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2023 DIGILAW 326 (GUJ)

Sahil Iliyasali Saiyad v. State of Gujarat

2023-02-17

VIPUL M.PANCHOLI

body2023
ORDER : 1. The present second successive bail application is filed under Section 439 of the Code of Criminal Procedure, 1973 ('Code' for short), for regular bail in connection with FIR being C.R. No.I-100/2018 registered with Kalol Taluka Police Station, Gandhinagar for offences under Sections 302, 120(B), 34, 147, 148 and 149 of the Indian Penal Code ('IPC' for short) and Section 135 of the Gujarat Police Act. 2. The crux of the FIR is as under, The accused persons in connivance with each other, keeping grudge about the dispute going on between the community of Hindu and community of Muslim, have hatched conspiracy and assaulted one Ashokbhai Ranchhoddas Patel with sharp cutting weapons and hard substance on head and left leg and thereby caused severe injuries and because of which, he succumbed to the same and thereby the accused have committed alleged offences. In connection with the aforesaid FIR, the investigation was carried out and during the course of investigation, the concerned IO submitted report for addition of Sections 147, 148 and 149 of the IPC and on conclusion of the investigation, the chargesheet came to be filed for the offences under Sections 302, 120(B), 34, 147, 148 and 149 of the Indian Penal Code and Section 135 of the Gujarat Police Act. 3. Heard learned advocate, Mr. Hardik Barot for the applicant and learned APP Mr. Dhawan Jaiswal for the respondent - State. 4. Learned advocate for the applicant has referred to the averments made in the memo of application and submitted that the applicant was arrested in connection with the aforesaid FIR and, thereafter, he filed Criminal Misc. Application No.1497/2019, however, when this Court was not inclined to entertain the said application, the same was withdrawn on 19.07.2019 and, thereafter, the applicant filed another application under Section 439 of the Code being Criminal Misc. Application No.1740/2020 and this Court vide order dated 04.02.2020 dismissed the said application, copy of said order is placed on record at Page No.18. At this stage, learned advocate submitted that as against the said order passed by this Court, the applicant filed SLP No.4736/2020 before the Hon'ble Supreme Court and the Hon'ble Supreme Court, vide order dated 08.03.2021, dismissed the said SLP filed by the applicant, however, it was observed in the said order that the trial court will make an endeavour to expedite the trial. It was also observed that the petitioner (applicant) was, however, at liberty to approach the trial court for the grant of bail at an appropriate stage. 5. Learned advocate, thereafter, submitted that the prosecution has till date examined 23 witnesses out of 61 witnesses, however, thereafter as other six other co-accused out of total 13 accused, have jumped the bail when they were released on temporary bail, they are not available for the purpose of trial before the concerned trial court and, therefore for the said reason, the trial court is not in a position to proceed further with the trial. It is submitted that the applicant is in jail since last more than four years and, therefore on this ground, he may be enlarged on bail. 6. Learned advocate further submitted that certain prosecution witnesses have not supported the case of the prosecution and they have turned hostile. Learned advocate, more particularly, referred to Paragraph No.8 of the memo of application. Learned advocate, therefore, urged that when certain prosecution witnesses have not supported the case of the prosecution, the said aspect be considered at this stage while deciding the present application filed under Section 439 of the Code. 7. Learned advocate has placed reliance upon the decision of this Court in case of Kanti Sardul Bharvad Vs. State of Gujarat, reported in 2004 (4) Crimes 407 and submitted that in case of the concerned accused, who was also charged with the offences punishable under Section 302 of the IPC, when there was no substantial progress in the trial, this Court released the concerned accused on temporary bail. Learned advocate, therefore, urged that similar order be passed in favour of the applicant. 8. Learned advocate, thereafter, has placed reliance upon the decision rendered by the Madhya Pradesh High Court in case of Diya Vs. State of M.P., reported in 1993 (2) Crimes 201. It is submitted that in the said case, the concerned applicant was aged about 20 years and, therefore, the concerned High Court observed that the age of the applicant plays vital role while deciding the application and even if the prima facie case is established against the accused, he cannot be detained by way of punishment. It is submitted that in the said case, the concerned applicant was aged about 20 years and, therefore, the concerned High Court observed that the age of the applicant plays vital role while deciding the application and even if the prima facie case is established against the accused, he cannot be detained by way of punishment. It is submitted that in the present case, the age of the applicant was 21 years at the relevant time and, therefore looking to overall facts and circumstances of the present case, the applicant be released on bail. 9. On the other hand, learned APP Mr. Jaiswal has vehemently opposed this application and submitted that this is second successive bail application filed by the applicant and this Court, vide order dated 04.02.2020 rejected the application filed by the applicant, against which applicant preferred SLP before the Hon'ble Supreme Court, which also came to be dismissed by the Hon'ble Supreme Court and, thereafter, the prosecution has examined 23 witnesses, however, 6 co-accused have absconded and are not available before the trial court and, hence, the prosecution is also apprehending that if the applicant is enlarged on bail, he will not be available for the purpose of trial. Learned APP referred to the observations made by the concerned trial court while rejecting the application filed by the applicant vide order dated 23.11.2022. Learned APP submitted that the present applicant has also jumped the temporary bail granted by the Coordinate Bench of this Court. Learned APP, therefore, submitted that the applicant may not be released on bail. 10. Learned APP, thereafter, submitted that this Court cannot appreciate the depositions given by the witnesses at this stage while considering the application filed under Section 439 of the Code. Learned APP, thereafter, submitted that serious allegations are leveled against the present applicant for commission of the offences punishable under Section 302 etc. of the IPC and, therefore merely because the applicant is in jail since last 4 years, his request for grant of bail may not be entertained looking to the larger interest of the society. 