Gujarat High Court
Imran @ Tavar Mahebubbhai Chaniya vs State Of Gujarat on 20 January, 2023
Author: S.H.Vora
Bench: S.H.Vora
R/CR.MA/23718/2022 ORDER DATED: 20/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23718 of 2022
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IMRAN @ TAVAR MAHEBUBBHAI CHANIYA
Versus
STATE OF GUJARAT
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Appearance:
MR MOHMEDSALIM HAKIM(6476) for the Applicant(s) No. 1
MS KEHKASHA M HAKIM(11705) for the Applicant(s) No. 1
MR P B KHANDHERIA(5228) for the Respondent(s) No. 1
MS VRUNDA SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
Date : 20/01/2023
ORAL ORDER
1. This 2nd successive bail application is filed by the applicant
- original accused no.7 under Section 439 of the Code of Criminal Procedure for regular bail in connection with F.I.R. registered at C.R.No.11189003202218 of 2020 with "A" Division Morbi City Police Station, Morbi for the offences punishable under Sections 302, 323, 325, 504, 506(2), 143, 147, 148, 149 of IPC, under section 37(1), 135 of GP Act and under section 25(1-b)(a), 27 of Arms Act.
2. Facts of the prosecution case is as under :-
2.1 The complaint is filed by one Rafikbhai Mandaviya who is residing in the same street where accused persons are living. On Sunday i.e. 20.12.2012, complainant was present at home, his elder son came to have lunch, thereafter, Rauf and Afzal also joined Adil and rest of the family members for lunch. When they Page 1 of 5 Downloaded on : Fri Jan 20 21:00:04 IST 2023 R/CR.MA/23718/2022 ORDER DATED: 20/01/2023 finished their lunch, Rauf, Afzal and Asif left home to resume their work. Thereafter, complainant found that his son Anish was having some altercation with neighbor's son Shabbir, the complainant went out of house and took his son inside and he maintained peace between both of them. Thereafter, one Hanif who resides at adjacent home, reached at the home of complainant and started verbal abuse with complainant in the context of parking related issue. Thereafter, Hanif raised speeding of vehicle issue and that he witnessed on street previously. Thereafter, complainant spoke loudly that his sons are business owners. After hearing this, some heated verbal altercation were exchanged between the complainant and accused no.1. Thereafter, it is alleged that accused persons formed unlawful assembly armed with deadly weapons like pistols, iron pipe, wooden stick and due to which complainant and witnesses received injuries and Adil son of complainant received serious injuries and when he was taken to hospital, it is further alleged at that time also accused persons stared quarrel.
The present applicant started firing with his pistol like weapon, due to which Rauf son of the complainant received injuries on his shoulder. Thereafter, the complainant and rest of the family members shifted Adil as well as Rauf to different hospital which is situated in Morbi district. After reaching government hospital, Doctor declared Adil dead. Thus, FIR came to be registered against the accused persons.
3. Heard learned advocate for the applicant, learned APP and learned advocate for the complainant. The Court has considered written submission filed by the complainant.
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4. Present is 2nd successive bail application preferred by the applicant accused no.7 principally on two grounds viz. (i) the applicant is behind bar since 26.12.2020 and trial will take long time to commence and conclude (ii) Co-accused - Imitiyaz Hanif Kasmani is enlarged on bail who has played identical role as that played by the present applicant on 10.08.2022 in Criminal Misc. Application No.12961 of 2022 as per order annexed at Annexure F to the application.
5. The Co-ordinate Bench while considering bail application of the co-accused found and observed that the weapon which was recovered at the instance of co-accused was 9 mm and bullet found from the dead body was 7.65 mm and co-accused had no any antecedent and further he received serious injuries.
6. In the case of present applicant, he is having 5 antecedents, he has not received serious injury on body and more particularly, evidence gathered by the investigating agency indicates that 7.65 mm country made pistol was recovered from the applicant and bullet which was recovered from the body of the injured was also 7.65 mm. It also needs to be noted here that 2nd part of the incident took place at the hospital where present applicant used weapon and there is direct evidence in the form of ballistic report that weapon used by the applicant was fired at the place of hospital and bullet was found from the body of injured.
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7. No-doubt, law of parity would be applied in granting bail to accused, where co-accused has been granted bail on similar set of circumstances. Law of parity is desirable rule where case of accused is identical with co-accused, who is already enlarged on bail. Needless to mention that simply because co-accused has been granted bail, it cannot be sole criteria for granting bail to another accused, if he stands on different footing.
8. On comparison of role played by the present applicant and co-accused it becomes evidently clear that prima facie applicant's involvement surfaces on record and there are 5 antecedent registered against the applicant. What is more disturbing aspect in the present matter is such that the applicant used weapon in the hospital, where deceased / injured were taken for treatment. Therefore, the principle of parity cannot be applied in view of role and antecedent of the applicant.
9. While parting with the order, it is matter of fact that the applicant had withdrawn successive bail application on 28.07.2021 passed in Criminal Misc.Application No.9261 of 2021 as per order annexed at Annexure J and no any special or exceptional circumstances has been pointed out by the learned advocate for the applicant and therefore, the applicant is left with no option but to obtain verdict of his involvement or innocence in the offence by following due procedure laid down under Chapter XVIII of Code of Criminal Procedure.
10. So having regard to totality of circumstances and criminal antecedent and the manner in which incident took place at Page 4 of 5 Downloaded on : Fri Jan 20 21:00:04 IST 2023 R/CR.MA/23718/2022 ORDER DATED: 20/01/2023 hospital, the Court inclines to think that social concern in the case at hand has to be given priority over lifting the liberty of accused and thus, application deserves rejection and accordingly, present application is rejected.
(S.H.VORA, J) SATISH Page 5 of 5 Downloaded on : Fri Jan 20 21:00:04 IST 2023