bail - nilesh

Upload: jagruti-nirav

Post on 06-Mar-2016

24 views

Category:

Documents


1 download

DESCRIPTION

Bail Nilesh

TRANSCRIPT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD DISTRICT: AHMEDABAD

CRIMINAL MISC.APPLICATION NO.________ OF 2014(U/s. 439 of Criminal Procedure Code, 1973)

Nileshbhai Chandubhai Arvadiya,Male, Aged 40 Years, Religion: Hindu, Residing at:602, Jai Ambe Society, Canal Road, Sanala Road, Morbi. Original Resident of village Tikar, (Ran),Takula Halvad, District: Morbi.(Arrested on 22.09.2015 and since then in judicial custody)

Presently lodged atSabarmati Central Jail, Sabarmati,Ahmedabad. Petitioner (Orig. Accused)

//Versus//

The State of Gujarat(Notice be served through the Ld. PP,High Court of Gujarat, Sola,Ahmedabad.) .Respondent

To:THE HONBLE THE CHIEF JUSTICE ANDOTHER HONBLE JUDGES OF THE HIGHCOURT OF GUJARAT AT AHMEDABAD. The humble petition of the petitioner above named;

MOST RESPECTFULLY SHEWETH THAT:-

1. The present petition is directed since the petitioner is arrested in connection with the First Information Report lodged with the Crime Branch Police Station for the offence punishable under Sections 153, 153-A of the Indian Penal Code, 1860 read with Sections 65, 66(C) of the Information Technology Act, 2000, which is registered as Crime Register No. I - 80/2015. It is humbly submitted that in the said First Information Report the petitioner was not named. However, the First Information Report is lodged with the Morbi A Division Police Station for the offence punishable under Sections 153, 153 A, 124 A of the Indian Penal Code, 1860 read with Sections 66 and 66(C) of Information and Technology Act, 2000, which is registered as Crime Register No. I 156/2013, wherein the petitioner is named in the said First Information Report and shows as accused No. 1. 2. The petitioner states that the petitioner was arrested from Ahmedabad on 22.09.2015. The First Information Report being crime Register No. I 156/2015 is now merged with First Information Report No. 80/2015 lodged with the Crime Branch Police Station, Ahmedabad. The present application for regular bail is filled before the filling of the charge sheet. 3. The shirt facts of the case are as under: 4. The petitioner states that the petitioner is residing at the address mentioned in the cause title and he is doing business of sales and purchase in ceremonies. The petitioner has two minor children, a boy and a girl. His maternal grand mother (Naani) is expired on 25.09.2015 and the maternal uncle of the petitioner has expired on 26.09.2015. 5. The petitioner states that the First Information Report being Crime Register o. I 80/2015 is lodged with the Crime Branch Police Station on 01/09/2015. The alleged which had alleged two months prior to the lodging of the First Information Report, interalia alleging that the persons belonging to the Patidar Community are holding the meetings and taking out rallies and the social media viz., Whats app, Facebook etc., are being utilized and deliberately with a view to see that there is a class conflict and are using speeches which would instigate the people at large. For which the First Information Report has been lodged with the Crime Branch Police Station, which is recorded as Crime Register No. I 80/2015. It may be noted that in the said First Information Report the petitioner was not named. Annexed hereto and marked as Annexure A to the petition is a copy of FIR vide Crime Register No. I 80/2015 registered with the Crime Branch Police Station, Ahmedabad. 6. The petitioner states that the First Information Report being Crime Register No. I 156/ 2015 is lodged with the Morbi City A Division Police Station on 22/09/2015 for the incident, which is alleged to have occurred on 25/08/2015. The said First Information Report is lodged by the Police Sub Inspector, Purveyance Squad Mr. Anantkumar N. Patel wherein it is alleged that the petitioner has abused the Honble Chief Minister, the President of Bharatiya anta Party and Honble Prime Minister of India by using derogatory words and thereby committed the offernce of sedation and therefore, on account of the language used by the petitioner, the situation has been created, which had instigated the people of Patidar Community and which has resulted into riots and which has caused damages to the public properties. Therefore, the First Information Report was lodged. Annexed hereto and marked as Annexure B to the petition is a copy of the FIR vide Crime Register No. I 156/2015 lodged with the Morbi City A Division Police Station. 7. The petitioner states that the petitioner was arrested from Ahmedabad on 22/09/2015. The remand application is submitted by the Police Inspector, Crime Branch, Ahmedabad City on 23/09/2015. The Learned Additional Chief Metropolitan Magistrate Court No. 10, Ahmedabad vie order dated 26.09.2015 granted the remand upto 28.09.2015 upto 11.00 a.m. 8. The petitioner states that as stated above, the application for remand for the further period was given by the concerned Police Inspector, Crime Branch, Ahmedabad City on 26.09.2015. The Petitioner opposed the said application through his advocate. At that point of time it was informed by the concerned Police Inspector that both the FIRs have been merged and Section 124 A was added in the First Information Report, vide Crime Register No. I 80/2015. 