Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 1604 (GUJ)

Hafizaben Dilavarkhan Pathan v. State Of Gujarat

2022-11-23

GITA GOPI

body2022
ORDER : 1. This group of applications is for cancellation of bail, which has been granted in connection with Cr.No.I/131/2018, registered with Morbi Taluka Police Station under sections 302, 143, 147, 148, 149 and 34 of the Indian Penal Code and section 135 of G.P. Act. 2. The accused of these matters had filed bail applications prior to the charge-sheet before the Sessions Judge, Morbi, which came to be rejected, and, after the charge-sheet the prayer for bail was made before the Sessions Judge by accused: (i) Mansukh Ramjibhai Dabhi, party respondent in Criminal Misc. Application Nos.15126 of 2020 and 18378 of 2020; (ii) Bharat Jivraj Dabhi and Ashwin Jivrajbhai Dabhi, party respondents in Criminal Misc. Application No.19118 of 2020; (iii) Shiva Ramjibhai Dabhi, party respondent in Criminal Misc. Application No.19151 of 2020; (iv) Sanjay Naranbhai Dabhi, Kishorbhai @ Katti Shivabhai Dabhi and Kanjibhai Mansukhbhai Dabhi, party respondents in Criminal Misc. Application No.19148 of 2020. 3. Mr. P.B. Khandheria, learned advocate for the victim – applicant submitted that, earlier bail applications of all the accused were rejected by the Sessions Judge and on filing of charge-sheet bail applications were moved by all the accused concerning the present matters. Mr. Khandheria referring to the observations of the Sessions Judge submitted that, after the charge-sheet no change in the facts situation could be brought to the notice of the Judge, nor the Sessions Judge has considered the matter on merits after the charge-sheet, but merely on the ground of parity of bail granted to Jivrajbhai Ramjibhai Satvara (Dabhi) by this Court, the bail applications were allowed. 3.1 Mr. Khandheria submitted that the victim – Hafizaben Dilavarkhan Pathan had challenged the bail order of Jivrajbhai Ramjibhai Satvara (Dabhi) by filing Criminal Appeal No.627 of 2021 (arising out of SLP (crl.) No.4735/2020). He submits that, the Hon’ble Supreme Court in Criminal Appellate Jurisdiction has set aside the order dated 30.09.2020 of this Court granting bail to Jivrajbhai Ramjibhai Satvara (Dabhi) and he as respondent no.2 in the matter was directed to surrender within a period of one week from the date of order i.e. 16th July, 2021. 3.2 Mr. He submits that, the Hon’ble Supreme Court in Criminal Appellate Jurisdiction has set aside the order dated 30.09.2020 of this Court granting bail to Jivrajbhai Ramjibhai Satvara (Dabhi) and he as respondent no.2 in the matter was directed to surrender within a period of one week from the date of order i.e. 16th July, 2021. 3.2 Mr. Khandheria submits that role of the present respondents, who are accused in the matters, are comparatively graver than that of Jivrajbhai Ramjibhai Satvara (Dabhi) and since the bail applications were granted of all the accused only on the ground of parity as that of bail granted to Jivrajbhai Ramjibhai Satvara (Dabhi) and when the Hon’ble Supreme Court has cancelled his bail; thus, urged to cancel the bail granted to the accused. 4. Mr. Hardik Mehta, learned Additional Public Prosecutor for the State submits that, State also takes objection to the bail granted to the accused whose bail was also challenged by the victim, since there was no change of facts situation, even after filing of the chargesheet, Mr. Mehta submits that learned Sessions Judge has not appreciated the facts of the case to consider the bail applications, but merely on the ground of bail granted to Jivrajbhai Ramjibhai Satvara (Dabhi), the Sessions Judge allowed them to be on bail, which according to Mr. Mehta requires to be cancelled, since the order granting bail to co-accused has been set aside by the Hon’ble Supreme Court. 5. Countering the submissions, Mr. Brij V.Sheth, learned advocate for the respondents accused submits that the respondents accused are wrongly roped in the FIR and they are not guilty; thus submits that they are entitled for the bail. Mr. Sheth submits that all the family members have been wrongly and out of malice implicated in the offence, and further submits that the bail orders so impugned were passed after following the due process of law taking into consideration the facts and circumstances. Mr. Sheth submits that a false case has been lodged by the complainant by creating about 11 eye witnesses. He submits that there is no allegation of threatening any of the witnesses and merely on the vague statement of the victim, the bail granted, should not be cancelled. 