (injured) (ii) Devabhai Karshanbhai Dodiya (eye witness), (iii) Dahyabhai Jethabhai Solanki and (iv) Dungarbhai Haribhai Rathod.
(iv) According to learned advocate for the original complainant, the above-stated eye witnesses have categorically stated the role and presence of the present applicants at the time of incident. Thus, prima facie, the present applicants were the part of unlawful assembly with common object to commit murder of Danabhai Vajabhai.
(v) According to learned advocate for the original complainant, the present applicants were the members of unlawful assembly with common intention and object to commit offence and even as per the statement of the witnesses, active participation has been attributed with deadly weapons. Under the circumstances, the present applicants do not deserve any indulgence by this Court.
(vi) Relying upon the provision of Sections 141 and 149 of the IPC, learned advocate submitted that once the person is a member of unlawful assembly, then, in that case, the individual role of each person cannot be seen.
Page 5 of 13 Downloaded on : Sat Sep 16 21:27:08 IST 2023NEUTRAL CITATION R/CR.MA/5408/2023 ORDER DATED: 14/07/2023 undefined (7) Learned advocate for the original complainant submitted that the applicants and another accused persons came at the residence of the original complainant and pre-planned attack was made on the original complainant and others, with the intention to kill the original complainant and thereby, learned advocate submitted that the ingredients of Section 141 and 149 of the IPC are prima facie satisfied and accordingly, the present applicants do not deserve to be enlarged on bail.
(8) Learned advocate for the original complainant raised serious apprehension of untoward incident and/or possibility of threatening or tampering with the witnesses, if the applicants are enlarged on bail, as the present applicants are residing in the same village and thereby, there are all chances that the accused persons will win over the witnesses.
3.2 By making above submissions, the learned advocate for the original complainant urged this Court to dismiss the present application.
4. Learned Additional Public Prosecutor for the respondent
- State, while adopting the submissions of learned advocate for the original complainant, urged this Court to dismiss the present application.
5. I have heard the learned advocates appearing for the respective parties and have gone through the material produced on record and also gone through the charge-sheet papers provided during the course of hearing. No other and Page 6 of 13 Downloaded on : Sat Sep 16 21:27:08 IST 2023 NEUTRAL CITATION R/CR.MA/5408/2023 ORDER DATED: 14/07/2023 undefined further submissions have been canvassed by the learned advocates appearing for the respective parties, except what are stated herein-above.
6. Considering the submissions canvassed by learned advocates appearing for the respective parties and keeping in mind the facts and circumstances of the present case, the short question that falls for the consideration of this Court is whether the discretionary powers conferred under Section 439 of the Cr.P.C. deserves to be exercised by enlarging the present applicants on regular bail?
7. So as to decide the aforesaid question, it would be apt to take note of the fact that admittedly, the present application is a successive bail application. Earlier, this Court considering the regular bail, has passed the following order :
"Mr.J.M. Panchal, learned senior counsel for the applicant, seeks permission to withdraw the present application.
Permission, as prayed for, is granted. Application stands dismissed as withdrawn. Rule is discharged."
7.1 The present applicants have withdrawn the earlier bail application unconditionally. Thus, the said bail application was dismissed without any liberty or rider. In such event, the present application being successive in nature, has a very limited scope. So as to appreciate the ambit and scope of the successive bail application, it would be apt to take note of the Page 7 of 13 Downloaded on : Sat Sep 16 21:27:08 IST 2023 NEUTRAL CITATION R/CR.MA/5408/2023 ORDER DATED: 14/07/2023 undefined decision of the Apex Court in case of Kalyan Chandra Sarkar (Supra), wherein the Apex Court has held in Para.17, 18 and 19 as under :
"17. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non bailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so.
18. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the courts can do so. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, but the courts are bound by the Page 8 of 13 Downloaded on : Sat Sep 16 21:27:08 IST 2023 NEUTRAL CITATION R/CR.MA/5408/2023 ORDER DATED: 14/07/2023 undefined doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher court or a coordinate bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be re- agitated on the same grounds, as the same it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.
