Gujarat High Court
Somabhai Devabhai Nadoda (Kher) vs State Of Gujarat on 7 May, 2021
Author: A.G.Uraizee
Bench: A.G.Uraizee
R/CR.MA/647/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 647 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 3727 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 3723 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 19996 of 2020
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SOMABHAI DEVABHAI NADODA (KHER)
Versus
STATE OF GUJARAT
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Appearance:
MR VANDAN K BAXI(5863) for the Applicant(s) No. 1
MS PRACHITI V SHAH(9990) for the Applicant(s) No. 1
NANAVATI & NANAVATI(1933) for the Applicant(s) No. 1
MR DHARMESH DEVNANI, APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 07/05/2021
COMMON ORAL ORDER
1. This bunch of applications under Section 438 of the Code of Criminal Procedure, 1973 (the Code for short) emanates from the selfsame incident, hence, they are being disposed of by this common judgment.
2. Let there be rule in Criminal Misc. Application No.19996 of 2020 and Criminal Misc. Application No.647 of 2021 returnable forthwith. Mr. Dharmesh Devnani, learned APP waives service of notice of rule on behalf of the State.
3. The present applications filed under Section 438 of the Code for being enlarged on prearrest bail in connection with FIR being C.R. No.I 50/2019 and C.R. No. I51/2019 both registered Page 1 of 8 Downloaded on : Sat Jan 15 00:46:22 IST 2022 R/CR.MA/647/2021 ORDER with Sami, Police Station, District Patan.
4. I have heard Mr. Sudhir Nanavati, learned senior advocate for Nanavati & Nanavati assisted by Mr. Vandan K Baxi, learned advocate for the applicants in Criminal Misc. Application No.19996 of 2020 and Criminal Misc. Application No.647 of 2021, Mr. Virat Popat, learned advocate for the applicant in Criminal Misc. Application No.3727 of 2021 and Criminal Misc. Application No.3723 of 2021 and Mr. Dharmesh Nanavati, learned APP for respondentState in all the applications.
5. Mr. Nanavati, learned senior advocate submits that the present anticipatory bail applications are successive bail application. He submits that earlier bail application preferred by the applicant were withdrawn. He submits that the Investigating Officer has filed affidavit on 1.12.2020 after withdrawal of earlier application, according to his submission, the affidavit of Investigating Officer reveals that the complainant of C.R. No.I50/2019 has not suffered any injury except the injury on his lips. It is his submission that the earlier order of this Court permitting the applicant to withdraw the application is not speaking order.
He would also submit that principles of res judicata is not applicable to criminal Page 2 of 8 Downloaded on : Sat Jan 15 00:46:22 IST 2022 R/CR.MA/647/2021 ORDER proceedings and successive bail application is
maintainable if there is change in circumstances. He submits that after the withdrawal of earlier application accused person of both the FIRs are enlarged on either anticipatory bail or regular bail. He submits that such release of coaccused persons is substantial change in circumstances. Hence, the present applications are maintainable. It is his submission that the incident was a free fight between two groups. It is his submission that the role attributed to the applicants is similar to the role attributed to the accused persons, who are enlarged on anticipatory bail or regular bail. He, therefore, urges that looking to the nature of evidence and allegation, the applicants may be enlarged on anticipatory bail on appropriate terms and conditions.
6. Mr. Virat Popat, learned advocate for the applicant in Criminal Misc. Application No.3727 of 2021 and Criminal Misc. Application No.3723 has adopted the arguments canvassed by Mr. Sudhir Nanavati, learned senior advocate. Additionally, he submits that the other party which is facing charge of Section 302 is released on anticipatory bail which is substantial change in circumstances. He also, therefore, urges that the applicants may be enlarged on anticipatory bail.
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7. Mr. Dharmesh Devnani, learned APP has opposed this anticipatory bail application. He submits that withdrawal amounts to dismissal of the applications. Hence, he, therefore, submits that the application being successive bail applications are not maintainable. To butress his submission he has relied upon the decision of this Court in the case of Rajubhai Pithabhai Vala v. State of Gujarat reported in 1992 (1) GLH 259. He has also relied upon the decision of Supreme Court in the case of State of M.P. V. Kajad reported in 2001 (7) SCC 673 and in the case of Kalyanchandra Sarkar v. Rajesh Ranjan and Another. He submits that successive bail applications are not maintainable if there is no change in circumstances. He submits that after withdrawal of the earlier application, there is no change in the circumstances. Hence, the present applications are not maintainable. He further submits that the applicants have actively participated in the incident as is emerging from their respective statements which can be looked into for the purpose of deciding the bail application. He, therefore, submits that the present applications may be allowed.
8. The issue of present application being not maintainable as it is successive bail applications needs to be addressed first.
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9. There is no cavil that withdrawal of bail application amounts to dismissal as has been held by this Court in the case of Rajubhai Pithabhai Vala (supra).
10. The sum and substance of the decisions of the Supreme Court in the case of State of M.P. (Supra) and Kalyanchandra Sarkar (supra) is that the successive bail applications are permissible under the changed circumstances. However, without change in the circumstances the second application is deemed to be review application of the earlier judgment/order which is not permissible under criminal law.
11. In view of the above, settled proposition of law, the applicants have to point out the changed in circumstances to maintain the present application.
12. The affidavit filed by the Investigating Officer in the Sessions Court to oppose anticipatory bail application itself reveals that most of the accused persons of both the FIRs are either released on anticipatory bail or regular bail. It is also emerges from the FIR that an accused person of one of the FIR facing charges under Section 302 of IPC, is also enlarged on anticipatory bail.
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13. I am, therefore, of the view that releasing of coaccused person in both the FIRs amounts to substantial change in circumstances specially when the accused persons who are released on either anticipatory bail or regular bail are attributed the same role as the applicants.
14. As has been noted in the foregoing that the coaccused persons who are facing similar charges or special charges are enlarged either on anticipatory bail or regular bail, without adverting to the merits, I am of the view that it is a fit case to exercise the discretion vested in this Court under Section 438 of the Code deserves to be exercised in favour of the applicants.
15. For the foregoing reasons, considering the nature of allegation and evidence, the applicant of Criminal Misc. Application No.3727 of 2021 are order to be enlarged on anticipatory bail in connection with C.R. No. I51 of 2019 registered with Sami, Police Station, Patan and applicant of Criminal Misc. Application No.647 of 2021 and Criminal Misc. Application No.3723 of 2021 are order to be enlarged on bail in the event of their arrest in connection with C.R. No. I 50/2019 registered with Sami Police Station, Patan on executing personal bond of Rs.10,000 Page 6 of 8 Downloaded on : Sat Jan 15 00:46:22 IST 2022 R/CR.MA/647/2021 ORDER (Rupees Ten Thousand Only) each with one surety of like amount by each of the applicants and on the following conditions:
(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;
(b) shall remain present at concerned Police Station on 17/05/2021 between 11.00 a.m. and 2.00 p.m.;
(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;
(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;
(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week; and
12. Despite this order, it would be open for the Investigating Agency to apply to the competent Page 7 of 8 Downloaded on : Sat Jan 15 00:46:22 IST 2022 R/CR.MA/647/2021 ORDER Magistrate for police remand of the applicants. The applicants shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however,without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicants, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
13. At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.
(A.G.URAIZEE, J) Manoj Page 8 of 8 Downloaded on : Sat Jan 15 00:46:22 IST 2022