Gujarat High Court
Pravin Parshottambhai Chovatiya vs State Of Gujarat on 8 December, 2023
NEUTRAL CITATION
R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 10761 of 2023
==========================================================
PRAVIN PARSHOTTAMBHAI CHOVATIYA Versus STATE OF GUJARAT ========================================================== Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1 MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR MANAN MEHTA, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Date : 08/12/2023 CAV ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with C.R.No.11202008202186 of 2020 registered with Jamnagar City 'A' Division Police Station, Jamnagar for the offence punishable under Sections 3(1), 3(2), 3(3), 3(4), 3(5) and 4 of the Gujarat Control of Terrorism and Organised Crime Act, 2015 ('GUJCTOC Act' for short) and under Sections 120B, 384, 385, 386, 387, 506(2), 506(1), 507 and 201 of the Indian Penal Code.
2. Learned advocate Mr. Virat Popat appears for the applicant accused submits that FIR has been filed on 15th October, 2020 and present applicant has been arrested on 16th October, 2020 and since then he is in judicial custody. The investigation is already completed and after submission of charge-sheet present bail Page 1 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023 NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined application is preferred. Learned advocate Mr. Virat Popat further submits that the co-accused, who have actively participated in commission of crime by intimidating and threatening the victims with a sole intent to extort money from them, have been enlarged either on regular bail or on default bail. Learned advocate Mr. Popat submits that out of 12 accused persons against whom charge-sheet is filed, 8 accused persons have been enlarged either on regular bail or on default bail. Learned advocate Mr. Popat submits that the co-accused persons who played graver role than the present applicant accused have been enlarged on bail. The applicant accused is cited merely as an employee of the main accused person Jayesh Patel as courier boy who has collected the ill-gotten money from victim Bhagwanbhai on instruction of main accused Jayesh Patel in the year 2016 and said fact is clearly established from the statement of the victim Bhagwanbhai. Except that no other role is played by the applicant accused. Learned advocate Mr. Popat, therefore, submits that the applicant accused may be enlarged on bail on the ground of parity since the other co-accused who have played graver role than the present applicant accused have already been granted bail. In reply to the submission canvassed by learned Public Prosecutor Mr. Mitesh Amin that the co-accused Atul Bhanderi who is the Page 2 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023 NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined beneficiary of an amount of Rs.25,00,000/- has not been considered by the Hon'ble Supreme Court and therefore the present applicant accused and one Mr. Anil Parmar who have played graver role and who are the beneficiary of total amount of Rs.2.19 crore may not be enlarged on bail, learned advocate Mr. Popat submits that there is no concept of negative parity. Learned advocate Mr. Popat thereafter referred to and relied upon the order of co-accused Anilbhai @ Mehtaji Dineshbhai Dangariya and submitted that when the said co-accused against whom much more serious allegations have been raised to the effect that he was in constant touch with main accused Jayesh Patel and used to collect and route the extorted money to various persons on direction and instruction of main accused persons, has been enlarged on bail by the Hon'ble Supreme Court, the present applicant, whose role is lesser than the said co-accused, may also be enlarged on bail considering the principle of parity. Learned advocate Mr. Popat has referred to and relied upon the decision of the Hon'ble Supreme Court in the case of State of Gujarat v. Sandip Omprakash Gupta rendered in Criminal Appeal No.2291 of 2022 and submitted that as per the observations made by the Hon'ble Supreme Court in the aforesaid decision, no offence has been registered against the present applicant accused post enactment of the GUJCTOC Act i.e. Page 3 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023 NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined after 01.12.2019 and therefore when the provisions of Section 2(1)(c) would not attract in the case of the applicant accused, he is required to be absolved from the prosecution under GUJCTOC Act. Learned advocate Mr. Popat further submits that since the charge was framed and after framing of the charge, the Hon'ble Supreme Court passed the aforesaid judgment in the case of Sandip Omprakash Gupta (supra), the applicant accused has filed a Criminal Revision Application challenging the framing of charge itself and prayed to absolve the applicant accused from the prosecution under GUJCTOC Act. The said application is pending before this Court. Learned advocate Mr. Popat further submits that the applicant accused has been arrested on 16.10.2020 and since then he is in judicial custody and therefore considering the period of incarceration also, the applicant accused may be enlarged on bail. It is further submitted that post 2016, applicant accused has not committed any offence and the offences relied on by the prosecuting agency for filing present FIR attracting the provisions of GUJCTOC Act are of the year 2016 and when the applicant accused has not committed any offence post enactment of the GUJCTOC Act, he can be absolved from the prosecution under GUJCTOC Act, as per the observations made by the Hon'ble Supreme Court in the case of Sandip Omprakash Gupta Page 4 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023 NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined (supra). Thus, precisely on the grounds of parity, period of incarceration undergone by the applicant accused and post enactment of the GUJCTOC Act, since no offence is registered against the applicant accused, he may be enlarged on bail.
