Shokat Ahmed Chuchla @ Makalo vs State Of Gujarat

Divyesh A. Joshi, J

The present application is filed under Section 439 of the Code off Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.11207002220037/2022 registered with the Godhra ‘B’ Division Police Station, Panchmahal for the offence punishable under Sections 3(1)(i) & (ii), 3(2) and 3(4) of the Gujarat Control of Terrorism and Organized Crime Act, 2015 (hereinafter referred to as “GUJCTOC” for short).

Heard learned advocate, Mr. Altaf Charkha for the applicant and learned APP Mr. H.K. Patel for the respondent – State of Gujarat.

Learned advocate for the applicant submitted that the aforesaid FIR has been lodged on 29.01.2022 and the applicant has been arrested on 08.09.2022 and since then, he is in judicial custody i.e. since last more than one year. It is submitted that now the investigation is completed and after submission of the chargesheet, the present application has been preferred. Learned advocate submitted that the applicant is having past antecedents, however, as per the provision of the GUJCTOC, the basic requirement to attract the GUJCTOC Act is that the accused must have committed offence under the Terrorist Act or have been the member of the organized crime syndicate committing offence of organized crime. Learned advocate submitted that the applicant is not named in the FIR, however only on the basis of the statement of the co-accused, the applicant has been arraigned as accused and the ingredients of the offences under the provision of the GUJCTOC are not attracted. It is further submitted that from the investigation papers, there is not an iota of evidence connecting the applicant to any organized crime syndicate. Learned advocate submitted that against the applicant, total 9 offences have been registered but out of them, only three offences have been registered after the promulgation of the provision of the GUJCTOC and despite that, earlier offences have been considered by the authority and it cannot be said that the applicant – accused is falling within the definition of ‘continuing unlawful activity’. Learned advocate has placed reliance upon recently of the Hon’ble Supreme Court in the case of Mohamad Iliyas Mohamad Bilal Kapadiya v. the State of Gujart rendered in Special Leave to Appeal (Cri.) No.1815 of 2022, wherein the Hon’ble Apex Court has considered the bail application of the accused and also fixed the criterion for invoking the provisions of the GUJCTOC Act. Learned advocate has also placed reliance upon the order dated 02.09.2022 passed by the Hon’ble Supreme Court in case of Shivrajbhai Rambhai Vichhiya Vs. State of Gujarat & Anr. Delivered in Criminal Appeal No.1404/2022 [@ SLP (Crl.) No.4088/2022], wherein also the Hon’ble Supreme Court has considered the case of the said applicant since he was in incarceration for considerably long time. It is also submitted that identically situated co-accused has already been enlarged on bail by the concerned Court. It is, therefore, urged that considering the above stated factual aspects as also on the ground of principle of law of parity, the applicant may be enlarged on bail by imposing suitable conditions.

On the other hand, learned APP Mr. H.K. Patel has objected present bail application with vehemence and submitted that the role of the present applicant accused is clearly spelt-out from the compilation of the charge-sheet papers. It is submitted that the present applicant accused has actively participated in commission of the crime and the applicant was in constant touch with other co-accused at the time of commission of crime. It is submitted that total 9 offences have been registered against the applicant and the applicant has committed offences as a part of syndicate. It is submitted that from the papers of the chargesheet, the involvement of the applicant – accused is clearly established and the ingredients of the alleged offences are also attracted. It is submitted that most of the cases are pending against him and trial is going on. Thus, considering the gravity of offence and the role played by the present applicant accused, which is graver in nature, his bail application may not be considered.

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. It is found out from the record that the investigation is already completed and after submission of the charge-sheet, present bail application is preferred. The present applicant accused has been arrested on 08.09.2022 and since then he is in judicial custody i.e. since last more than one year. As per the definition of ‘continuing unlawful activity’ given in the GUJCTOC Act, it means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment for a term of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence. It is an admitted position of fact that there are total 9 FIRs registered against the applicant – accused, however from the documents available on record, it is evident that the applicant has been bailed out in those cases by the concerned court.

I have considered the decisions of the Hon’ble Apex Court upon which reliance has been placed by learned advocate for the applicant in case of Mohamad Iliyas Mohamad Bilal Kapadiya (supra) as well as Shivrajbhai Rambhai Vichhiya (supra). It is also found out from the record that the co-accused have already been enlarged on bail by the concerned court. Thus, considering the totality of the aforesaid facts and on the ground of principle of parity, I am inclined to exercise discretionary powers of bail in favour of the present applicant accused.

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 as well as in case of Satender Kumar Antil v. Central Bureau of Investigation & Anr. reported in (2022) 10 SCC 51.

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.

Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with the FIR being C.R. No.11207002220037/2022 registered with the Godhra ‘B’ Division Police Station, Panchmahal 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;

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 concerned Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. 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.

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.