Gujarat High Court
Abdul Faisal Abdulgani Shaikh vs State Of Gujarat on 14 July, 2023
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
R/CR.MA/3885/2023 ORDER DATED: 14/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 3885 of 2023
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ABDUL FAISAL ABDULGANI SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
A S TIMBALIA(7372) for the Applicant(s) No. 1
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 14/07/2023
ORAL ORDER
1. Heard learned advocate Mr.A.S.Timbalia for the applicant and learned Additional Public Prosecutor Mr.Dhawan Jayswal for the respondent-State.
2. By this Application under Section 439 of the Code of Criminal Procedure, 1973 (for short 'the Code'), the applicant has prayed for Regular Bail in connection with offences registered in CR.No.I-108/2019 punishable under Sections 302, 324, 294(b) and 114 of the Indian Penal Code (for short 'the IPC') and Page 1 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023 NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined Section 135(1) of the Gujarat Police Act.
3.1. This is a second Successive Bail Application preferred by the applicant.
Earlier Bail Application being Criminal Misc.
Application No.2488 of 2020 preferred by the applicant was dismissed by a detailed order.
The applicant thereafter challenged the said order before the Hon'ble Supreme Court by preferring Special Leave to Appeal (Criminal) No.4513 of 2020 which was dismissed vide order dated 28.10.2020.
3.2. Thereafter the applicant preferred the Criminal Misc. Application No.2894 of 2021.
The same was also withdrawn on 15.02.2021.
3.3. The order passed by this Court on 06.07.2020 in Criminal Misc. Application No.2488 of 2020 reads as under so as to not to repeat the facts of the case.
Page 2 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined "1.Heard learned advocate Mr. Parthiv Bhatt for the applicant, learned advocate Mr. Alak Pandya for the original complainant and learned Additional Public Prosecutor Ms. C.M. Shah for the respondent-State through video conferencing.
2.By this application, the applicant has prayed for regular bail under section 439 of the Code of Criminal Procedure,1973 after filing of the charge-sheet. The applicant came to be arrested on 23rd September 2019 in connection with CR.NO.I-108 of 2019 registered with Gaikwad Haveli Police Station, Ahmedabad for the offences punishable under Sections 302, 324, 294(B), 307, 114 of the Indian Penal Code and Section 135(1) of the G.P. Act.
3.It is alleged in the FIR that at about 1:15 a.m. on 22nd September, 2019 the complainant and his friends were standing at Naka at Hajira Pole and were talking and that point of time, the original accused nos.1 to 4 came there in a car and started giving filthy abuses and went away from the place. It is further stated in the FIR that after some time the accused persons again came in the said car and started quarreling with Salman and Tausif friends of the first informant Zahiruddin Moinuddin Shaikh, who is Page 3 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023 NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined brother of the deceased Riyazuddin. It is further stated that as the first informant intervened and asked his friends to leave, the four accused persons became enraged and started giving filthy abuses to the first informant and at that time, the applicant - accused no.5 who is cousin brother of the accused no.1 - Anas Salimkhan Pathan, came there and started quarreling with the first informant. It is further stated that the brother of the first informant - deceased Riyazuddin and his son Sufiyan came there and also intervened. It is stated in the FIR that at that time the accused Sohel, Parvez and Rashid caught hold of Riyazuddin and Anas inflicted one knife blow with his knife on the chest of deceased Riyazuddin and the applicant Faisal inflicted one knife blow on the left side of chest of Sufiyan. Thereafter, Riyazuddin and Sufiyan were taken to hospital and around 2:42 a.m. Riyazuddin was declared dead by the doctor.
4.The applicant preferred Criminal Misc. Application no.122 of 2020 before the City Civil & Sessions Court at Ahmedabad which was rejected vide order dated 15th January 2020. Being aggrieved and dissatisfied with the said order, the applicant has preferred this application for regular bail.
