Gujarat High Court
Maheshkumar Ishwarbhai Patel vs State Of Gujarat on 22 November, 2019
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/20101/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 20101 of 2019
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MAHESHKUMAR ISHWARBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR. J. M. PANCHAL, SR. ADVOCATE with MR K J
PANCHAL(2422) for the Applicant(s) No. 1
MR.ANSHIN DESAI, SR. ADVOCATE with NANDISH H
THACKAR(7008) for the Respondent(s) No. 1
MR. J. K. SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 22/11/2019
ORAL ORDER
1. This application is filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 for regular bail in connection with FIR registered as C.R. No.I-43 of 2019 with Bopal Police Station, Ahmedabad Rural, for the offence punishable under Sections 143, 146, 147, 149, 323, 326, 504, 506(2) of the Indian Penal Code and under Section 135 of G.P. Act.
2. Learned advocate appearing on behalf of the applicant submits that considering the nature of offence, the applicant may be enlarged on regular bail by imposing suitable conditions.
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3. Submission of the learned Advocate for the applicant that incident arose out of meeting of Housing Society, where the applicant is also Member and had raised grievances against the complainant over the working of Society. Allegations made against the applicant of verbally abuse, but no allegations of carrying out assault. At the best the applicant is alleged to have given fist and cuff blows. Therefore, there is no role of the applicant in so far as allegations of Section-326 is concerned.
4. Submission of the learned Advocate for the applicant that Co-accused have been granted anticipatory bail and anticipatory bail of the applicant was rejected only on account of antecedents against him. It is submitted that antecedents cited are in the nature of rioting which was registered on account of clashes between the Communities and the applicant being person of public life was arraigned as belonging to that particular community. It is submitted that injured has discharged from the Hospital and out of danger. Accused against whom allegations of giving blows by iron rode is already arrested.
5. Submission of the learned Advocate for the applicant that photographs produced by the complainant side indicates Page 2 of 8 Downloaded on : Thu Dec 26 22:55:14 IST 2019 R/CR.MA/20101/2019 ORDER chronology of incident and even from such photographs, no over act of the applicant is coming on record. It is submitted that such photographs produced on record along with application was produced by complainant side along with their Affidavit in the application for anticipatory bail.
6. On the other hand, the learned Additional Public Prosecutor appearing for the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned Additional Public Prosecutor submitted that the complainant himself is injured and the injury received on head i.e. vital part of the body and had received stitches and hence, Section-326 is attracted. The applicant is having antecedents which according to the Affidavit of the Investigating Officer filed before the trial Court are three in number being C.R. No.I- 81 of 2011 with Bopal Police Station, C.R. No.I-83 of 2012 with Bopal Police Station.
7. Learned Advocate for the Complainant submitted that the applicant is having serious antecedents which includes offence under Section-302, where now the applicant is charge-sheeted. It is submitted that meeting of the Society was called for Committee Members and the applicant is Page 3 of 8 Downloaded on : Thu Dec 26 22:55:14 IST 2019 R/CR.MA/20101/2019 ORDER not Committee Member and therefore, uninvited, he has appeared into the Meeting Hall and created ruckus. It is submitted that motive of creating ruckus is attributable to the applicant as in the meeting of the Executive committee by illegal encroachment beyond his alloted plot by the applicant was to be discussed. Learned Advocate urges the Court to perused the CCTV footage, which clips are recorded, which is available on mobile phone of the complainant. Learned Advocate tried to submitted that in connection with a separate Special Civil Application filed by the applicant on 16-10-2019 to bring on record some technical irregularities with regard to the dates of the Affidavit. However, it does not press for any finding on such submissions as the complainant is contemplating the separate proceedings. It is vehemently submitted that the chronology of incident is recorded in CCTV would indicate an overtake of the applicant while the co-accused inflicted blows on the complainant and had the applicant not being person. Co-accused would have been able to deliver the blows and carrying out assault.
8. Learned Advocates appearing on behalf of the respective parties do not press for a further reasoned order.
9. I have heard the learned advocates appearing on behalf of Page 4 of 8 Downloaded on : Thu Dec 26 22:55:14 IST 2019 R/CR.MA/20101/2019 ORDER the respective parties and perused the papers. Following aspects are considered :-
I) The F.I.R. is registered on 01-09-2019 for the offence which is alleged to have taken place on 01-09-2019;
II) The applicant is in custody since 12-10-2019;
III) Investigation qua the applicant is over as the remand period is over;
IV) Incident has occurred during an ongoing meeting of the Committee Members of the Housing Society, where the applicant is admittedly the Member of the Housing Society.
The complaint is given by Member of the Committee who himself is injured person. From the version given by him recorded in the F.I.R., does not indicate that issue of encroachment was to be discussed. However, which is narrated that the applicant entered into Meeting and used abusive language, complaint about the working of the Society is not being carried out in proper manner and was therefore, aggressively representing. It is also alleged that the applicant had resorted to give fist and cuff blows. In the F.I.R., it is recorded that on account of commotion, the complainant left the meeting place and thereafter, rest of the role is attributed to the co-accused no.4. It is also apparent that even against the co-accused no.4, allegations is of picking up of an iron rode from somewhere and carrying out assault, which indicate prima facie that there was no premeditation to commit the offence. V) In so far as the incident is concerned, as submitted by Advocate for the applicant and having produced relevant record, the applicant was the Member of Local body and at that time, when the offence had taken place was registered under Section-326, 307, etc. where the applicant was granted anticipatory bail by the Sessions Court, where later on Section-302 was added as injured witness had expired subsequently. The challenge to grant of anticipatory bail came to be rejected by this Court. VI) Considering the manner in which the offence took place particularly, in an ongoing meeting of the Society, where the applicant is also the Member of such Society, which appears to have taken aggravated form. VII) Learned Additional Public Prosecutor under the Page 5 of 8 Downloaded on : Thu Dec 26 22:55:14 IST 2019 R/CR.MA/20101/2019 ORDER instructions of the Investigating Officer is unable to bring on record any special circumstances against the applicant. This Court has taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation reported in [2012] 1 SCC 40.
10. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the First Information Report, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
11. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with C.R. No.I-43 of 2019 with Bopal Police Station, Ahmedabad Rural, on executing a personal bond of Rs.10,000/= (Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution & shall not obstruct or hamper the police investigation and shall not to play mischief with the evidence collected or yet to be collected by the police; Page 6 of 8 Downloaded on : Thu Dec 26 22:55:14 IST 2019
R/CR.MA/20101/2019 ORDER
(c) surrender passport, if any, to the Trial Court within a week;
(d) not leave the State of Gujarat without prior permission of the Trial Court concerned;
(e) not to enter Ahmedabad for the period of three months except for marking presence and attending the trial;
(f) mark presence before the concerned Police Station once in a month for a period of six months between 11.00 a.m. and 2.00 p.m.;
(g) furnish the present address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of Trial Court;
12. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.
13. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.
14. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail.
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15. The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Direct Service is permitted.
(A.Y. KOGJE, J) PARESH SOMPURA Page 8 of 8 Downloaded on : Thu Dec 26 22:55:14 IST 2019