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2024 DIGILAW 1480 (GUJ)

Saurabh Sushil Nevatiya v. State Of Gujarat

2024-07-02

GITA GOPI

body2024
ORDER : Gita Gopi 1. The present revision has been filed under Section 439 (2) of the Code of Criminal Procedure, 1973 challenging the legality and validity of order dated 30.04.2024 recorded in Criminal Misc. Application No.3202 of 2024 by the learned Sessions Judge, Surat, whereby the learned Sessions Judge has enlarged the respondent No.2 on bail in connection with FIR being CR No.11210068240156 of 2024 registered with Vesu Police Station, Surat under Sections 302, 323, 34, 143, 147 and 149 of the Indian Penal Code. (for short ‘the IPC’). 2. Heard learned Senior Counsel Mr. Yatin Oza with learned advocate Mr. Virat G Popat for the applicant, learned APP Mr.Hardik Mehta for respondent – State and learned advocate Mr. Hardik A. Dave for respondent No.2 – original accused. 3. Learned Senior Counsel Mr. Yatin Oza submitted that the present applicant is original complainant. He is a brother of the deceased and he has prayed for cancellation of bail of respondent No.2, granted by the Sessions Court. 3.1 Learned Senior Counsel Mr. Oza submitted that the deceased was beaten by the people first in the complex and then respondent No.2 called the employees of the institute and other persons who are owning shops in the complex and instigated them to beat the deceased in the basement of the complex and the deceased succumbed to the injuries. Referring to the provisions of Sections 147 and 149 of the IPC, it is stated that when the police has invoked the provisions of such sections, it can be said that there is common intention of all the accused and they have gathered as unlawful assembly and as per the case of the prosecution respondent No.2 is the main perpetrator of the offence, who all in furtherance of criminal conspiracy had beaten him to death. 3.2 Learned Senior Counsel Mr. Oza submitted that the learned Sessions Judge has failed to appreciate the evidence on record and has not given any reason while granting the bail and the only observations which are made to the effect that the role of the respondent No.2 can be considered during the trial. Learned Senior Counsel further submitted that it was the common intention of the people who were gathered there to mercilessly beat the deceased with an intent to take his life and therefore, they have taken the deceased to basement. 3.3 Learned Senior Counsel Mr. Learned Senior Counsel further submitted that it was the common intention of the people who were gathered there to mercilessly beat the deceased with an intent to take his life and therefore, they have taken the deceased to basement. 3.3 Learned Senior Counsel Mr. Oza submitted that at first instance of the alleged act, the brother of the deceased had already asked for pardon from the two of the persons and therefore the deceased has gone out of the mall while as per the case of learned Senior Counsel Mr. Oza states that the present respondent No.2 had asked his employee to bring the deceased back and from about a distance of 2 kms, the deceased was brought back by the employee of the respondent No.2 to the basement. 3.4 Referring to the judgment in case of Kumar Singh vs. State of Rajasthan reported in 2021 (8) Scale 543 and in case of Manno Lal Jaiswal vs. State of Uttar Pradesh reported in 2022 (15) SCC 248 , learned Senior Counsel Mr. Oza submitted that when the accused is charged for the offence punishable under Section 149 of the IPC and when his presence has been established, the individual role and / or overt act by the individual accused is not significant and / or relevant. The common intention of all persons is required to be considered and thus stated that the order granting bail is not a reasoned order and learned Sessions Judge has failed to take into consideration the legal position and the fact that the accused had common intention to kill the deceased. 3.5 Learned APP submitted that the impugned order is perverse and no person can be permitted to have law in their hands and the act of mob-lynching should be deprecated. 4. Per contra, learned advocate Mr. Hardik Dave for respondent No.2 submitted that the respondent No.2 is running coaching institute in the mall. It is also submitted that the allegation of indecent act is not a sole act but a continuous act of perversion and stated that the alleged indecent act was in the open place of the complex where there was constant movement of people. 4.1 Learned advocate Mr. Dave referring to the details in the charge-sheet submitted that on 16.03.2024, after the indecent conduct of the deceased, Amanchand Dhirenchand Thakori of Royal Stationers had beaten him with broom. 4.1 Learned advocate Mr. Dave referring to the details in the charge-sheet submitted that on 16.03.2024, after the indecent conduct of the deceased, Amanchand Dhirenchand Thakori of Royal Stationers had beaten him with broom. At that time, the brother of the deceased sought his pardon to let him go. During that time people had gathered as there was loud noice, as per the prosecution case the present respondent No.2 who is running institute in the mall had asked his employees to catch the deceased. Thereafter, accused No.1 – Amanchand, Accused No.2 Rajesh Ashokbhai Borse, accused No.3 – Akshaykumar Sanjaykumar Mandal, Accused No.6 – Nitinbhai Bharatbhai Vasava, accused No.7 – Amar Sureshbhai Mavadhiya, accused No.8 – Tusharbhai Vinubhai Gohel, accused No.9 Dharmeshbhai Bharatbhai Gohel and two other unknown persons had ran after the deceased and caught him and took him to the parking space at basement of the complex, where respondent No.2 has asked his employee to call the police. After sometime police arrived and took him to the police station. Learned advocate Mr. Dave stated that as per the police papers, when they reached the police station, the police inquired from the deceased about the incident. At that time, he had asked for water and after drinking water he told that he is having chest pain and slept on the bench at police station and suddenly he fell down. Thereafter, he was taken to the hospital through 108 ambulance service, where he was declared dead. 4.2 Learned advocate Mr. Dave submitted that the death of the deceased is not direct result of the alleged offence and that taking him to the basement could not be considered an intentional act. He further submitted that it was not the case of mob- lynching as alleged. The respondent No.2 is a teacher and he is running designing institute and many teenage students are coming to his institute. Moreover, in the mall there are many shops which are ran by the women and deceased committed indecent act first, in the lobby then in the basement such act was to be reported to the police and therefore deceased was brought to the basement and when police arrived and took the deceased to the police station, he went with the police on his own and there was no complain of any injury at that time. 5. The contention raised by learned Senior Counsel Mr. 5. The contention raised by learned Senior Counsel Mr. Oza is that the learned Sessions Judge while granting bail has not given any reason and noted that the act of the accused would be considered at the trial and another contention is that offence is registered under Section 147 and 149 of the IPC, thus prima facie act alleged should be attributed to the accused : as has emerged from the police papers would show that present accused wanted to report the deceased to the police and thus he has instructed to call the police and police came there in the basement. The person who were present at the basement have been recorded in the CCTV. Further names of the persons who were present there are noted in the chargesheet. The fact suggest that police has taken the deceased and respondent No.2 with other accused to the police station and inquired from the deceased. Accused had asked for water and as noted, after drinking water he rested on the bench for 10 minutes and suddenly fell down and was taken for treatment. There he was declared dead. Therefore, though deceased was beaten, the immediate act of the respondent No.2 was to inform the police and there is no allegation of any specific assault by the respondent No.2 and thus alleged common intention could not be gathered from the facts of the case. 6. In view of the reasons given above, this Court do not find any irregularity or illegality in the order passed by the learned Sessions Judge granting bail to the respondent No.2. Hence, present application being devoid of merits requires to be rejected and the same is rejected. Rule is discharged.