3. Learned Public Prosecutor Mr. Mitesh Amin assisted by learned APP Mr. Manan Mehta for the respondent - State submits that applicant accused and one co-accused Anil Parmar collected ill-gotten money of Rs.2.19 crores from one of the victims viz. Bhagwanbhai. To prove the said fact, learned Public Prosecutor Mr. Amin has read the statements of various witnesses. Learned Public Prosecutor Mr. Amin further submits that the applicant accused is not only associated with the syndicate for collecting money of extortion from the victims but also associated with the newspaper viz. 'Navanagar Times' run by wife of main accused Jayesh Patel. Learned Public Prosecutor also read the statements of witnesses in this regard. It is submitted that applicant is also an accused of land grabbing and one offence is registered against the applicant accused in the year 2016 by one Chandrakant Barot. Learned Public Prosecutor Mr. Amin further submits that on the basis of forged power of attorney, the accused persons are purchasing property, they are exchanging money through bearer cheque and Page 5 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023 NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined getting back that money etc. Learned Public Prosecutor Mr. Amin referred to and relied upon the decision of Hon'ble Supreme Court in the case of State of Maharashtra v. Shiva @ Shivaji Ramaji Sonawane, reported in (2015) 14 SCC 272 and submits that in the said case initially the investigator registered the offence under the provisions of IPC and Arms Act against two gangs. However, subsequently the investigator found that the said offence led to organized crime and therefore he sought permission to file separate complaint under the provisions of Maharashtra Control of Organized Crime Act ('MCOC Act' for short) based on the same FIR filed under the provisions of IPC and Arms Act. Thereafter, the investigator filed FIRs invoking the provisions of MCOC Act after getting sanction. So, four separate proceedings came to be filed against the accused persons two under the IPC and Arms Act and two under the MCOC Act based on the FIRs under the provisions of IPC and Arms Act. However, at the end of trial, the accused persons came to be acquitted for the offence under the IPC and Arms Act and State has not challenged the said acquittal. It is further submitted that in the proceedings under MCOC Act, the accused persons have been convicted. The matter went up to the Hon'ble Supreme Court and the Hon'ble Supreme Court ultimately set aside the conviction by observing that the FIRs Page 6 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023 NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined filed under the MCOC Act are based on the FIRs filed under IPC and Arms Act and when the accused have been acquitted for the offence under IPC and Arms Act and when the State has not challenged the said acquittal, there is no question of conviction for the offence under MCOC Act. Learned Public Prosecutor Mr. Amin submits that the Hon'ble Supreme Court in the case of Sandip Omprakash Gupta (supra) has merely explained the situation in Shiva's Judgment and beyond that there is nothing in the case of Sandip Omprakash Gupta (supra). So application of Sandip Omprakash Gupta's case in any bail matter unless the issue relates to that particular fact is totally unwarranted. Learned Public Prosecutor Mr. Amin, therefore, submits that bail application of the applicant may not be entertained.
