Gujarat High Court
Dashrathbhai Bholidas Patel vs State Of Gujarat on 29 October, 2021
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/17332/2021 ORDER DATED: 29/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 17332 of 2021
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DASHRATHBHAI BHOLIDAS PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR BB NAIK, Sr. Adv. with AKASH A SINGH(8713) for the
Applicant(s) No. 1
MR MITESH AMIN, PP with MS MAITHALI MEHTA APP (2) for
the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 29/10/2021
ORAL ORDER
1. This is a successive bail application, which is filed under Section 439 of the Criminal Procedure Code, 1973 ('the Code' for short) for enlarging the applicant on regular bail in connection with FIR being C.R.No.11191020201399 registered with Vastrapur police station, Ahmedabad city for the alleged offences punishable under Sections 498A, 307, 365, 384, 342, 325, 354A, 323, 294(b), 506(2), 199 and 120(B) of Indian Penal Code. CRUX OF THE FIR:
2. The first informant filed the FIR in question against her husband and three others, wherein she has mainly stated that she got married with the Page 1 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 original accused no.1 in the year 2011 and a girl child viz., Arya was born out of the said wedlock. It is alleged that one year after the marriage, the original accused no.1 started mentally and physically harassing the first informant. It is mainly alleged that on the occasion of the birthday of the daughter of the first informant i.e. on 1.8.2020 at around 11.00 p.m., when she, along with her other relatives were present, original accused nos.2 and 3 started taunting the first informant that she did not bring anything from her parental house. Thereafter, the original accused no.4, who is the father of the first informant, gave abuses to the first informant. It is also alleged that because of the instigation done at the behest of original accused no.4, original accused no.1 started quarreling with the first informant and gave abuses to the mother of the first informant. When the first informant tried to stop the original accused no.1-husband from speaking abusive language, it is alleged that original accused no.1-husband had given six-seven slaps on her face and fist blow on her nose. It is alleged that the accused persons in connivance Page 2 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 with each other, thrown the first informant and her mother out of the house and gave threats that if she will file police complaint, she will be done to death.
3. Heard learned Senior Counsel, Mr. B.B. Naik assisted by learned advocate, Mr. Akash A. Singh for the applicant and learned Public Prosecutor, Mr. Mitesh Amin assisted by learned APP Ms. Maithali Mehta for the respondent - State. SUBMISSIONS ON BEHALF OF THE APPLICANT:
4. Learned Senior Counsel for the applicant submitted that the applicant is arrested on 29.08.2020 in connection with the FIR in question and since then, he is in jail. It is submitted that after his arrest, the applicant had filed an application for bail being Criminal Misc. Application No.17130/2020 before this Court, however during the pendency of the said application, as the chargesheet was filed, the said application was withdrawn. He further submitted that after filing of the chargesheet, the applicant filed an application being Criminal Misc. Application No.20180/2020 before this Court and this Court, by an order dated 17.02.2021, rejected the said Page 3 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 application, however while rejecting the said application, this Court granted liberty to the applicant to file fresh application after a period of three months and, therefore, the applicant has filed present successive bail application.
5. Learned Senior Counsel would thereafter submit that after this Court has rejected the application filed by the applicant, recently the co-accused, Ramanbhai Bholidas Patel has been enlarged on bail by this Court vide order dated 31.08.2021 passed in Criminal Misc. Application No.10438/2021. Learned Senior Counsel has referred to relevant observations made by the Coordinate Bench of this Court while enlarging the co-accused on bail. Learned Senior Counsel has urged that the role attributed to the present applicant is lesser than the role attributed to the said co-accused, who has been enlarged on bail by the Coordinate Bench of this Court and thus on the ground of parity, the applicant be enlarged on regular bail. Learned Senior Counsel has, thereafter, placed reliance upon the following decisions of the Hon'ble Supreme Court as well as this Court in support of the aforesaid contentions, Page 4 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021
(i) judgment of the Hon'ble Supreme Court in case of Anwar Ali Vs. State of Chhattisgarh, reported in (2008) 16 SCC 501;
(ii) judgment of the Hon'ble Supreme Court in case of Lt. Col. Prasad Shrikant Purohit Vs. State of Maharashtra, reported in (2018) 11 SCC 458;
(iii) judgment of the Hon'ble Supreme Court in case of Ajit Singh Vs. State of Chhattisgarh, reported in (2018) 14 SCC 286;
(iv) judgment of the Hon'ble Supreme Court in case of P. Chidambaram Vs. Central Bureau of Investigation, reported in (2020) 13 SCC 337;
(v) judgment of this Court in case of Rameshbhai Batubhai Dhabi Vs. State of Gujarat, reported in 2011 (3) GLR 1999;
(vi) order dated 08.09.2017 passed by this Court in case of Vikram Anil Gautam Vs. State of Gujarat in Criminal Misc. Application No.22437/2017;
6. Learned Senior Counsel has also placed reliance upon the decision of the Hon'ble Supreme Court in case of Shri Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab, reported in (1980) 2 SCC 565 to support his contention on the point of principle for grant of bail.
