Rahul @ Montu Bhikhabhai Gohel vs State Of Gujarat & 1 Other(S)

Ilesh J. Vora, J

By way of this successive bail application, the applicant – accused Rahul @ Montu Bhikhabhai Gohel, is seeking bail in connection with FIR being I. CR. 11192008210564 of 2021 registered with Bavla Police Station, Ahmeabad for the offences punishable under Sections 302, 143, 147, 148, 149, 323, 427, 504 and 188 of the IPC.

The applicant herein had withdrawn his earlier bail application and liberty was granted to him to file fresh application before the Sessions Court concerned as well as this Court, after examining the material witnesses.

This successive bail application has been preferred only on the ground that there is a substantial change in the fact situation, as the co-accused namely Dhiru Vania, Shailesh Parmar and Harshad Bano, who having major role, granted regular bail by the co-ordinate bench of this Court.

Facts and circumstances giving rise to file present application are that, the applicant herein implicated as accused no. 4 in the alleged offence. The incident took place on 24.08.2021 at the place mentioned in the papers. It is alleged that, on the day of incident, scuffle took place with respect to payment of money, which led to aggravation from the side of one Sanjaybhai and to take revenge of the same, the accused nos. 1 to 7 have formed unlawful assembly and conspired to kill the deceased Rahul and armed with deadly weapons like sickle, metal stick and base ball bat, came at the place of incident and assaulted the deceased and have caused fatal injuries, as a result, he succumbed to the injuries. The FIR came to be registered against the persons named in the FIR for the offences as referred above and after completion of the investigation, chargesheet came to be filed.

Mr. Kishan Chakwawala, submitted that, the applicant is in custody since 11.11.2021. After withdrawal of the earlier bail application, there is substantial change in the fact situation as co-accused against whom serious allegations are made, have been granted regular bail by the coordinate bench of this Court. So far role of present applicant is concerned, he submitted that, as per the prosecution case, the applicant was armed with wooden stick and have caused injuries to the deceased. The learned counsel Mr. Chakwawala submitted that, the co-accused Dhiru Vania, Shailesh Parmar and Harshad Bano have caused the injuries with deadly weapons like base ball bat, wooden stick and metal rode and therefore, the role of the applicant can be said to be at par with the co-accused or he having much lesser role in compare to the co-accused. Thus, considering these subsequent development, he submitted that, the applicant accused moved an application for bail before the Sessions Court, which came to be rejected without considering the parity claimed by the applicant herein.

In the aforesaid contentions, learned counsel submitted that, present successive bail application is maintainable and applicant may be granted benefit of the parity.

On the other hand, learned Additional Public Prosecutor Ms. Maithili Mehta, vehemently opposed the application and contended that, considering the nature and gravity of offence and role attributable to present applicant herein, no case is made out to exercise judicial discretion.

On the facts on hand, it is not in dispute that, after withdrawal of the earlier bail application, the co-accused Dhiru Vania, Shailesh Parmar and Harshad Bano have been granted regular bail by the co-ordinate bench of this Court. On perusal of the contents of the FIR and considering the role attributable to the present applicant and co-accused, which seem to be similar in nature. It is settled position of law that, successive bail applications are permissible under the change circumstances. The granting regular bail to the co-accused, can be a substantial change and therefore, this successive bail application on the change circumstances, is maintainable. The issue for determination is whether on the principle of parity, the case of the applicant deserves consideration or not? This Court is of the considered opinion that, the co-accused having major role, have been enlarged on bail. Thus, considering the role attributable to present applicant herein and evidence in support of charge, I am in complete agreement with the contention raised by the learned counsel for the applicant for extending the benefit of principle of parity.

For the foregoing reasons, without expressing anything on the merits of the case, the case is made out for exercising judicial discretion in favour of the applicant and accordingly, I am inclined to release the applicant on bail.

Hence, the applicant is ordered to be released on regular bail in connection with the FIR being I. CR. 11192008210564 of 2021 registered with Bavla Police Station, Ahmeabad, on executing a personal bond of Rs.10,000/- (Rupees Ten thousands only), with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall:

No.

Conditions

(a)

not take undue advantage of liberty or misuse liberty;

(b)

not act in a manner injuries to the interest of the prosecution;

(c)

surrender passport, if any, to the lower court within a week;

(d)

not leave India without prior permission of the Sessions Judge concerned;

(e)

furnish latest 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 trial Court;

The authorities shall release the applicant if he is not required in connection with the any other offence. If breach of any above condition is committed, the Sessions Judge concerned shall take appropriate action or issue warrant against the applicant. The bail bond to be executed before the learned trial Court having jurisdiction to try the case. It will be open for the sessions judge concerned to delete, modify and/or relax any of the above conditions, in accordance with law. Nothing stated hereinabove, shall tantamount to the expression of any opinion on the merits of this case. Rule is made absolute to the aforesaid extent. Direct service permitted.