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2024 DIGILAW 2118 (GUJ)

Umarfarooq Abdulgani Badam v. State Of Gujarat

2024-12-03

DIVYESH A.JOSHI

body2024
JUDGMENT : (Divyesh A. Joshi, J.) 1. Rule returnable forthwith. Learned advocate Mr. Aftabhusen Ansari waives service of notice of rule for and on behalf of the original complainant and learned APP waives service of notice of rule for and on behalf of the respondent- State. 2. The present successive application is filed under Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023, for regular bail in connection with the FIR being C.R. No.11207002210450 of 2021 registered with the Godhra Town ‘B’ Division Police Station, Panchmahals of the offence punishable under Sections 143,147,148, 149, 307, 326, 337, 506(2) and 323 of the Indian Penal Code, 1860 and Section 135(1) of the Gujarat Police Act. 3. Facts in brief leading to the filing of the present application are that one Firdos Yusuf filed the impugned FIR against, in all, total six accused persons, including the present applicant-accused, who is shown as accused No.3 in the FIR. According to the complaint, on 15.05.2021, as the wife of the complainant, namely, Mumtaz was at the house of his kinswoman, namely, Amenabibi Ismail Bokda, residing at Mohammedi Maholla, Godhra, the complainant went to take her back on his Pulsar Motorcycle, and while he was on the way and reached near the house of Abdulgani Badam, all the accused persons were standing there, and when the complainant reached near them, first of all, Nishar Badam saw him and shouted loudly that ‘informant has come’ and pushed him down from the bike. Thereafter, Anas picked up a big stone and hit it on the leg of the complainant. While Mehfuz inflicted a blow on the leg of the complainant with the iron pipe. Then, Umar and Abdulgani came with the sword, of whom, Umar tried to give a sword blow on the neck of the complainant with a view to kill him, however, as the complainant tried to protect himself with his left hand, he received injuries on his left hand. Then, Nisar Badam took the sword from Abdulgani and tried to give a sword blow on the neck of the complainant with a view to kill him, however, one Ibrahim Mohammed Dhantya, a resident of Muslim Society ‘B’ Godhra, intervened and grabbed the sword. Thereafter, Abdulgani started beating him indiscriminately with the wooden stick, at which point of time Imran Dorva @ Masliyo also started giving him kicks and fist blows. Thereafter, Abdulgani started beating him indiscriminately with the wooden stick, at which point of time Imran Dorva @ Masliyo also started giving him kicks and fist blows. Then, as complainant started shouting, people from nearby gathered and, therefore, they all ran away. Thereafter, his brother Irfan Yusuf Raliya and one Asfaq Ahmed Hasan from his area also reached there and took him to the Godhra Civil Hospital in a rickshaw, from where the complainant was referred to the Vins Hospital at Vadodara City where he was admitted as an indoor patient. With this sort of allegations, the impugned FIR has been filed. 4. Learned advocate Mr. P.P. Majmudar appearing for the applicant has submitted that the applicant-accused was arrested on 22.09.2024 and since then he is in jail. Learned advocate Mr. Majmudar has also submitted that the investigation has already been completed and charge-sheet has also been filed. Learned advocate Mr. Majmudar has also submitted that the present litigation has a checkered history. Initially, the applicant-accused was arrested in connection with the present offence on 28.07.2021 and, thereafter, he preferred an application for regular bail being Criminal Misc. Application No.14749 of 2021, which came to be allowed by a Coordinate Bench of this Court vide order dated 08.10.2021 and the applicant-accused was ordered to be released on bail. However, it is an admitted position of fact that, thereafter, his bail application was cancelled by the trial court vide order dated 29.09.2022. Thereafter, the applicant-accused preferred an application being Special Criminal Application No.10690 of 2022, seeking quashment of the said order before this Court, which came to be withdrawn vide order dated 18.10.2022. Thereafter, the applicant-accused was in judicial custody in connection with another FIR being No.330 of 2023, however, his custody was not taken. Thereafter, the applicant-accused was granted anticipatory bail in connection with another FIR being No.142 of 2023 registered with the Godhra Town Police Station, Godhra, and when the applicant-accused went to the investigating officer for giving surety and bail bond, at that time, he was taken into custody in connection with the present FIR on 22.09.2024 and since then he is in jail. Be that as it may, now by means of the present application, the applicant-accused has approached this Hon’ble Court seeking to enlarge him on bail as certain development has taken place during the interregnum, and such development is that the accused Nos.4 and 6 have already