7. Learned Senior Counsel, thereafter, submitted that while opposing the case of the co-accused, the prosecution has placed on record certain documents Page 5 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 and now the said documents are part of the chargesheet papers and, therefore, learned Senior Counsel has placed on record separate compilation. After referring to relevant documents from the separate compilation, it is contended that on the ground of change of circumstances, the present successive bail application filed by the applicant be considered on merits. Learned Senior Counsel has argued the case of the applicant on merits and referred to the statements of various witnesses including the statement of Jankhitbhai Chandubhai Prajapati and Aalap Somabhai Patel and further statement of the complainant. Learned Senior Counsel has also referred to the telephonic conservation between the applicant and the complainant as well as the written complaint given by the applicant against the present complainant, Fizu Patel on 16.08.2020. Learned Senior Counsel has also referred to the affidavit filed by one Mr. V.U. Jadeja, who is practicing advocate and Notary. After referring to the aforesaid documents, it is contended that the story put forward by the complainant is not correct and in fact, the applicant is not named in the FIR. At Page 6 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 this stage, once again learned Senior Counsel has referred to the observations made by the Coordinate Bench of this Court while enlarging the co-accused on bail. From the said observations, learned Senior Counsel has tried to point out about the conduct of the complainant and the fact that the complainant and her mother have received an amount of Rs.2.50 Crores in cash and also received two demand drafts, one of Rs.2.00 Crores and another of Rs.50.00 Lakhs. From the observations made by the Coordinate Bench, it is also contended that the first informant gave further statement on 28.08.2020 in respect of the alleged incident which took place on 24.08.2020 without uttering a word about the cash/demand draft received by them and there is no whisper about the same in the statement given by said Jankiben on 28.08.2020 about the entrusment of the cash amount of Rs.2.50 Crores to her sister.
8. Learned Senior Counsel, thereafter, submitted that while rejecting earlier application filed by the present applicant, this Court has wrongly observed that the affidavit of the complainant with regard to the settlement arrived at by her husband, Page 7 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 Maunang was not produced by him in the said application filed by him. In fact, the said affidavit was produced by the complainant through her advocate, Mr. Pathak and thereby this Court has committed an error while rejecting earlier application filed by the present applicant. At this stage, learned Senior Counsel has further contended that while rejecting earlier bail application filed by the applicant, this Court has observed that the present applicant has given threats from the jail to the complainant and, therefore, the complainant has deposited two demand drafts, however as per the case of the prosecution, the co-accused, Ramanbhai Patel made telephonic call to the complainant when he was in jail and, therefore, the present applicant has not tried to influence the witness. Thus, the aforesaid wrong observation was made by this Court while passing an order dated 17.02.2021.
9. Learned Senior Counsel would thereafter submit that after registration of the FIR in question, two other FIRs have been filed against the applicant, however in both cases, the applicant has been enlarged on bail by the concerned Page 8 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 Sessions Court, copies of those orders are placed on record.