9. The petitioner states that the petitioner was sent to judicial custody, the petitioner is therefore preferring the present petition for regular bail under Section 439 of the Code of Criminal Procedure, 1973, on the following amongst other grounds which may be urged at the time of hearing of this petition. 10. The petitioner submits that bone of the ingredients of the charges Sections against the petitioner has been satisfied. Therefore, there is a fit case for this Honble Court to exercise discretionary power to enlarge the petitioner on bail. 11. The petitioner submits that it is pertinent to note that the charging Sections against the petitioner before the said First Information Report is merged, Sections 153, 153(A) of the Indian Penal Code, 1860 and Section 65 and Section 66(C) of the Information and Technology Act, 2000. Section 153 of the Indian Penal Code provides for the maximum punishment of one year and fine. Section 153- A of the Indian Penal Code provides for maximum period, which can extend up to three years and fine or both. Section 153 of the Indian Penal Code is bailable and triable by the Court of Magistrate, whereas Section 153-A of the Indian penal Code is non-bailable. Sections 65 and 66 (C) of the Information Technology Act also provides the punishment upto three years, and therefore, the said sections were also bailable offence. The said sections are bailable one. 12. The petitioner submits that from the bare reading of the First Information Report, no ingredients of Section 153 of the Indian Penal Code constituting the offence punishable under Section 153 A of the Indian Penal Code can be made out. Nor the ingredients constituting the offence punishable under Sections 65 and 66 of the Information Technology Act, 2000 are disclosed. Therefore, the allegations made in the said body of the First Information Report failed to disclose commission of any offence. The petitioner would like to further submit to this Honble Court that the respondent has claimed that the Director General of Police has directed to amalgamate bot the First Information Report, one recorded in the DCB Police Station, at Ahmedabad and second recorded at Morbi Police Station, being Crime Register No. I 156/2015. It is pertinent to note that Section 124- A of the Indian Penal Code 1860 speaks about sedition against the Government. With profound respect is is submitted that the party in power in the State and the Government rules established are two different terns and both are not substituting of each other. Both terms are not synonymous also. In the democratic country, every person has right to express descent of voice against the party in power. Assuming for the aske of argument without admitting the same that the method and mode of expression voice of descent against the party in power is not in good taste or good manner. However, language assuming to have been used, which may be very bad in taste would not constitute the offence of crating sedation against the State. There is no allegation what so ever made that the present Government of Gujarat is to be thrown out. It is pertinent to note that when the Lord Maccula drafted the said Section, Section 124 A was in the draft. However, said section was omitted while enacting the Indian Penal Code, 1860. Section 124- A came to be introduced in the Indian Penal Code by Act No. XXVII of 1807 after the independent, the word Her Majesty is omitted from the original section. Before the independence there were several cases which are notably recorded under Section 124 A of the Act. The well known cases are Queen Empresses Jogendrachandra Bose (reported in 1892 19 LLR Calcutta 35), Queen Empresses Balgangadhar Tilak (22 ILR Bombay 112); Queen Empresses V/S Ramchandra Narayan 1897 (22) ILR Bombay 152. Full Bench Queen Empresses V/S Ambaprasad (1890) (20) ILR Allahabad Full Bench. These freedom fighters and others were prosecuted under Section 124- A of the Indian Penal Code, since the charge against them was to over throw the imperial Governments. However, the Section 124-A of the Indian Penal Code, 1860 cannot be used against the expression of freedom of guarantee under the Constitution of India. Infact, from copy of the First Information Report it is crystal clear that all such is against the party in power and not against the Government. The party in power and the Government are not synonymous. In Democracy, every citizen has right to express his descent. He can be punished, if such act is punishable as slender or defamation. But no offence can be said to have been made out against the State. Therefore, there is no case made out against the petitioner. The petitioner is therefore, entitled for regular bail. 13. The petitioner thus being aggrieved and dissatisfied with the impugned Order dated 08.08.2014 passed by Ld. Additional Sessions Judge, Ahmedabad cancelling his bail application, assails the same on the following amongst other grounds inter alia: -

