Gujarat High Court
Kantibhai Nathubhai Changani vs State Of Gujarat on 19 October, 2015
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/17983/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 17983 of 2015
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KANTIBHAI NATHUBHAI CHANGANI....Applicant
Versus
STATE OF GUJARAT....Respondent
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Appearance:
MR IH SYED, LD.SENIOR ADVOCATE WITH MR.CHIRAG B UPADHYAY,
ADVOCATE for the Applicant.
MS MH BHATT, LD.ADDL.PUBLIC PROSECUTOR for the Respondent.
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 19/10/2015
ORAL ORDER
1. By way of the present application under Section 439 of the Code of Criminal Procedure, the applicant, who is facing serious charges for the offences punishable under Sections 302, 120(B), 279, 337, 338, 304(A), etc. of the Indian Penal Code and Sections 177 and 184 of the Motor Vehicle Act, being C.R.No.I- 11 of 2015 registered with Jamnagar Panch "B" Division Police Station, Jamnagar, has prayed to release him on regular bail, during the pendency of the trial.
2. Mr.Pravin Gondaliya, learned advocate has appeared on behalf of the original complainant and requested to give reasons, if the Court is entertaining this application.
3. Brief facts, arise from the record of the case, are as under:
Page 1 of 6HC-NIC Page 1 of 6 Created On Tue Oct 20 02:50:20 IST 2015 R/CR.MA/17983/2015 ORDER An FIR being C.R.No.I - 11 of 2015 was lodged with Jamnagar "B" Division Police Station on 23/01/2015 against one Palabhai Hathabhai Gamara, for the offence punishable sections 279, 337, 338, etc. of the Indian Penal Code and Sections 177 and 184 of the Motor Vehicle Act, alleging that a vehicle i.e Toofan Jeep bearing registration No.GJ-3 Z 9435 was driven in negligent manner, pursuant to which, Dineshbhai sustained serious injuries. The said Palabhai Gamara was arrested and released on regular bail. Charge-sheet came to be filed for the said offence on 30/03/2015. The said injured Dineshbhai survived till 07/04/2015 and died due to injuries sustained by him. On 12/04/2015, an application was made by the complainant i.e. brother of the deceased making allegation that the present applicant along with other five accused persons had hatched conspiracy to kill the his brother, pursuant to dispute with regard to land. and an amount of Rs.17 Lacs was paid to other accused and hatched conspiracy to kill the deceased. Subsequently the present applicant along with other five accused persons came to be arrested and charge-sheet has been filed against them for the offence punishable under sections 302, 304(A), 120B of the Indian Penal Code and Sections 177 and 184 of the Motor Vehicle Act. The applicant preferred an application u/s.439 of the Code of Criminal Procedure for regular bail before learned Trial Court, which was rejected. Hence, this application.
4. Mr.I.H.Syed, learned Senior Advocate assisted by Mr.Chirag Upadhyay, learned advocate for the applicant would submit that the applicant has been falsely implicated in the incident. He would submit that though the incident has Page 2 of 6 HC-NIC Page 2 of 6 Created On Tue Oct 20 02:50:20 IST 2015 R/CR.MA/17983/2015 ORDER taken place way back in the month of January,2015 and charge-sheet has been filed against Palabhai Gamara on 30/03/2015 i.e. prior to death of brother of the complainant, no such allegations were made in the said FIR. He would submit that subsequent to death of the deceased, brother has come forward with an application dated 12/04/2015 with ulterior motive since some dispute is going on between them. There is no evidence to connect the present applicant with the crime. He would submit that other accused with whom the conspiracy alleged to have been arrived at, have been enlarged on bail by learned Trial Court. He would submit that some amount has been received by some accused by Angadia, which has been considered by learned Trial Court and thereafter released the co-accused on bail. The said bail order of co-accused have not been challenged before the higher forum. He would submit that therefore, the application may be allowed.
5. Ms.M.H.Bhatt, learned Additional Public Prosecutor has opposed this application and submitted that conspiracy was hatched between the accused persons and amount was transferred to Angadia. Therefore, this application may be rejected.
6. Mr.Pravin Gondaliya, learned advocate has appeared on behalf of the complainant and submitted that conspiracy was hatched between the accused and amount was paid at the instance of the present applicant, which was received by the other accused. He would submit that statement of Sajubhai dated 01/05/2015 makes it clear that one of the accused, who was driving the vehicle, has no Page 3 of 6 HC-NIC Page 3 of 6 Created On Tue Oct 20 02:50:20 IST 2015 R/CR.MA/17983/2015 ORDER licence and Palabhai was produced before the Police Station as he was having licence. Brother of the Palabhai namely Babubhai was driving the vehicle, who has dashed the jeep to the back side of the motor cycle of the deceased. Other accused have received amount including Babubhai from the Angadia. He would submit that therefore, prima facie, case of conspiracy has been made against the applicant.
7. I have heard learned advocates appearing on behalf of the respective parties and perused the papers of investigation. It is an undisputed fact that the incident took place in the month of January,2015, wherein Palabhai Gamara was arrested for the offence punishable under sections 279, 337, 338, etc. of the Indian Penal Code and released on bail. Charge-sheet against him was already filed on 30/03/2015. Injured person died after almost three months from the date of incident. Subsequent to death of the deceased, brother of the deceased had came forward with the application making allegation of conspiracy. Though reasons are assigned, it is not desirable to say anything about prosecution side about not disclosing serious allegation from January to March i.e. about three months from the date of incident/ accident. The first application came to be filed after death of the injured in the month of March,2015. It is pertinent to note that the said Babubhai, who had driven the vehicle and dashed with the motor cycle of the deceased, has been enlarged on bail by learned Trial Judge. Other accused, who alleged to have hatched conspiracy with the present applicant and received some amount from Angadia are also enlarged on bail. For what the purpose, amount was received by them, are not clear. Therefore, in my opinion, the applicant be treated at Page 4 of 6 HC-NIC Page 4 of 6 Created On Tue Oct 20 02:50:20 IST 2015 R/CR.MA/17983/2015 ORDER par with other accused persons, who have been released on bail.
8. In the facts and circumstances of the case and considering the nature of 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. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an offence being C.R.No.I-11 of 2015 registered with Jamnagar Panch "B" Division Police Station, Jamnagar, on executing a personal bond of Rs.25,000/- (Rupees Twenty Five thousands only) with one surety of the like amount to the satisfaction of the learned 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; [e] mark presence before the concerned Police Station on every Monday for a period of three months and thereafter on any day of first week of each English Calendar month for a period of six months, between 10:00 a.m. and 2:00 p.m.;
[f] furnish latest address of residence to the
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R/CR.MA/17983/2015 ORDER
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;
9. 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 learned 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. At the trial, learned 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. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
[A.J.DESAI,J.] *dipti Page 6 of 6 HC-NIC Page 6 of 6 Created On Tue Oct 20 02:50:20 IST 2015