Gujarat High Court
Kureshi Jamshedali @ Haji Ayubali Abdul ... vs State Of Gujarat on 17 February, 2025
NEUTRAL CITATION
R/CR.MA/2262/2025 ORDER DATED: 17/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 2262 of 2025
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KURESHI JAMSHEDALI @ HAJI AYUBALI ABDUL RAHEMAN
Versus
STATE OF GUJARAT
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Appearance:
MR.DARSHAN A. DAVE(7921) for the Applicant(s) No. 1
MR HD MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 17/02/2025
ORAL ORDER
1. RULE. Learned APP waives service of rule for the respondent-State.
2. The present application is filed under Section 483 of the Bharatiya Nyaya Suraksha Sanhita, 2023 (for short "BNSS") for regular bail in connection with FIR being C.R. No.11206061230209 of 2023 registered with Santhal Police Station, Mahesana for the offences punishable under Sections 395, 397, 450, 342, 323, 465, 468, 471, 201, 120(B) of the Indian Penal Code, 1860 (for short "IPC") / The Bharatiya Nyaya Sanhita, 2023 (for short "BNS") and Sections 25(1-b) of the Arms Act and Section 135 of the GP Act.
3. Learned Advocate appearing on behalf of the applicant submits that the applicant has nothing to do with the offence and he is falsely implicated in the offence. The applicant is in jail Page 1 of 6 Uploaded by ALI ISTAYAK(HC01093) on Mon Feb 17 2025 Downloaded on : Tue Feb 18 00:30:44 IST 2025 NEUTRAL CITATION R/CR.MA/2262/2025 ORDER DATED: 17/02/2025 undefined since 20.12.2023. As per the FIR, the accused, in collusion with each other, illegally entered the complainant's house, threatened them with a revolver and knife, and forcibly took gold ornaments (80 tolas worth ₹40,00,000), silver ornaments (6.2 kg worth40,00,000), silver ornaments (6.2 kg worth ₹40,00,000), silver ornaments (6.2 kg worth3,72,000), and cash of ₹40,00,000), silver ornaments (6.2 kg worth1,20,000--totaling ₹40,00,000), silver ornaments (6.2 kg worth44,92,000. They also injured the complainant and her mother-in-law, tied the complainant's hands, locked them in a room, and fled. Hence, the complaint. However, it is submitted that the applicant has been falsely implicated solely based on the statement of one Rafikbhai, who identified the applicant during the TI Parade. The stolen articles have not been recovered from the applicant's possession, and nothing remains to be recovered or discovered from the applicant. It is further submitted that, considering the nature of the offence, the applicant may be granted regular bail with the imposition of suitable conditions.
4. Learned APP appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. The present applicant in collusion with the co-accused, illegally entered the complainant's house around 2:00 AM. They threatened and intimidated the complainant by brandishing a revolver and a knife. The gold ornaments worn by the complainant, her mother-in-law, and her grandmother-in- law were forcibly taken. The accused also caused injuries to the complainant and her mother-in-law, tied the complainant's hands, and locked them in a room. They stole approximately 80 tolas of gold worth ₹40,00,000), silver ornaments (6.2 kg worth40,00,000, silver ornaments weighing 6.2 kg worth ₹40,00,000), silver ornaments (6.2 kg worth3,72,000, and ₹40,00,000), silver ornaments (6.2 kg worth1,20,000 in cash, amounting to a total loss of ₹40,00,000), silver ornaments (6.2 kg worth44,92,000. After committing the crime, the accused fled.
Page 2 of 6 Uploaded by ALI ISTAYAK(HC01093) on Mon Feb 17 2025 Downloaded on : Tue Feb 18 00:30:44 IST 2025NEUTRAL CITATION R/CR.MA/2262/2025 ORDER DATED: 17/02/2025 undefined In view of the above, it clearly establishes the role of the present applicant and his involvement in the offence. Therefore, the present application may be dismissed.
