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Judgment
Nirzar S. Desai, J
By way of this application filed under Section 439 of the Code of Criminal Procedure, 1973 the present applicant is seeking regular bail in connection with FIR being I-06/2017 registered with Borsad City Police Station, Anand for the offences punishable under Section 307, 120(B), 507 of the Indian Penal Code and Section25(1)(b) (a), 27(1) of Arms Act.
As per the FIR registered by one first informant Sankentkumar alias Sitlo Jayantibhai Patel, in the FIR he has stated that his elder brother Pragnesh was once upon a Municipal Councilor and thereafter, become a Party Precedent for a period of one year.
2.1 However thereafter, in the year 2011, as he was not given ticket by that political party, he could not contest the Municipal Election and ultimately, contested as independent candidate and elected. In that municipal election from Ward No.1 one Chandresh Rameshbhai Patel contested against the brother of the first informant but lost and in ward No.5 one Mehul @ Moras Patel and from Ward No.1 one Dushyant @ D.C. Patel also contested the election but they also lost and therefore, due to their grudge over the brother of the first informant and because of that they had grudged against the brother of the first informant.
2.2 As per the FIR on the date of incident i.e. on 13.1.2017 at around 8:30 in the morning, his brother Pragnesh went for hair cut on his motorbike and as the first informant was tying the lace of his shoes, he heard the noise of firing and therefore, he ran to the spot and found that the firing had taken place over on his elder brother Pragnesh and he has received injury on his jaw as well as on the left hand side of his stomach.
2.3 Two persons who fired at his elder brother had covered the face and ran away. His elder brother told him that when he was going on motorbike those two persons came to him and asked that whether he is Pragneshbhai and upon confirming his identity they pointed out revolver at him and fired about three to four round firing, which resulted in injury to his elder brother.
Pursuant to which the FIR was registered and investigation had taken place and ultimately, charge-sheet was filed against in all eleven persons. Present applicant is accused No.10 who was not named in the FIR but his name figured in the charge-sheet as accused No.10.
Heard learned advocate Mr. Japan Dave appearing for the applicant who submitted that role of the present applicant is negligible and he is not the one who has fired at the witness Pragnesh. The only role attributed even as per the charge-sheet papers is that the present applicant was present when a conspiracy was hedged to kill witness Pragnesh.
4.1 Even as per the charge-sheet papers, the only role attributed to the present applicant is that when a conspiracy was hatched in a hotel at Bombay namely the Legend Hotel on 12.8.2016, the room was booked by the present applicant who is shown as accused No.10 and as per the charge-sheet papers, before the incident of firing on Pragnesh Patel took place, present applicant was present along with one Ramesh Kitta Pujari at the farm house of Ghanshyam and he inspected the weapon which was used for firing at Pragnesh and said that the weapon is proper for carrying out assault. Except that even as per the charge-sheet papers, there is no role attributed to the present applicant and even the role mentioned in the charge-sheet papers is also not supported by any material.
Learned advocate Mr. Japan Dave further submitted that there are as many as eight co-accused are enlarged on regular bail by Co-ordinate Bench of this Court as well as by Trial Court and the role attributed to those co-accused persons are either graver than the role attributed to the present applicant or similar to that of the present applicant.
5.1 Learned advocate Mr. Japan Dave further submitted that the present applicant is in jail since 2017 and therefore considering the fact that the present applicant is in jail since 23.2.2017 as since more than six years he is in jail and as the trial is going on but not yet completed, the present applicant may be enlarged on bail in view of the fact that as such there is no material against the present applicant coming out from the charge-sheet papers.
5.2 Learned advocate Mr. Japan Dave relied upon judgment of the Hon'ble Supreme Court dated 28.3.2023 in case of Mohd Muslim @ Hussain Versus State (NCT of Delhi) passed in Special Leave Petition (Crl.) Nos. 915 of 2023 and by relying upon the aforesaid judgment, learned advocate Mr. Japan Dave submitted that the Hon'ble Supreme Court has categorically taken a view that merely because the rigors of Section 37 of NDPS Act are there that should not be the sole consideration while considering the bail application, when the Court is satisfied that the accused is not guilty.
5.3 Learned advocate Mr. Japan Dave also relied upon an order dated 22.9.2022 passed in Criminal Misc. Application NO. 12941 of 2022 in case of Amit @ Lalu Zalim Mahendrasingh Rajput Versus State of Gujarat and submitted that in paragraph No.5 of that order by relying upon three judgments of the Hon'ble Supreme Court as well as by this Court, the Court took a view that merely on the basis of criminal antecedent the claim of the accused for grant of bail cannot be rejected.