10. It is also submitted that the allegations of the offences punishable under Sections 498A and 307 of the Indian Penal Code are not made against the applicant and only allegation against the applicant is that he has committed alleged offences punishable under Sections 365, 384 and 342 of the Indian Penal Code. It is submitted that when the applicant is in jail since last more than one year, this application be allowed. SUBMISSIONS ON BEHALF OF THE STATE:
11. On the other hand, learned Public Prosecutor Mr.Amin appearing for the respondent-State has vehemently opposed this application and mainly contended that there is no change of circumstance after this Court has rejected earlier application by an order dated 17.02.2021 filed by the present applicant. It is submitted that while rejecting earlier bail application filed by the applicant, this Court has examined the chargesheet papers and all the documents, which are placed on record and, thereafter, rejected the application. It is pointed out that all those documents, which are Page 9 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 placed on record by the applicant by way of separate compilation, were also verified by this Court at the time of rejecting earlier bail application filed by the applicant. Learned Public Prosecutor has referred to the order dated 17.02.2021 passed by this Court, from which, it is pointed out that this Court has specifically recorded the finding on the basis of the material placed before this Court that written complaint was given on 27.08.2020 to Police Inspector, Vastrapur Police Station about alleged incident which had taken place on 24.08.2020 and, thereafter on 28.08.2020, her further statement was recorded. This Court has further observed that the present applicant had administered threats to the complainant and her mother and they were forced to sign on certain documents including the divorce papers, affidavit and relinquishment deed.
This court has also examined the version given by the first informant, which is supported by two witnesses viz., Jankitbhai Prajapati and Aalap Patel and this Court has, therefore, observed that there is prima facie case made out against the present applicant. It is also pointed out that Page 10 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 from the said order, it is also revealed that two demand drafts given by the applicant were issued from the joint account of the applicant and mother-in-law of the first informant. This Court has specifically recorded the finding that prima facie it is revealed that on 24.08.2020, the applicant, under the pressure, has obtained signature of the complainant and her mother. This Court has also considered the conduct of the applicant by observing that the present applicant has given written complaint dated 16.08.2020 against the first informant and her mother with a view to misguide the investigating agency. It is also pointed out from the said order that threats were given by the applicant to the first informant and thereby the applicant has tried to influence the witnesses. It was further observed that though the signatures of the first informant and her mother were obtained on various documents, the applicant has either destroyed the said documents or the applicant is hiding the same from the investigating agency and only affidavit filed by the concerned investigating officer was placed before this Court in another proceeding. Thus this Page 11 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 Court has considered the conduct of the applicant while rejecting the bail application.
12. Learned Public Prosecutor at this stage submitted that the applicant is claiming parity with other co-accused, who were released on bail at the relevant point of time and, thereafter, submitted that the role attributed to the applicant is strikingly dissimilar to that of co-accused. At this stage, learned Public Prosecutor would contend that no doubt now another co-accused viz., Ramanbhai Patel has been enlarged on bail by the Coordinate Bench of this Court by an order dated 31.08.2021. However, it is contended that if the said order is carefully seen, the Coordinate Bench has observed that from the statements of the concerned witnesses, which were recorded on 24.09.2020, no role is attributed to the said co- accused or Mr. Maunang for the alleged act of Dasharathbhai (the present applicant). It is also pointed out from Page No.34 of the said order that the Coordinate Bench has observed that there is not an iota of evidence as to role played by the said applicant (Ramanbhai Patel) and his son with regard to incident dated 24.08.2020. Thus it is Page 12 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 contended that the role attributed to the present applicant is different than the role attributed to the co-accused, who has been enlarged on bail by the Coordinate Bench.
13. Learned Public Prosecutor at this stage has also contended that the order dated 31.08.2021 passed by the Coordinate Bench of this Court in case of co-accused, Ramanbhai Patel is challenged by the State by filing SLP before the Hon'ble Supreme Court. Learned Public Prosecutor has referred to the affidavit filed by the concerned Senior Police Inspector of Vastrapur Police Station and in Paragraph No.5 of the said affidavit, there is reference of Diary Number of the said matter. It is, therefore, urged that when the order passed by the Coordinate Bench is challenged before the Hon'ble Supreme Court, this Court may not consider the ground of parity as contended by learned Senior Counsel.
