Gujarat High Court
Wasim Husen Mehboob Husen Malek vs State Of Gujarat on 21 January, 2025
NEUTRAL CITATION
R/CR.MA/1015/2025 ORDER DATED: 21/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 1015 of 2025
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WASIM HUSEN MEHBOOB HUSEN MALEK & ORS.
Versus
STATE OF GUJARAT
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Appearance:
MR MAULIN G PANDYA(3999) for the Applicant(s) No. 1,2,3,4,5,6,7,8
MR MOHAMMAD ASFAK G MALEK(11102) for the Applicant(s) No.
1,2,3,4,5,6,7,8
MR ROHAN RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 21/01/2025
ORAL ORDER
[1.0] RULE. Learned APP waives service of rule for the respondent-State.
[2.0] The present applications are filed under Section 483 of the Bharatiya
Nyaya Suraksha Sanhita, 2023 (for short “BNSS”) for regular bail in
connection with FIR being C.R. No.11204039240429 of 2024 registered
with Mahudha Police Station, Kheda for the offences punishable under
Sections 310(2), 115(2), 352, 351(2), 126(2) and 324(2) of BNS and Section
135 of the GP Act.
[3.0] Learned advocate appearing on behalf of the applicants submits that
applicants are innocent and have been falsely implicated in the offence and
they are not named in the FIR. Charge-sheet is filed. No TI parade is
conducted and there is no role on the part of any of the accused. It is
submitted that the complaint is filed against two accused and mob of 100-
125 people gathered armed with deadly weapons and at that time, one
incident was going and they made an assault to the Car of the complainant.
It is alleged that complainant was going to shoot video of the said incident
and in this connection, alleged incident took place. Out of the said mob, 10 –
15 people came to the complainant and they snatched and robed the mobile
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NEUTRAL CITATION
R/CR.MA/1015/2025 ORDER DATED: 21/01/2025
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phone of VIVO Company from the complainant, except to damage the EECO
Car, no any specific allegations are levelled against the applicants.
Applicants are having no past antecedents and now nothing is required to
be recovered and discovered from the accused. He therefore submits that,
considering the nature of the offence, the applicant may be enlarged on
regular bail by imposing suitable conditions.
[4.0] Learned APP appearing on behalf of the respondent-State has opposed
the present application and submitted that the alleged incident occurred in
connection with a prior offence related to a viral post on social media. The
complainant intended to lodge a complaint when, on his way back, he was
intercepted by a mob of about 100-125 people who assaulted him. At the
time of the incident, the complainant was on his way to the Bakrol
Vidhyanagar Swaminarayan Temple for a Satsang program, accompanied by
eight passengers in his car. After completing the program at the temple, he
was returning to Kapadvanj when he encountered a large crowd. The crowd,
armed with wooden swords, iron pipes, and other weapons, surrounded his
vehicle. As he approached the area, he noticed that his car had been
damaged on the left side of the road and a Wagonr car was parked nearby.
The complainant took his phone from the dashboard to check the time. At
that moment, around 100 people surrounded his car, accusing him of
recording a video of them. Despite his explanation that he was not filming
but merely checking the time, the mob did not listen. Someone in the crowd
shouted for him to stop, and approximately fifteen to twenty individuals
approached, forcibly pulled him out of the car, and slapped him on the
cheek. The mob then looted his Vivo Android mobile phone. In the chaos,
the crowd attacked the car with wooden sticks, and the driver of the
complainant’s car was also struck by the mob with wooden sticks. Fearing
for their safety, the complainant and his passengers fled in the vehicle and
escaped towards Mahudha. They eventually reached Kathlal Police Station,
where they arrived in their Eco car and reported the incident. In view of
above, he has requested to dismiss the present application for regular bail
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NEUTRAL CITATION
R/CR.MA/1015/2025 ORDER DATED: 21/01/2025
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looking to the nature and gravity of the offence.
