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2025 DIGILAW 311 (GUJ)

Aatmaram Ramkuvar Kharol v. State of Gujarat

2025-03-24

HASMUKH D.SUTHAR

body2025
ORDER : (HASMUKH D. SUTHAR, J.) (1) By way of the present successive application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”), the applicant has prayed for anticipatory bail in the event of arrest in connection with the FIR being C.R. No. 11195019240790 of 2024 registered with Deesa Rural Police Station, Banaskantha, for the offences punishable under Sections 65(a), 65(e), 116B, 98(2) and 81 of the Gujarat Prohibition Act. (2) Learned advocate for the applicant submits that the applicant has nothing to do with the offence. Based on the statement of the co-accused, he has been arraigned as an accused; that muddamal recovered from the Eeco car belonged to accused No.1 and not of the applicant. Main accused is released on regular bail by JMFC, Deesa. Nothing is found from conscious possession of the applicant. Besides, the applicant is available during the course of investigation and will not flee from justice. In view of the above, the applicant may be granted anticipatory bail. (3) Learned Additional Public Prosecutor appearing on behalf of the respondent – State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. He has further submitted that, earlier two accused including the applicant had preferred anticipatory bail application and this Court considering the conduct and past antecedents, not inclined to grant bail to the present applicant. He further submitted that, the applicant is having three similar nature of antecedents and now after 30 days, once again present successive bail application is preferred without any changed circumstances. He has also drawn attention of this Court towards the fact that only with a view to mislead the Court and Investigating OfÏcer, he has mentioned his address in cause title that he belongs to Bhilvada, Rajasthan. In fact, he is residing at Nikol, Ahmedabad. Till date, he is on run and not joined investigation. As per the allegation made in FIR, total 211 bottles of contraband liquor worth of Rs.1,18,940/- which was concealed in Eeco car of co- accused and the same was to be delivered to the present applicant. Considering the aforesaid facts, involvement of the applicant is clearly revealed and hence, custodial interrogation of the applicant is required. Hence, application does not deserve any consideration. Considering the aforesaid facts, involvement of the applicant is clearly revealed and hence, custodial interrogation of the applicant is required. Hence, application does not deserve any consideration. (4) It is to be noted that the present application is a successive bail application, filed after the dismissal of the earlier application, Criminal Misc. Application No. 1996/2025, after a period of 30 days and without any changed circumstances. According to the prosecution's case, while the LCB Police in Banaskantha were conducting a routine patrol, based on specific intelligence, they intercepted an Eeco car coming from Rajasthan. It was discovered that the car had a concealed box in the bonnet and beneath the seat, which was intended for the illegal transportation of liquor. Thus, there is prima facie involvement of the applicant in the offense. The investigation into who supplied the contraband liquor to the accused and who the intended recipient was is still ongoing. Despite the lack of any changed circumstances, the applicant has filed the present application. The applicant’s main argument is that the statement of the co-accused has been recorded, and the co- accused has been named as an accused. However, it is important to note that the statement of the co-accused is relevant, as it may provide crucial information for the investigation. (5) The investigation papers clearly reveal that the allegations against the accused are very serious one and he is wanted and out of reach and therefore, in view of the law laid down by the Hon’ble Apex Court in case of State of Haryana vs. Dharamraj reported in 2023 INSC 784 ; Lavesh vs. (NCT of Delhi) reported in (2012) 8 SCC 730; Abhishek vs. State of Maharastra reported in 2022 (8) SCC 282 and Prem Shankar Prasad vs. State of Bihar reported in 2021 SCC OnLine SC 955 and Srikant Upadhyay and Others vs. State of Bihar and Another reported in 2024 SCC OnLine SC 282 , I am of the considered view that this is not a fit case to exercise the jurisdiction in favour of the applicant. (6) Further, it is needless to say that present application is second bail application without any change in the circumstances after withdrawal of earlier application on 06.02.2025 and after 30 days, the applicant once again filed present application. (6) Further, it is needless to say that present application is second bail application without any change in the circumstances after withdrawal of earlier application on 06.02.2025 and after 30 days, the applicant once again filed present application. In view of the above, as there is no change in the circumstance which means the reasoning given by the learned Sessions Judge attained the finality and in absence of any change in circumstance, the present application for successive anticipatory bail deserves to be dismissed in light of the law laid down by this Court in the case of State of Gujarat vs Kanaksinh Mohansinh Mangrola reported in 2005 (1) GLH 665 , wherein this Court held as under: “While deciding the second successive anticipatory bail application of the respondent no.1-accused, learned Sessions Judge has not taken into consideration the following aspects. Due to change in circumstance, party can approach the court below or the High Court under Sec.438 of the Code and court can deal with that point of change in circumstance only. However, the court cannot enter into the grounds which were previously contested by the parties and have become final. Here in this case, court below has violated the basic principle of law laid down by the Apex Court on this point by dealing with all points raised by the accused in the first application filed under Sec.438 of the Code and which were already decided by the learned Addl. Sessions Judge, Surat, in detail with prima-facie reasons. Said order was carried further by the accused in the High Court and at the end of arguments, it was withdrawn and hence it has become final between the parties and hence, learned Sessions Judge should not have dealt with the same points again in the successive anticipatory applications. (7) Despite withdrawal of earlier bail application, the applicant has filed this subsequent anticipatory bail application without any change in the circumstance of the case. In this regard also, reference needs to be made to the judgment of the Hon’ble Supreme Court in the case of G.R. Ananda Babu vs The State of Tamil Nadu reported in 2021 SCC Online SC 176 and in the case of Md. Shamim Khan Vs. In this regard also, reference needs to be made to the judgment of the Hon’ble Supreme Court in the case of G.R. Ananda Babu vs