5.1 Mr. Mr. Sheth submits that a false case has been lodged by the complainant by creating about 11 eye witnesses. He submits that there is no allegation of threatening any of the witnesses and merely on the vague statement of the victim, the bail granted, should not be cancelled. 5.1 Mr. Sheth submits that during the time when the accused respondents were on bail, they had never tried to influence any witnesses nor there is any allegation of tampering with the evidence. Mr. Sheth further submits that unless any supervening events or any overwhelming circumstances have been pleaded or found, no order granting bail should be interfered; and further submits that there is no allegation of any attempt of evasion from the process of law. Mr. Sheth further submits that a Review Petition has been filed by Jivrajbhai Ramjibhai Satvara (Dabhi) against the order of the Hon’ble Supreme Court passed on 16.07.2021. 6. The order of the Hon’ble Supreme Court dated 16th July, 2021 in Criminal Appeal No.627 of 2021 (Arising out of SLP (Crl.) No.4735/2020), reads as under: “Leave granted. In this case, despite the Sessions Court having rejected bail twice and the High Court, in an earlier round, having disposed of the bail application as not being pressed, the impugned High Court order granted bail to Respondent No.2. The High Court then records that there are as many as 3 victims, all of whom were killed, but states that since there was a free fight and there were no criminal antecedents of Respondent No.2, enlarged him on bail. We have gone through the papers and are satisfied that the Respondent No.2’s role as Accused No.9 was to hit the deceased with a bat which was ultimately recovered from his son-A3. The post mortem report of all the 3 victims records that their skulls were broken thanks to repeated blows with objects which would include a bat. This being the case, and there being as many as 4 eyewitnesses who had actually seen the Respondent No.2 hit the deceased with the bat, it is clear that this is not a case in which bail should have been granted at all. Accordingly, we set aside the impugned judgment dated 03.09.2020 and direct the Respondent No.2 to surrender within a period of one week from today. The appeal is allowed, and the impugned order set aside.” 7. Accordingly, we set aside the impugned judgment dated 03.09.2020 and direct the Respondent No.2 to surrender within a period of one week from today. The appeal is allowed, and the impugned order set aside.” 7. The order granting bail to Jivrajbhai Ramjibhai Satvara (Dabhi) was set aside and the Apex Court has directed him to surrender within a week from the date of order. The Sessions Judge granting bail to all the accused had placed reliance on the order of bail granted by this Court to Jivrajbhai Ramjibhai Satvara (Dabhi), and invoking the principle of parity, the bail came to be granted by the Sessions Judge. The learned Sessions Judge had failed to give reasons as to how the principle of parity was applicable to the matter and Sessions Judge has not taken pain to even make his observation for coming to the conclusion for granting bail on the facts of the case after filing of charge-sheet. 8. Since, the bail had been granted to the respondents accused only on the basis of Jivrajbhai Ramjibhai Satvara (Dabhi) and when the bail order of Jivrajbhai Ramjibhai Satvara (Dabhi) was set aside by the Hon’ble Supreme Court; this Court is of the view that the bail granted by the Sessions Judge, Morbi to the accused (i) Mansukhbhai Ramjibhai Dabhi in Criminal Misc. Application No.624 of 2020 dated 18.09.2020, (ii) Bharat Jivraj Dabhi and Ashwin Jivrajbhai Dabhi in Criminal Misc. Application No.741 of 2020 dated 27.10.2020 (iii) Shiva Ramjibhai Dabhi in Criminal Misc. Application No.663 of 2020 dated 20.10.2020 and (iv) Sanjay Naranbhai Dabhi, Kishorbhai @ Katti Shivabhai Dabhi and Kanjibhai Mansukhbhai Dabhi in Criminal Misc. Application No.751 of 2020 dated 04.11.2020, are required to be cancelled and accordingly the same stand cancelled. The respondents accused are directed to surrender within a period of Two Weeks from today. 9. All the applications are allowed and the impugned orders are set aside. 10. Office to keep copy of this order in each matter.