been released by the learned trial court vide order dated 16.06.2021. Not only that, the bail of accused No.2-Anas Abdulgani Badam was also cancelled, however, the said order was challenged upto the Hon’ble Apex Court, and the Hon’ble Apex Court, vide order dated 22.03.2024 has released the accused No.2-Anas Abdulgani Badam on bail. The regular bail of Imran Shaukat @ Masaliya @ Umran Dovra also got cancelled by the trial court, however, the said accused then preferred regular bail application before this Court being Criminal Misc. Application No.9072 of 2024, and this very Court, by order dated 09.05.2024, enlarged the said accused on bail. Learned advocate Mr. Majmudar has also submitted that considering the aforesaid developments having been taken place in the matter, and the fact that the other co-accused who have already been enlarged on bail are attributed with more or less similar role than that of the applicant- accused, the case of the applicant-accused may also be considered on the ground of parity. Under the circumstances, learned advocate Mr. Majmudar for the applicant prays that the applicant may be enlarged on bail on any suitable terms and conditions. 5. The learned APP appearing on behalf of the respondent- State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned APP has submitted that the present applicant-accused is a headstrong person against whom number of offences have been registered. So far as the contention that the applicant-accused was not arrested after the cancellation of his bail is concerned, he has candidly submitted that initially, he was under impression that it was a mistake on the part of the police machinery, however, later it has been brought to his notice that due to change/transfer of the concerned investigating officer, a new officer came and he was not aware about the status of the matter. Thereafter, non-bailable warrant also came to be issued against the applicant-accused, however, he was evading his arrest and did not surrender before the police. Thereafter, non-bailable warrant also came to be issued against the applicant-accused, however, he was evading his arrest and did not surrender before the police. However, subsequently, he got arrested in another offence and remained in judicial custody for about two months, and during that period, he has not been shown arrested in the present proceedings. Learned APP Mr. Sharma has also submitted that it seems to be the mistake at the end of the police machinery, however, the said mistake has occurred due to change of investigating officer, but he would not run away from the said liability and fairly conceded that it was a mistake on the part of the police, and they should be vigilant. He has further submitted that in the present case, the conduct of the present accused is required to be seen. It is required to be noted that, at the time of releasing him on bail by a Coordinate Bench of this Court pursuant to the present FIR, he was restricted from entering into the Panchmahal District till the conclusion of trial, however, despite the said condition, he has not only entered into the revenue limits of Panchmahal District, but has also committed two offences during that period, which shows the criminal mind set of the applicant-accused and the gross disrespect to the lawful order of the Court. Under the circumstances, considering the role attributed to the applicant-accused as well as the conduct and approach of the applicant-accused, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused. 6. This application has also been vehemently opposed by learned advocate Mr. Aftab Ansari appearing for the original complainant. He has submitted that after the registration of the FIR, the applicant was absconded and on various efforts being made by the investigating officer, he was ultimately arrested on 28/.07.2021. The FIR reveals that the applicant-accused was present at the scene of offence, and the specific role and the overt act done by the applicant-accused, whereby the accused attempted to kill the deceased by inflicting blow on the neck of the complainant. Learned advocate Mr. The FIR reveals that the applicant-accused was present at the scene of offence, and the specific role and the overt act done by the applicant-accused, whereby the accused attempted to kill the deceased by inflicting blow on the neck of the complainant. Learned advocate Mr. Ansari has also submitted that after the applicant-accused got arrested on 28.07.2021 in connection with the present FIR, the applicant-accused approached this Court for regular bail, and a Coordinate Bench of this Court vide order dated 18.10.2021, enlarged him on bail on certain terms and conditions. However, the applicant-accused did not comply with any of the conditions and committed two other offences, whereby in one offence he has mercilessly beaten the complainant and also committed the offence under the Animal Cruelty Act, and both these offences were committed within the revenue limits of Panchmahal District, which is a