Gujarat High Court
Salimbhai Nizamuddin Dhapa vs State Of Gujarat on 13 October, 2023
NEUTRAL CITATION
R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 14313 of 2023
(FOR REGULAR BAIL - AFTER CHARGESHEET)
With
R/CRIMINAL MISC.APPLICATION NO. 14375 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 14566 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 14757 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 14838 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 15003 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 15233 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 15531 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 15584 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 15934 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 16111 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 16993 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the NO
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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SALIMBHAI NIZAMUDDIN DHAPA
Versus
STATE OF GUJARAT
Page 1 of 19
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NEUTRAL CITATION
R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023
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Appearance:
A S TIMBALIA(7372) for the Applicant(s) No. 1
MR SOHAM JOSHI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 13/10/2023
CAV JUDGMENT
1. As all these applications are arising out of same FIR and are filed under Section 439 of the Criminal Procedure Code, 1973 for regular bail, all these applications are heard together and are being decided by this common order.
2. All these applications are filed under Section 439 of the Code of Criminal Procedure, 1973 by the applicants, for regular bail in connection with FIR being C.R. No.11210015230082/2023 registered with D.C.B. Police Station, Surat City for offence under Sections 419, 419, 420, 34 and 120(B) of the Indian Penal Code and Sections 66 and 66(D) of the Information & Technology Act.
3. Heard learned Senior Counsel, Mr. N.D. Nanavati for Thakkar and Pahwa Associates in Criminal Misc. Application No.14566/2023, learned Senior Counsel, Mr. Jal Unwala assisted by learned advocate, Mr. P.P. Majmudar in Criminal Misc. Application No.14757/2023, learned advocate, Mr. A.S. Timbalia in Criminal Misc. Application No.14313/2023, learned advocate, Mr. Manish Patel in Criminal Misc. Application Nos.14375, 14838, 15531 & 15584/2023, learned advocate, Mr. Bhavesh J. Patel Page 2 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined in Criminal Misc. Application Nos.15003 & 15934/2023, learned advocate, Mr. P.R. Abichandani in Criminal Misc. Application No.15233/2023, learned advocate, Mr. Hardik Thakkar in Criminal Misc. Application No.16111/2023 and learned advocate, Mr. Himanish Japee in Criminal Misc. Application No.16993/2023 for the respective applicant and learned APP Mr. Soham Joshi appearing for the respondent - State in all matters.
Criminal Misc. Application No.14566/2023
4. Learned Senior Counsel Mr. Nanavati submitted that the applicant is arrested in connection with the aforesaid FIR on 03.06.2023 and since then, he is in judicial custody and now the investigation is completed and the chargesheet has been filed and, hence, the applicant be released on regular bail. It is submitted that the entire case is based upon the documentary evidences and the concerned Investigating Officer has collected all evidence during the course of investigation and based on it, chargesheet came to be filed and, hence, there is no apprehension on the part of the prosecution that the applicant would tamper with the evidence. It is submitted that in fact, the candidates, who are beneficiary of the alleged act committed by the applicants - accused have already been bailed out. It is submitted that the applicant is not named in the FIR and the police remand was sought Page 3 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined by the police but nothing was recovered or discovered from the possession of the applicant and the applicant has cooperative with the investigation and maximum punishment prescribed under the law is seven years. It is submitted that there is gross delay in lodging the FIR as the alleged incident is dated 09.12.2020, for which, FIR is lodged on 19.05.2023. It is, therefore, urged that considering the above facts, the applicant may be granted bail.
Criminal Misc. Application No.14757/2023
5. Learned Senior Counsel, Mr. Unwala has submitted that the applicant is arrested on 25.05.2023 and since then, he is in judicial custody. It is submitted that now the investigation is over and the chargesheet has been filed and there is no recovery or discovery from the present applicant and, hence, keeping the applicant behind the bar, no fruitful purpose would be served. It is submitted that there are antecedents against the applicant - accused, wherein he has also been falsely implicated, however in those cases, the applicant is bailed out. It is submitted that merely because of antecedents of the applicant i.e. four offences registered against him, bail cannot be refused and in support of it, reliance is placed upon the decision of the Hon'ble supreme Court in case of Mohammad Wajid & Anr. Vs. State of U.P. & Ors., delivered in Criminal Appeal Page 4 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined No.2340/2023. It is submitted that in fact, out of aforesaid four offences, in one offence, the applicant - accused has been discharged and in remaining two offences, he is bailed out, copies of such orders are produced on record and fourth one is present one. It is submitted that the candidates, who have taken benefit of the alleged act, were given appointment on clearance of their examination and after registration of the offence, they have been suspended but not terminated from the services. It is submitted that apprehending their arrest in connection with aforesaid FIR, they had filed an applications for anticipatory bail, which were granted by the concerned Court. It is further submitted that though such allegations been leveled related to conspiracy hatched by the accused, none of the officer of NSEIT has been arraigned as accused. It is submitted that there is gross delay in filing the FIR against the applicant as the incident is for the period between 09.12.2020 to 06.01.2021, for which, FIR is lodged on 19.05.2023. It is submitted that from the papers of the chargesheet, there is no material and evidence connecting him with the alleged commission of offence nor it suggests involvement of the applicant - accused and despite that, he is branded as main accused. It is submitted that the remand was sought by the Investigating Officer and during remand, the applicant was thoroughly interrogated but nothing Page 5 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined came out during investigation. Thus considering facts of the present case including the fact that the case is based on documentary evidence, the present applicant - accused may be granted bail.
