CRMA-S No.

5221/2023 1 ORDER
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IN THE CITY CIVIL & SESSIONS COURT, AHMEDABAD

[CORAM: H.H. JUDGE SHRI AMITKUMAR J. KANANI, COURT NO.17 ]

Criminal Misc. Application No. 6121 of 2023

Applicant / Accused :- Jayraj Vasudevbhai Desai

Age: 25 years, Hindu by religion, Male,
Address: 1853, Rabari Vas,
Dolatkhana, Sarangpur,
Ahmedabad.
Date of Arrest: 18.06.2022
At present in Central Jail, Sabarmati, Ahmedabad

Versus

Opponent :-
The State of Gujarat
(Notice to be served through
The Learned Public Prosecutor
City Civil and Sessions Court
Ahmedabad.
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Appearance :
Ld. Advocate Mr. S.B. Prajapati for applicant-accused.
Learned P.P/A.P.P. for the opponent - State.
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[Application u/s. 439 of Cr.P.C. for regular bail]

ORDER

1] The applicant has filed the present application for being

enlarged on regular bail for the offence punishable under Sections 143, 144,

(Amitkumar J. Kanani)
Addl. City Sessions Judge,
Ahmedabad.
 CRMA-S No.5221/2023 2 ORDER
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147, 148, 149, 302 and 120(B) of the IPC and u/s. 135(1) of the G.P. Act

registered vide Part-A C.R. No. 11191005220281 / 2022 before Khadia

Police Station.

2] Learned advocate for the applicant has submitted that the

applicant is innocent and played no role in the alleged offence, however he

has been falsely implicated in the present offence. It is further submitted

that the complainant’s statement is not trustworthy and credible enough to

implicate the present applicant. The complainant in all his statements made

huge improvements which clearly shows that the applicant is the victim of

the malafide intentions of the complainant. The Ld. Advocate for the

applicant has further stated that initially the complainant did not mention

about face masks and in second statement he categorically stated that five-

six individuals were wearing face masks. Further, the complainant did not

mention the name of the applicant in the FIR, however, in his statement on

09.06.2022 he mentioned the name of present applicant. The Ld. Advocate

has also stated that PW Yogesh Joshi in his statement did not recognize

any accused, however, at the end of his statement he mentions that he

came to know from complainant that deceased was assaulted by Montu @

Namdar and Jayraj Rabari and other. Thus, the prosecution has failed to

establish prima-facie case against the present applicant. According to the

Ld. Advocate for the applicant, when the accused is unknown to the

witnesses, the Investigating Agency should have conducted Test

(Amitkumar J. Kanani)
Addl. City Sessions Judge,
Ahmedabad.
 CRMA-S No.5221/2023 3 ORDER
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Identification Parade, but no such Test Identification Parade was ever

conducted. The Ld. Advocate for the applicant has submitted that the

accused No.4 - Sunil Babubhai Bajaniya is granted regular bail by the

Hon’ble High Court of Gujarat. It is further submitted that the bare reading

of the prosecution case, it shows that the role attributed to the accused

No.4 - Sunil Babuhia Bajaniya who has been granted bail is more serious

than present applicant. Therefore, the present applicant is also entitled for

the benefit of parity. There is no any incriminating material found against the

present applicant and the present applicant has no any enmity with the

deceased and also no any prima-facie case u/s. 302 of IPC has been made

out against the applicant. The applicant is not habitual offender. It is further

contended that the applicant has not injured the victim on any vital part of

the body and also no specific role is carved out. The applicant has It is also

contended that the investigation is over and Charge-sheet is filed, therefore,

there is no possibility for the applicant to tamper or hamper with the

evidence. The applicant is permanent resident of the address mentioned in

the cause title and he is not likely to abscond and he is ready to abide by the

condition whatsoever may be imposed upon him by the Court. The applicant

is only 27 years old. Hence, the Learned Advocate for the applicant has

urged to grant bail to the applicant upon suitable terms and conditions, which

may be deemed just and proper to the Court, which the applicants assure to

abide.

