Gujarat High Court
Dharmendra @ Dhamo @ Milan Raichandbhai vs State Of Gujarat on 26 May, 2017
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/10181/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT
AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) No. 10181
of 2017
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DHARMENDRA @ DHAMO @ MILAN RAICHANDBHAI PATEL....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ============================================================= Appearance :
Mr MC BAROT, Advocate for the Applicant(s) No. 1 Mr SV RAJU, Sr. Advocate with Mr MAULIN G PANDYA, Advocate for the Respondent-Complainant/Informant Mr MITESH AMIN, Public Prosecutor for the Respondent(s) No. 1-State ============================================================= CORAM: HONOURABLE Mr. JUSTICE B.N. KARIA 26th May 2017 CAV ORDER
1. The present application has been preferred by the applicant - original accused no. 1 in C.R No. 31/2017 registered with Unja Police Station for the offence punishable under Sections 307, 324, 504, 506 (2) and 114 of the Indian Penal Code [for short 'IPC']
2. The gist of the prosecution case, as it culls out from the complaint is that on 28th March 2017, when the complainant was at his home, at that time, his Page 1 of 14 HC-NIC Page 1 of 14 Created On Thu Aug 17 04:50:16 IST 2017 R/CR.MA/10181/2017 CAV ORDER friend named Rakesh @ Satish came there and told him that the petitioner was calling him at Gandhi Chowk. When they reached at Gandhi Chowk, the applicant was not present there, and therefore, they went to the office of the applicant, even there also, he was not present. Hence, they made a phone call to know as to where he was and response to the call made, he informed them to come to his office. It is alleged that when they went at the office of the applicant, the applicant and other accused started attacking the complainant alleging as to why they have beaten his brother. It is further alleged by the complainant that as to why his friend Rakesh was abused. In the incident alleged, the accused Bhavesh and Jagga caught hold the complainant, the applicant inflicted pipe blow on the head of the complainant and the accused named Ravi Panchal gave him a blow of iron pipe on the backside of his head and in the said scuffle, the golden chain and a mobile was lost. Due to injuries sustained by the complainant, he was admitted in the Page 2 of 14 HC-NIC Page 2 of 14 Created On Thu Aug 17 04:50:16 IST 2017 R/CR.MA/10181/2017 CAV ORDER government hospital, and thereafter for further treatment, he was shifted at Lions Hospital, Mehsana, giving rise to initiation of criminal proceedings against the applicant herein and others.
3. Heard learned advocates appearing for the respective sides.
4. Learned advocate Shri MC Barot appearing for the applicant, at the outset, stated at the bar that the instant complaint is nothing but sequence of political vengeance. He pointed out that on 21st August 2016, the brother of the petitioner filed one complaint against the complainant and two others, being I-C.R No. 118/2016 at Unjha Police Station wherein the brother of the applicant was attacked by the complainant and a crowd of 20-25 persons at the instance of one Naranbhai Lallubhai Patel, as the brother of the applicant viz., Jitendra had taken objection in respect of Presidentship of the said Naranbhai in Unjha Mata Trust is the present of the Trust. Learned advocate for the applicant stated that for the said offence, the Page 3 of 14 HC-NIC Page 3 of 14 Created On Thu Aug 17 04:50:16 IST 2017 R/CR.MA/10181/2017 CAV ORDER complainant has to remain in jail for about 80 days, and thereafter, after filing of the chargesheet, the complainant herein and other accused persons were released on bail on certain condition by this Court. Upon his release on 28th March 2017, the complainant on the very same day, took revenge by filing a false complaint against the applicant herein only to harass the present applicant. Learned advocate for the applicant submitted that thereafter, one another FIR, being CR No. I-124/2016 came to be filed against the applicant herein wherein this Hon'ble Court while granting anticipatory bail to the applicant observed that the said complaint appears to be result of political vengeance, since there are cross FIRs. Learned advocate for the applicant further stated that thereafter, PI, Valand filed a false prohibition case against the brother of the applicant, in which brother of the petitioner filed a complaint on oath against the said PI-Valand of Unjha Police Station. He further stated that when the applicant came to know that he has been Page 4 