Gujarat High Court
Hitsehbhai Bhupatbhai Sarvaiya vs State Of Gujarat on 19 June, 2025
NEUTRAL CITATION
R/CR.MA/28/2025 ORDER DATED: 19/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO.
28 of 2025
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HITSEHBHAI BHUPATBHAI SARVAIYA
Versus
STATE OF GUJARAT
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Appearance:
MR PM LAKHANI(1326) for the Applicant(s) No. 1
MRS R P LAKHANI(3811) for the Applicant(s) No. 1
MR HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 19/06/2025
ORAL ORDER
1. Rule. Learned APP waives service of notice of rule for respondent - State of Gujarat.
2. By way of the present application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"), the applicant has prayed for anticipatory bail in the event of arrest in connection with the FIR being C.R. No.11198053240354 of 2024 registered with Talaja Police Station, District Bhavnagar for the alleged offences as mentioned in the FIR.
3. Heard learned advocate Mr. P. M. Lakhani for the applicant and learned APP Mr. Hardik Soni for the respondent - State.
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4. At the outset, learned advocate Mr. Lakhani for the applicant submits that if the Court would make cursory glance upon the contents of the FIR, in that event, it would have been found out that none of the ingredients to constitute an offence of robbery punishable under Section 394 of the IPC are spelt out. In support of the aforesaid submission, he has put reliance upon the order dated 01.12.2016 passed in Criminal Misc. Application No.31543 of 2016 by this Court. He further submits that in similar set of facts, the Coordinate Bench of this Court has directed the concerned investigating officer to file a report before the concerned Court for deletion of Section 394 of the IPC from the concerned FIR. He, therefore, submits that similar order may be passed in the present matter also.
5. On the other hand, learned APP Mr. Hardik Soni has objected present application with vehemence, however, fairly submitted that looking to the averments made in the FIR, an appropriate order may be passed.
6. I have heard the learned advocates appearing for the parties and perused the materials produced on record. I would like to refer to and rely upon the observations made by the Coordinate Bench of this Court while passing the order dated 01.12.2016 in Criminal Misc. Application No.31543 of 2016, which Page 2 of 8 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jun 20 2025 Downloaded on : Sat Jun 21 00:08:52 IST 2025 NEUTRAL CITATION R/CR.MA/28/2025 ORDER DATED: 19/06/2025 undefined provides as under:
"1 By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant - original accused seeks to invoke the inherent powers of this Court, praying for quashing of the First Information Report being C.R. No.I125 of 2016 registered with the Santram Police Station, District: Mahisagar for the offence punishable under Sections 394, 427, 323, 504 and 506(2) of the Indian Penal Code.
2 It appears from the materials on record, more particularly, the contents of the F.I.R. that an accident took place near the Mutton Market at Majdan between vehicle of the first informant and a motor cycle. On account of the accident, some altercation took place. There was some scuffle also as alleged. In the F.I.R., the first informant has alleged that while the altercation was goingon, the people, who had gathered over there, snatched away a gold chain from her neck and a gold ring from her finger.
3 Even if the entire case of the prosecution is accepted as true, I am of the view that none of the ingredients to constitute an offence of robbery punishable under Section 394 of the Indian Penal Code are spelt out. By no stretch of imagination, it can be said that the common object of the unlawful assembly was to commit an offence of dacoity. This Court in the case of Dharmendrabhai Nandubhai Patel and another vs. State of Gujarat [2011 (3) G.L.H. 739] has explained in details what would constitute robbery. I may quote the relevant observations made in para 21 and 22 as under:
"21 Now, in this background of the entire Page 3 of 8 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jun 20 2025 Downloaded on : Sat Jun 21 00:08:52 IST 2025 NEUTRAL CITATION R/CR.MA/28/2025 ORDER DATED: 19/06/2025 undefined prosecution case and the evidence on record, can it be said that the common object of the unlawful assembly was to commit an offence of dacoity. Can it be said that the motive behind the crime was commission of dacoity or whether the common object of the unlawful assembly was to thrash the first informant for the reason that he developed intimacy with Gitaben and got married with Gitaben surreptitiously without seeking any permission from the family members of Gitaben. This is the core issue which, prima facie, needs to be considered in the appeal. However, prima facie, I am of the view that without going much into appreciation of evidence the conviction under Sections 395 and 397 appears to be unsustainable. I am of the view that the Court owes a duty to consider, as to whether the accused has a fair chance of succeeding in the appeal or not ? I may consider my prima facie opinion in light of what has been explained by the Division Bench of this High Court so far as Section 390 of IPC is concerned. The Division Bench of this High Court, in the case of Himatsing Shivsing v. The State of Gujarat, reported in 1961 GLR 678, has observed as under:
Theft amounts to 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Before theft can amount to 'robbery', the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of instant Page 4 of 8 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jun 20 2025 Downloaded on : Sat Jun 21 00:08:52 IST 2025 NEUTRAL CITATION R/CR.MA/28/2025 ORDER DATED: 19/06/2025 undefined death or of instant hurt, or of instant wrongful restraint. The second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft. The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft hurt etc., had been caused. If hurt etc., is caused at the time of the commission of the theft but for an object other than the one referred to in sec.390, I.P.Code, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft. The three ingredients mentioned in sec.390, I.P.Code, must always be satisfied before theft can amount to robbery, and this has been explained in Bishambhar Nath v. Emperor, A.I.R. 1941 Oudh, 476, in the following words:
The words "for that end" in sec.390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault Page 5 of 8 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jun 20 2025 Downloaded on : Sat Jun 21 00:08:52 IST 2025 NEUTRAL CITATION R/CR.MA/28/2025 ORDER DATED: 19/06/2025 undefined or the hurt must be caused in the same transaction or in the same circumstances.
