Gujarat High Court
Virambhai Jakharabhai Rabari (Aal) vs State Of Gujarat on 21 January, 2025
NEUTRAL CITATION
R/CR.A/2196/2024 ORDER DATED: 21/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (REGULAR BAIL) NO. 2196 of 2024
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VIRAMBHAI JAKHARABHAI RABARI (AAL) & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PARAM BUCH WITH JEET V PATEL(8653) for the Appellant(s) No. 1,2
MR HRIDAY BUCH(2372) for the Appellant(s) No. 1,2
MR PITAMBERBHAI ABICHANDANI for MR Y J PATEL(3985) for the
Opponent(s)/Respondent(s) No. 2
MR ROHAN RAVAL, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 21/01/2025
ORAL ORDER
1. Heard learned advocate or the appellant and learned APP for the respondent - State.
2. Rule. Learned APP waives service of notice of Rule on behalf of respondent-State.
3. Present appeal is filed under Section 14-A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Atrocity Act") challenging the judgment and order dated 09.09.2024 passed by the leaned Special Judge, (Atrocity) & 3rd Additional Sessions Judge, Kachchh at Bhachau in Criminal Misc. Application No. 553 of 2024, whereby the Special Judge, (Atrocity) & 3 rd Additional Sessions Judge, Kachchh at Bhachau rejected the application filed by the present appellants under Section 483 of the Bharatiya Nyaya Suraksha Sanhita, 2023 (for short "BNSS") seeking regular bail in connection with FIR being Page 1 of 7 Uploaded by KUMAR ALOK(HC01091) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:44:47 IST 2025 NEUTRAL CITATION R/CR.A/2196/2024 ORDER DATED: 21/01/2025 undefined C.R.No.11993001240155 of 2024 registered with Samkhiyali Police Station, Dist. Kachchh, for the offences punishable under Sections 302, 307, 324, 325, 294(b), 506(2), 120(B), 143, 147, 148, 149, 120-B, and 34 of the IPC and under Sections 3(1)
(r), 3(1) (s), 3(2)(v) and 3(2)(v-a) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act and Sections 25(1-b)(a) and 27 of the Arms Act and Section 135 of the GP Act.
4. Learned advocate for the appellants has submitted that the appellants are not involved in commission of offence as alleged in the FIR and therefore, looking to the role of the appellants and nature of the allegations, the appellants are required to be enlarged on regular bail by imposing suitable terms and conditions.
4.1. Learned advocate for the appellants has submitted that appellants are arrested on 17.05.2024. It is submitted that present appellants is innocent and he has falsely enroped in the offence. Hence, he requested to allow the present appeal. It is submitted that the allegations levelled against the present appellants is far from the truth. Investigation is over and charge-sheet is filed. It is submitted that role attributed to the present appellants is that he was member of the unlawful assembly, who armed with the stick and iron pipe. There is no overt-act on the part of the present appellant. Charge is not yet framed. Nothing is required to be recovered and discovered from the accused. Commencement of trial will take its own time. Trial has not commenced and keeping the accused behind the bars is nothing but amounts to pre-trial conviction. In aid of Page 2 of 7 Uploaded by KUMAR ALOK(HC01091) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:44:47 IST 2025 NEUTRAL CITATION R/CR.A/2196/2024 ORDER DATED: 21/01/2025 undefined Sections 143, 147, 148, 149 of the IPC, the present appellants arraigned as an accused. Therefore, no purpose would be served to keep them behind the bar for long time. He is ready and willing to abide by all the conditions imposed upon them.
5. On the other hand, learned APP Mr.Raval and learned advocate Mr.Abichandani appearing for the respondent No.2 have vehemently opposed the appeal on the ground that present appellants are headstrong person(s). They came along with co- accused with a common intention and common object to snatch and dispossess the victims. They are engaged in this activity, and their livelihood is at stake. They attempted to forcibly take possession of the said land by hatching a criminal conspiracy in collusion and connivance with the accused persons. They came in pre-planned manner, in furtherance of the conspiracy, in various four-wheelers and made an assault with deadly weapons, including firearms, iron pipes, and sticks. When the accused opened fire, one person lost his life, and victims Mukesh and Valimohammad sustained grievous injuries. They have also supported the case of the prosecution. However, the accused caused firearm injuries, hurled abusive and derogatory language at the complainant and other witnesses, and assaulted them. It is submitted that sufficient material has been collected during the investigation. If the accused is/are released, the possibility of breaching public tranquility and indulging in similar activities cannot be ruled out, as the applicant(s) has/have a history of criminal antecedents. They terrorize the people and attempted to snatch possession from the victim and the complainant. It is requested that the trial be expedited. It Page 3 of 7 Uploaded by KUMAR ALOK(HC01091) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:44:47 IST 2025 NEUTRAL CITATION R/CR.A/2196/2024 ORDER DATED: 21/01/2025 undefined appears that allegations are serious in nature affecting the society at large and looking to the facts as well as the allegations made against the appellants, no discretion would be required to be exercised.
