Mukeshbhai Vallabhbhai Abhangi v. State of Gujarat
AHSANUDDIN AMANULLAH, J.
Leave granted.
2. The present Appeal is directed against the Final Judgment and
Order dated 28.11.2022 (hereinafter referred to as t he “Impugned
Judgment”) passed by the High Court of Gujarat at Ah medabad
(hereinafter referred to as the “High Court”) in Criminal Miscellaneous
Application No.13783 of 2021, whereby the Appellant’s prayer for release
on bail has been dismissed.
THE FACTUAL PRISM:
3. The Appellant is accused along with others in FIR Cr No.I -
11202008202186 of 2020 registered with the “A” Division Police Station,
Jamnagar, Gujarat for offences punishable under Sections 3(1), 3(2),
3(3), 3(4) and 3(5) and 4 of the Gujarat Control of Terrorism and Organised
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Crime Act, 2015 (hereinafter referred to as the “GCTOC Act” ) read
with Sections 386, 387, 506(1) and 506(2) of the Indian Penal Code,
1860 (hereinafter referred to as the “IPC”). The present Ap pellant is
arrayed as accused no.8 in the said FIR.
4. The case was registered on the basis of secret inf ormation
received that accused no.1 Jaysukh Muljibhai Ranpariay @ Jayesh Patel
was operating an organised crime syndicate in the city of Jam nagar in
the State of Gujarat, involving, inter alia, extortion, land grabbing,
contract killing, money-laundering etc.
5. It was revealed that for such purpose, to derive monet ary
benefits, he threatened land-owners and realtors/de velopers by
intimidating and threatening them with physical injury and threats to their
lives. It was also unearthed that various WhatsApp calls were intercepted,
revealing the names of other persons, who stand arrayed as co-accused.
The Appellant is associated with Shivdhara Buildcon, a co nstruction
company involved in several land development projects in Jamnagar. It
was alleged by Secret Witness 11 (hereinafter referred t o as “SW11”)
that in order to pay Rs.16,00,00,000/- (Rupees Sixteen Crores) debt with
regard to J.J. Jasodanath Scheme, the Appellant had offered a property
near his office. When SW 11 refused the offer, the very next day, the
Appellant involved accused no.1 in order to pressurize SW11. Thereafter,
SW11 was threatened and pressurised by the organised crime syndicate
to explore the proposal, under which approximately 50,000 square feet,
comprising of 26,000 square feet from the appellant’s J.J. Jasodanath
Scheme and 24,000 square feet from one Ashvin Virani (PW85) who
was running the scheme Jay Hari-3 (Khodal Villa) were to be shown to
be returned to SW11. But it is alleged that SW 11 was later on threatened
to execute around 18 seperate sale deeds with either creditor s of the
leader of the organised crime syndicate (accused no.1), or creditors of
the Appellant-accused no.8, or persons known to the present Appellant.
In effect, it was alleged that the Appellant had extorted 50, 000 square
feet of land from the afore-described persons.
SUBMISSION BY THE APPELLANT:
6. It was submitted that the High Court erroneously relied on the
First Information Report filed against the Appellant in the year 2014,
despite the factum that it stood quashed by the High Court vide order
dated 24.12.2014. Moreover, it was contended thattheincident, for which
the 2014 FIR was lodged, was of a personal nature and there wa s no
MUKESHBHAI VALLABHBHAI ABHANGI v. STATE OF
GUJARAT [AHSANUDDIN AMANULLAH, J.]
allegation of the Appellant whatsoever being, in any way, concer ned
with any organised crime syndicate. It was pointed out that no charge-
sheet had been filed against him.
7. Learned counsel drew the Court’s attention to State of Gujarat
v Sandip Omprakash Gupta , 2022 SCC OnLine SC 1727 , dated
15.12.2022, the relevant being at Paragraphs No. 49, 56 and 57, which
affirms State of Maharashtra v Shiva alias Shivaji Ramaji Sonawane,
(2015) 14 SCC 272 , which stipulates that the defence of “organised
crime” could be said to have been constituted by at least one incident of
continuation apart from continuing unlawful activity evidenced by more
than one chargesheets in the preceding ten years.
8. Learned counsel also referred to the decision dated 30.05.2022
passed by this Court in SLP (Crl.) No. 1815 of 2022 titled ‘Mohammed
Iliyas Mohammed Bilal KapadiyavState of Gujarat ’, since reported
as 2022 SCC OnLine SC 713, wherein also Section 2(c) of the GCTOC
Act was involved and bail was granted on the ground that “ only one
charge sheet was filed in respect of an activity which can be said to
have been undertaken by the appellant/applicant as a member of
an organised crime syndicate on behalf of such syndicate” as opposed
to the requirement of “more than one chargesheet” under Section 2(c)
of the GCTOC Act.
