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2022 DIGILAW 144 (GUJ)

Mohmed Akram Kausar Shaikh v. State of Gujarat

2022-01-25

B.N.KARIA

body2022
JUDGMENT : B.N. KARIA, J. 1. Mr. A.A. Ghasura, learned advocate states that he has received instructions to appear for and on behalf of the respondent no. 2 and as per order dated 18.01.2022, he has been permitted for the same and he has also filed his vakalatnama before the registry of this court. 2. The appellants No. 1, 2 and 3 preferred Criminal Misc. Application No. 6126 of 2021; Criminal Misc. Application No. 6123 of 2021 and Criminal Misc. Application No. 6315 of 2021 respectively before the Court of learned Additional Sessions Judge, Surat u/s. 439 of the Code of Criminal Procedure, 1973 requesting to enlarge them on regular bail on account of offence being registered vide C.R. No. 11210048211280 of 2021 with Umra Police Station, Surat City for the offence punishable u/s. 323, 324, 326, 365, 114, 34 and 506(2) of the Indian Penal Code; u/s. 135 of the Gujarat Police Act and u/s. 3(2) (5), 3(2)(5-a) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), the learned 10th Additional Sessions Judge, Surat rejected all these three applications on 30.10.2021. 3. Feeling aggrieved by the said order, the appellants preferred present appeal u/s. 14A of the Atrocities Act. 4. Heard learned advocate for the appellant, learned advocate for the respondent no. 2 and learned APP for the respondent No. 1-State. 5. Learned advocate for the appellant has submitted that the appellant is innocent and has not committed any offence as alleged by the prosecution. That, looking to the FIR and allegations made therein, no prima facie offence has been made out against him. That the charge sheet is filed against the petitioners and investigation is now concluded. That the incident was taken place due to grave provocation by the complainant. That, the petitioner did not give any blow of stick on any vital parts of the body of the complainant and the complainant did not suffer any major grave injury. That, the petitioners did not utter a word on the caste of the complainant and even though the Sections of Atrocities Act are not attributed to the appellants That, the version as alleged by the complainant is highly doubtful and there are serious doubts with regard to the credibility of the version of the complainant. That, the petitioners did not utter a word on the caste of the complainant and even though the Sections of Atrocities Act are not attributed to the appellants That, the version as alleged by the complainant is highly doubtful and there are serious doubts with regard to the credibility of the version of the complainant. Hence, it was requested by learned advocate for the appellants to quash and set aside the impugned judgment and order of rejecting the prayer of bail by the appellants and release the appellants on bail. 6. Learned APP for the respondent No. 1-State as well as learned advocate for the respondent No. 2 have strongly objected the arguments advanced by learned advocate for the appellants and submitted that by pre-plan, the conspiracy was hatched by the present appellant with the other accused and the complainant was kidnapped by them. It was further submitted that by showing a knife to the complainant on a public road, injury of fracture was caused to him by the present appellant. It was further submitted that the appellant no. l is involved in any other serious offence and has criminal history. It was submitted that while looking to the criminal history of the appellant no. l and involvement of the present appellants in the offence as well as investigation of the offence is over and charge sheet is already filed by the investigating officer, no lenient view can be taken by this Court to grant the regular bail of the present appellants. Hence, it was requested by learned APP for the respondent No. 1-State and learned advocate for the respondent no. 2 to dismiss the present appeal. 7. Having considered the facts of the case, submissions made by learned advocates for the respective parties as well as learned APP for the respondent No. 1-State, it appears that as per the allegations made against the accused persons, there are four accused persons shown in the FIR and the accused no. 1 is not the appellant before this Court. As per the allegations, all the accused persons kidnapped the complainant on a motorcycle by force and took him at Bhathe. On a public road, by stick, fracture was caused to the complainant on his two legs. Accused no. l tried to cause injury with his knife, at that time, three fingers of left hand were injured. As per the allegations, all the accused persons kidnapped the complainant on a motorcycle by force and took him at Bhathe. On a public road, by stick, fracture was caused to the complainant on his two legs. Accused no. l tried to cause injury with his knife, at that time, three fingers of left hand were injured. It is nowhere stated in the compliant that any fatal injury was caused by the present appellant from his deadly weapon. As per the allegations, with the help of the stick by the present appellants, injury was caused to the complainant. 8. From the certificate issued by the New Civil Hospital, Surat dated 25.08.2021, it appears that no names of the present appellants were given by the complainant in the history before the doctor. It was stated in the said certificate that assault was made by 4-5 persons at around 2.00 pm at New Court Building by wooden fatka, metal road and by knife. Injury of CLW over right hand palmar surface over 2nd and 3rd finger around 3 cm x 0.5 cm x 0.5 cm was found alongwith active bleeding. Patient was referred to surgery and ortho department for further management. From the certificate, there is no serious injury was caused by the appellants to the complainant. From the muddamal panchnama, it appears that only sticks were recovered from the appellants no. l and 2. There was no blood marks were found on the sticks recovered from the appellants No. l and 2. As these three of the appellants are in judicial custody since 28th August 2021 and investigation is over and charge is also filed by the investigating agency, no more judicial custody of the appellants are required. 9. Considering the nature and gravity of assertion made against the appellants and in the facts and circumstances of the case and considering the nature of allegations made against the appellants in the First Information Report as well as considering the role of present appellants in the alleged offence, this Court is of the considered opinion that this is a fit case to exercise the discretion in favour of present appellants by enlarging them on regular bail and hence, the prayer sought for by the present appellants requires consideration. 10. 10. Hence, this Court is of the view that present appeal deserves consideration in the result, present Criminal Appeal is allowed and the impugned judgments and orders dated 30.10.2021 passed by learned 10th Additional Sessions Judge, Surat in Criminal Misc. Application Nos. 6126 of 2021; 6123 of 2021 and 6315 of 2021 are hereby quashed and set aside. 11. The appellants are ordered to be enlarged on regular bail on furnishing a bond of Rs. 10,000/- each with one surety of like amount to the satisfaction of the trial Court and subject to the conditions that appellants 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 passport, if any, to the lower court within a week; [d] not leave India without prior permission of the concerned Trial Court; [e] furnish the present address of 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 this Court; [f] not enter into the vicinity wherein the complainant resides for the period of six months. 12. The authorities will release the appellants only if they are 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. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be opened for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. 13. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. Notice is discharged. 14. Registry to communicate copy of this order to the concerned jail authorities as well as concerned Sessions Judge through Fax/E-mail.