14. Learned Public Prosecutor, thereafter, referred to the order passed by the Sessions Court while rejecting an application filed by the applicant on 17.09.2021, copy of which is placed on record at Page No.185 of the compilation. It is pointed out Page 13 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 from the said order that the case is committed to the Sessions Court, where it has been registered as Sessions Case No.46/2021 and in fact, the present applicant has given application before the Sessions Court that his trial be expedited and the matter was kept on 20.09.2021. Thus when the applicant himself has requested before the trial court to expedite his trial and when the prosecution as well as the sessions court are ready to conduct the trial, the applicant may not be enlarged on bail.
15. Learned Public Prosecutor submits that the decisions upon which reliance has been placed by learned Senior Counsel for the applicant on the issue of parity, would not be applicable to the facts of the present case. It is, therefore, urged that this application be dismissed. DISCUSSION AND FINDINGS:
16. Having heard learned counsel appearing for the parties and having gone through the material placed on record as well as the decisions upon which the reliance is placed by learned counsel for the parties, it would emerge that the original first informant has filed the FIR against her Page 14 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 husband and others with Vastrapur police station, Ahmedabad city for the alleged offences punishable under Sections 498A, 325, 294(b), 506(2), 354A and 114 of Indian Penal Code. The said FIR has been filed on 16.08.2020. On 17.08.2020, a report was submitted by the Investigating Officer with a request to add Section 307 of the Indian Penal Code. During the course of investigation, the present applicant has been arraigned as an accused and on the basis of the incident which had taken place on 24.08.2020, the investigating agency has submitted a report to the concerned Magistrate with a request to add the offences punishable under Sections 365, 384, 342, 199 and 120B of Indian Penal Code. The chargesheet is also filed under the aforesaid provisions. It is pertinent to note that the original first informant has given the written complaint on 27.08.2020 to the Police Inspector, Vastrapur police station about the incident which had taken place on 24.8.2020 and thereafter on 28.08.2020, her further statement was recorded. If the further statement of the first informant is carefully seen, it is revealed that she has specifically alleged against the Page 15 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 present applicant that threats were administered by the applicant and thereafter signatures of the first informant and her mother were obtained on certain documents including the divorce paper, affidavit and relinquishment deed. It is also pertinent to note that the version given by the first informant is supported by the statement of other two witnesses namely Jankitbhai Prajapati as well as Aalap Patel. Thus, from the aforesaid material, it is revealed that the prosecution has made out prima facie case against the applicant.
17. Now the present successive bail application has been filed by the applicant mainly on two grounds,
(i) after rejection of earlier bail application filed by the applicant by this Court, the co- accused, Ramanbhai Patel has been enlarged on bail by the Coordinate Bench of this Court vide order dated 31.08.2021 and, therefore on the ground of parity, the applicant be enlarged on bail; and
(ii) now certain additional documents are forming part of the chargesheet and, therefore, the applicant has placed reliance upon the said documents.
Page 16 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 Thus it is the case of the applicant that on these grounds, the case of the applicant be considered.
18. It is pertinent to note at this stage that the documents, which are placed on record by the applicant by way of separate compilation, were already examined by this Court while rejecting earlier application filed by the applicant on 17.02.2021 and this Court has made certain discussion with regard to the said documents while passing an order dated 17.02.2021. Thus, this cannot be said to be change of circumstance as contended by learned Senior Counsel appearing for the applicant. It is further pertinent to note that this Court has considered the written complaint given by the present applicant on 16.08.2020 against the original first informant, Fizu M. Patel and her mother-in-law and, thereafter, made specific observation that the applicant has tried to misguide the investigating agency by filing the said written complaint and now the said written complaint is forming part of the separate compilation. This Court has also considered the telephonic conversation between the Page 17 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 applicant and the complainant while passing an order dated 17.02.2021. This court has also considered the affidavit of the original complainant dated 24.08.2020, further statement dated 28.08.2020 and note filed by the advocate, Mr. Pathak and, therefore, when this Court has considered the aforesaid documents, it is not open for the present applicant to once again refer to and rely upon the said documents.
