Gujarat High Court
Jamila Mohammadshafi Khokhar vs State Of Gujarat on 2 August, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/6641/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 6641 of
2015
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JAMILA MOHAMMADSHAFI KHOKHAR....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR.NIRAD BUCH, LD.ADVOCATE FOR NANAVATY ADVOCATES,
ADVOCATE for the Applicant(s) No. 1
MS SHRUTI PATHAK, APP, for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 02/08/2017
ORAL ORDER
1. Application for anticipatory bail has been preferred under section 438 of the Criminal Procedure Code in connection with First Information Report registered with Hansot Police Station, District: Bharuch being C.R.No.I-4 of 2015 for the offences punishable under Sections 143, 147, 148, 149, 302, 307, 325, 120B, 427 and 435 of the Indian Penal Code read with Section 25 (1)(a) of the Arms Act and Section 135 of the Gujarat Police Act, 1950.
2. It is the case of the prosecution that, one Jigneshbhai Bhupendrabhai Patel has lodged a complaint that when he had gone to celebrate Uttarayan at his paternal uncle's house at around 14:00 hours, he heard some shouts, when he found Page 1 of 10 HC-NIC Page 1 of 10 Created On Sun Aug 20 11:37:33 IST 2017 R/CR.MA/6641/2015 ORDER the rioting mob of around fifty persons rushing to a place known as Verai Mata Chakla towards Tileshwar Mahadev Temple and were all armed with dangerous weapons like sword, dhariya etc. The mob armed with the weapons had assaulted the persons, who were present in the house of the uncle of the first informant, which eventually culminated into the killing of two persons.
3. According to the present applicant, the only role attributed to the present applicant is of instigating the mob and pelting stones against some of the persons.
4. The present applicant had approached the Court of learned Sessions Judge, Ankleshwar on February 26, 2015 by way of preferring Criminal Misc. Application No.90 of 2015. Her application for anticipatory bail was rejected on March 04, 2015. The present applicant, thereafter, approached this Court on April 09, 2015, when this Court protected her till the next date of hearing. It is the say of the present applicant that, her protection has continued till date as the role attributed to her is limited. The chargesheet is also filed and there are no serious allegations against her. It is further her say that, many of the accused have already been granted regular bail by the Apex Court.
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R/CR.MA/6641/2015 ORDER
5. Learned advocate Mr.Nirad D.Buch appearing for the applicant has urged that a complaint came to be filed being C.R.No.I-7 of 2015 in connection with an issue simmering amongst the people of both the religions, Hindu and Muslim for an incident that happened about a month back of sending whatsapp message of their 'Paigambar' and thereby hurting the sentiments of those following Islam which resulted into one of the Muslim boy being beaten by the Hindus at village Ambheta of District Bharuch. The said incident according to which provided a genesis for the crime in question. The learned advocate has further urged that, the present applicant has continued to be Sarpanch till date and had she been avoiding the process of law, she could have been caught immediately. Again, she could not have been present in an offence, which has allegedly happened between 12:15pm to 03:00pm being C.R.No.I-4 of 2015 registered with Hansot Police Station or she could not have been present when the incident took place between 02:15pm to 03:00pm, being the incident of C.R.No.I-7 of 2015 which occurred at Ambheta of killing a Muslim boy.
6. Learned Additional Public Prosecutor for respondent No.1 has strongly resisted this application. According to her, the applicant has not at all cooperated in the investigation Page 3 of 10 HC-NIC Page 3 of 10 Created On Sun Aug 20 11:37:33 IST 2017 R/CR.MA/6641/2015 ORDER from the time the incident has occurred on January 14, 2015. The present applicant has succeeded in evading her arrest and also, at no point of time, has cooperated with the investigating agency. Learned Additional Public Prosecutor has also pointed out that first application for anticipatory bail of the present applicant was at the end of February, 2015, which was not allowed by the Sessions Court dated March 04, 2015. The present applicant approached this Court in the month of April, 2015 and she never cooperated till she was protected by an order of this Court.
7. She has further urged that, the applicant is the conspirator being a Sarpanch and is in a decisive position. She ought to have pacified the crowd on both the side and instead she is the one who has masterminded the incident. Ms.Pathak, learned Additional Public Prosecutor, therefore, has urged not to exercise discretion in favour of the present applicant. It is further pointed out that under Section 70 of the Code of Criminal Procedure, warrant has been issued against the present applicant and other two accused as they were not traceable. Investigating Agency visited Panchayat office, too, but, in vain.
7.1 Learned Additional Public Prosecutor for the respondent No.1 has urged this Court that those of them, who have been Page 4 of 10 HC-NIC Page 4 of 10 Created On Sun Aug 20 11:37:33 IST 2017 R/CR.MA/6641/2015 ORDER enlarged on regular bail was on account of the fact that the trial had not commenced after two and half years of their incarceration and therefore, it was the regular bail, which was allowed to them. The custodial interrogation of the applicant will be necessary, considering the alleged serious role attributed to her by the prosecution.
