Gujarat High Court
Dilipbhai Abbasbhai Bhalavat vs The State Of Gujarat on 26 May, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1791
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/6977/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6977 of 2020
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DILIPBHAI ABBASBHAI BHALAVAT
Versus
THE STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1,2,3,4
MS MD MEHTA, ADDL.PUBLIC PROSECUTOR(2) for the Respondent(s) No.
1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 26/05/2020
ORAL ORDER
1. Applicants No.3 and 4 are before this Court seeking anticipatory bail in connection with CR.No.I-236 of 2020 registered with Bhadarva police station, District:
Vadodara for the offences punishable under sections 308, 332, 337,353, 143, 147, 149, 153, 427, 504, 506(2), 120B and 114 of the Indian Penal Code, section 3 of the Prevention of Damage to the Public Property Act and section 135 of the Gujarat Police Act.
2. The complainant is an Assistant Engineer in the GEB.
As directed by the higher authorities, 10 teams were formulated along with the police personnel for electrical meter checking at village: Tundav, which was required to be carried out by Madhya Gujarat Vij Company Limited (MGVCL). The complaint reveals that at the time when the team was checking the meter of Page 1 of 9 Downloaded on : Thu May 28 21:15:05 IST 2020 R/CR.MA/6977/2020 ORDER Dillipbhai Abbasbhai Bhalavat and Dipak Dillipbhai Bhalavat (original applicants No.1 and 2), finding commission of illegal way of theft of electricity, they communicated to the officer that if they need to take away the wire, they may so do it, but they cannot remove the electrical meter since, those applicants claimed awareness of law and also threatened that no good results will be found and they may have to face the consequences.
3. It is averred by the complainant that they had shouted and gathered at that stage the crowd. It was a time when the officers were about to leave and they were filling up checking sheets. Those two applicants instigated others to come out of their houses. They also had challenged the officers that they should go and check the theft committed by the companies and should not be visiting individual homes. It is alleged that the crowd started pelting stones on the complainant and the entire team. The police personnel from the out-post, who had accompanied the teams had attempted to pacify the crowd and explained that the team had come only for checking the electrical meters and they would have recourse of law. However, no heed was paid to his explanation and the request. They continued to pelt stones on the team members, Government vehicles and police personnel and the officers of GEB including the complainant and they were all specifically aimed by the crowd. It is alleged that the attempt was made to inflict serious injuries, Page 2 of 9 Downloaded on : Thu May 28 21:15:05 IST 2020 R/CR.MA/6977/2020 ORDER which eventually caused injury to the police personnel, who had accompanied the team. It also caused serious damage to various government vehicles which has been quantified approximately to Rs.60,000/-.
4. Seeking anticipatory bail under section 438 of the Code of Criminal Procedure , this application has been preferred relying on the decision of Siddharam Satlingappa Mhetre vs State Of Maharashtra and Ors , (2011)1 SCC 694 and also relying on the decision of Constitution Bench in the case of Gurbaksh Singh Sibbia Etc vs State Of Punjab,1980 AIR 1632.
5.On issuance of Rule, learned Additional Public Prosecutor Ms.Mehta, appearing for the State has been extensively heard so also Mr. Majmudar, learned advocate for the applicants.
6. The Investigating Officer also has been heard through video conferencing for the Court to know the status of investigation and the antecedents of each of the applicants.
7. It is urged by learned advocate Mr. Majmudar for the applicants that the applicants have not committed any offence and have been wrongly arraigned as accused. They have no clue of the offence alleged. It is also his case that in the entire First Information Report, there is no narration of the intention of the applicants in preventing the public servant from discharging the duties and there is a serious possibility of over implication of both these applicants. The First Information Report is being pursued only to wreck Page 3 of 9 Downloaded on : Thu May 28 21:15:05 IST 2020 R/CR.MA/6977/2020 ORDER vengeance and with only motive to send the applicants behind the bars. He further has urged that the injury sustained by one of the persons, was very minor. He was not even required to be admitted to the hospital. It is further his say that the damage to the government vehicles of Rs.60,000/- has been made good when this Court granted regular bail to the co-accused. He further has submitted that when the co-accused have been granted regular bail, there is no reason why the Court should not exercise its discretion for grant of anticipatory bail in favour of the present applicants.
8. So far as applicant Ashok Bhalavat is concerned, learned advocate Mr. Majmudar, submits that he is the brother of applicant No.1-Dilipbhai A. Bhalavat and has one antecedent. He has been acquitted in the year 2011 and thereafter, there is no involvement of his in any crime. Moreover, the alleged conspiracy of his having known the visit of the officers of MGVCL is quite far fetched, as this was supposed to be a surprise visit. It is further urged that applicant No.4 has absolutely no antecedent and his role is also quite sketchy, as per the papers of investigation. He has urged that the case of both these applicants would fall in the parameters set out in the case of Siddharam Satlingappa Mhetre(supra) and the Court needs to regard the grant of bail with stringent conditions.