19. It is revealed from the record that while rejecting the bail application filed by the applicant by an order dated 17.02.2021, this Court has specifically observed about the conduct of the applicant, threats given by him to the complainant and her mother and the fact that the applicant has forcibly obtained the signature of the complainant and her mother on certain documents including the affidavit, divorce deed and relinquishment deed and the applicant has either destroyed the said documents or the applicant is hiding the said documents from the investigating agency. Thus on the basis of the same, this Court has not exercised the discretion in favour of the applicant. It is not in dispute that the applicant Page 18 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 has not challenged the reasoned order dated 17.02.2021 passed by this Court before the Hon'ble Apex Court and, therefore, the observations made by this Court in the aforesaid order dated 17.02.2021 have attained finality so far as the applicant is concerned. It is true that this Court has granted liberty to file an application after a period of three months, however, the applicant has failed to point out any change of circumstance after the rejection of his earlier bail application.
20. Now only ground available to the applicant is that the co-accused, Ramanbhai Patel has been enlarged on bail by the Coordinate Bench of this Court vide order dated 31.08.2021. However, if the said order is carefully examined, it is clear that the Coordinate Bench has observed in Paragraph No.20 as under, "20. ......................... At this stage, it is very relevant to note that neither present applicant nor his son Maunag was present at the office of Jankitbhai on 24.8.2020, but said witness states that the first informant was pressurized and forced to sign the documents. It is stated by the said witness that both the first informant and Jankiben were threatened that if she does not sign the papers, her daughter would be snatched away from her. At that stage, prosecution witness Alapbhai objected such conduct of Page 19 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 Dashrathbhai. Both said prosecution witness Jankitbhai and Alapbhai told Dashrathbhai that it was not reasonable and proper to get signature under threat. Thereafter, both the prosecution witnesses voluntarily stated that Dashrathbhai did all this act under the instruction of applicant and Mr. Maunag."
21. Thereafter, the Coordinate Bench has also observed in Paragraph No.21 as under, "21. I have carefully examined both the statements of the said witnesses recorded on 24.9.2020, wherein no role is attributed to the present applicant or Mr. Maunag for the alleged acts of Dashrathbhai. ........................................"
22. At this stage, this Court would like to refer to the decisions upon which reliance has been placed by learned Senior Counsel appearing for the applicant.
22.1 judgment of the Hon'ble Supreme Court in case of Anwar Ali Vs. State of Chhattisgarh, reported in (2008) 16 SCC 501;
"5. We have heard learned counsel for the parties. It is not in dispute that Unush Ali, who is uncle of the appellant, is the owner of the car, which was handed over to the appellant for getting the Registration Certificate from the R.T.O., Durg. The Registration Certificate and other papers of the car were handed over by Unush Ali to the appellant.
6. It is not in dispute that co-accused Bunty @ Shahid; who is said to be an agent of the R.T.O., has been granted bail by the High Court on 01.10.2007. The evidence collected by the Investigating Officer against the appellant and Bunty @ Shahid is identical.Page 20 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022
R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 The appellant is in jail since 14.06.2007. The learned counsel for the State was not in a position to state in regard to the progress and stage of the trial of the case registered against the appellant and co- accused. The custody of the appellant is not required by the Investigating Officer for further interrogation."
22.2 judgment of the Hon'ble Supreme Court in case of Lt. Col. Prasad Shrikant Purohit Vs. State of Maharashtra, reported in (2018) 11 SCC 458;
"29. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the court granting bail to consider, among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge.
30. Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court Page 21 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications."
22.3 judgment of the Hon'ble Supreme Court in case of Ajit Singh Vs. State of Chhattisgarh, reported in (2018) 14 SCC 286;
"3. The contention of the learned senior counsel for the appellant is that the complaint against the appellant is motivated one, with an aim to extort money and his property. He has been falsely implicated in the case. The appellant has been in custody for the past six and half months. He is ready to abide by any of the conditions which may be imposed by this Court for enlarging him on bail. He is ready to stay in Patna, till the disposal of the case. On the other hand, learned advocate appearing for the respondent has sought to justify the impugned order.