(Amitkumar J. Kanani)
Addl. City Sessions Judge,
Ahmedabad.
 CRMA-S No.5221/2023 4 ORDER
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3] Per contra, the complainant has filed written objections at Exh:8

and his Learned Advocate has strongly opposed the bail application and has

submitted that the offence committed by the present applicant-accused is

very serious in nature. The Ld. Advocate for the complainant has further

argued that the bail of Accused No.2 i.e. Vishv @ Vishu S/o Jigneshbhai

Rami has been rejected by the Hon’ble Supreme Court and the role

attributed to the present applicant-accused is similar to the accused No.2.

Therefore, he has requested to reject the present application for regular bail.

3] On the other hand, the learned APP appearing for the State has

also strongly opposed the bail application. The Ld. APP has raised the same

objections and contentions as mentioned in the written objections filed by

the original complainant and ultimately, the Ld. APP has requested to reject

the present application for regular bail.

4] Before adverting to the submissions of the rival sides, the

present bail application is not maintainable as the Ld. Advocate for the

applicant has suppressed the material fact by not providing true and correct

information before this Court regarding previous regular bail application filed

by the present applicant-accused under the provisions of Section 439 of

Cr.P.C. The entire pleadings and the documentary evidence doesn’t whisper

a single word about previous regular bail application u/s. 439 of Cr.P.C. filed

by the applicant vide Cr.M.A. No.5525/2022. The Ld. Advocate has

(Amitkumar J. Kanani)
Addl. City Sessions Judge,
Ahmedabad.
 CRMA-S No.5221/2023 5 ORDER
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produced the judgment of the Hon’ble High Court seeking benefit of parity

but miserably failed to produce the order of the previous application for

regular bail in which he had represented the present applicant-accused. It is

deliberate hidden motive to get the order from the Court. This Court has

verified the CIS data and found that the above referred bail application has

been filed by the applicant. Further, even the Criminal Branch of this Court

has mentioned about 5 (five) bail application numbers for temporary bail filed

by the present applicant-accused, but they have not mentioned the number

of earlier regular bail application filed by the applicant u/s. 439 of Cr.P.C. on

the basis of FIR itself. This Court has taken serious note of that. Having said

that, on the other hand neither prosecution nor IO have informed this Court

regarding previous regular bail application of the present applicant. At the

time of arguments, the Ld. Advocate for the applicant has tendered his

apology for not producing the order of previous regular bail application,

hence, this Court has taken up this matter to decide on merits without

entering into technicalities in the interest of justice.

5] I have heard the rival submissions of the learned advocate for

the applicant-accused as well as learned APP for the State and perused the

police papers, affidavit filed by the Investigating officer. It also appears from

the FIR that the allegations against the present applicant-accused are such

that he along with other co-accused have in collusion with each other had

beaten the victim with Baseball Bat resulting into victim’s death and thereby

(Amitkumar J. Kanani)
Addl. City Sessions Judge,
Ahmedabad.
 CRMA-S No.5221/2023 6 ORDER
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committed offence of murder. Perusing the record of the case on hand, it