clear cut violation of the condition imposed by this Court. He has produced some photographs of the complainant on record, which shows the intensity of the injuries caused by the applicant-accused to the complainant. Learned advocate Mr. Ansari has further submitted that, then the concerned investigating officer filed an application for cancellation of bail, which was eventually allowed, whereby the bail of the applicant-accused got cancelled. However, he did not surrender before the police on his own and remained absconded till he was arrested on 22.09.2024. Moreover, there are past antecedents against the applicant-accused, and he remained absconded for over two years after his bail got cancelled. He has submitted that the present applicant-accused has mercilessly beaten the complainant after being released on bail by this Court with a view to exert pressure upon the complainant to compromise the matter. Learned advocate Mr. Ansari has submitted that if any mistake is being committed by the police machinery in not arresting the accused, despite he being in judicial custody in the same police station in another offence, due to such inaction on the part of the police, the complainant should not have to suffer. He has further submitted that the applicant-accused has flouted the conditions imposed by this Court while releasing him on bail, which shows that he does not have any respect towards the judicial orders. He has further submitted that the applicant-accused has flouted the conditions imposed by this Court while releasing him on bail, which shows that he does not have any respect towards the judicial orders. The applicant-accused is a headstrong person and criminal minded person, and if he is considered for bail, there are all possible chances that he would again adopt the same tactics and cause harm to the complainant. Learned advocate Mr. Ansari, therefore, prays, that there being no merit in the present application, the same be rejected. 7. I have heard the arguments advanced by the learned counsel for both sides and also perused the entire evidence available on record. 8. At the outset, it is required to be noted that the applicant-accused along with the other accused are chargesheeted for the offences punishable under Sections 143, 147, 148, 149, 307, 326, 337, 506(2) and 323 of the Indian Penal Code and Section 135(1) of the G.P. Act. That as per the case of the complainant and the prosecution all the accused including the applicant herein with a common intention attacked the complainant by sword, iron pipe, stone, and the wooden stick and try to kill the complainant. The photographs appended along with the memo of the petition reveal that the injuries received by the complainant are quite serious in nature, and if the applicant-accused herein succeeded in his attempt, the complainant might have lost his life. Thus, from the materials available on record, it clearly appears that the deceased had received multiple injuries on the different parts of his body, and looking to the contents of the FIR and the reply filed by the complainant, it is very clearly stated therein that the applicant-accused had tried to give a blow with the sword on the neck of the complainant, however, as the complainant tried to save himself with his hand, he received injuries on his hand. It is also pertinent to note that the applicant-accused has been named in the FIR since beginning and even the statements of relevant witnesses under Section 161 Cr.PC were also recorded. 9. At this stage, I would like to refer to some relevant provisions of IPC with regard to the case on hand. 10. Chapter 16 of Indian Penal Code deals with offences against human body. 9. At this stage, I would like to refer to some relevant provisions of IPC with regard to the case on hand. 10. Chapter 16 of Indian Penal Code deals with offences against human body. As per Section 319 I.P.C. 'hurt' is described as under: ''Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt''. 'Hurt' is commonly known as 'simple hurt/injury' is punishable under Section 323 I.P.C. 11. In the present case, the allegations leveled against the applicant-accused as revealed from the FIR are that the accused tried to kill the deceased by inflicting blow on his neck with the sword. The version of the prosecution as revealed from the FIR is corroborated by the evidences produced on record. Over and above the same, this Court has also taken note of the conduct of the applicant-accused. It appears from the record that the applicant-accused had already been released on bail by a Coordinate Bench of this Court in connection with the same FIR on certain terms and conditions, amongst which, by condition No.(g), the applicant-accused was prohibited from entering into Godhra. Despite the said condition, the applicant-accused not only entered into the revenue limits of Godhra, but also committed two offences in the same District where he was prohibited to be entered into, and even, out of the said two offences, one is for mercilessly beating the same complainant with a view to exert pressure upon the complainant to compromise the present matter. Looking to the allegations levelled in the FIR and the contents of the affidavit filed by the original complainant, it seems that the applicant-accused is a headstrong person, habitual of committing such type of offences. 