4. After investigation, final report under Section 173 of the Cr.P.C. has been filed against the appellant and four other persons on 19th October, 2016. The case against the appellant is almost similar to that of other co-accused who have been enlarged on bail. The accused has been in custody for the past six and half months. No criminal antecedents have been reported against the appellant. We are of the view that it is just and proper to enlarge the appellant on bail subject to the following conditions:
1. The appellant shall not stay in the State of Chhattisgarh during the pendency of the case. He shall stay in Patna during the said period. However, he is permitted to come to the State of Chhattisgarh for Page 22 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 attending the aforesaid case. He shall personally appear before the trial court on all the dates of hearing except under unavoidable circumstances.
2. Soon after release, he shall appear before the Senior Superintendent of Police, Patna, and notify his address at Patna to the SSP, Patna. The SSP, Patna, shall intimate him the jurisdictional Police Station for his attendance once in a week on every Sunday between 9.00 a.m. to 5.00 p.m.
3. The appellant shall not tamper with the evidence during the trial in any manner. He shall not pressurize or intimidate the prosecution witnesses. The appellant shall execute a personal bond of Rupees one lakh with two sureties for the like sum to the satisfaction of the trial court."
22.4 judgment of the Hon'ble Supreme Court in case of P. Chidambaram Vs. Central Bureau of Investigation, reported in (2020) 13 SCC 337;
"21 The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:-
(i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution;
(ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses;
(iii) reasonable possibility of securing the presence of the accused Page 23 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 at the time of trial or the likelihood of his abscondence;
(iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused;
(v) larger interest of the public or the State and similar other considerations
23 In Kalyan Chandra Sarkar v. Rajesh Ranjan and another (2004) 7 SCC 528, it was held as under:-
11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-
application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge.Page 24 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022
R/CR.MA/17332/2021 ORDER DATED: 29/10/2021
33. The appellant is not a flight risk and in view of the conditions imposed, there is no possibility of his abscondence from the trial. Statement of the prosecution that the appellant has influenced the witnesses and there is likelihood of his further influencing the witnesses cannot be the ground to deny bail to the appellant particularly, when there is no such whisper in the six remand applications filed by the prosecution. The charge sheet has been filed against the appellant and other co- accused on 18.10.2019. The appellant is in custody from 21.08.2019 for about two months. The co-accused were already granted bail. The appellant is said to be aged 74 years and is also said to be suffering from age related health problems. Considering the above factors and the facts and circumstances of the case, we are of the view that the appellant is entitled to be granted bail."
22.5 judgment of this Court in case of Rameshbhai Batubhai Dhabi Vs. State of Gujarat, reported in 2011 (3) GLR 1999;
"9. All the above aspects along with order passed by the coordinate Bench in the case of two co-accused having similar role like the applicant, on 5.8.2010 and 13.8.2010 in Criminal Misc. Application Nos.8237 of 2010 and 9316 of 2010 were brought to the notice of the learned Sessions Judge by which the co-accused were granted anticipatory and regular bail. Inspite of the above factual scenario, learned Sessions Judge has refused to exercise the powers under Section 439 of the Code on the ground that the applicant was not traceable, while nothing is brought on the record that under what circumstances the applicant was not available or any effort was made by the investigating agency to trace him out. Though, two orders granting bail to co- accused passed by the High Court were brought to the notice of the learned Page 25 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 Sessions Judge, it is held that ground of parity can be claimed by co-accused only before the High Court. The above approach of the learned Judge is not only illegal but contrary to settle practice of considering the order of superior Court in proper perspective. That, in the set of facts and circumstances almost similar or identical, when superior courts exercise the powers either under Sections 438 or 439 of the Code, the subordinate Courts are duty bound to consider the same and apply if the same sets of facts are in existences and unless there being any extra ordinary circumstances or striking dissimilarities exist to deviate from the law of parity, the Courts below should consider the same in accordance with law.