5.Learned advocate Mr. Bhatt appearing for the applicant submitted that the Page 4 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023 NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined applicant inflicted knife blow upon one Sufiyan during the scuffle which took place on 22nd September, 2019 and during the scuffle, father of Sufiyan - Riyazuddin was also given knife blow by other accused one Sohel and Riyazuddin succumbed to injuries and expired. According to Mr. Bhatt as the applicant did not inflict any knife blow upon the deceased person and has inflicted blow upon Sufiyan who has been discharged from the hospital on the very same day, the applicant can be implicated only for offence under section 324 of the Indian Penal Code. Mr. Bhatt further submitted that as the applicant had not inflicted any blow upon the deceased, he cannot be charged with section 302 and section 114 of the IPC as alleged in the complaint and such offences referred in the complaint should be ignored for the purpose of releasing the applicant on regular bail as charge-sheet is already filed and the applicant is not required to be detained. Learned advocate Mr. Bhatt further invited the attention of the Court to the application made by the prosecution for adding charge under section 307 of the Indian penal Code against the applicant which was rejected by the trial Court. Learned advocate Mr. Bhatt also referred to the statement of eye witness injured th Sufiyan recorded on 26 September, 2019 to point out that he received only outdoor treatment due to the injuries suffered by him on account of the knife Page 5 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023 NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined blow given by the applicant and therefore, the applicant should be enlarged on bail. Mr. Bhatt further submitted that so far as the previous antecedent against the applicant referred to in the affidavit of the investigating officer is concerned, the same has achieved finality and the applicant has been acquitted by the Court.
6.On the other hand, learned Additional Public Prosecutor Ms. C.M. Shah for the respondentState submitted that the applicant is a habitual offender and he is also involved in offence under section 302 previously being C.R.-I No.29/2018 and in the said complaint, the applicant was acquitted on account of compromise arrived at between the parties. Learned APP further submitted that the applicant was present when the incident took place and there are total five accused persons namely, Anas Salimkhan, Sohel Babubhai, Parvej Gulabkhan, Rashid Khalidbhai and the applicant Faisal Ganibhai who have played active role. She further submitted that as per the statement of the eye witness injured Sufiyan recorded on 26th September, 2019, the applicant inflicted knife blow upon the injured when he was trying to save his father from the knife blow being given by other accused persons and thereby the applicant has also played an active role in committing the murder of Riyazuddin.
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7. Mr. Alak Pandya appearing for the complainant submitted that the presence of the applicant at the scene of the offence is not in dispute when deceased Riyazuddin was given stab blows by other accused persons. He further submitted that from the charge-sheet papers, it is revealed that the applicant has inflicted knife blow when the injured person was trying to save his father. He therefore, submitted that the applicant should not be enlarged on bail taking into consideration the past antecedent as the applicant is a head strong person.
8.I have considered the rival submissions and on going through the FIR as well as the charge-sheet papers, it is revealed that the applicant was very much present at the scene of the offence when the scuffle took place between the deceased, injured person and the accused persons on 22nd September, 2019. The allegations made in the FIR are corroborated by the statement of the eye witnesses who have stated that the applicant came with knife at the scene of offence when the scuffle was going on. He also participated in the scuffle incident and thereafter inflicted knife blow upon Sufiyan when he was trying to save his father Riyazuddin from being inflicted knife blow by other accused persons. Statement of Sufiyan dated 26th September, 2019 along with the charge-
Page 7 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined sheet papers prima facie disclose offence against the applicant as he has participated in the entire incident and therefore, once the applicant was present and offence under section 114 read with section 302 and 324 are alleged and also considering his past antecedent, I am not inclined to exercise my discretion to release the applicant on regular bail.
9. Accordingly, the Criminal Misc. Application is rejected. Rule is discharged."
4.1. Learned advocate Mr.A.S.Timbalia for the applicant submitted that the applicant has preferred this second Successive Bail Application in view of the subsequent development that the main accused person for the offences namely Anas Salimkhan @ Altafkhan Pathan who had given the knife blow upon the deceased has been enlarged on bail by Co-ordinate Bench of this Court (Hon'ble Mr. Justice A.Y.Kogje) vide order dated 21.10.2022.