SUBMISSIONS OF THE RESPONDENT STATE:
9. Mr S V Raju, learned Additional Solicitor General of India
appearing for the State submits that the appellant was in cl ose contact
with accused no.1 Jaysukh @ Jayesh Muljibhai Ranpara (Patel) and
during interrogation, the co-accused have stated that the Appellant used
to supply information to Jaysukh @ Jayesh Muljibhai Ranpara (Pate l)
relating to projects of the developers and thus, facilitated the whole
exercise of extortion. It was further submitted that the mobile phone(s)
seized from the Appellant during the investigation revealed that he was
in touch with the organised crime syndicate. It was submitt ed that the
Impugned Judgment did not warrant any interference by this Court.
ANALYSIS, REASONING AND CONCLUSION:
10. Our discretion must be exercised judiciously. Guidance is
forthcoming from Gudikanti Narasimhulu v Public Prosecutor, (1978)
1 SCC 240:
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“3. What, then, is “judicial discretion” in this bail cont ext? In
the elegant words of Benjamin Cardozo [ The Nature of the
Judicial Process — Yale University Press (1921)]:
“The Judge, even when he is free, is still not wholly fre e. He
is not to innovate at pleasure. He is not a knight- errant
roaming at will in pursuit of his own ideal of beaut y or of
goodness. He is to draw his inspiration from consec rated
principles. He is not to yield to spasmodic sentiment, to vague
and unregulated benevolence. He is to exercise a discr etion
informed by tradition, methodized by analogy, discipline d by
system, and subordinated to “the primordial necessity of order
in the social life”. Wide enough in all conscience is the field
of discretion that remains. ”
Even so it is useful to notice the tart terms of Lord Camden
that [ 1 Bovu, Law Dict., Rawles’ III Revision p. 885 — quoted
in Judicial Discretion — National College of the St ate
Judiciary, Rano, Nevada p. 14] “the discretion of a Judge is
the law of tyrants: it is always unknown, it is dif ferent in
different men; it is casual, and depends upon const itution,
temper and passion. In the best, it is oftentimes ca price; in
the worst, it is every vice, folly and passion to which h uman
nature is liable....”
4. Some jurists have regarded the term “judicial discr etion”
as a misnomer. Nevertheless, the vesting of discreti on is the
unspoken but inescapable, silent command of our jud icial
system, and those who exercise it will remember that discretion,
when applied to a Court of Justice, means sound discr etion
guided by law. It must be governed by rule, not by humour; i t
must not be arbitrary, vague and fanciful, but lega l and
regular.
An appeal to a Judge’s discretion is an appeal to his judici al
conscience. The discretion must be exercised, not in op position
to, but in accordance with, established principles of law .
[Judicial discretion, (ibid) p. 33] ”
(emphasis supplied)
11. In order not to prejudice either side, we are eschewing copious
reference to the evidentiary material available on the record. In Niranjan
MUKESHBHAI VALLABHBHAI ABHANGI v. STATE OF
GUJARAT [AHSANUDDIN AMANULLAH, J.]
Singh v Prabhakar Rajaram Kharote, (1980) 2 SCC 559 , this Court
observed:
“3… Detailed examination of the evidence and elabora te
documentation of the merits should be avoided while passing
orders on bail applications. No party should have t he
impression that his case has been prejudiced. To be satisfi ed
about a prima facie case is needed but it is not the same as an
exhaustive exploration of the merits in the order its elf.”
(emphasis supplied)
12. In Vilas Pandurang Pawar v State of Maharashtra, (2012)
8 SCC 795 , this Court opined “…Moreover, while considering the
application for bail, scope for appreciation of evide nce and other
material on record is limited. The court is not expected to i ndulge in
critical analysis of the evidence on record… ”.
13. Being in respectful agreement with the law exposited in these
cases, we refrain from detailing our views on the merits.
14. Having considered the matter, the Court finds that for the
purposes of considering grant of bail to the Appellant, at this stage, the
fact that there was only one case prior to the present cas e, that too of
the year 2014 and the FIR thereof having been quashed by the High
Court, even prior to the filing of the charge-sheet, even for th e sake of
argument, if accepted, helps the Appellant and tilt the bala nce in his
favour. The Appellant has succeeded in making out a prima facie case
for the grant of bail.
15. The Appellant is in jail since 16.10.2020 viz. for over 2½ years.
Admittedly, it is the first time, he is accused of such nature of crimes.
16. Accordingly, let the Appellant be released on bail on such
terms and conditions as found appropriate by the learned Trial Court.
17. With a view to protect the State’s interests, we im pose the
following conditions in addition:
I. The Appellant shall report to the Investigating Officer on every
Monday between 10AM to 1PM.
II. The Appellant would give an undertaking to the Trial Court
with regard to his good behaviour.
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III. The Appellant shall in no way attempt to influence the witnesses
or tamper with the record.
IV. The Appellant’s passport, if not already surrendered, shall be
surrendered to the Trial Court.
18. Any violation of the terms and conditions of the bonds or the
undertaking would entitle the respondent to move swiftly for cancellation
of the bail to the Appellant.
19. The Appeal is allowed accordingly. Any pending application(s)
is/are closed in this light.
Nidhi Jain Appeal allowed.
(Assisted by : Rakhi, LCRA)
MUKESHBHAI VALLABHBHAI ABHANGI v. STATE OF
GUJARAT [AHSANUDDIN AMANULLAH, J.]