8. This Court has noticed on hearing both the sides that between both the communities Hindu & Muslim, an issue was simmering on account of undesirable message hurting the feelings of those who follow Islam. This appears to have resulted into serious injuries to one Muhammad Rafiq by some of the persons, who happened to be following Hindu religion. That incident was registered as an FIR being C.R.No.I-7 of 2015 on January 15,2015 with the very police station i.e. Hansot Police Station. Although the lodgment of the FIR is late, according to the applicant, the said incident of beating seriously Muhammad Rafiq disturbed seriously the communal equilibrium.
9. The applicant, though has been protected by this Court from April 9, 2015, the present applicant had no protection of any Court prior thereto. What the present applicant is claiming in this application is to grant her anticipatory bail, on the ground of parity. The present applicant cannot claim Page 5 of 10 HC-NIC Page 5 of 10 Created On Sun Aug 20 11:37:33 IST 2017 R/CR.MA/6641/2015 ORDER parity with other co-accused, who have already been enlarged on regular bail under Section 439 of the Code of Criminal Procedure by the Apex Court essentially for the reason that they were all incarcerated and continued to languish in the jail for two and half years as the trial in this case had not begun. Assuming that they were armed with deadly weapons and the role attributed to them are graver in nature, the consideration, which would weigh with the Court, while deciding the matter under Section 439 of the Code of Criminal Procedure, would be quite different than those which would need to be regarded at the time of considering anticipatory bail under Section 438 of the Code of Criminal Procedure.
10. Independently, if one looks at the allegation made against the present applicant, she is alleged to be a key conspirator being in a decisive position for being a Sarpanch. The present applicant is alleged to have taken a lead role in not only conspiring but thereafter also inciting the rioting mob to add fuel to the fire when the communal disturbance was at its pick. Being a leader, role of the present applicant, has come under a serious question mark. It would be worthwhile to refer to the vital and relevant findings of observations made in the Apex Court in case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and others Page 6 of 10 HC-NIC Page 6 of 10 Created On Sun Aug 20 11:37:33 IST 2017 R/CR.MA/6641/2015 ORDER reported in (2011) 1 SCC 694 for considering the application of anticipatory bail.
"111.No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case that the High Court or the Court of Sessions has to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
112.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;
v. Where the accusations have been made only with the object of injuring or humiliating Page 7 of 10 HC-NIC Page 7 of 10 Created On Sun Aug 20 11:37:33 IST 2017 R/CR.MA/6641/2015 ORDER 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, 1860 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. "
The principles laid down in case of S.S.Mhetre (Supra) when examined cumulatively, the same would not come to the rescue of the present applicant. For being under protection, for a longer period itself may not be a ground for the Court to Page 8 of 10 HC-NIC Page 8 of 10 Created On Sun Aug 20 11:37:33 IST 2017 R/CR.MA/6641/2015 ORDER allow her application. She chose not to proceed with the matter after once the order restraining the investigating officer was passed by this Court in the year 2015. The present applicant has to make out a case for grant of anticipatory bail, since the trial is yet to take place and the investigation qua the present applicant also is at a crucial stage for the applicant so far has not been available to the prosecuting agency. Nature and gravity of accusation in double murder case and circumstances and situation existing on record would not permit this Court to grant anticipatory bail in favour of the applicant. Accusations made prima facie are neither frivolous nor witness object to humiliate her.
11. Learned Additional Public Prosecutor for the respondent No.1 submits that the Sessions Trial is fixed now on August 8, 2017, nonavailability of the present applicant may not further hamper the trial.
12. So far as the submission made by the learned advocate Mr.Buch that all matters being the C.R.No.I-3 of 2015, C.R.No.I-4 of 2015, C.R.No.I-6 of 2015 and C.R.No.I-7 of 2015 are connected with each other, this Court in Criminal Misc. Application (for regular bail) No.6907 of 2016 had not found any semblance of truth in such submissions and held such comparison of different cases as illogical and irrelevant. No Page 9 of 10 HC-NIC Page 9 of 10 Created On Sun Aug 20 11:37:33 IST 2017 R/CR.MA/6641/2015 ORDER further discussion in that regard would be necessary.
13. This application for anticipatory bail deserves no consideration and is rejected accordingly. The applicant shall surrender to the investigating agency without further loss of time.
14. Request on the part of the learned advocate to extend the interim relief, which is operating in favour of the present applicant for further period of six weeks is not entertained in wake of the time lag and because of schedule of trial of this case.
Rule is discharged. Interim relief, if any, stands vacated. Direct Service is permitted.
(MS SONIA GOKANI, J.) MIRZA Page 10 of 10 HC-NIC Page 10 of 10 Created On Sun Aug 20 11:37:33 IST 2017