4. Learned Public Prosecutor Mr. Amin has heavily relied upon the decision of Hon'ble Supreme Court in the case of Zakir Abdul Mirajkar v. the State of Maharashtra & Ors, rendered in Criminal Appeal No.1125 of 2022, and submitted that so far as the controversy involved in the present case, the aforesaid judgment will hold the field. Learned Public Prosecutor Mr. Amin refers to the provisions of Section 2(1)(a) of the GUJCTOC Act and submits that so far as the act of 'abet' is concerned, any facilitation of commission of organized crime would amount to Page 7 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023 NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined abetting the offence of organized crime. Learned Public Prosecutor further submits that one may be a principal offender and remaining persons of the syndicate would be the members of the syndicate but if some offence is committed by any accused person and someone has merely conspired and has committed some act of a nature of conspiracy then that section will be attracted. Learned Public Prosecutor Mr. Amin further submits that thereafter the gravity of the offence also need to be seen while dealing with the application of bail. Learned Public Prosecutor Mr. Amin further submits that when the Court examines the term 'continuing unlawful activity', there has to be more than one offence where the cognizance has been taken. Mr. Amin further submits that say for example if there are 10 members in an organized crime syndicate and one is the leader of the syndicate and others are the members then it is not prerequisite that against all the 10 members there has to be more than one offence requires to be registered and wherein cognizance is being taken by the competent Court. Learned Public Prosecutor Mr. Amin has, at this juncture, relied upon the observations made by the Hon'ble Apex Court in para 77 and 78 in the case of Zakir Abdul Mirajkar (supra) and submitted that in the aforesaid case, it has been specifically observed by the Hon'ble Supreme Court that, 'it Page 8 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023 NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined is settled law that more than one charge sheet is required to be filed in respect of the organized crime syndicate and not in respect of each person who is alleged to be a member of such a syndicate'.
5. Learned Public Prosecutor Mr. Amin thereafter relied upon the judgment of the Hon'ble Supreme Court in the case of Atulbhai Vithalbhai Bhanderi v. State of Gujarat rendered in Criminal Appeal No.1390 of 2023 and submitted that the Hon'ble Supreme Court, vide aforesaid judgment, refused to enlarge the said accused person (the co-accused in the present FIR) on bail considering the stand of the State that the prayer for bail of the concerned appellant accused person may be considered only after the protected witnesses are examined. Learned Public Prosecutor Mr. Amin submits that similar kind of request may also be considered by this Court and the present applicant accused may not be enlarged on bail till the protected witnesses are examined. It is further submitted that charges are framed and witness No.1 has already been examined. Learned Public Prosecutor Mr. Amin has read the relevant observations made by the Hon'ble Supreme Court in the case of co- accused Atulbhai Vithalbhai Bhanderi (supra) and submitted that the said co-accused facilitated the meeting between the accused No.1 - Jaysukh @ Jayesh Muljibhai Ranpara (Patel) and victim Page 9 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023 NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined Bhagwanjibhai Kanjariya and said victim has paid Rs.2,19,00,000/- to the members of the organized crime syndicate i.e. Anil Parmar and Pravin Chovatiya (present applicant accused) and to prove the said fact learned Public Prosecutor Mr. Amin has read the statement of victim Bhagwanjibhai Kanjariya. Learned Public Prosecutor Mr. Amin thereafter referred to the ledger account of one of the members of the syndicate viz. Mr. Anil Parmar operated from Sharjah and submitted that the said accused had given money to accused Pravin Chovatiya and other members of the syndicate. Learned Public Prosecutor Mr. Amin further submits that there are two other victims of the organized crime i.e. one Mr. Mehta and Mr. Chandrakant Barot. Learned Public Prosecutor Mr. Amin has also explained the modes operandi adopted by the syndicate against the aforesaid three victim persons. Learned Public Prosecutor Mr. Amin submits that role of the accused persons viz. Mr. Anil Parmar and Pravin Chovatiya (present applicant accused) is graver than the role of Mr. Bhanderi whose bail application has not been considered by the Hon'ble Supreme Court because the said co-accused Bhanderi is beneficiary of an amount of Rs.25 lakh, whereas Mr. Anil Parmar and Pravin Chovatiya (present applicant accused) are the beneficiaries of total amount of Rs.2,19,00,000/- and they are party to the Page 10 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023 NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined transaction of land grabbing from that ill- gotten money which had come from Anil Parmar's account from Sharjah to accounts of members of syndicate at Jamnagar.