[5.0] While granting bail, the Court has to consider the involvement of the
accused in the alleged offence, the jurisdiction to grant bail has to be
exercised on the basis of the well settled principles having regard to the
facts and circumstances of each case and the following factors are to be
taken into consideration while considering an application for bail: (i) the
nature of accusation and the severity of the punishment and the nature of
the materials relied upon by the prosecution; (ii) reasonable apprehension
of tampering with the witnesses and threat to the complainant or the
witnesses; (iii) reasonable possibility of securing the presence of the
accused at the time of trial or the likelihood of his abscondence; (iv)
character behaviour and standing of the accused and the circumstances
which are peculiar to the accused; (v) larger interest of the public or the
State and similar other considerations are required to be considered.
[6.0] I have heard the learned advocates appearing on behalf of the
respective parties and perused the investigation papers. Following aspects
have been considered:
(1) investigation is over and charge-sheet is filed;
(2) accused are not named in the FIR;
(3) None of the offence alleged is punishable with life sentence or death
penalty;
(4) There is nothing to be recovered or discovered from the applicant;
(5) The alleged incident took place in continuation of the
earlier offence beign CR. No.11204039240428 of 2024;
(6) No T.I. parade was conducted;
(7) applicants have not made any assault;
(8) Commencement of trial will take its own time;
(9) Co-accused are enlarged by this Court and therefore, on the ground of
parity also (Rameshbhai Batubhai Dhabi Vs. State of Gujarat, reported in
2011 (3) GLR 1999), present application deserves consideration.
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[7.0] This Court has also taken into consideration the law laid down by the
Hon’ble Apex Court in the case of Sanjay Chandra vs. Central Bureau of
Investigation reported in [2012]1 SCC 40 as well as in the case of
Gudikanti Narasimhulu And Ors vs. Public Prosecutor, High Court of
Andhra Pradesh reported in (1978)1 SCC 240. Obviously, the conclusion of
trial will take time and keeping the accused behind the bars is nothing but
amounts to pre-trial conviction and therefore, considering the celebrated
principle of bail jurisprudence is that “bail is a rule and jail is exception” as
well as the concept of personal liberty guaranteed under Article 21 of the
Constitution of India, present application deserves consideration.
[8.0] In the facts and circumstances of the case and considering the nature
of the allegations made against the applicants in the FIR, without discussing
the evidence in detail, prima facie, this Court is of the opinion that this is a fit
case to exercise the discretion and enlarge the applicants on regular bail.
Hence, the present application is allowed. The applicants are ordered to be
released on regular bail in connection with FIR being C.R.
No.11204039240429 of 2024 registered with Mahudha Police Station,
Kheda, on executing a personal bond of Rs.25,000/- (Rupees Twenty-five
Thousand only) with one surety of the like amount to the satisfaction of the
trial Court and subject to the conditions that they shall;
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution &
shall not obstruct or hamper the police investigation and shall
not to play mischief with the evidence collected or yet to be
collected by the police;
(c) surrender passport, if any, to the Trial Court within a week;
(d) not leave the State of Gujarat without prior permission of the
Trial Court concerned;
(e) mark presence before the concerned police station once in a
month for a period of six months;
(f) furnish the present address of residence to the Investigating
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R/CR.MA/1015/2025 ORDER DATED: 21/01/2025
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Officer and also to the Court at the time of execution of the
bond and shall not change the residence/contact number without
prior permission of Trial Court;
[9.0] The authorities will release the applicants only if they are not
required in connection with any other offence for the time being. If breach
of any of the above conditions is committed, the Sessions Judge concerned
will be free to issue warrant or take appropriate action in the matter.
[10.0] Bail bond to be executed before the lower Court having jurisdiction
to try the case. It will be open for the concerned Court to delete, modify
and/or relax any of the above conditions, in accordance with law.
[11.0] At the trial, the trial Court shall not be influenced by the observations
of preliminary nature qua the evidence at this stage made by this Court
while enlarging the applicants on bail.
[12.0] Rule is made absolute to the aforesaid extent. Direct service is
permitted.
(HASMUKH D. SUTHAR,J)
SUCHIT
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