VASHRAMBHAI GOVINDBHAI MIYATRA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present application is filed under Sec. 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with C.R.No.11202008202186 of 2020 registered with Jamnagar City 'A' Division Police Station, Jamnagar for the offence punishable under Ss. 3(1), 3(2), 3(3), 3(4), 3(5) and 4 of the Gujarat Control of Terrorism and Organised Crime Act, 2015 ('GUJCTOC Act' for short) and under Ss. 120B, 384, 385, 386, 387, 506(2), 506(1), 507 and 201 of the Indian Penal Code.

(2.) Learned Senior Advocate Mr. Nirupam Nanavaty assisted by learned advocate Ms. Kanara appears for the applicant accused submits that the FIR has been filed on 15/10/2020 and present applicant has been arrested on 16/10/2020 and since then he is in judicial custody. The investigation is already completed and after submission of charge-sheet present bail application is preferred. Learned Senior Advocate Mr. Nanavaty further submits that not a single FIR is registered against the present applicant accused before the promulgation of the GUJCTOC Act and after the promulgation of the GUJCTOC Act except the present compliant he is not involved in any other offence. Learned Senior Advocate Mr. Nanavaty submits that for the purpose of invocation of provisions of the GUJCTOC Act, certain essential ingredients are required to be fulfilled by the prosecuting agency, and more particularly, ingredients mentioned in the provisions of Sec. 2(1)(c) and 2(1)(f) of the GUJCTOC Act are required to be satisfied. Learned Senior Advocate Mr. Nanavaty has read the provisions of Ss. 2(1)(c) and 2(1)(f) of the GUJCTOC Act and submitted that present applicant accused has neither committed any offence as alleged nor he has abetted in commission of the offence as alleged. Learned Senior Advocate Mr. Nanavaty further submits that present applicant accused was working in the police department and during his tenure during the period between 2011 to 2018 present applicant accused has carried out investigation in 11 offences against the members and gang leader and at the end of the day, charge-sheet was also submitted before the competent Court and considering the services rendered by the present applicant accused at that relevant point of time he has been nominated and awarded Gallantry Award. Learned Senior Advocate Mr. Nanavaty further submits that in fact FIR has been filed against total 14 persons and name of the present applicant accused is mentioned at serial No.5. At the end of the day, after completion of investigation, investigating officer has filed charge-sheet against 12 accused persons and remaining accused persons have been shown as absconder and yet they are not arrested. Out of 12 accused persons charge-sheeted, accused Nos. 1 and 3 have been enlarged on bail by the Hon'ble Supreme Court, accused Nos. 2, 4, 6, 10 and 13 have been enlarged on default bail and accused No.12 has been enlarged on bail by the Coordinate Bench of this Court. Learned Senior Advocate Mr. Nanavaty further submits that the Hon'ble Supreme Court has not considered the bail application of accused No.9 - Atul Bhanderi considering the number of offences registered against him before and after the promulgation of the GUJCTOC Act. It is submitted that even though at the time of rejecting the bail application of the said accused, the Hon'ble Supreme Court has given specific direction that after the examination of the protected witnesses and more particularly after the lapse of six months once again liberty is reserved to approach to the concerned Court for the purpose of getting bail. Learned Senior Advocate Mr. Nanavaty submits that the persons who have been enlarged on default bail are the main accused persons and grave role is attributed to them as per the case of the prosecution. Learned Senior Advocate Mr. Nanavaty further submits that the kingpin and gang leader Mr. Jayesh Patel has not been arrested. The role of the other co-accused persons whose bail applications have been considered by the Hon'ble Apex Court as well as Coordinate Bench of this Court is much graver than the present applicant accused. Considering the above stated factual aspects as well as the principle of law of parity, bail application of the applicant accused may be entertained.

(3.) Learned Senior Advocate Mr. Nirupam Nanavaty has also placed reliance upon the judgment of Hon'ble Apex Court in the case of State of Gujarat v. Sandip Omprakash Gupta rendered in Criminal Appeal No.2291 of 2022, and more particularly, relied on the observations made in para 51(f) and (g) of the said judgment and submitted that this is the only FIR filed against the present applicant accused and not a single FIR before the promulgation and after the promulgation of the GUJCTOC Act is registered against the present applicant accused except the present FIR and therefore as observed by the Hon'ble Supreme Court in the aforesaid decision, the case of the applicant accused would not fall under the definition of 'continuing unlawful activity' as provided in the GUJCTOC Act.