Criminal Misc. Application No.14313/2023
6. Learned advocate, Mr. A.S. Timbalia has submitted that the applicant is arrested in connection with the aforesaid offence on 26.05.2023 and since then, he is in judicial custody. It is submitted that now the investigation is over and the chargeshet is filed. Learned advocate submitted that the role attributed to the present applicant is very limited and he is arraigned as accused in the alleged commission of offence only on the basis of the statement of the co-accused. It is also found out from the record that at the time of investigation, the Investigating Officer has recorded the statement of certain co-accused, wherein it is alleged that the present applicant has received amount as commission but now after submission of the chargesheet, it is nowhere found out from any piece of document, which shows that the applicant - accused has received single penny as commission and in absence of any concrete material, the present applicant - accused cannot be put behind the bar for indefinite period. It is submitted that there is voluminous record in the papers of chargesheet and number of witnesses are cited and, hence, it would take considerable time Page 6 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined to conclude the trial and all the offences are triable by the Court of Magistrate. It is submitted that even assuming without admitting that if at all at the end of day, if the charges leveled against the applicants are proved, in that event, maximum punishment prescribed under the law could be imposed upto seven years and the applicant is not having any antecedent. It is, therefore, urged that the present applicant - accused may be granted bail.
Criminal Misc. Application Nos.14375, 14838, 15531 & 15584/2023
7. Learned advocate, Mr. Manish Patel has submitted that the applicants of the aforesaid applications are in jail since their arrest and now the investigation is over and the chargeshet is filed. Learned advocate submitted that the role attributed to the present applicants is that they have worked as sub-agent of the sub-agent and as per the case of the prosecution case, the present applicants have received certain amount as commission from the principal agent and to substantiate the said charge leveled against the applicant, the prosecution has to bring certain documents as evidence. It is also found out from the record that at the time of investigation, the Investigating Officer has recorded the statements of certain co-accused, wherein it is alleged that the present applicants have received amount as Page 7 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined commission but now after submission of the chargesheet, it is nowhere found out from any piece of document from the papers of the chargesheet, which would raise finger upon the applicant and show that the applicants have received single penny as commission and in absence of any concrete material, the present applicant - accused cannot be put behind the bar for indefinite period. It is submitted that there is voluminous record in the papers of chargesheet and number of witnesses are cited and, hence, it would take considerable time to conclude the trial and all the offences are triable by the Court of Magistrate. It is submitted that even assuming without admitting that if at all at the end of day, if the charges leveled against the applicants are proved, in that event, maximum punishment prescribed under the law could be imposed upto seven years. It is, therefore, urged that the present applicant - accused may be granted bail.
Criminal Misc. Application Nos.15003 & 15934/2023
8. Learned advocate, Mr. Bhavesh Patel has submitted that the applicants of aforesaid applications are in jail since their arrest and now the investigation is over and the chargeshet is filed. Learned advocate submitted that the role attributed to the present applicants is very limited and they are arraigned as accused in the alleged commission of offence only on the basis of Page 8 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined the statement of the co-accused. It is also found out from the record that at the time of investigation, the Investigating Officer has recorded the statement of certain co-accused, wherein it is alleged that the present applicants have received amount as commission but now after submission of the chargesheet, it is nowhere found out any piece of document, which shows that the applicants - accused have received single penny as commission and in absence of any concrete material, the present applicants - accused cannot be put behind the bar for indefinite period. It is submitted that there is voluminous record in the papers of chargesheet and number of witnesses are cited and, hence, it would take considerable time to conclude the trial and all the offences are triable by the Court of Magistrate. It is submitted that even assuming without admitting that if at all at the end of day, if the charges leveled against the applicants are proved, in that event, maximum punishment prescribed under the law could be imposed upto seven years. It is, therefore, urged that the present applicant - accused may be granted bail.