Page 8 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined 4.2. It was therefore submitted that though the applicant is not at all connected with the offence of Section 302 of the IPC for which the main accused person namely Anas Salimkhan @ Altafkhan Pathan was arraigned and thereafter enlarged on bail, the applicant is also required to be enlarged on bail.
4.3. It was submitted that the role of the applicant can be attributed at the most for the offence punishable under Section 324 of the IPC as he had given a knife blow to the injured person which would amount to only simple hurt injury. It was therefore submitted that the applicant also should be enlarged on bail considering the fact that the main accused person is now released on Page 9 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023 NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined bail by this Court and only the applicant is in jail since 2019 out of all the accused persons.
4.4. It was further submitted that the trial is likely to take time as the charge is not yet framed by the Trial Court.
5.1. On the other hand, learned Additional Public Prosecutor Mr.Dhawan Jayswal for the respondent-State submitted that the applicant is not required to be enlarged on bail considering the fact that this is a second successive Bail Application and the applicant has failed to point out any change in the circumstances for granting the bail except bail granted to the co-accused person who is alleged to be main accused person. It was submitted that merely because the co-accused person is enlarged on bail, it cannot be the Page 10 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023 NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined ground to release the applicant on bail.
5.2. It was further submitted that the applicant cannot claim any parity to be released on bail, more particularly when the conduct of the applicant as per the jail remarks is not good as the applicant has remained absconded for 107 days when enlarged on Temporary Bail by the Sessions Court in the year 2022. It is also pointed out from the jail remarks produced on record at Annexure-R-I along with the affidavit filed on behalf of the respondent that the applicant was also involved in an incident of assault in the jail. It was therefore submitted that the applicant cannot be and should not be enlarged on bail.
6. Having heard the learned advocates for the respective parties and having considered the Page 11 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023 NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined facts of the case and the orders passed in the cases of co-accused persons, more particularly, in case of Anas Salimkhan @ Altafkhan Pathan in Criminal Misc.
Application No.16553 of 2022, the role of the applicant appears to be that of giving knife blow to one of the witnesses of the incident who was present at that time. It is also not in dispute that the knife blow given by the applicant resulted into the simple hurt and not even grievous hurt. However, such facts cannot be said to be the change in circumstances for enlarging the applicant on bail, more particularly, when the trial is underway.
7. This Court as well as the Hon'ble Supreme Court in the following decisions has time and again held that in the Successive Bail Page 12 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023 NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined Application, the Court should not exercise the discretion to enlarge the applicant-
accused person on bail:
"(1) Shyamdutt Upadhyay and Another v.
State of Gujarat reported in 1992(1) GLH 259 "4. ... When a Court is not inclined to grant the bail, it would give some reasons rejecting the application, which might come in the way of the accused during the trial and because of that the Advocate for the accused would prefer to withdraw the application instead of getting the application rejected with reasons. In such an event the subsequent bail application of the same accused cannot be entertained, unless and until fresh circumstance or ground is made out by the accused for releasing him on bail. In this case, no new ground is made out by the petitioners for releasing them on bail.
Therefore, this application is required to be rejected."
(2) State of Gujarat v.Alpeshbhai Navinbhai Patel reported in 2004(1) GLH 754 Page 13 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023 NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined "9. ...Normally, the substantial change in the circumstances are being considered stage wise, i.e. (i) at the stage of considering the matter for granting anticipatory bail, (ii) at the stage of considering the matter for regular bail before the charge sheet when the investigation is in progress and (iii) after filing of charge sheet and after completion of investigation."
(3) Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Another reported in 2005(3)GLH 601 "18. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the Courts are bound by the 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 applicable 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 reagitated on the same grounds, as the same would lead to speculation Page 14 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023 NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined 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."