of 14 HC-NIC Page 4 of 14 Created On Thu Aug 17 04:50:16 IST 2017 R/CR.MA/10181/2017 CAV ORDER falsely implicated by the complainant, he immediately sent an application to the DSP of Mehsana district for independent investigation into the matter wherein he was falsely implicated by the complainant. Thus, according to the learned advocate for the applicant there is a long standing enmity between the complainant and the accused, resulting into filing of false complaint against the applicant herein. Learned advocate Shri Barot appearing on behalf of the applicant therefore urged that the applicant is an innocent person, having been falsely implicated into the crime alleged. The applicant and his family members are permanent residents of Unjha. The wife of applicant's brother is President of Unjha Municipality and his brother is a lifetime member of Umiya Mataji Temple, Unjha. Therefore, there are no chances of his fleeing away from justice. Thus, taking clue from the serious of incidents, learned advocate for the applicant submitted that the applicant and his family is being continuously harassed by one Naranbhai L Patel. Lastly, Page 5 of 14 HC-NIC Page 5 of 14 Created On Thu Aug 17 04:50:16 IST 2017 R/CR.MA/10181/2017 CAV ORDER Shri MC Barot, learned advocate for the applicant placed reliance upon a decision of this Court rendered in case of Jehangir Marzban Patel v. State of Gujarat, reported in 2004 CrLJ 1162 to contend that when there is no apprehension of the applicant tampering with the evidence or fleeing away from justice, he deserves to be considered for bail on suitable terms and conditions.
5. Per contra, learned PP Shri Mitesh Amin appearing for the respondent-State resisting the bail plea has placed reliance on the facts averred in the complaint by submitting that the applicant is a habitual offender. He has committed an offence which is liable for prosecution under Section 307 of the Indian Penal Code where the maximum punishment prescribed is life time imprisonment. When there is a provision for life imprisonment for an offence committed by the accused person, the accused may not be granted bail. The injured witness was hospitalized for treatment of injuries sustained by him. He further contended that Page 6 of 14 HC-NIC Page 6 of 14 Created On Thu Aug 17 04:50:16 IST 2017 R/CR.MA/10181/2017 CAV ORDER since there are other offences in which the applicant is involved as an accused, the conduct of the applicant while considering his plea for bail deserves no sympathy. The complainant had filed an affidavit stating that he was assaulted on his head by the applicant with an iron pipe and thereby tried to commit murder of the complainant. Therefore, he urged that considering the criminal act of the applicant, this Court need not exercise discretion in favour of the applicant.
6. Learned Sr. Advocate Shri SV Raju appearing for and on behalf of the complainant, while supporting the arguments advanced by learned PP, urged that the applicant is a habitual offender, having criminal antecedents. He further urged that since the hurts caused to the injured witness are grievous in nature for which he was hospitalized and operated upon, and such injuries might have turned out to be fatal, no leniency be granted in favour of the applicant, particularly when the offence committed by the applicant is punishable under Section 307 IPC where the punishment Page 7 of 14 HC-NIC Page 7 of 14 Created On Thu Aug 17 04:50:16 IST 2017 R/CR.MA/10181/2017 CAV ORDER prescribed is for life imprisonment. Shri Raju, learned senior advocate for the complainant further urged that ordinarily the Courts do not entertain bail applications of the accused when investigation is not cover, and even till the chargesheet is not laid before the trial Court. Lastly, Shri S.V Raju, learned Senior Advocate for the complainant placed reliance upon a decision of Apex Court in the case of Gurcharan Singh & Ors. vs. State [Delhi Administration], reported in [1978] 1 SCC 118 to contend that the Court needs to consider th nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim/injured and the witness; the likelihood of the accused fleeing from injustice; of repeating the offence; of jeopardizing his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant ground which, in view of so many valuable factors, which cannot be exhaustively set out Page 8 of 14 HC-NIC Page 8 of 14 Created On Thu Aug 17 04:50:16 IST 2017 R/CR.MA/10181/2017 CAV ORDER in the initial complaint filed by the injured. Therefore, in the interest of justice, learned counsel for the complainant prayed not to exercise the discretion powers in favour of the applicant.
