IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION No 2564 of 2004
For Approval and Signature:
HON'BLE MR.JUSTICE A.L.DAVE
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1. Whether Reporters of Local Papers may be allowed : NO
to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the concerned : NO
Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals?
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PATEL KAMLESHBHAI BHOLABHAI
Versus
STATE OF GUJARAT
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Appearance:
1. Criminal Misc.Application No. 2564 of 2004
MR.RAJESH B SONI for Petitioner No. 1
MR PK PANCHOLI, ADDL. PUBLIC PROSECUTOR for
Respondent No. 1
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CORAM : HON’BLE MR.JUSTICE A.L.DAVE
Date of decision: 19/03/2004
ORAL JUDGEMENT
#. Rule. Mr.P.K.Pancholi, learned Additional Public
Prosecutor, waives service of Rule on behalf of State.
#. This is a post-chargesheet application praying for
bail by the applicant following his arrest on 15th July,
2003 in connection with Himmatnagar Police Station vide
C.R.No.I-204/2003 for offences punishable under sections
392 and 114 of the Indian Penal Code.
#. Learned advocate for the applicant contended that
except identification by victim and the complainant,
there is no other evidence against the applicant. There
is no recovery from him. Co-accused – Bhukhanbhai
Karsanbhai Parmar is already released on bail by this
Court vide order dated 19.2.2004 in Criminal Misc.
Application No.951 of 2004, and therefore, the applicant
may be enlarged on bail.
#. The application is opposed by learned A.P.P.
Mr.Pancholi. He submitted that role attributed to the
applicant is totally different than the role attributed
to Bhukhanbhai Karsanbhai Parmar and therefore, parity
cannot be claimed by the applicant. He submitted that the
application may be rejected considering the nature of
offence.
#. Having regard to the contentions raised before this
Court, it would be appropriate to briefly state the
manner in which the incident has occurred. Complainant –
Rajeshbhai and his fiancee Falguniben were sitting on the
bank of canal near highway at about 3:30 p.m. when it is
alleged that at around 5:00 p.m., the applicant, along
with co-accused persons, arrived there and on tip of
knife, robbed Falguniben of a gold chain worn by her
around her neck and Rs.850/= from the purse and then fled
away on their vehicles.
#. It was vehemently contended that there is no recovery
from the applicant, but it cannot be overlooked that the
applicant has been identified by the victim Falguniben as
well as the complainant who is an eye-witness to the
incident. The case of parity also cannot be accepted
because as observed by this Court in order dated
19.2.2004, Criminal Misc. Application No.951 of 2004, it
is clear that the said co-accused Bhukhanbhai Karsanbhai
Parmar was enlarged on bail considering the fact that he
was not identified and there was no recovery from him. It
was also observed that the role of that accused was quite
different than the role of the present applicant –
Kamleshbhai.
#. The order of the Sessions Court also indicates that
considering involvement of the applicant and role played
by him, the Sessions Court was not inclined to exercise
discretion in favour of the applicant. This Court is
also not inclined to exercise its discretion in favour of
the applicant considering the manner in which the
incident has occurred and the role attributed to.
#. It was argued that as per the statement of victim
Falguniben as well as the complainant, it is stated that
the applicant was wearing handkerchief on his face. It
would be appropriate to not that in that very statement,
Falguniben has given description of the assailants and
has stated that she can identify the assailants. Under
the circumstances, at this stage, the Court cannot enter
into the arena of evaluation of evidence and the
contention cannot be accepted. The application must fail
and is rejected. Rule is discharged.
(A.L.DAVE, J.)
(sunil)