Gujarat High Court
Mapbha Virabha Sumaniya vs State Of Gujarat on 22 January, 2025
NEUTRAL CITATION
R/CR.MA/21228/2024 ORDER DATED: 22/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 21228 of 2024
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MAPBHA VIRABHA SUMANIYA
Versus
STATE OF GUJARAT
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Appearance:
MR KARTIKSINH H CHAMPAVAT(12148) for the Applicant(s) No. 1
MR TRUPESH KATHIRIYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 22/01/2025
ORAL ORDER
1. The applicant has filed this Application under Section 483
of the Bharatiya Nagarik Suraksha Sanhita (BNSS) for enlarging
the applicant on Regular Bail in connection with FIR being C.R.
No.11185005220336 of 2022 registered with Mithapur Police
Station, District:Devbhoomi Dwarka for the offences punishable
under Sections 307, 323, 324, 325, 326, 143, 147, 148, 149, 504,
506(2), 427, 384, 385, 386, 387, 506(1) and 120B of the Indian
Penal Code, Sections 3(1), 3(2), 3(3), 3(4), 3(5) of the GUJCTOC,
and Section 135(1) of the G.P. Act.
2. Heard learned advocate Mr.Kartiksinh H. Champavat for
the applicant and learned APP Mr.Trupesh Kathiriya for the
Respondent – State.
3. Learned advocate for the applicant submitted that the
applicant herein was arrested in connection with the present
offence on 26.6.2022 and since then he is in custody. After the
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NEUTRAL CITATION
R/CR.MA/21228/2024 ORDER DATED: 22/01/2025
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applications filed by the applicant on earlier occasion came to be
dismissed by this court, the other co-accused came to be
considered by this court for grant of regular bail and therefore,
the applicant is also entitled to be enlarged on bail on the
ground of parity.
3.1 He further submitted that the co-accused who came to be
considered for grant of bail by the Co-ordinate Bench of this
court, is having more antecedents than the present applicant
and despite the same, he has been ordered to be enlarged on
regular bail by the Co-ordinate Bench. The antecedents
registered against the present applicant are lower in number
than the said co-accused and therefore, the applicant is better
placed than the said co-accused, so far as the grant of regular
bail is concerned. The trial of the offence is not likely to
conclude in near future and prolonged incarceration of the
present applicant would amount to violation of his fundamental
rights. He, therefore, submitted to allow the present application
and enlarge the present applicant on bail subject to suitable
conditions.
3.2 Learned advocate for the applicant has sought to rely upon
the judgment of this court in the case of [Rameshbhai
Batubhai Dhabi Vs. State of Gujarat 2011(3) GLR 1999].
4. The application is opposed by learned APP for the
respondent contending that this is the third successive
application filed by the application seeking regular, bail after the
earlier bail application filed by the applicant came to be
dismissed by this court by a reasoned order. The said order has
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NEUTRAL CITATION
R/CR.MA/21228/2024 ORDER DATED: 22/01/2025
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also been confirmed by the Hon’ble Apex Court and merely
because the other co-accused has been considered for grant of
bail, it would not amount to change in circumstances. He
therefore submitted that the present application should be
dismissed.
5. This Court has considered the submissions canvassed by
learned advocates for the parties and has also perused the
material placed on record. The applicant herein had earlier
preferred Criminal Misc. Application No.15585 of 2023, which
was dismissed by this court vide order dated 9.10.2023 with
following observations.
“6. The FIR in question came to be lodged on 6.5.2022
for an incident which had taken place on 5.5.2022. As
per the FIR the accused persons named therein had
assaulted the first informant brutally and he was also
inflicted blows of the knife. During the course of
investigation, it came to the notice of the Investigating
Agency that the offence in question was committed in
furtherance of the object of the organized crime
syndicate. During the coruse of investigation, it was
also a revealed that the present Applicant was also
member of Bichchu Gang which was an organized
crime syndicate. The record indicates that there are as
many as 21 offences registered against the present
Applicant out of which two offences have been
registered against him on 29.11.2020 and 3.1.2020
respectively. These offences have been registered
agaisnt him after the provisions of GCTOC Act came
into operation.”
5.1 Thereafter, the applicant had preferred another application
being Criminal Misc. Application No.3421 of 2024, which was
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NEUTRAL CITATION
R/CR.MA/21228/2024 ORDER DATED: 22/01/2025
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dismissed by this court vide order dated 22.3.2024. While
dismissing the said application, this court had made following
observations,
“6. Learned advocate for the applicant has sought to
rely upon the orders passed by the Coordinate Bench of
this Court ordering to enlarge the other co-accused on
regular bail. Merely, release of the other co-accused on
regular bail, cannot be said to be a change in
circumstance. Moreover, simply because the other co-
accused have been considered for grant of regular bail,
the applicant does not become entitle for being
enlarged on bail on the ground of parity. The role
attributed to the present applicant in commission of the
offence is much more serious than the role attributed to
the other co-accused, who have been considered for
grant of regular bail by the Coordinate Bench of this
Court.
