Shakuntalaben W/O Chaitarbhai Vasava vs State Of Gujarat

Divyesh A. Joshi, J

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.11823004231271/2023 registered with the Dediyapada Police Station, Narmada for the offence punishable under Sections 143, 147, 148, 149, 186, 189, 332, 353, 386, 294(b), 506(2) and 34 of the Indian Penal Code and under Section 25(1)(a) of the Arms Act

Heard learned advocate, Mr. Y.H. Motiramani for the applicant and learned APP Mr. Manan Mehta for the respondent – State of Gujarat.

Learned advocate for the applicant submitted that the so-called incident has occurred in the evening of 30.10.2023, for which, FIR has been lodged on 02.11.2023 and in connection with the same, the applicant has been arrested on 03.11.2023 and since then, she is in judicial custody. It is submitted that the applicant is a lady accused and is not involved in the alleged commission of offence and she has been wrongly arraigned as accused in the aforesaid offence. Learned advocate submitted that there is delay of two days in lodging the FIR, however, no explanation was given by the complainant, which suggests that the applicant has been wrongly arraigned as accused and the applicant is being victimized. It is submitted that the applicant is a housewife and no specific allegations have been levelled against her, except, her presence at the time of commission of crime. Learned advocate submitted that the applicant has not actively participated in the commission of crime and during the course of investigation, the concerned Investigating Officer has recorded the statements of the witnesses and there is no recovery or discovery pending. It is further submitted that the role of the present applicant is clearly mentioned in the FIR but subsequently during the course of investigation, there was improvement in the versions and statements of the witnesses. It is submitted that the applicant has used firearms in the present offence. It is submitted that the FIR is politically motivated as the husband of the applicant is an elected Member of Aam Aadmi Party.

Learned advocate has put reliance upon the decision of the Hon’ble Apex Court in case of Manubhai Ratilal Patel Vs. State of Gujarat, reported in (2013) 1 SCC 314 as well as in case of Manoranjana Sinh @ Gupta Vs. CBI, reported in (2017) 5 SCC 218 and submitted that the Hon’ble Apex Court has issued certain guidelines while considering an application for bail and in the facts of the present case, the fundamental rights of the applicant under Article 21 of the Constitution of India are violated. It is, therefore urged that the present application may be allowed considering the role attributed to the present applicant by imposing suitable terms and conditions.

On the other hand, learned APP for the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that the role of the present applicant is clearly spelt out from the body of the complaint. It is submitted that the accused have formed an unlawful assembly with an in intention to achieve their malafide intention and used abusive language knowingfully well that the complainant is in discharge of his duty as Round Forest and threatened on the point of revolver by firing and while lodging FIR, the complainant has narrated the role played by each accused including the applicant herein. It is submitted that in fact, the accused, Rameshbhai Vasava and Dungarbhai Vasava have illegally encroached upon the Government land and for removal of such encroachment done by the accused, the complainant has reached the place of offence and the accused have caused in order to deter a public worker from doing his duties, which is supported by the contents of the FIR. Learned APP submitted that it is alleged in the FIR that the original accused no.1, Chaitarbhai Vasava, who is MLA, has made a phone call to the complainant and asked him to come at his residence and in pursuance thereto, the complainant and other four persons from the department had gone to the house of the main accused and at that time, the original accused no.1, though being a MLA, had caught hold of the collar of the complainant, who is a Government servant and administered threats to kill him if the amount of damaged crop is not given to the agriculturist and at that time, the present applicant and other accused persons, who were there at the residence of the original accused no.1, had abused and threatened to beat them and because of the threats given by the accused to the complainant and other staff members, they have withdrawn amount from the ATM from their own account and handed over to the accused and at that relevant point of time, the original accused no.1 has used the revolver by firing into the air and the said revolver is not yet recovered by the police. It is further submitted that in the commission of crime, the present applicant has actively participated and the complainant and other four witnesses have in a categoric terms stated about the specific role played by the present applicant. It is submitted that in the bail application filed by the applicant before the concerned court, the concerned IO has also filed an affidavit opposing the said application, wherein the role played by the applicant is clearly mentioned. It is submitted that in the present case, the investigation is at primary stage and, hence, no leniency may be shown by the applicant on the ground of lady accused. It is, therefore, urged that the present application may not be entertained.

I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. I have also considered the reasoning given by the concerned court while rejecting the bail application and the affidavit filed by the IO opposing the said application.

It is found out from the record that the present application is preferred before submission of the chargesheet and yet the investigation is not concluded. From bare perusal of the complaint, the role of the present applicants is clearly found out that the applicant has actively participated in the commission of crime. It is found out from the record that the accused, Rameshbhai Vasava and Dungarbhai Vasava have illegally encroached upon the Government land, which was required to be removed and, hence for removal of the same, the complainant along with other staff members has reached the place of offence and made to understand the situation but instead of cooperating with the same, the accused have got excited and forged an unlawful assembly and made assault. Over and above that, the original accused no.1, who is MLA, had called the complainant and others at his residence, where the complainant and others were threatened to make the payment of the loss caused to the crops and because of the threats administered to them, the complainant had withdrawn amount from ATM from his own account and handed over it to the accused and the said fact is supported by the contents of the FIR as also the statements of the witnesses recorded by the concerned IO during the course of investigation. As stated above, revolver was used by the accused to threaten the complainant and others but still it is not recovered. Over and above that, the investigation is at preliminary stage and the chargesheet is not yet filed and if the applicant is released on bail then, there is possibility of tampering with the evidence and hampering the witnesses. I have also perused the police papers provided by learned APP during the course of hearing and found the prima facie involvement of the present applicant in the commission of crime.

The Court has also gone through the decisions relied upon by the learned advocate for the applicant. There cannot be any dispute with regard to the ratio laid down in the same. However, in the facts and circumstances of the case on hand and this being discretionary relief, which requires to be granted judiciously, the said decision would be of no help to the present applicant at this juncture.

At this stage, I would like to put reliance upon the decision of the Hon’ble Apex Court in the case of Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI Through its Director, reported in (2007) 1 SCC 70, wherein, the Apex Court has laid down that, while considering an application for regular bail, the Courts shall have to take into consideration, the following aspects,

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant;

(c) Prima facie satisfaction of the court in support of the charge;

The Hon’ble Apex Court, further, observed at Paragraphs-10 and 16 thus;

“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. 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.

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.”

Over and above that, strong apprehension has been shown by prosecution that if the applicant is released on bail then, there is possibility of tampering with the evidence and fleeing away from the trial. Therefore considering the nature of offence, role attributed to the applicant and played by him and also the fact that the investigation is at crucial stage, I am of the opinion that the present application deserves to be rejected.

Accordingly, the present application is rejected.

Needless to say that observations made herein above are confined to decision of the present bail application.