Divyesh A. Joshi, J
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.I-11217030210939 of 2021 registered with the Sidhhpur Police Station, Patan of the offence punishable under Sections 3(1)(i), 3(1)(ii), 3(2), 3(3) and 3(4) of the Gujarat Control of Terrorism and Organized Crime Act, 2015.
2. Learned advocate Mr. F.H. Pathan appearing for the applicant has submitted that the so called incident had occurred during the period between 11.01.2016 and 13.04.2021 and the FIR came to be lodged on 27.08.2021. The applicant-accused was arrested on 29.08.2021 and since then he is in jail. Learned advocate Mr. Pathan has further submitted that the GUJCTOC came to be enacted by the State Legislative Assembly which came into force on 01.12.2019, and after the enactment of the said Act, one offence has been registered against the applicant-accused. Learned advocate Mr. Pathan has also submitted that the alleged offence took place during the period between 2016 and 2021 and the first information report has been lodged in the the month of August, 2021. Therefore, there is huge delay in registering the complaint. Learned advocate Mr. Pathan has also submitted that there are in all total four offences have been registered against the applicant-accused, out of which, three offences have been registered prior to enactment of GUJCTOC Act. It is further submitted that there is nothing in the Act to suggest that the provisions of the Act shall be made applicable with the retrospective effect. The another offence has been registered against the applicant-accused on 13.04.2021 and thereafter no offence is registered against the applicant and, therefore, the provisions of Section 2(c) of the Act which defines “continuing unlawful activity” are not attracted. Learned advocate Mr. Pathan has also submitted that the first information report has been registered against the applicant-accused after the enactment of the law and pursuant to registration of the FIR, investigation was ensued and charge-sheet came to be filed. Trial was proceeded and, ultimately, at the end of the day, the applicant-accused came to be acquitted from the charges levelled against him in the first information report. Copy of the order passed by the learned Addl. Chief Judicial Magistrate, Sidhhpur acquitting the applicant-accused, is also placed on record. Under the circumstances, learned advocate Mr. Pathan for the applicant prays that the applicant may be enlarged on bail on any suitable terms and conditions.
3. The learned APP appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned APP has submitted that, in fact, as per the provisions of the GUJCTOC, it is specifically stated in the Act that at the time of invocation of provisions of GUJCTOC, preceding ten years offences registered against the accused are required to be seen. Learned APP has further submitted that there are three offences registered against the applicant-accused which are pending for adjudication before the competent court. Learned APP has fairly submitted that it is true that one offence is registered against the applicant-accused after the enactment of law in which he has already been acquitted by the learned trial court. Considering the above stated factual aspects, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused.
4. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. This Court has also considered the fact that in the present case investigation has already been completed and charge-sheet has also been filed. The applicant is in jail since 29.08.2021. It is an admitted position of fact that the GUJCTOC Act has come into force on 01.12.2019 and thereafter one criminal complaint has been registered against the applicant-accused. It is stated in the operative part of the complaint that total four complaints have been registered against the applicant-accused, out of which, one complaint has been registered after the enactment of the GUJCTOC Act and in the said offence, the applicant-accused has been acquitted by the concerned trial court. Considering the above stated factual aspects, I am of the view that the present application deserves consideration.
5. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012]1 SCC 40.
6. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant 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 applicant on regular bail.
7. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR being being C.R. No.I-11217030210939 of 2021 registered with the Sidhhpur Police Station, Patan, on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injuries to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
[e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;
[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
8. The authorities will release the applicant only if he is 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.
9. 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.
10. 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 applicant on bail. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
