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2022 DIGILAW 35 (GUJ)

Dineshbhai Kanjibhai Vekariya v. State of Gujarat

2022-01-06

ALPESH Y.KOGJE

body2022
JUDGMENT : Alpesh Y. Kogje, J. 1. This successive bail application has been filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for enlarging the applicant on regular bail in connection with FIR being I-C.R. No. 246 of 2019 registered with Sarthana Police Station, Surat offence under Sections 304, 308, 465, 467, 468, 471 and 114 of the Indian Penal Code. 2. Heard learned Senior Counsel, Mr. Jal Unwala assisted by learned advocate, Mr. Zubin Bharda appearing for the applicant, learned Additional Public Prosecutor, Ms. Moksha Thakkar appearing for the respondent-State of Gujarat and learned advocate, Mr. Ashish Dagli appearing for the victims. 3. At the outset, learned senior advocate Mr. Unwala pointed that earlier applicant filed application being Criminal Miscellaneous Application No. 19281 of 2020 before this Court praying for enlarging him regular bail. However, when this Court was not inclined to grant the same, the applicant sought permission to withdraw the said application. This Court, therefore, passed the order on 28.01.2021 and permitted the applicant to withdraw the said application. However, liberty was reserved to the applicant to file fresh application, if the trial does not progress satisfactorily within a period of six months. It is submitted that pursuant to the said liberty granted by this Court, this application is filed. 4. Learned Senior Advocate Mr. Jal Unwala assisted by learned advocate, Mr. Zubin Bharda appearing for the applicant submitted that the aforesaid FIR is filed by one Mr. Ayubbhai Adambhai Vadgama, Police Sub-Inspector, Sarthana Police Station, Surat, wherein it is stated that when the complainant was on duty, he got the information from his superior officer to reach at the Shopping Center Takshasila Arcade, near Sarthana Jakatnaka where the fire took place. The complainant, therefore, reached at the place of incident with his police personnel and he noticed that one firefighter was also present at the place of incident. It is further stated that whole building of Takshasila Arcade caught into fire and the boys and girls who were on the fourth floor of the said building started screaming and after that some of the boys and girls started jumping from the building. At that time, complainant and other police personnel tried to stop them by shouting. It is further stated that whole building of Takshasila Arcade caught into fire and the boys and girls who were on the fourth floor of the said building started screaming and after that some of the boys and girls started jumping from the building. At that time, complainant and other police personnel tried to stop them by shouting. It is further stated that the crowd gathered at the place of incident tried to save the boys and girls who jumped from the building. On the basis Surat City of the Police information Control room, various firefighter vehicles reached at the place of incident. Thereafter, they tried to control the situation. It is further stated that after the control of complainant fire by inquired the at firefighters, the place of the incident. During the inquiry, it was revealed that illegal structure has been carried out by accused Harsulbhai Vakariya and Jignesh Savjibhai Pagdal. The said premises was given to one Mr. Bhargav Butani on rent. It is alleged that Bhargav Butani was running the classes. Because of the illegal structure on fourth floor of terrace of the building and since no fire safety equipment were installed and in absence of fire exit, the incident has taken place. 5. Learned Senior Counsel submitted that the applicant is in jail since 11.02.2020. It is also submitted that now the chargesheet is filed and investigation is over. It is further submitted that almost all the other co-accused have been enlarged on bail by this Court. At this stage, it is pointed out that two other co-accused against whom almost similar type of allegations are levelled have been enlarged on bail by this Court vide order dated 25.6.2021 on certain terms and conditions. Learned senior counsel has placed on record the orders passed in the case of co-accused Savjibhai Tapubhai Paghdal and Ravindrabhai Ghanshyambhai Kahar and after referring the reasoning recorded by this Court in the aforesaid orders, it is contended that this Court may enlarge the applicant on regular bail on certain terms and conditions. At this stage, learned senior counsel, under the instructions, further submitted that in the present case, the applicant is ready and willing to deposit Rs. 35 lacs before the concerned trial Court without prejudice to his rights and contentions within a period of six months from the date of his actual release by way of compensation. 