Learned APP Mr. Utkarsh Sharma vehemently opposed the bail application and submitted that the role of present applicant is not as simple as it is being projected. The present applicant is a close aid and associate of an international gangster viz. Ravi Pujari and he is involved in four other similar offences which shows his criminal mindset as the present applicant was instrumental in hatching the conspiracy to kill witness Pragnesh who somehow survive the attack and it was the present applicant along with other co-accused person viz. Suresh Kitta Pujari who tested the weapon which was used for carrying out and assault on the witness Pragnesh, the present applicant has played an active part in the aforesaid assault.
6.1 Considering the fact that the present applicant is involved in four other very serious offences as well as he is a member of gang of international gangster - Ravi Pujari. If, the present applicant enlarged on bail, that would cause a serious threat to the society at large and therefore, even if the advocate for the applicant has pointed out the fact that some other accused persons who are enlarged also are having antecedents, considering the specific role of present applicant as well as his background the present applicant may not be enlarged on bail.
6.2 Learned APP Mr. Utkarsh Sharma states that the fact that the present applicants were present on the previous day when the offence took place and opined that the weapon was perfect and capable of carrying on assault on the witness Pragnesh, itself suggest that the present applicant is hardcore criminal and as he is member of a gang of international gangster - Ravi Pujari, considering the totality of the fact and circumstances, even if the present applicant is in jail since last six years, considering the fact that the trial is going on at present as also, considering the background of the present applicant, if the present applicant is enlarged on bail in that case, there is all likelihood that the present applicant may try to tamper with the witnesses or may threaten them and therefore, considering the totality of facts and circumstances, the present applicant may not be enlarged on bail.
I have heard learned advocates appearing for the parties and perused the material on record. I have considered the fact that some co-accused persons are enlarged on bail. I have also considered the fact that the present applicant is not the one who has fired at the witness Pragnesh but at the same time, while considering the bail application, the background and antecedent of an accused person is also one of the important consideration. When there is a specific objection raised by the learned APP indicating that the present applicant is involved in past four serious offences as well as considering the role of the present applicant of certifying the weapon and opining that those weapons are perfect and capable of carrying assault on the witness Pragnesh, as well as his presence at the time when the conspiracy was hedged at Bombay on 12.8.2016 in Hotel Legend, prima-facie indicates involvement of the present applicant. Further, as the trial is going on at present and considering the background of the present applicant as he happens to be a hardcore criminal as it seems to be prima-facie from the material on record in form of counter of charge-sheet, the apprehension of the learned APP that if, when the trial is going on, the present applicant is enlarged on bail, there are all the chances that he may try to win over the witnesses or may threaten them has substance in it.
7.1 As far as the judgments relied upon by the learned advocate appearing for the applicants in that matter though the rigors of Section 37 were there despite that the accused persons was granted bail, as far as that submission is concerned, I am of the view that a case involving an accused who is alleged to be an associate of an international gangster and who was in instrumentally hatching the conspiracy of Section 302 of Indian Penal Code stands on a different footing as compared to an accused for the offence under NDPS Act and therefore, considering the facts and circumstances a person's case for bail is required to be evaluated. On evaluation of material available on record as I am satisfied that the present applicant if, enlarged on bail that would not only affect the ongoing trial but also may cause a great threat to the society. The aforesaid submissions of learned advocate Mr. Japan Dave cannot be accepted.
7.2 As far as the judgments relied upon by learned advocate Mr. Japan Dave in respect of antecedent of an accused person is concerned, the ratio of the judgments can never be disputed. However, the fact remains that if a person is alleged to be close aid and associate of an international gangster, the case of the said accused person cannot be considered by equating himself with an accused person of any other offence and therefore, as the background of both the accused persons are different, the threat apprehended by learned APP in respect of both those accused persons and its gravity are different and therefore, considering the totality of facts and circumstances of the present applicant's application for bail is required to be dismissed.
7.3 In view of over all facts and circumstance of the present case, I do not deem it appropriate to exercise the jurisdiction under Section 439 of the Code of Criminal Procedure to enlarge the present applicant on bail. In view of above, the present application is required to be dismissed and the same is dismissed. Rule is discharged.