12. At this stage, I would like to refer to the provisions of Section 307 of the Penal Code, which reads thus: “307.Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts.—When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, bepunished with death. Illustrations (a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section. (b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue. (c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section. (d) A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section.” 13. From the perusal of the provision of Section 307 IPC it can be seen that the first part of Section 307 refers to “an act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder”. The second part of Section 307, which carries a heavier punishment, refers to “hurt? caused in pursuance of such an “act?. The essential ingredients for an offence of attempt to commit murder punishable under Section 307 IPC the most important ingredient is intention and knowledge. 14. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in Section 307 IPC. 15. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in Section 307 IPC. 15. Here in the case on hand, the allegations levelled against the applicant-accused are that he made an assault upon the complainant with the sword and cause severe injuries to him. It is clearly mentioned in the FIR as well as in the affidavit filed by the original complainant that the present applicant-accused was having sword in his hand and he tried to give a blow on the neck of the complainant with the said sword. It is also pertinent to note that when the complainant was passing through a particular place, all the accused persons were standing there, and on seeing the complainant, they pushed down the complainant from the bike and started beating him. They were having deadly weapons in their hands as mentioned in the FIR and started inflicting blows to the complainant which clearly shows the intention on the part of the accused persons. Moreover, the role attributed to the applicant-accused is that he tried to give blow to the complainant with the sword which shows the knowledge on the part of the applicant-accused that the same may result into the death of the complainant. It has also come on record that, as stated above, that two other offence has also been registered against the applicant-accused after he was released on bail in connection with the present FIR, in which, one is for beating the same complainant. The applicant-accused and the complainant are residing in the same vicinity and, therefore, there are all possible chances that the applicant-accused may try to influence or threaten the prosecution witnesses and also try to tamper with the evidence during the trial. Except the fact that the present application lacks merit, this Court has also taken very serious note of the conduct of the applicant-accused after being released on bail by a Coordinate Bench of this Court in connection with the same FIR, as noted above. Therefore, I am inclined to dismiss the present application. 16. Except the fact that the present application lacks merit, this Court has also taken very serious note of the conduct of the applicant-accused after being released on bail by a Coordinate Bench of this Court in connection with the same FIR, as noted above. Therefore, I am inclined to dismiss the present application. 16. So far as the ground of parity raised by the learned advocate for the applicant is concerned, I would like to quote the very recent pronouncement of the Hon’ble Supreme Court in the case of Tarun Kumar vs. Assistant Director, Directorate of Enforcement, SLP (Cri.) No.9431 of 2023, wherein Justice Bela M. Trivedi, speaking for the Bench, has observed thus; “The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other coaccused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/ operator/ controller of various shell companies were granted bail on the ground of infirmity and medical grounds. The co-accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by the High Court, however the said order of High Court has been challenged by the respondent before this Court by filing being SLP (Crl.) No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order while repelling the said submission made on behalf of the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-to-day operations of the company. It was also observed that the appellant’s role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. It was also observed that the appellant’s role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court.” 17. In view of the aforesaid discussion, the present application fails and is hereby rejected. Rule is discharged.