6. At this stage, learned senior counsel, under the instructions, further submitted that in the present case, the applicant is ready and willing to deposit Rs. 35 lacs before the concerned trial Court without prejudice to his rights and contentions within a period of six months from the date of his actual release by way of compensation. 6. At this stage, learned senior counsel has further submitted that the concerned victims filed Special Leave Petitions before the Hon'ble Supreme Court against the orders dated 25.6.2021 passed by this Court in the case of the aforesaid two co-accused. It is submitted that the Hon'ble Supreme Court, vide order dated 29.11.2021, has not entertained the said Special Leave Petitions filed by the concerned victim and thereby dismissed the same. Learned senior counsel has placed on record the said order passed by the Hon'ble Supreme Court. 7. It is, therefore, urged that when the allegations levelled against the present applicant are almost similar and when this Court has enlarged the two other co-accused on regular bail, on the ground of parity, the case of the applicant be considered. 8. On the other hand, learned Public Prosecutor appearing on behalf of the respondent-State as well as learned advocate appearing for the victims are not in a position to dispute the fact that the role attributed to the present applicant is almost similar to that of two other co-accused namely Savjibhai Tapubhai Paghdal and Ravindrabhai Ghanshyambhai Kahar. They are also not in a position to dispute the fact that Special Leave Petitions filed by the concerned victims against the orders passed by this Court in the case of the two other co-accused have been dismissed recently by the Hon'ble Supreme Court vide order dated 29.11.2021. 9. Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order. 10. Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. 11. 11. This Court has considered following aspects, (a) the applicant is in jail since 11.02.2020; (b) investigation is over and the charge-sheet is filed; (c) co-accused, who are identically situated viz. Savjibhai Tapubhai Paghdal has been enlarged on regular bail vide order dated 25.06.2021 passed in Criminal Misc. Application No. 18868 of 2020 and Ravindrabhai Ghanshyambhai Kahar has been enlarged on regular bail vide order dated 25.06.2021 passed in Criminal Misc. Application No. 18811 of 2020 both of which were the subject matter of challenge before the Apex Court in Special Leave to Appeal (Cri.) No. 5419-5420 of 2019. Vide order dated 29.11.2021, the SLP came to be dismissed confirming the grant of regular bail to the identically situated co-accused persons and therefore on the ground of parity, I am inclined to consider the case of the applicant; Moreover, subsequent to confirmation of grant of bail to the accused, this Court, vide order dated 17.12.2021 passed in Criminal Misc. Application No. 11217 of 2021 has enlarged the co-accused Harsukhbhai Kanjibhai Vekariya. (d) it is not in dispute that recently charge is framed against most of the co-accused in June, 2021 and as per the chargesheet, there are 251 witnesses and thus, trial of the present case would not be over in near future; (e) I have also considered the punishment prescribed for the alleged offences and the fact that the applicant is in jail since last approximately two years; (f) as stated above, the applicant has shown willingness to deposit an amount of Rs. 35,00,000/- (Rupees Thirty Five Lakhs) before the concerned trial court without prejudice to his rights and contentions within a period of four months from the date of his actual release by way of compensation; Thus looking to the overall facts and circumstances of the present case, I am inclined to consider the case of the applicant. 12. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012] 1 SCC 40. 13. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being I-C.R. No. 246 of 2019 registered with Sarthana Police Station, Surat on executing a personal bond of Rs. 13. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being I-C.R. No. 246 of 2019 registered with Sarthana Police Station, Surat on executing a personal bond of Rs. 10,000/- (Rupees Ten Thousand only) with one 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; [c] surrender passport, if any, to the lower court within a week; [d] not leave the India without prior permission of the concerned trial court; [e] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.; [f] 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 the concerned trial court; [g] deposit an amount of Rs. 35,00,000/- (Rupees Thirty Five Lakhs) without prejudice to his rights and contentions within a period of six months from the date of his actual release by way of compensation; 14. The authorities shall adhere to its own Circular relating to COVID-19 and, thereafter, will release the applicant 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. 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. 15. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. 16. Rule is made absolute to the aforesaid extent. Direct service is permitted.