Criminal Misc. Application No.15233/2023
9. Learned advocate, Mr. Abichandani appearing for the applicant has submitted that the applicant is in jail since 07.06.2023 and he is not named in the FIR. It is submitted that now the Page 9 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined investigation is over and the chargesheet is filed and specific role is not attributed to the present applicant in the FIR. It is submitted that the applicant is arraigned as accused in the aforesaid offence only on the basis of the statement of the co-accused and as per the papers of the chargesheet, it is found out that the role attributed to the applicant is that he has acted as sub-agent of the agent. It is submitted that in the hierarchy of paramedical structure, role of the present applicant - accused is sub-agent to sub-agent and the investigation is over and the prosecuting agency has miserably failed to produce any piece of document, which would show and suggest that the present applicant-accused has obtained single penny as commission from the main agent. It is submitted that the remand of the applicant was sought for, wherein the applicant has fully supported the Investigation Officer and there is no recovery or discovery at the behest of the present applicant. It is submitted that there is no antecedents against the applicant. It is submitted that the offences are exclusively triable by the Court of Magistrate and the chargesheet is very bulky containing voluminous record, wherein number of witnesses are also cited and as yet the trial has not begun, it would take considerable time to conclude it as the case of based on documentary evidence. Therefore considering aforesaid facts of the case, the Page 10 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined present applicant - accused may be granted regular bail considering the role attributed to him.
Criminal Misc. Application No.16111/2023
10. Learned advocate, Mr. Hardik Thakkar for the applicant has submitted that the applicant is arrested in connection with the aforesaid offence on 26.05.2023 and since then, he is in judicial custody. It is submitted that now the investigation is over and the chargeshet is filed. Learned advocate submitted that the role attributed to the present applicants is very limited and he is arraigned as accused in the alleged commission of offence only on the basis of the statement of the co-accused. It is also found out from the record that at the time of investigation, the Investigating Officer has recorded the statement of certain co-accused, wherein it is alleged that the present applicant has received amount as commission but now after submission of the chargesheet, it is nowhere found out from any piece of document, which shows that the applicant - accused has received single penny as commission and in absence of any concrete material, the present applicant - accused cannot be put behind the bar for indefinite period. It is submitted that the chargesheet papers contains voluminous record and number of witnesses are there and, hence, it would take considerable time to conclude the trial and all the offences are Page 11 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined triable by the Court of Magistrate. It is submitted that even assuming without admitting that if at all at the end of day, if the charges leveled against the applicants are proved, in that event, maximum punishment prescribed under the law could be imposed upto seven years. It is, therefore, urged that the present applicant - accused may be granted bail.
Criminal Misc. Application No.16993/2023
11. Learned advocate, Mr. Himanish Japee has submitted that the applicant is arrested in connection with the aforesaid offence on 26.05.2023 and since then, he is in judicial custody. It is submitted that now the investigation is over and the chargesheet is filed. Learned advocate submitted that the role attributed to the present applicants is very limited and he is arraigned as accused in the alleged commission of offence only on the basis of the statement of the co-accused. It is also found out from the record that at the time of investigation, the Investigating Officer has recorded the statement of certain co-accused, wherein it is alleged that the present applicant has received amount as commission agent but in the statements of the witnesses, nowhere it is stated that the present applicant had received amount from the main agent and in absence of the same, liability cannot be fastened on the head of the applicant. It is submitted that record is very Page 12 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined bulky and number of witnesses are cited and, hence, it would take considerable time to conclude the trial and all the offences are triable by the Court of Magistrate. It is submitted that even assuming without admitting that if at all at the end of day, if the charges leveled against the applicants are proved, in that event, maximum punishment prescribed under the law could be imposed upto seven years. It is, therefore, urged that the present applicant - accused may be granted bail.
12. On the other hand, learned APP has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that all the applicants - accused have taken commission and thus, they are beneficiary of the alleged act. It is submitted that there systematic and designed racket is arranged and pursuant to the said program, the main agent had entrusted the work to the sub-agent to bring potential candidates, who are ready to pay huge amount for the purpose of getting clearance in the competitive examination and agents would get commission for that work. It is submitted that involvement of the applicants - accused is prima facie found out and there are sufficient material and evidence available on record. It is submitted that from the papers of the chargesheet, the involvement of the applicants
- accused is found out including the role played Page 13 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined by them and because of said conspiracy, it has adversely affected the Government system. It is submitted that there is possibility of tampering with the evidence and fleeing away at the time of trial.