The State of Tamil Nadu reported in 2021 SCC Online SC 176 and in the case of Md. Shamim Khan Vs. The State of Jharkhand (Leave to Appeal (Cri.) No.9449/2021 , the Hon’ble Supreme Court deprecated such practice of filing second application under Section 438 of the Code/482 of the BNSS after the first being withdrawn/rejected. (8) It appears that present applicant has misused the process of law as he is facing the charge under the Prohibition Act. Considering the conduct of the applicant though in the prohibition cases, without change in the circumstance, he has filed the present application. Therefore, custodial interrogation is required. (9) The applicant is having three past antecedents and due to one or another pretext, as and when he released, he continued in similar nature of offence and all offences are registered in Border Districts like Deesa Rural and Pathavada Police Stations. (10) Learned counsel for the applicant has further submitted that after earlier bail application i.e., CRMA No. 1996/2025, was argued and the court was not inclined to grant bail to the present accused considering his conduct and past antecedents, the applicant had withdrawn the earlier bail application. Now, learned counsel for the applicant has submitted that the previous advocate, who appeared on behalf of the applicant, withdrew (or did not press) the bail application without the applicant's consent or consultation. Therefore, the applicant has once again approached this Court. (11) Further, Gujarat is a dry State and pursuant to Article 47 of the Constitution of India, the directive principles of the State policy, it is the duty of the State to raise the standard of living and improve the public health and for the said purpose, prohibition of such intoxicating drugs being made compulsory in the Gujarat State. The State is committed to the ideas and principles of Father of Nation Shri Mahatma Gandhji and State also firmly intends to eradicate the menace of consuming liquor or intoxicating drugs to overhaul the law relating to intoxicating drugs and total prohibition in the State and for that amendments also being made in the Gujarat Prohibition Act. Though on broad day accused persons are running stand for selling liquor and people are visiting to consume the same. Though on broad day accused persons are running stand for selling liquor and people are visiting to consume the same. Considering the aforesaid fact, prima facie involvement being made out, no case is made out to grant anticipatory bail to the applicant. (12) The coordinate Bench of this Court in a case of Jigneshkumar Maheshbhai Patel vs State of Gujarat, (Criminal Misc. Application No.3122 of 2018) has observed as under : “15. This Court, in one of its judgments, in the case of State of Gujarat vs. Desai Jigisbhai @ Rajubhai Nagjibhai, Criminal Misc. Application No.23576 of 2015, decided on 4th February, 2016, observed as under; "25. When a Court is given a discretion, the statute confers upon it the power to act according to what may appear to be best and appropriate under the circumstances of the particular case. The discretion is not willful or arbitrary, but is regulated by well-known and well established principles. In many circumstances, the Judge has a discretion as to whether, and in what manner, to exercise his powers. Commonly encountered instances of judicial discretion are the discretion as to grant of bail in a non-bailable offence. However, no discretion is absolute and there may be a successful appeal to the Court of Appeal in relation to the exercise of a judicial discretion if the appellant can show that the judge exercised his discretion under a mistake of law, or under a misapprehension as to the facts, or that he took into account irrelevant matters or gave insufÏcient weight, or too much weight, to certain factors or that he failed to exercise his discretion at all. (13) Considering the aforesaid fact, the present application is lack of bona fide and it appears that the applicant is having control over or seems clout with the police authority and he continued in such indulged in similar type of activity and he is having past antecedents. Therefore, no case is made out to entertain this application. (14) It would not be out of place to mentioned that, under the current roster, the Court has come across instances where leniency and generosity are shown to junior advocates, who may act as mere instruments. Therefore, no case is made out to entertain this application. (14) It would not be out of place to mentioned that, under the current roster, the Court has come across instances where leniency and generosity are shown to junior advocates, who may act as mere instruments. Senior advocates or miscreant applicants with less merit sometimes change advocates and raise the argument that the application was withdrawn without consulting or obtaining consent, but no action or proceedings are taken against the erring advocate for such misconduct. Even if we overlook the aforementioned issue, this situation presents a novel way for an applicant to take undue advantage of pending applications. Despite multiple rejections of pre-arrest bail, the applicant continues to approach the Court, and under the pretext of a pending application, the police are not going to arrest the accused, allowing the accused to continue such illegal activities. This practice has now become problematic, and it is high time to curb it. The applicant should not be allowed to achieve what they cannot directly through indirect means. Hence, the present application is nothing more than a sheer abuse of the process of law and a waste of the Court's precious time. (15) For the foregoing reasons as present application being successive bail application, which is filed without any changed in the circumstances, after 30 days of withdrawal/rejection of the anticipatory bail application and considering the law laid down in the above cited decisions of this Court as well as the Hon'ble Apex Court and considering the conduct of the applicant, this Court is of view that it is not a fit case to exercise the discretion under Section 438 of the Code/482 of the BNSS in favour of the applicant. Accordingly, present application does not deserve any consideration. The provision of anticipatory bail should not be put to abuse at the instance of the unscrupulous applicant. As equating the same with the facts of the case on hand the present applicant and the very conduct and demeanor on the part of the applicant moving the Court with similar successive application, which is nothing but the total abuse of the process of law and such practice time and again has been deprecated by the Higher Court and the very conduct on the part of the applicant compels this Court to saddle the applicant with exemplary cost. Hence, the present application deserves to be dismissed and is hereby dismissed at the admission stage with cost of Rs.25,000/- before the Gujarat High Court Advocates’ Library within 7 days from the receipt of this order. Rule is discharged.