At the same time the principle of law laid down by the Apex Court in the case of Gudikanti Narasimbulu (supra) about exercise of powers under Section 439 of the Code namely that 'bail is a rule and jail is an exception' is held to be 'outdated' by learned Sessions Judge. That the above declaration by the learned Judge is contrary to the law laid down by this Court in the case of Bai Jasud wd/o Kantilal alias Fulchand Anopchand & Ors. V/s. Railal Anopchand Shah & Ors. [1997(2) GLH 493]. In the above decision learned Single Judge has deprecated the approach of the sub-ordinate Court in misconstruing and misinterpreting the decision of law by the higher Court and, therefore, in the facts of this case, a casual and cursory remark on the part of the learned Sessions Judge about declaration of principle of law of bail in the case of Gudikanti Narasimbulu (supra) is nothing but an attempt to transgress all basic canons of judicial discipline and it was not open to a subordinate Court to misconstrue and misread a judgment of the Supreme Court and terming a Page 26 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 principle of 'bail is a rule and jail is an exception' as an outdated, when no decision either of the Supreme Court or this Court has stated so.
12. In view of the facts, prima facie, noticed by this Court and recorded in earlier paragraphs, I deem it just and proper to extend the parity to the applicant herein and enlarge him on bail in exercise of powers under Section 439 of the Code of Criminal Procedure, 1973. Under the circumstances, the applicant is ordered to be released on bail in connection with C.R. No.I-16 of 2010 with Bagodra Police Station, on his furnishing bond of Rs. 5000/-(Rupees Five Thousand) with one surety of like amount to the satisfaction of the lower Court and subject to following conditions :
not take undue advantage of his liberty or abuse his liberty;
not act in a manner injurious to the interest of the prosecution;
maintain law and order;
mark his presence before the concerned Police Station on every 1st and 15th day of English Calendar month between 11:00 am to 2:00 pm:
not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
furnish the address of his residence at the time of execution of the bond and shall not change the residence without prior permission of this Court;
surrender his passport, if any, to the Lower Court immediately."
22.6 order dated 08.09.2017 passed by this Court in Page 27 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 case of Vikram Anil Gautam Vs. State of Gujarat in Criminal Misc. Application No.22437/2017;
"6. Thus, in absence of striking dissimilarity between two cases, if the parity is brought to the notice of the Court pointing out that the High Court has exercised the discretion under Sections 438 - 439 of the Criminal Procedure Code in relation to the identically including situated their of accused individual in conduct all or aspects individual identical facts like their behaviour in the society and their ability and capacity to interfere in the investigation or trial or their ability or capacity to flee from justice or they being threat to the witnesses, it would not be appropriate for the trial Court to distinguish the case considered by the High Court under Sections 438-439 of the Criminal Procedure Code merely on the basis of the factum of the charge-sheet having not been filed. Of course, non-filing of the charge-sheet would be relevant if it is pointed out to the Court the likelihood of collection of material distinguishing the case of the applicant, in the course of pending investigation. Unless the said aspects are pointed to the trial Court on the basis of which two cases can be distinguished, in the opinion of this Court, on the mere ground that the charge- sheet is not filed, identical case cannot be rejected by the trial Court when the High Court has exercised the powers under Sections 438-439 of the Criminal Procedure Code.
7. Although despite there being similarity of role of the accused released on bail and the one seeking bail, the Court would be justified in declining the bail to later on the ground of well founded apprehension like accused's likelihood of fleeing from justice; or being threat to the witnesses or being able to obstruct the trial or investigation or being able to tamper with Page 28 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 the evidence and the likes; in absence of distinguishing features, it would not be within its rights to revoke the orders passed by High Court under Section - 438 or 439 of the Cr.P.C.
9. Learned APP submits that in absence of the papers, it would not be possible for her to state as to whether two cases are similarly situated or not. However, having considered the order passed by the trial Court, it is obvious that two cases are similarly situated and therefore, this Court exercises the discretion under Section 439 of the Criminal Procedure Code in favour of the applicant."
23. This Court has considered the aforesaid decisions rendered by the Hon'ble Supreme Court, however as observed hereinabove, the case of the present applicant is different from the case of the co- accused, who has now been enlarged on bail by the Coordinate Bench of this Court on 31.08.2021. Therefore, the aforesaid decisions would not be applicable to the facts of the present case.