(4) State of Maharashtra v. Budhikota Subbarao reported in 1989 (0) GLHELSC 28635:
"7. Once that application was rejected there was no question of Page 15 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023 NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact situation. And when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. ...For the above reasons we are of the view that there was no justification for passing the impugned order in the absence of a substantial change in the fact-situation. That is what prompted Shetty, J. to describe the impugned order as 'a bit out of the ordinary'. Judicial restraint! demands that we say no more."
8. Even otherwise, considering the conduct of the applicant in jail in the incident of assault as well as remaining absconding when enlarged on Temporary Bail as per Jail remarks are also the factors to be considered for not enlarging the applicant on bail in regular course even if it is a fresh bail application.
9. The Hon'ble Supreme Court in case of Page 16 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023 NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230 has held that the parity cannot be the ground for enlarging any accused person on bail which reads as under:
"25.We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged of- fences and to the severity of the punish- ment in the event of conviction. In Neeru Yadav v.State of U.P.[Neeru Yadav v.State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527] , this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed : (SCC p. 515, para 17) "17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history-
sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of par- ity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned or- der [Mitthan Yadavv.State of U.P., 2014 SCC OnLine All 16031] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second re- spondent has been charge-sheeted in re-
Page 17 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined spect of number of other heinous of- fences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinc- tion, for its approval by this Court would tantamount to travesty of jus- tice, and accordingly we set it aside."
26.Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12-2020 [Pravinbhai Hirabhai Koliv.State of Gu- jarat, 2020 SCC OnLine Guj 2986],[Khetab- hai Parbatbhai Makwanav.State of Gujarat, 2020 SCC OnLine Guj 2988] , the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-10- 2020 [Siddhrajsinh Bhagubha Vaghelav.State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was "assigned similar role of armed with stick (sic)". Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-
10), Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the ac- cused. Merely observing that another ac- cused who was granted bail was armed with a similar weapon is not sufficient to de- termine whether a case for the grant of bail on the basis of parity has been es- tablished. In deciding the aspect of par- ity, the role attached to the accused, Page 18 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023 NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined their position in relation to the incident and to the victims is of utmost impor- tance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law."
10. The Apex Court in case of Mahipal v.
Rajesh Kumar, (2020) 2 SCC 118 has held as under:
"13.The principles that guide this Court in assessing the correctness of an order [Ashish Chatterjeev.State of W.B., CRM No. 272 of 2010, order dated 11-1-2010 (Cal)] passed by the High Court granting bail were succinctly laid down by this Court in Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v.Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765] . In that case, the accused was fac-
ing trial for an offence punishable under Section 302 of the Penal Code. Several bail applications filed by the accused were dismissed by the Additional Chief Ju- dicial Magistrate. The High Court in turn allowed the bail application filed by the accused. Setting aside the order [Ashish Chatterjee v. State of W.B., CRM No. 272 of 2010, order dated 11-1-2010 (Cal)] of the High Court, D.K. Jain, J., speaking for a two-Judge Bench of this Court, held : (SCC pp. 499-500, paras 9-10) "9. ... It is trite that this Court does not, normally, interfere with an order [Ashish Chatterjee v. State of W.B., CRM No. 272 of 2010, order dated 11-1- 2010 (Cal)] passed by the High Court granting or rejecting bail to the ac- cused. However, it is equally incumbent upon the High Court to exercise its Page 19 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023 NEUTRAL CITATION R/CR.MA/3885/2023 ORDER DATED: 14/07/2023 undefined discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an applica- tion for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the ac-
cused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being re- peated;
(vii) reasonable apprehension of the wit- nesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
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10. It is manifest that if the High Court does not advert to these relevant consid- erations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal."
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11. In view of the above conspectus of law and considering the facts of the case in absence of change in circumstance and conduct of the petitioner in Jail, this second successive bail application is not entertained and is accordingly, dismissed.
(BHARGAV D. KARIA, J) PALAK Page 21 of 21 Downloaded on : Sat Sep 16 21:25:29 IST 2023