13. Learned APP has submitted that the accused persons have hatched conspiracy and acted in furtherance of their plans to give undue benefits to certain candidates in the examination conducted by the concerned agency, wherein the accused persons have worked as agents, sub-agents and sub-agents of sub-agent and collected huge amount of funds from the aspirant candidates and by adopting illegal method, they have worked as a facilitator. It is submitted that the accused have organized such a big racket that if the candidate would pay certain amount, in that event, on the strength of designed plan, which they have created, the candidates would clear the competitive examination and on the strength of above stated designed plan, they have amassed huge volume of fund from number of candidates and by adopting such mode and manner, they have cheated the candidates. Not only that, they have indirectly made direct attach upon the Government system and due to the said act of the accused, it has created huge damage to the impression of the Government and also confidence of the public at large towards the Government is shaken, therefore considering overall facts of the case, the bail application of the accused cannot Page 14 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined be considered.
14. Learned APP has submitted that the accused persons have made hand-in-glove with each other and designed big conspiracy and acted as per their design plan, which ultimately made the attach upon the image of the Government and as stated above, on conclusion of the investigation, chargesheet is filed and from the papers of the chargesheet, the role played by each accused is clearly established. It is, therefore, urged that the present applications may not be entertained.
15. I have heard the learned advocates appearing on behalf of the respective parties and considered the submissions canvassed by learned advocates for the parties. I have also perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. Over and above that, as stated above, now the investigation is over; the chargesheet is filed; the applicants are in jail since their arrest; the case rests on documentary evidence; the case is triable by the Court of Magistrate and maximum punishment prescribed under the law is seven years. It is required to be noted that for the alleged incident of 09.12.2020, FIR is lodged on 19.05.2023 and thus, there is delay in lodging FIR. Further, out of total candidates, who took benefits from the alleged commission of offence, some of them have already been suspended and all those have granted anticipatory bail by Page 15 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined the Coordinate Bench of this Court, copy of one of such order is placed on record. Thus considering overall facts of the case, I am of the opinion that the present applicants deserve to be allowed and the applicants - accused deserve to be granted bail.
16. 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 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. This Court has also considered the decision of the Hon'ble Supreme Court in case of Mohammad Wajid (supra) upon which reliance has been placed by learned Senior Counsel, Mr. Unwala as well as the decision rendered by the Hon'ble Supreme Court in case of Prabhakar Tewari Vs. State of Uttar Pradesh & Anr., reported in (2020) 11 SCC 648. So far as the aspect of past antecedents is concerned, the Hon'ble Supreme Court in case of Mohammad Wajid (supra) has rightly held that when it comes to quashing of the FIR or criminal proceedings, the criminal antecedents of the accused cannot be the sold consideration to decline to quash the criminal proceeding. I would like to quote the relevant observations made by the Hon'ble Supreme Court in the said judgment, which reads as under, Page 16 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined
34. The learned Additional Advocate General appearing for the State vehemently submitted that considering the gross criminal antecedents of the appellants before us, the criminal proceedings may not be quashed. The learned Additional Advocate General appearing for the State in her written submissions has furnished details in regard to the antecedents of the appellants. A bare look at the chart may give an impression that the appellants are history sheeters and hardened criminals. However, when it comes to quashing of the FIR or criminal proceedings, the criminal antecedents of the accused cannot be the sole consideration to decline to quash the criminal proceedings. An accused has a legitimate right to say before the Court that howsoever bad his antecedents may be, still if the FIR fails to disclose commission of any offence or his case falls within one of the parameters as laid down by this Court in the case of Bhajan Lal (supra), then the Court should not decline to quash the criminal case only on the ground that the accused is a history sheeter. Initiation of prosecution has adverse and harsh consequences for the persons named as accused. In Directorate of Revenue and another v. Mohammed Nisar Holia, (2008) 2 SCC 370, this Court explicitly recognises the right to not to be disturbed without sufficient grounds as one of the underlying mandates of Article 21 of the Constitution. Thus, the requirement and need to balance the law enforcement power and protection of citizens from injustice and harassment must be maintained. It goes without saying that the State owes a duty to ensure that no crime goes unpunished but at the same time it also owes a duty to ensure that none of its subjects are unnecessarily harassed.
17. In the facts and circumstances of the case and considering the nature of the allegations made Page 17 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined against the applicants 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.
18. Hence, all these applications are allowed. The applicants of all above applications are ordered to be released on regular bail in connection with the FIR being C.R. No.11210015230082/2023 registered with D.C.B. Police Station, Surat City on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) each with one surety each 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 the State of Gujarat without prior
permission of the Sessions Judge concerned; [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 Page 18 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023 NEUTRAL CITATION R/CR.MA/14313/2023 CAV JUDGMENT DATED: 13/10/2023 undefined and shall not change the residence without prior permission of this Court;
19. The authorities will release the applicants 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 concerned 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.
20. 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.
21. The present applications stand allowed accordingly. Direct service is permitted.
22. Registry to keep copy of this order in each matter.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 19 of 19 Downloaded on : Fri Oct 13 20:47:08 IST 2023