7. Having heard learned advocates appearing on behalf of the respective sides and considering the sequence of cross cases and the fact that the injured- witness has been discharged from the Lions General Hospital on 19th April 2017, after his medical treatment for head injury, the bail plea raised by the applicant deserves consideration. Apt it would be, to refer and rely upon the decisions of the Apex Court in the cases of [a] Malkiat Singh & Anr vs. State of Punjab, reported in 1969 [1] SCC 157; [b] in the case of Gurcharan Singh & Ors. vs. State [Delhi Administration], reported in [1978] 1 SCC 188; [c] Sanjay Chandra v. Central Bureau of Investigation, reported in [2012] 1 SCC 40; and [d] Chandraswami & Anr. v. Central Bureau of Investigation, reported in [1996] 6 SCC 751.
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7.1 In a decision in the case of Gurcharan Singh & Ors. [Supra], the Apex Court has held as under :
"29. We may repeat that two paramount considerations viz., likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a Court of Justice. It is essential that due and proper weight should be bestowed on these two factors apart from others. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail."
7.2 In a decision, rendered in case of Sanjay Chandra [Supra], the Apex Court held that, "..the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than Page 10 of 14 HC-NIC Page 10 of 14 Created On Thu Aug 17 04:50:16 IST 2017 R/CR.MA/10181/2017 CAV ORDER verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship..." The Apex Court further held and observed that, ".. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson."
8. Looking at the nature of the offence which is alleged to have been committed and the facts and circumstances now in existence, and the fact that the injured has been discharged from the Hospital way back on 19th April 2017 after medical treatment, followed by the operation and he back to his normal Page 11 of 14 HC-NIC Page 11 of 14 Created On Thu Aug 17 04:50:16 IST 2017 R/CR.MA/10181/2017 CAV ORDER life. Moreover, when there is nothing on the record to warrant a conclusion that if released on bail, the applicant-accused is likely to abscond and flee justice and/or could be in a position to tamper with the prosecution evidence, the bail plea putforth by the applicant deserves to be accepted. This Court makes it clear that this order is subject to the requirement of the applicant remaining in custody by virtue of any order made in connection with any other crime by the competent court or authority.
9. Accordingly, without expressing any opinion on merits of the case, the present application stands allowed. The applicant is hereby ordered to be released on regular bail in connection with C.R. No. I- 31 of 2017 registered with Unjha Police Station, on executing a bond of Rs. 25,,000/- [Rupees Twenty Five Thousands only] with one surety of the like amount to the satisfaction of the trial Court, and subject to the applicant's strictly adhering to the conditions that he shall;
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R/CR.MA/10181/2017 CAV ORDER
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injurious to the interest of the prosecution;
[c] the applicant shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witness in this case, or any other case against him, or any other crime under investigation by any government agency;
[d] not leave the territory of India without prior permission of the Sessions Judge concerned;
[e] appear before the Investigation Officer concerned, as and when required for investigation purpose and attend the Court concerned regularly.
[f] furnish the present address of residence along with the proof to the I.O. concerned and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of Sessions Court concerned;
[g] mark presence before the concerned Police Station on every Monday of each English Calender months for a period of three months from the date of his release, and thereafter, on every alternate Mondays for a period of six months therefrom, between 11:00 am and 2:00 pm. Page 13 of 14 HC-NIC Page 13 of 14 Created On Thu Aug 17 04:50:16 IST 2017 R/CR.MA/10181/2017 CAV ORDER
10. The competent authority will release the applicant only if the applicant is 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 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. 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.
Rule nisi made absolute to the aforesaid extent. Direct service is permitted.
[B.N Karia, J.] Prakash Page 14 of 14 HC-NIC Page 14 of 14 Created On Thu Aug 17 04:50:16 IST 2017