5. While granting bail, the Court has to consider the involvement of the accused in the alleged offence, the jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case and the following factors are to be taken into consideration while considering an application for bail: (i) the nature of accusation and the severity of the punishment and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses and threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations are required to be considered.
6. I have heard the learned advocates appearing on behalf of the respective parties and perused the investigation papers. Following aspects have been considered:
(1) The applicant is in jail since 20.12.2023; (2) Investigation is over and charge-sheet is filed; (3) The allegations against the present applicant is that he hatched conspiracy in collusion with the other co-accused Page 3 of 6 Uploaded by ALI ISTAYAK(HC01093) on Mon Feb 17 2025 Downloaded on : Tue Feb 18 00:30:44 IST 2025 NEUTRAL CITATION R/CR.MA/2262/2025 ORDER DATED: 17/02/2025 undefined and he arraigned in the FIR as an accused in add of Section 120B of the IPC. At the time of the offence, neither the complainant nor any witness identified him. The weapon used in the theft was recovered from the applicant's house in Palanpur. However, apart from this, no other evidence has been found against him. If we accept this fact, the mere recovery of the weapon is not sufficient to establish the offence against the applicant.
(4) the applicant has no past antecedent.
(5) Now, nothing is required to be discovered or recovered
from the accused and there is no possibility of the trial taking place in the near future;
7. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra vs. Central Bureau of Investigation reported in [2012]1 SCC 40 as well as in the case of Gudikanti Narasimhulu And Ors vs. Public Prosecutor, High Court of Andhra Pradesh reported in (1978)1 SCC 240. Obviously, the conclusion of trial will take time and keeping the accused behind the bars is nothing but amounts to pre-trial conviction and therefore, considering the celebrated principle of bail jurisprudence is that "bail is a rule and jail is exception" as well as the concept of personal liberty guaranteed under Article 21 of the Constitution of India, present application deserves consideration .
8. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant/s in the FIR, without discussing the evidence in detail, prima facie, this Page 4 of 6 Uploaded by ALI ISTAYAK(HC01093) on Mon Feb 17 2025 Downloaded on : Tue Feb 18 00:30:44 IST 2025 NEUTRAL CITATION R/CR.MA/2262/2025 ORDER DATED: 17/02/2025 undefined Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant/s on regular bail. Hence, the present application is allowed. The applicants is/are ordered to be released on regular bail in connection with FIR being C.R. No.11206061230209 of 2023 registered with Santhal Police Station, Mahesana on executing a personal bond of Rs.25,000/- (Rupees Twenty-five Thousand only) with one local 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 & shall not obstruct or hamper the police investigation and shall not to play mischief with the evidence collected or yet to be collected by the police;
(c) surrender passport, if any, to the Trial Court within a week;
(d) not leave the State of Gujarat without prior permission of the Trial Court concerned;
(e) mark presence before the concerned Police Station once in a month for a period of six months between 11.00 a.m. and 2.00 p.m.;
(f) furnish the UIDAI Number, Contact Number/s, Passport Number (if he is having the passport), E-mail address and present address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of Trial Court;
(g) not indulge in any illegal activity or any similar type of offence. If the applicant is found in any illegal activity Page 5 of 6 Uploaded by ALI ISTAYAK(HC01093) on Mon Feb 17 2025 Downloaded on : Tue Feb 18 00:30:44 IST 2025 NEUTRAL CITATION R/CR.MA/2262/2025 ORDER DATED: 17/02/2025 undefined or any similar type of activity, then, concerned Investigating Officer shall have liberty to file an application for cancellation of bail against the present applicant. In case of breach of any conditions, the concerned Trial Court shall have liberty to cancel the bail of the present applicant;
9. The authorities will release the applicant/s only if he 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 issue warrant or take appropriate action in the matter.
10. 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.
11 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.
12. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(HASMUKH D. SUTHAR,J) ALI Page 6 of 6 Uploaded by ALI ISTAYAK(HC01093) on Mon Feb 17 2025 Downloaded on : Tue Feb 18 00:30:44 IST 2025