6. Learned Public Prosecutor Mr. Amin thereafter referred to the order of the Hon'ble Supreme Court in the case of Anilbhai Dangariya and submitted that the role of the said accused person is totally different than the role played by the present applicant accused because the said accused is not the beneficiary of any amount. Learned Public Prosecutor Mr. Amin further submits that there is no dispute with regard to the ratio laid down by the Hon'ble Supreme Court in the aforesaid case, however, in the aforesaid decision, the Hon'ble Supreme Court has not considered the decision of Zakir Abdul Mirajkar (supra). Learned Public Prosecutor Mr. Amin, therefore, submits that bail application of the applicant may not be entertained.
7. I have perused the police papers and other documents produced by the applicant along with the memo of the application. It is found out from the record that applicant has been arrested on 16th October, 2020 and since then he is in judicial custody. The investigation is already completed and after submission of charge-sheet present bail application is preferred. It is also found out from the record that not a single Page 11 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023 NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined FIR is registered against the present applicant accused after the promulgation of the GUJCTOC Act.
8. It is also found out from the record that in fact the FIR has been filed against total 14 persons and name of the present applicant accused is mentioned at serial No.9. At the end of the day, after completion of investigation, the investigating officer has filed charge-sheet against 12 accused persons and remaining accused persons have been shown as absconder and yet they are not arrested. Out of 12 accused persons against whom charge-sheet is filed, accused Nos. 1 and 3 have been enlarged on bail by the Hon'ble Apex Court, accused Nos. 2, 4, 6, 10 and 13 have been enlarged on default bail and accused No.12 has been enlarged on bail by the Coordinate Bench of this Court. As submitted by learned advocate Mr. Popat, the persons who have been enlarged on default bail are the main accused persons and grave role is attributed to them as per the case of the prosecution. It is also found out from the record that the kingpin and gang leader Mr. Jayesh Patel has not been arrested.
Before adverting to the issue involved in the present case, I would like to refer to and rely upon the following decisions rendered by the Hon'ble Apex Court. In the case of Sandip Page 12 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023 NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined Omprakash Gupta (supra), in para 51(f) & (g), the Hon'ble Apex Court has observed as under:
"(f) There would have to be some act or omission which amounts to organised crime after the Act came into force, in respect of which the accused is sought to be tried for the first time, in the Special Court (i.e. has not been or is not being tried elsewhere).
(g) However, we need to clarify something important. Shiva alias Shivaji Ramaji Sonawane (supra) dealt with the situation, where a person commits no unlawful activity after the invocation of the MCOCA. In such circumstances, the person cannot be arrested under the said Act on account of the offences committed by him before coming into force of the said Act, even if, he is found guilty of the same. However, if the person continues with the unlawful activities and is arrested, after the promulgation of the said Act, then, such person can be tried for the offence under the said Act.
If a person ceases to indulge in any unlawful act after the said Act, then, he is absolved of the prosecution under the said Act. But, if he continues with the unlawful activity, it cannot be said that the State has to wait till, he commits two acts of which cognizance is taken by the Court after coming into force. The same principle would apply, even in the case of the 2015 Act, with which we are concerned."
