Gujarat High Court
Dhayabhai Harjivanbhai Parmar vs State Of Gujarat on 15 March, 2019
Author: A. P. Thaker
Bench: A. P. Thaker
R/CR.A/123/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 123 of 2019
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DHAYABHAI HARJIVANBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR SR SHARMA(5686) for the Appellant(s) No. 1
MS. YASHMA R MATHUR(6374) for the Appellant(s) No. 1
NOTICE SERVED(4) for the Opponent(s)/Respondent(s) No. 2
MS MONALI BHATT ADDL. PUBLIC PROSECUTOR(2) for the
Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE DR.JUSTICE A. P. THAKER
Date : 15/03/2019
ORAL ORDER
1. This is an appeal under Section 14(A)(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 at the instance of the appellant - original accused against the order dated 11.12.2018 passed by the learned Principal Judge, City Sessions Court, Ahmedabad in Criminal Misc. Application No.8216 of 2018.
2. It is the case of the appellant that the FIR has been registered being I- C.R.No.145 of 2018 with Vadaj Police Station, Ahmedabad City for the offences punishable under Sections 302, 323, 143, 147, 149, 339, 427 of the Indian Penal Code and Section 3(2)(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. According to him, he has been made as accused in the said offence and he was arrested on 27.06.2018. According to him, he had preferred bail application for regular bail before the learned Principal Judge, City Sessions Court, Ahmedabad being Criminal Misc. Application No.8216 of 2018 which came to be Page 1 of 5 R/CR.A/123/2019 ORDER rejected vide order dated 11.12.2018. It is further stated that the Investigating Officer has filed the charge-sheet in respect of the aforesaid offences and it is registered as Special Atrocity Case No.96 of 2018. According to him, he has not committed the alleged offence and no prima facie case is made out against him. It is his say that the offence is mainly committed by the other accused. According to him, even if the presence of the appellant is there, by that fact only, he cannot be made an accused. It is contended that in all 23 co-accused have been enlarged on bail either by this Court or by the Sessions Court. According to him, his case may be considered on the ground of parity also. It is submitted that the FIR clearly discloses the fact that the complainant has filed the complaint against mob of 35 to 40 persons and hence, no prima facie case is made out against the present appellant. It is further submitted that the appellant is a young boy of 19 years and he has not having any type of criminal antecedent and he is ready and willing to cooperate in the trial. He has prayed to release him on regular bail.
3. Heard Mr. S. R. Sharma, learned advocate for the appellant and Ms.Monali Bhatt, learned Additional Public Prosecutor for respondent No.1 - State. Though served, nobody appears on behalf of respondent No.2.
4. Mr. S. R. Sharma, learned advocate for the appellant has mainly contended the same facts which are narrated in the memo of appeal. While referring to the grounds mentioned in the appeal memo, Mr.Sharma, learned advocate has submitted that there is no overt act attributed to the present applicant and he was merely present in the mob; he was resident of the same area and due to which he was there. According to him, mere presence of the accused in the mob cannot be a ground to make him an accused in the offence. He has urged to release the appellant on regular bail on suitable terms and conditions.
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5. Ms. Monali Bhatt, learned Additional Public Prosecutor for respondent No.1 - State has vehemently submitted that in CCTV footage, the present accused is seen and as per the report of the FSL, the presence of the accused is duly proved. She has submitted that there is a mob lynching and due to beating by mob, one person has died and there are two statements of the complainant as well as two eye witnesses, who were also victim of the incident. According to her submissions, considering the seriousness of the offence, the present appellant may not be enlarged on regular bail.
6. On perusal of the police papers, it appears that it is the case of the prosecution that few ladies who were travelling in an auto rickshaw were suspected as child kidnappers and, therefore, fell prey to the wrath of mob who lynched them after following the auto rickshaw wherein they were travelling; due to such lynching, ultimately, the deceased died.
7. Considering the admitted position that the casualty was a consequence of mob fury; there being absence of specific attribution of an overt act to the appellant, as also even if this Court were to proceed on assumption of the accused having indulged into an overt act, prima facie, invocation of Section 302 of the Indian Penal Code, the sustainance of which would require the intention and knowledge of causing death of a person; appears to be doubtful.
8. It is an admitted fact that so far as the present accused is concerned, he was merely present in the mob, no overt act is attributed to this accused. Admittedly, the other co-accused have been enlarged on bail either by this Court or by the Sessions Court. Therefore, on the ground of parity, the present appellant is required to be enlarged on bail. Moreover, there is no apprehension against the appellant fleeing from trial, tampering with the evidences or Page 3 of 5 R/CR.A/123/2019 ORDER threatening the witnesses. Further, the present appellant is aged 19 years young boy and there is no any criminal antecedent. Therefore, considering all these aspects, the appellant is required to be enlarged on bail.
9. In view of the above, this appeal is allowed accordingly. The appellant herein is ordered to be released on regular bail in connection with C.R.No.I-145 of 2018 registered with Vadaj Police Station, District: Ahmedabad on executing his personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one solvent surety of the like amount to the satisfaction of the 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 injurious to the interest of the prosecution;
(c) surrender his passport, if any, to the trial court within a week;
(d) not leave the territory of India without prior permission of the concerned Sessions Court;
(e) mark presence in the concerned Court regularly;
(f) furnish the present address of residence along with the proof to the Investigating Officer concerned and also to the trial Court at the time of execution of the bond and shall indicate change of residential address if any to the trial Court.
10. If breach of any of the above conditions is committed, the concerned Sessions Judge will be free to take appropriate action in the matter.
10.1 Bail bond to be executed before the trial Court having jurisdiction to try the case.
10.2 It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law.
11. The competent authority will release the appellant only if he is not required in connection with any other offence for the time being.
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12. At the trial, the trial Court shall not influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the appellant on bail.
13. Appeal is accordingly disposed of. Direct service is permitted, today.
(A. P. THAKER, J) V.R. PANCHAL Page 5 of 5