11. Learned APP has placed reliance upon the decision rendered by the Hon'ble Supreme Court in case of Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI Through its Director, reported in (2007) 1 SCC 70 . 12. 11. Learned APP has placed reliance upon the decision rendered by the Hon'ble Supreme Court in case of Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI Through its Director, reported in (2007) 1 SCC 70 . 12. Having heard learned advocates for the parties and having gone through the material placed on record, it would emerge that the FIR being C.R. No.I-100/2018 has been registered with Kalol Taluka Police Station, Gandhinagar for the alleged offences against 7 accused and after investigation, the concerned Investigating Officer filed chargesheeted against the concerned accused under Sections 302, 120(B), 34, 147, 148 and 149 of the IPC and Section 135 of the Gujarat Police Act. It is not in dispute that this is a second successive bail application filed by the applicant i.e. first application being Criminal Misc. Application No.1497/2019 came to be withdrawn on 19.07.2019, thereafter, the applicant filed an application being Criminal Misc. Application No.1740/2020 and this Court dismissed the said application by assigning the reasons on 04.02.2020. It is not in dispute that SLP filed by the applicant against the said order was also not entertained by the Hon'ble Supreme Court, copy of said order is placed on record at Page No.20 of the compilation. It is pertinent to note that the Hon'ble Supreme Court directed the trial court to expedite the trial and liberty was also granted to the applicant to approach the trial court for the grant of bail at an appropriate stage. 13. Now it is not in dispute that the prosecution has also examined 23 witnesses and the trial is in progress. On the contrary, it is the case of the applicant that other 6 co-accused have jumped the bail after they were released on temporary bail or bail by the concerned Court and, therefore, the trial court is not in a position to proceed with the trial. Thus, it is not the fault on the part of the prosecution or the concerned trial court in not proceeding further with the trial. 14. This Court has also perused the order dated 23.11.2022 passed by the concerned Sessions Court in Criminal Misc. Application No.562/2022 filed by the applicant under Section 439 of the Code pursuant to the liberty granted by the Hon'ble Supreme Court. 14. This Court has also perused the order dated 23.11.2022 passed by the concerned Sessions Court in Criminal Misc. Application No.562/2022 filed by the applicant under Section 439 of the Code pursuant to the liberty granted by the Hon'ble Supreme Court. The concerned Sessions Court has specifically observed that when the applicant was released on temporary bail by the High Court, he had jumped the bail. The said aspect is also admitted by learned advocate for the applicant, however, he has tried to explain that the applicant was admitted in the hospital and, therefore, he could not surrender before the jail authority, however, the fact remains that the applicant did not file any application for extension of bail before the High Court. 15. Learned advocate has contended that some of the prosecution witnesses did not support the case of the prosecution and, therefore on this ground, the applicant be released on bail. However, this Court is of the view that the aforesaid contention is misconceived. While deciding the application filed under Section 439 of the Code, this Court cannot appreciate the evidence/ depositions given by the witnesses before the trial court. 16. Learned advocate also submitted that the applicant is aged about 21 years and, therefore, he may be released on bail though the FIR is filed under Section 302 etc. of the IPC against him. However, this Court is of the view that the aforesaid contention is also misconceived. It is pertinent to note that the applicant is charged for the offences punishable under Section 302 etc. of the IPC and looking to the gravity and seriousness of the charges levelled against him, the age of the applicant is not relevant. 17. Learned advocate, thereafter, submitted that the applicant is in jail since last 4 years and, therefore on this ground also, he may be released on bail. With a view to appreciate the said contention, this Court would like to refer to the decision rendered by the Hon'ble Supreme Court in case of Rajesh Ranjan Yadav @ Pappu Yadav (supra), wherein the Hon'ble Supreme Court has observed in Paragraph Nos.10 and 16 as under, "10. In our opinion none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. In our opinion none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that because a long period of imprisonment has expired bail must necessarily be granted." 16. We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society." 18. From the aforesaid observation made by the Hon'ble Supreme Court, it is revealed that while considering the request for bail on the ground that the accused is in jail since long, the Court has also to take into consideration other facts and circumstances such as the interest of the society. A balance has to be struck between the right to individual liberty and interest of the society. It is also observed that it cannot be said that there is any absolute rule that because of long period of imprisonment, bail must necessarily be granted. 19. In the present case, as observed hereinabove, the applicant has been charged with the offence punishable under Section 302 of the IPC read with Sections 147, 148, 149 of the IPC. At the time of considering the prima facie case against the applicant, gravity of the offence and punishment prescribed for the alleged offences are also required to be kept in view by the Court. At the time of considering the prima facie case against the applicant, gravity of the offence and punishment prescribed for the alleged offences are also required to be kept in view by the Court. Further, the prosecution has shown apprehension that if the applicant is enlarged on bail, he would not be available for the purpose of trial as 6 other co-accused are also not available after they are released on temporary bail and as observed hereinabove, the applicant has also absconded for a period of more than 25 days when he was released on temporary bail. 20. Looking to the overall facts and circumstances of the present case, as observed hereinabove, this Court is not inclined to exercise the discretion in favour of the present applicant. Accordingly, the present application is dismissed. Rule is discharged.