In the case of Mukeshbhai Vallabhbhai Abhangi (supra), the Hon'ble Apex Court has observed in para nos. 7 and 8 as under:
"7. The learned counsel drew the Court's attention to State of Gujarat v. Sandip Page 13 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023 NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined Omprakash Gupta, 2022 SCC OnLine SC 1727, dated 15.12.2022, the relevant being at paras 49, 56 and 57, which affirms State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane, (2015) 14 SCC 272, which stipulates that the offence? of "organised crime" could be said to have been constituted by at least one incident of continuation apart from continuing unlawful activity evidenced by more than one charge- sheets in the preceding ten years.
8.Learned counsel also referred to the decision dated 30.05.2022 passed by this Court in SLP (Crl.) No. 1815 of 2022 titled 'Mohammed Iliyas Mohammed Bilal Kapadiya v. State of Gujarat', since reported as 2022 SCC OnLine SC 713, wherein also Section 2(c) of the GCTOC Act was involved and bail was granted on the ground that "only one charge-sheet was filed in respect of an activity which can be said to have been undertaken by the appellant/applicant as a member of an organised crime syndicate on behalf of such syndicate" as opposed to the requirement of "more than one charge-sheets" under Section 2(c) of the GCTOC Act.
In the case of Anilbhai @ Mehtaji Dineshbhai Dangariya (supra), the Hon'ble Apex Court has observed in para no. 9 as under:
"9. Having examined the records and on perusing the stand taken by the respondentState in the counter affidavit, we are of the opinion that undisputedly, there is only one case, that is the instant case, where the appellant has been made an accused. No other chargesheet has been filed against the appellant in the preceding ten years alleging offences punishable with more than three years' imprisonment. So, there is no "continuing unlawful activity" qua the appellant for attracting the provisions of the GCTOC Act.Page 14 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023
NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined The appellant has remained in custody since 29th January, 2021, for two years and nine months and he does not have any other criminal antecedents.
Now, I would like to refer to the relevant provisions of the GUJCTOC Act. Sections 2(1)(a) provides as under:
"(a) "abet" with its grammatical variations and cognate expression, includes-
(i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner an organised crime syndicate;
(ii) the passing on or publication of without any lawful authority, any information likely to assist the organised crime syndicate and the passing on or publication of or distribution of, any document or matter obtained from the organised crime syndicate; and
(iii)the rendering of any assistance, whether financial or otherwise, to the organised crime syndicate for committing an offence under this Act;"
Sections 2(1)(c) provides as under:
"(c) "continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment for a term of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding Page 15 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023 NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined period of ten years and that court has taken cognizance of such offence;"
Sections 2(1)(e) provides as under:
"organised crime" means any continuing unlawful activity including extortion, land grabbing, contract killing, economic offences, cyber crimes having severe consequences, human trafficking racket for prostitution or ransom by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion or other unlawful means."
Section 2(1)(f) provides as under:
"(f) "organised crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulging in activities of organised crime;"
Considering the ratio laid down by the Hon'ble Supreme Court in the aforesaid decisions and considering the aforesaid provisions of GUJCTOC Act as well as period of incarceration undergone by the applicant accused, I am inclined to consider the bail application of the applicant accused without discussing anything on merits and demerits of the matter.
9. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Page 16 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023 NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined Investigation, reported in [2012]1 SCC 40 as well as in case of Satender Kumar Antil v. Central Bureau of Investigation & Anr. reported in (2022)10 SCC 51.
10. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, 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 and the applicant is ordered to be released on regular bail in connection with C.R.No.11202008202186 of 2020 registered with Jamnagar City 'A' Division Police Station, Jamnagar, on executing a personal bond of Rs.15,000/- (Rupees Fifteen 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 injuries to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
Page 17 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023NEUTRAL CITATION R/CR.MA/10761/2023 CAV ORDER DATED: 08/12/2023 undefined [e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;
[f] furnish the present address of 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 this 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. 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.
13. 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.
14. The present application stands allowed accordingly. Direct service is permitted.
(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 18 of 18 Downloaded on : Fri Dec 08 20:46:34 IST 2023