In Karuppa Gounden v. Emperor, A.I.R. 1918 Madras 321, which followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi Manjhi, 5 C.W.N. 372, and Kind Emperor v. Mathura Thakur, 6 C.W.N. 72, it has been observed at page 824 as follows :
Now it is our duty to give effect to the words "for that end". It would have been open to the legislature to have used other words which would not raise the difficulty that arises here. The Public Prosecutor has been forced to argue that "for that end" must be read as meaning 'in those circumstances'. In my opinion we cannot do that in construing a section in the Penal Code. Undoubtedly, words 'in those circumstances' would widen the application of the section and we are not permitted to do that. The matter has been considered in two judgments of the Calcutta High Court one of which is reported as Otaruddi Manjhi v.Kafiluddi Manjhi 5 C.W.N. 372. Their Lordships put the question in this way:
It seems to us that the whole question turns upon the words "for that end". Was any hurt or fear of instant hurt, that was caused in the present case, caused for the end of the commission of the theft ? We think not. It seems to us that whatever violence was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had no relation to the commission of theft, although theft was committed at the same time.Page 6 of 8 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jun 20 2025 Downloaded on : Sat Jun 21 00:08:52 IST 2025
NEUTRAL CITATION R/CR.MA/28/2025 ORDER DATED: 19/06/2025 undefined The language used in another case reported as King Emperor v. Mathura Thakur, 6 C.W.N. 72, is as follows :
The question here arises whether Mathura Thakur when he attacked Soman Dhania, did so for the end referred to, namely, for the purpose of carrying away the paddy, which had been harvested.
Those judgments in my opinion state the obvious intention of the section and we are bound to give effect to it and I, therefore, follow the decisions in those two cases.
22 In the last paragraph of the judgment, the Division Bench observed as under:
Ordinarily, if violence or hurt etc. is caused at the time of theft, it would be reasonable to infer that violence or hurt was caused for facilitating the commission of theft or for facilitating the carrying away of the property stolen or for facilitating the attempt to do so. But, there may be something in the evidence to show that hurt or violence was caused not for this purpose but for a different purpose."
4 I am not inclined to disturb the First Information Report so far as the other offences are concerned. The investigation shall proceed further in accordance with law. The Investigating Officer shall file an appropriate report before the Court concerned for deletion of Section 394 of the Indian Penal Code from the F.I.R. The Court concerned shall pass appropriate orders keeping in mind the observations made by this Court.
5 With the above, this application is disposed Page 7 of 8 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jun 20 2025 Downloaded on : Sat Jun 21 00:08:52 IST 2025 NEUTRAL CITATION R/CR.MA/28/2025 ORDER DATED: 19/06/2025 undefined of. Direct service is permitted."
7. In view of the aforesaid observations made by the Coordinate Bench of this Court, the investigating officer concerned is directed to carry out the investigation strictly in accordance with law by following the dictum of law laid down in the aforesaid decision.
8. In view of the aforesaid, learned advocate Mr. Lakhani does not press this application with a liberty to file fresh application in case of any difficulty. Accordingly, application stands disposed of as not pressed with the aforesaid liberty. Rule is discharged.
(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 8 of 8 Uploaded by LAVKUMAR J JANI(HC00210) on Fri Jun 20 2025 Downloaded on : Sat Jun 21 00:08:52 IST 2025