24. This Court has also considered the judgment in case of Shri Gurbaksh Singh Sibbia (supra) while considering the present successive bail application. This Court cannot dispute the proposition of law laid down by the Hon'ble Supreme Court. However, this is a successive bail application filed by the applicant and the applicant has failed to point out any change of Page 29 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 circumstance after the rejection of earlier bail application. In the aforesaid judgment, the Hon'ble Apex Court has observed in Paragraph Nos.27 to 30 as under, "27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High court of Calcutta in Nagendra V/s. King Emperor that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that It is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the 'Meerut Conspiracy cases' observations are to be found regarding the right to bail which deserve a special mention. In K. N. Joglekar V/s. Emperor it was observed, while dealing with sec. 498 which corresponds to the present sec. 439 of the Code, that it conferred upon the Sessions Judge or the High court wide powers to grant bail which were not handicapped by the restrictions in the preceding sec. 497 which corresponds to the present sec. 437. It was observed by the court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by sec. 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor V/s. Hutchinson it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High court, having regard to the fact that the legislature itself left the discretion of the court Page 30 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 unfettered. According to the High court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various section in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu V/s. Public Prosecutor that:
. . . the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. . . . After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Art. 21 are the life of that human right.
29. In Gurcharan Singh V/s. State (Delhi Administration) it was observed by Goswami, J., who spoke for the court, that :
There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.Page 31 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022
R/CR.MA/17332/2021 ORDER DATED: 29/10/2021
30. In AMERICAN JURISPRUDENCE (2d. Volume 8, page 806, para 39), it is stated:
Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.
It if thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
25. This Court cannot dispute the proposition of law laid down by the Hon'ble Supreme Court as well as this Court in the aforesaid decisions. Further as discussed hereinabove, while granting bail to the co-accused, Ramanbhai Patel, the Coordinate Bench has specifically observed that the case of the said co-accused, Ramanbhai Patel and his son, Maunang is different from the case of the present applicant. Further as contended by learned Public Prosecutor, the State has already challenged the said order by filing SLP before the Hon'ble Supreme Court. Thus, this Court is of the view that the case of the applicant cannot be Page 32 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 considered on the ground of parity.
26. At this stage, this Court would like to refer to the observations made by the Hon'ble Supreme Court in case of Lt. Col. Prasad Shrikant Purohit (supra), wherein the Hon'ble Supreme Court in Paragraph No.30 has observed as under, "30. Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications."
27. Thus from the aforesaid observations, it can be said that though the accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected and in such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.
CONCLUSION:
28. Thus keeping in view the aforesaid observations Page 33 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 made by the Hon'ble Supreme Court as well as this Court, if the facts of the present case are examined, it can be said that the applicant has right to file successive bail application, however while considering the successive bail application, this Court has to consider the reasons given by this Court while rejecting the bail application filed by the applicant vide order dated 17.02.2021. It is not in dispute that the said order has attained finality and, therefore, it is not open for this Court to indirectly review the said order in absence of any change of circumstance. Once again, it is pertinent to note that the applicant has failed to point out any new ground/ changed circumstances and, therefore, this Court is not inclined to exercise the discretion in favour of the present applicant.
29. Moreover, apprehension has been voiced by learned Public Prosecutor that if the applicant is enlarged on bail, he will tamper with the witnesses and, therefore also, I am not inclined to consider the case of the applicant though in two other FIRs, which have been filed against him, he has been enlarged on bail by the concerned Page 34 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022 R/CR.MA/17332/2021 ORDER DATED: 29/10/2021 Sessions Court.
30. In view of the aforesaid discussions, the present application is dismissed. Rule is discharged. However looking to the facts of the present case, when the applicant himself has requested before the concerned trial court that the trial be expedited and when the concerned Sessions Court has shown willingness to expedite the trial and even learned Public Prosecutor has assured that the State will cooperate with the trial court, the concerned trial court is directed to expedite the trial of the present case and try to complete the same as expeditiously as possible.
Sd/-
(VIPUL M. PANCHOLI, J.) Gautam Page 35 of 35 Downloaded on : Mon Jan 17 05:14:16 IST 2022