19. The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country."Page 9 of 13 Downloaded on : Sat Sep 16 21:27:08 IST 2023
NEUTRAL CITATION R/CR.MA/5408/2023 ORDER DATED: 14/07/2023 undefined 7.2 Keeping in mind the aforesaid proposition of law, in my considered opinion, the present applicants have not been able to show and establish before this Court about the substantial change of circumstance. In that circumstances, in my considered opinion, no case has been made out by the present applicants so as to enlarge them on regular bail.
8. Considering the facts of the present case and as it appears from the investigation papers, the present one is a case of committing murder, that too in a broad day-light by hatching criminal conspiracy. In my view, when the present applicants have been, prima facie, attributed the allegation of assaulting with dhariya and stick and being active members of said criminal conspiracy, granting any leniency in their favour would be against the interest of society at large. The Apex Court has, in case of Pratibha Manchanda & Anr. Vs. State of Haryana & Anr. rendered in Criminal Appeal No. 1793 of 2023, decided on 7.7.2023, while considering the anticipatory bail, observed that while deciding the issue touching the personal liberty of a person, it is equally incumbent to analyze the seriousness of the offence and the impact on the society. In the instant case, when the offence of murder has been committed by hatching criminal conspiracy in a broad day-light, in my view, the same cannot be said against the person individually, but can be said to be against the society at large.
9. Considering the proposition of law as discussed by the Page 10 of 13 Downloaded on : Sat Sep 16 21:27:08 IST 2023 NEUTRAL CITATION R/CR.MA/5408/2023 ORDER DATED: 14/07/2023 undefined Apex Court in case of Manno Lal Jaiswal v. State of Uttar Pradesh, reported in 2022 Scale-2 300, it has been held as under :
"8.1 Despite the fact that all the accused persons were named in the FIR and even the statements of relevant witnesses under Section 161 Cr.PC were recorded on the very day, on applying the wrong facts, the High Court has released respective respondents No.2 on bail. The High Court has noted the submissions made on behalf of the accused, which has been accepted by the High Court that the accused were not named in the FIR and that their names were disclosed during investigation and that the statements of the witnesses under Section 161 Cr.PC were recorded at a later stage/belatedly. The aforesaid are factually incorrect. Even the learned counsel appearing on behalf of the accused has submitted that it was not the case on behalf of the accused that they were not named in the FIR and/or that the statements of the witnesses under Section 161 Cr.PC were recorded belatedly and/or at a later stage. Therefore, it appears that the High Court has granted the bail to respective respondents No.2 in such serious offences in which one person was killed mechanically and without applying the correct facts.
8.2 Even otherwise the High Court has not at all appreciated the fact that all the accused were charged for the offences punishable under Sections 147, 148 and 148 also along with Section 302 of the IPC and as noted by the learned Sessions Court vide order dated 19.11.2019 that all the accused Page 11 of 13 Downloaded on : Sat Sep 16 21:27:08 IST 2023 NEUTRAL CITATION R/CR.MA/5408/2023 ORDER DATED: 14/07/2023 undefined persons with a common intention attacked the deceased - Sumit Jaiswal by deadly weapons like sword, hockey, stick and rod. The High Court has noted the submissions made on behalf of the accused that role attributed to respective respondents No.2 that using the wicket as weapon it is difficult to decipher at that stage that the accused have caused fatal injury over the person. When the accused were charged for the offences punishable under Section 149 of the IPC also and when their presence has been established and it is stated that they were part of the unlawful assembly, the individual role and/or overt act by the individual accused is not significant and/or relevant."
10. Considering the aforesaid proposition of law and if the facts of the present case is applied, the present applicants were charged for the offences punishable under Sections 149 of the IPC and their presence has been established and they also said to have taken part in unlawful assembly supported by the statement of eye witness, the role of the present applicants becomes insignificant.
11. In view of the aforesaid facts and circumstances, in my considered opinion, the case of the present applicants for regular bail does not deserve to be considered by this Court by exercising discretionary power under Section 439 of the Cr.P.C.
I answer the question accordingly.
12. For the foregoing reasons, present Criminal Page 12 of 13 Downloaded on : Sat Sep 16 21:27:08 IST 2023 NEUTRAL CITATION R/CR.MA/5408/2023 ORDER DATED: 14/07/2023 undefined Miscellaneous Application is hereby rejected. Notice stands discharged.
(NIRAL R. MEHTA,J) V.J. SATWARA Page 13 of 13 Downloaded on : Sat Sep 16 21:27:08 IST 2023