9. Learned Additional Public Prosecutor for the State has strongly objected to the grant of this bail on the ground that it is not only the offence under the Indian Penal Page 4 of 9 Downloaded on : Thu May 28 21:15:05 IST 2020 R/CR.MA/6977/2020 ORDER Code, which shall need to look into, but here these persons have committed a wrong against public servants and have prevented them from carrying out their official duties. On one hand, it is a mass scale electricity theft committed by the villagers and on the other hand, MGVCL was trying to find out the details and was carrying out the work of checking by following the legal method. These applicants have played a vital and important role in committing the alleged conspiracy and also have executed the same along with others and succeeded in stopping the officers from carrying out their duties. It is a major threat to the economy also and allowing anticipatory bail would embolden such elements who can take law in their hands to dissuade officials to implement law.
10.She reiterated that discretion of grant of anticipatory bail is not to be exercised for such applicants and this may also send a very wrong signal in the society, where people would easily get away by thwarting legal process of finding out the roots of electricity theft. As they have committed the offence prima facie from FIR and other papers, no leniency be shown. She has also urged that applicant No.3 is brother of applicant No.1. His role, as per the papers of investigation, is quite clear. This is not the time for the Court to evaluate everything and even if others have been granted regular bail, the parameters of anticipatory bail cannot be equated with those principles for which the regular bail is being granted.
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11.Having thus heard both the sides and also having considered the material on record and on knowing from the Investigating Officer and the details of the status of investigation, this Court notices that this is prima facie a case of hatching of conspiracy and has deeper roots of electricity theft eroding the very system by corrupt practices. MGVCL attempted to halt it by surprise check.The applicants have come to know, as per the investigation papers, the visit of officers on the previous day and they are said to have conspired against this exercise by resorting to mobocracy , threat and acting as hooligans.
12.This Court also notices the parameters for exercise of discretion of the Court for grant of anticipatory bail in case of Siddharam Satlingappa Mhetre(supra) and profitable would it be to reproduce paragraph 122 of the said decision, which gives complete parameters for the Court to take into consideration while dealing with the application for anticipatory bail.
"122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences.Page 6 of 9 Downloaded on : Thu May 28 21:15:05 IST 2020
R/CR.MA/6977/2020 ORDER v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
13.Being conscious of the fact that it is nature and gravity of accusation in the individual case, which shall also need to be regarded, the Court needs to consider primarily the possibility of vulnerability in the prosecution's case. The Court not only needs to prima facie level examine the entire material available against the accused carefully, but whenever there is an aspect of over implication under sections 149 and 34 of the Indian Penal Code, greater care and caution is required. The Court also needs to regard as to what should be larger implication of grant of anticipatory Page 7 of 9 Downloaded on : Thu May 28 21:15:05 IST 2020 R/CR.MA/6977/2020 ORDER bail in the matter like this along with the possibility of the accused repeating such offence and his fleeing away from justice.
14.Noticing the antecedents of applicant No.3 and his close connection with applicant no.1 being the brother and his alleged role of hatching conspiracy, the Court does not find any requirement to grant anticipatory bail in favour of applicant No.3. Not only his role is apparent in the complaint itself, it is also to be noted that as per the say of the Investigating Officer in the statement of the co-accused and in the complaint itself, name of the applicants appear. It does not prima facie appear to be vexatious case on the part of the prosecution to drag him unnecessarily or humiliate him even if the possibility of his fleeing away from justice is not being seen at this stage. The Court cannot endorse to the apprehension of this being over- implication at this stage, nor can the Court overlook the impact of grant of anticipatory bail in a matter like this, particularly, when the very object of this mob was to prevent the government officials from carrying out their official duty in a serious matter where practically entire village is blissfully enjoying illegal manner of consumption of electricit. Although, the details of another similar incident, which according to the Investigating Officer, had happened six months back in a similar such attempt of carrying out the checking at the very village, even if is disregarded, the details which are culling out from this very incident, according to the Court, are sufficient for it to deny anticipatory bail to the applicants.
15.So far as Applicant no.4 is concerned, his name appears in FIR and investigation is at its nascent stage. There is no basis or reason for disbelieving his involvement or false dragging of his name. There were many more residing in this village and though he has no apparent connection with other co accused for him to be over implicated, his prima facie role would not Page 8 of 9 Downloaded on : Thu May 28 21:15:05 IST 2020 R/CR.MA/6977/2020 ORDER warrant any exercise of indiscretion in his favour. Others being enlarged on regular bail cannot be a windfall for those who avoid and evade participation in investigation when their specific roles emerge else that would also send an absolutely incorrect message in the society that those who can elude legal process as compared to those co accused who cooperate can be benefitted, with the legal expertise and legal process. Let the faith of common man who are law abiding and tax paying citizens continue in the system and such misuse and illegality should not be encouraged to defeat the very purpose of creating a system and anyone attempting to overreach the system must not be availed leniency and discretion of anticipatory bail.
16.With the forgoing discussion, the application is rejected. Applicant shall cooperate with the Investigating agency.
(MS. SONIA GOKANI, J. ) rakesh/sudhir Page 9 of 9 Downloaded on : Thu May 28 21:15:05 IST 2020