7. From the record, it appears that initially, the present
FIR was registered on 06.05.2022 for offences
punishable under Sections 307, 323, 324, 325, 326, 342
& other allied offences under the IPC. During the
course of investigation of the said offence, certain
material was received by the Investigating Agency,
which indicated the involvement of the present
applicant in other unlawful activities. It had been
revealed during thecourse of investigation that the
present applicant was running an extortion racket and
previously, FIR being I.C.R.No.0763/2020 registered
with Okha Marine Police Station had been registered
against the present applicant along with some of the
present co-accused for offence punishable under
Section 307 of the IPC and other allied offences. It was
revealed during the course of investigation that the
present applicant along with other co-accused used to
receive protection money from some of the secret
witnesses every month. The present applicant is alleged
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NEUTRAL CITATION
R/CR.MA/21228/2024 ORDER DATED: 22/01/2025
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to have received sum of Rs.20,000/- every month from
the witnesses. With this material, the Investigating
Agency had approached the Court of Magistrate by
submitting a report for addition of an offence
punishable under the provisions of GujCTOC Act. On
the basis of the said report, the Magistrate appears to
have added the offence punishable under the provisions
of the GujCTOC Act to the FIR.
8. It is sought to be contended on behalf of the
applicant that since the Magistrate was not authorized
in law to take cognizance of the offence under the
provisions of the GujCTOC Act, the Magistrate had
committed a material illegality in accepting the report
submitted by the Investigating Officer and adding an
offence punishable under the provisions of the
GujCTOC Act to the FIR. It is a matter of common
understanding that the cognizance of an offence can
only be taken by the Court only after investigation is
over and charge-sheet is filed. In present case, the
charge-sheet has been filed by the Investigating Officer
before the Special Court, and thereafter, the Special
Court, who has taken the cognizance of an offence.
Merely byaccepting the report submitted by the
Investigating Officer to add the offence to the FIR, the
Magistrate cannot be said to have taken cognizance of
an offence punishable under the provisions of the
GujCTOC Act.
9. Even if it is accepted for the sake of argument that
the Magistrate ought not to have accepted the report
submitted by the Investigating Officer, the Magistrate,
at best, can be said to have committed a procedural
irregularity by which no prejudice appears to have been
caused to the present applicant.
10. From the record, it appears that the present
applicant was part of a syndicate, which was involved in
commission of several unlawful activities. The present
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NEUTRAL CITATION
R/CR.MA/21228/2024 ORDER DATED: 22/01/2025
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applicant along with other coaccused in present FIR
were involved in another offence registered in the Year-
2020, as mentioned herein above, which indicates that
the present applicant was part of a syndicate involved
in commission of offences. Moreover, even prior to
GujCTOC having come into force, several offences have
been registered against the present applicant, which
indicates that the present applicant and the other co-
accused had continued their activities as a members of
the syndicate even after commencement of the Act.
11. Learned advocate for the applicant has sought to
rely upon the judgment of the Apex Court in case of
Mohd.Iliyas Mohamad Bilal Kapadiya (Supra). In
Paragraph No.9 of the said judgment, the Apex Court
has enumerated following conditions, which are
required to be fulfilled for the purpose ofinvoking the
provisions of the GujCTOC.
“9.1 that such an activity should be prohibited by
law for the time being in force;
9.2 That such an activity is a congnizable offence
punishable with imprisonment of three years or
more;
9.3 That such an activity is undertaken either
singly or jointly, as a member of an organised
crime syndicate or on behalf of such syndicate;
9.4 That in respect of such an activity more than
one charge-sheet must have been filed before a
competent Court;
9.5 That the charge-sheet must have been filed
within a preceding period of ten years; and
9.6 That the Courts have taken cognizance of such
offences.””
5.2 The order of this court dated 22.3.2024 was carried by the
present applicant to the Hon’ble Apex Court by filing Special
Leave to Appeal (Criminal) No.6273 of 2024. The applicant
withdrew the said application from the Hon’ble Apex Court on
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NEUTRAL CITATION
R/CR.MA/21228/2024 ORDER DATED: 22/01/2025
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9.5.2024. Thus, the present is the third successive bail
application filed by the applicant before this court.
5.3 It is contended by learned advocate for the applicant that
after the petition came to be withdrawn from the Hon’ble Apex
Court, the other co-accused had been considered for grant of
bail by the Co-ordinate Bench of this court in the month of
August, 2024. This court in its order dated 22.3.2024 has
elaborately discussed the role played by the present applicant in
commission of the offence in question. Except bare assertion to
the effect that the applicant is better placed then the other co-
accused, who has been considered for grant of bail, learned
advocate for the applicant is at loss to demonstrate that the role
attributed to the applicant is either similar or lesser than the
role attributed to the said co-accused.
6. Considering all these aspects, no case is made out to
exercise discretion in favour of the applicants. Accordingly, the
present Applications are dismissed.
(M. R. MENGDEY,J)
Manshi
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