transpires that the present applicant is implicated as accused No.3 in the

FIR and on careful evaluation of the charge-sheet and relevant record, it

appears that PW Yogesh Joshi in his statement did not recognize any

accused, however, at the end of his statement he mentions that he came to

know from complainant that deceased was assaulted by Montu @ Namdar

and Jayraj Rabari and other. It also appears that initially the eye-witness

Yogesh Joshi and other persons, who were assembled at the scene of

offence, did not have disclosed the name of the applicant. The other witness

Josh Jugnu has also not disclosed the name of the applicant, but in his

statement recorded u/s. 164 of Cr.P.C., he disclosed the name of the

applicant. At this stage, it is not proper to discuss the contents of the

statement recorded u/s. 164 of the Code as it may cause prejudice the right

of the either of the parties. It appears that the accused No.4 - Sunil

Babubhai Bajaniya is granted regular bail by the Hon’ble High Court of

Gujarat. It also appears that the bail application filed by the Accused No.2

Vishv @ Vishu S/o Jigneshbhai Rami came to be rejected by the Hon’ble

Supreme Court of India. Comparing the roles attributed to the accused

persons, it seems that the role attributed to the present applicant i.e. Jayraj

Vasudevbhai Desai and role attributed to the accused No.4 i.e. Sunil

Babubhai Bajaniya are similar. Thus, considering the fact that similarly

situated co-accused has been released on bail, therefore, the applicant

herein is entitled for the benefit of parity. Looking to the affidavit of IO, it

(Amitkumar J. Kanani)
Addl. City Sessions Judge,
Ahmedabad.
 CRMA-S No.5221/2023 7 ORDER
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also appears that the investigation is over and the charge-sheet is filed.

Therefore, looking to facts and circumstances of the case, whether the

applicant-accused has committed the offence or not? is the question of

evidence. The trial may take a long time to conclude; and no purpose would

be served if the applicant shall be kept behind the bars. If he would be kept

behind bars, it would amount to pre-trial conviction. Thus, role of the present

applicant-accused in the alleged commission of offence as well as the ratio

laid down by Hon’ble the Supreme Court in the case of Sanjay Chandra

Vs. CBI, 2012(1) GLH 93 (SC), I am of the view that present application

appears to be fit to exercise the discretionary powers in favour of the

present applicant to enlarge him on regular bail. Hence, I pass following

order.

ORDER

1. The application filed by the present applicant - Jayraj Vasudevbhai

Desai for regular bail, is hereby allowed.

2. The applicant is ordered to be released on bail in connection with the

offences registered with Khadia Police Station as Part-A C.R. No.

11191005220281 / 2022 for the offences punishable under Sections

143, 144, 147, 148, 149, 302 and 120(B) of the IPC and u/s. 135(1)

of the G.P. Act, on executing a personal bond in sum of

Rs.1,50,000/- (Rupees One Lac Fifty Thousand only) with one

local surety of like amount subject to following conditions :-

(Amitkumar J. Kanani)
Addl. City Sessions Judge,
Ahmedabad.
 CRMA-S No.5221/2023 8 ORDER
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A) he shall mark his presence before concerned Police Station on

every Monday between 11:00 AM to 01:00 PM till the conclusion

of trial;

B) he shall produce solvency certificate before this Court within one

month from today and if the accused / surety failed to do so then

the applicant - accused has to remain present before the

concerned Court and the concerned Court has to take

necessary action for the same as per law;

C) he shall not take undue advantage of liberty or misuse liberty;

D) he shall not act in a manner injurious to the interest of the

prosecution;

E) he shall surrender passport, if any, to the concerned Trial Court

within a week;

F) he shall not leave Gujarat without prior permission of the

concerned Trial Court;

G) he shall furnish the present address of residence to the I.O. and

also to the Court at the time of execution of the bond and shall

not change the residence without prior permission of the

concerned Trial Court;

3. If breach of any of the above conditions is committed, the concerned

Trial Court will be free to issue warrant or take appropriate action in

(Amitkumar J. Kanani)
Addl. City Sessions Judge,
Ahmedabad.
 CRMA-S No.5221/2023 9 ORDER
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the matter.

4. The bail bond be executed before the concerned Ld. Trial Court

having jurisdiction to try the case.

A yadi of the order be sent to the concerned Court and Police Station.

Pronounced in the open Court today on this 27th day of July, 2023.

Sd/-
Date :- 27-07-2023 [ A. J. Kanani ]
Place:- Ahmedabad. Additional Sessions Judge,
Court No.17,
City Civil & Sessions Court,
Ahmedabad.
$aumil (Unique I.D. Code No.GJ00662)

(Amitkumar J. Kanani)
Addl. City Sessions Judge,
Ahmedabad.