GROUNDS

A. The petitioner submits that the impugned Order rejecting the bail of the petitioner is contrary to law, evidence on record and is unwarranted in the facts and circumstances of the case.B. The petitioner submits that the F.I.R in question wherein the offence is alleged to have been committed prior to 2 months from the date of lodging F.I.R. Thus when the F.I.R has been lodged belatedly, the Court below ought to have considered the aspect of delay and false implication of the petitioner for the alleged offences in question.C. The petitioner submits that the petitioner was under police remand till and that no recovery and or discovery are made during the course of remand and this aspect of matter becomes clear from the Affidavit.

14. The petitioner states that the petitioner has not preferred any other application on the subject matter of the application, in any other Court of Law in India, including the Honble Supreme Court of India, save and except the present petition. 15. The petitioner craves leave to add, alter, amend and rescind in the memo of the present petition as and when necessity so arises, with kind permission of this Honble Court. 16. In the afore mentioned premises the petitioner most humbly prays before this Honble Court that:A. This Honble Court may be pleased to admit and allow the present petition. B. This Honble Court may be pleased to to enlarge the petitioner on regular bail as contemplated by the provisions of Section 439 of Criminal Procedure Code, 1973 in connection with the complaint registered with Crime Branch, Police Stattion, Ahmedabad vide Crime Register No. I 80/2015 on any terms and conditions, what which may be fir thought fit and proper to be imposed upon the petitioner. C. This Honble Court may be pleased to quash and set aside the impugned Order dated 03.10.2015 marked and annexed as Annexure-C Colly of this petition in the interest of justice.

D. This Honble Court may be pleased to dispense with the Affidavit of the petitioner as the petitioner is in judicial custody.

E. This Honble Court may be pleased to grant such other and further relief/s as may be deemed fir, just and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS AND JUSTICE THE PETITIONER, AS IN DUTY BOUND SHALL EVER PRAY.

_______________________JAGRUTI DEKAVADIYA Place: Ahmedabad Date: __.08.2014 (Advocate for the Petitioner)

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD DISTRICT: AHMEDABAD

CRIMINAL MISC.APPLICATION NO.________ OF 2014(U/s. 439 of Criminal Procedure Code, 1973)

Kanaiyalal Rambharose Sharma .Petitioner (Original Accused)//Versus//The State of Gujarat ..Respondent

INDEX

Annexure NosParticularsPage Nos

------------Memo of Petition

A Copy of F.I.R being I.C.R No.39/14.

B Copy of the Affidavit dated 08.08.2014.

C Colly Copy of Criminal Misc. Application No.3110 of 2014 along with the Order dated 08.08.2014 passed thereon below Exh.1.

D CollyCopies of Affidavit dated 30.05.2013 and Application dated 29.06.2013.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD DISTRICT: AHMEDABAD

CRIMINAL MISC.APPLICATION NO.________ OF 2014(U/s. 439 of Criminal Procedure Code, 1973)

Kanaiyalal Rambharose Sharma .Petitioner (Original Accused)//Versus//The State of Gujarat ..Respondent

C.R. No:I-39/2014

Police Station:Meghaninagar, Ahmedabad

Sections:Sec. 406, 465 and 468 of I.P.C, 1860. Sec.467 & 471 of I.P.C came to be added subsequently in face of Order dated 08.08.2014.

Complaint lodged on:16.03.2014

Date of offence:Prior to 9 months from the lodging of F.I.R. on 16.03.2014.

Date of arrest:31.07.2014 at 20:15 Hrs.

Regular Bail:Before Charge-Sheet

Order passed on:08.08.2014 by the Addtl. SessionsJudge, Ahmedabad in CriminalMisc. Application No.3110/2014rejecting the same.