6. While granting bail, the Court has to consider the involvement of the accused in the alleged offence, 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 and 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 and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses and threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused 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 are required to be considered.
7. I have heard the learned advocates appearing on behalf of the respective parties and perused the investigation papers. In present case, the investigation is over and charge-sheet has been filed. Following aspects have been considered:
(i) appellants is arrested on 17.05.2024;
(ii) Commencement of trial will take its own time;
(iii) offence is not punishable with life or death;Page 4 of 7 Uploaded by KUMAR ALOK(HC01091) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:44:47 IST 2025
NEUTRAL CITATION R/CR.A/2196/2024 ORDER DATED: 21/01/2025 undefined
(iv) nothing is required to be recovered and discovered from the appellants;
(v) Perusing the record, it appears that the applicant(s) is /are arraigned as accused in aid of Section 143, 147, 148 and 149 of Indian Penal Code, 1860 the applicant is /are member of the unlawful assemble armed with the deadly weapon. No any overt-act is emerged from the investigation papers on the part of the applicant(s) and no any injury is caused to the any of the witnesses. Whatever allegations qua used of fire arm is against the co-accused;
(vi) charge-sheet is filed and charge yet to be framed and prosecution has to examine 110 witnesses, which is cited in the charge-sheet papers;
(vii) considering the fact that the apprehension raised by the other-side is concerned, the applicant has created his terror, then if he/they released on bail, then definitely they will snatch the possession of the complainant and witnesses. Therefore, stringent is required to be imposed;
8. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra vs. Central Bureau of Investigation reported in [2012]1 SCC 40 as well as in the case of Gudikanti Narasimhulu And Ors vs. Public Prosecutor, High Court of Andhra Pradesh reported in (1978)1 SCC 240. Obviously, the conclusion of trial will take time and keeping the accused behind the bars is nothing but amounts to pre-trial conviction and therefore, considering the celebrated principle of bail jurisprudence is that "bail is a rule and jail is exception" as well as the concept of personal liberty guaranteed under Article 21 of the Constitution of India, Page 5 of 7 Uploaded by KUMAR ALOK(HC01091) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:44:47 IST 2025 NEUTRAL CITATION R/CR.A/2196/2024 ORDER DATED: 21/01/2025 undefined present application deserves consideration.
9. In the facts and circumstances of the case and considering the nature of the allegations made against the appellants 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 appellants on regular bail. Hence, the present application is allowed. The appellants are ordered to be released on regular bail in connection with FIR being C.R.No.11993001240155 of 2024 registered with Samkhiyali Police Station, Dist. Kachchh, on executing a personal bond of Rs.25,000/- (Rupees Twenty-five Thousand only) each with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that they 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 State of Gujarat without prior permission of the Sessions Judge concerned;
[e] furnish the UIDAI Number, Contact Number/s, Passport Number (if he is/they are having the passport), E-mail address and 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 address as well as contact number without prior permission of Trial Court;
[f] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;
[g] not enter into the Kachchh District for a period six Page 6 of 7 Uploaded by KUMAR ALOK(HC01091) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:44:47 IST 2025 NEUTRAL CITATION R/CR.A/2196/2024 ORDER DATED: 21/01/2025 undefined months except for marking presence before the concerned police Station and attending the court proceedings/trial;
[h] not enter into the desert area, till trial is over and not disturb the complainant and victim/witnesses;
[I] not contact directly or indirectly with the complainant or any other witnesses;
(j) not indulge in any similar type of activity. I f the applicants is/are found to be indulged in any illegal activities in future, the trial Court concerned will be free to issue warrant and cancel the bail granted to the applicant.
10. The authorities will release the appellants only if they are 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.
11. 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.
12. 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 appellants on bail.
13. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 7 of 7 Uploaded by KUMAR ALOK(HC01091) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:44:47 IST 2025