- Gujarat Police Act
- Section 439 of the Code of Criminal Procedure, 1973
- Balwant Singh and another v. State of Punjab, 1995 (3) SCC 214
- Indra Das v. State of Assam, (2011) 3 SCC 380
- Nazir Khan v. State of Delhi, (2003) 8 SCC 46
- Destruction of Public and Private Property In Re v. State of Andhra Pradesh and others, 2009 (5) SCC 212
- Mir Hasan Khan and others v. The State, 1951 Criminal Law Journal 462
- Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and another, (2004) 7 SCC 528
- Ram Govind Upadhyay Vs. Sudarshan Singh and others, (2002) 3 SCC 598
- Puran Vs. Rambilas and another, (2001) 6 SCC 338
- Chaman Lal v. State of U.P. And another, (2004) 7 SCC 525
- Bhagirathsinh Judeja v. State of Gujarat, AIR 1984 SC 372
- Destruction of Public and Private Properties, in Re. v. State of Andhra Pradesh and others, (2009) 5 SCC 212.
Code of Criminal Procedure, 1973 – Section 439 – Indian Penal Code, 1860 – Sections 121, 121A, 124A, 153A, 153B and 120-B – Violent Partidar agitation in Gujarat – Sedition Cases filed by the Surat and Ahmedabad police – Patidar Anamat Andolan Samiti (PAAS) – granted bail to patel quota agitation leader Hardik Patel – ordered him to stay outside the State for six months and submit his passport.
# Gujarat Police Act
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CORAM : HONOURABLE MR.JUSTICE A.J.DESAI
Date : 08/07/2016
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO.6440 of 2016
CRIMINAL MISC.APPLICATION NO. 6873 of 2016
HARDIK BHARATBHAI PATEL….Applicant Versus STATE OF GUJARAT….Respondent
Appearance : MR ZUBIN BHARDA, ADVOCATE WITH MR RAFIK LOKHANDWALA, ADVOCATE for the Applicant; MR MITESH AMIN, PUBLIC PROSECUTOR ASSISTED BY MR J.K. SHAH, APP for the Respondent.
1. The present two applications, which have been filed by the same accused under
# Section 439 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘the Code’) praying for releasing him on bail during the pendency of the trial, were heard simultaneously since the applicant is facing almost same charges for two different offences though registered at two different Police Stations on different dates. Hence, the same are being disposed of by this common judgment and order.
2. In Criminal Misc. Application No.6440 of 2016, the applicant has prayed to release him on regular bail in connection with an offence registered as I C.R. No.90 of 2015 with DCB Police Station, Ahmedabad for which he is facing charge under Sections 121A, 124A and 120-B of Indian Penal Code etc..
3. In Criminal Misc. Application No.6873 of 2016, the applicant has prayed to release him on regular bail in connection with an offence registered as I C.R. No.135 of 2015 with Amroli Police Station, Dist. Surat for which he is facing charge under Sections 124A, 115 and 201 of Indian Penal Code etc..
4. As stated herein above, both these applications were argued by learned advocate appearing for the respective parties relying upon the material collected by the Investigating Agency.
5. The facts emerge on record from the material gathered by both the Investigating Agency reveal as under :-
5.1 The present applicant and other persons, namely, Dinesh Bhagwanbhai Bamaniya, Chirag Bharatbhai Patel, Ketan Lalitbhai Patel, Alpesh Ghanshyambhai Kapetiya, Amrishkumar D. Patel who belonged to Patel community of State of Gujarat formed an organization in the month of June / July 2015 and the same was named as ‘Patidar Anamat Andolan Samiti’ (hereinafter referred to as ‘PAAS’) to seek status of other backward class for Patel (Patidar) community and to get reservation in Government jobs and educational institutions under the quota meant for other backward classes (OBC). Some public gathering and demonstration were held at different places of Gujarat in the month of July and August, 2015. At some places, there was scuffle between the members of the gathering and police party and offences were registered against several members of Patidar community. Several rallies were organized by PAAS at different cities and a huge rally was organized by PAAS on 17.8.2015 at Surat wherein about 3 Lacs people gathered. The demand of Patidar community was to include them in the OBC since most of their community people are poor farmers, economically backward and most of them are residing in villages.
5.2 The present applicant who was the convener of PAAS organized a rally which was named as ‘Mahakranti Sabha’ on 25.8.2015 at Ahmedabad. The said sabha / rally was organized at GMDC Ground, Ahmedabad wherein Lacs of people from Patidar community, who were supporting the demand of PAAS, remained present. The applicant as well as other persons addressed the rally and prepared their demand by a written memorandum. Speeches were delivered by different persons including the present applicant who led the rally being the convener of the PAAS.
5.3 The District Collector, Ahmedabad visited the place of rally i.e. GMDC Ground to accept the Memorandum which was denied to him by the speakers including the applicant and the Collector was told that the memorandum of demand shall be handed over to Hon’ble the Chief Minister of State of Gujarat at GMDC Ground.
5.4 The large numbers of Patidars who had gathered in the morning hours at GMDC Ground were requested by the organizers to leave the place since they have come from distant places from all over Gujarat. Therefore, only few thousand persons including women and children were present at GMDC ground.
5.5 The Collector left the place without receiving any memorandum of demand prepared by PAAS. Meanwhile, the Police found that the situation at the ground and in the surrounding area was charged, the Police detained the applicant under Sections 68 and 69 of the Gujarat Police Act and took the applicant at a safe place. The news of the detention of the applicant who was the convener of PAAS, spread all over the State of Gujarat which resulted into disturbance the law and order situation in various parts of the State of Gujarat. Several Police Stations, police vehicles, private vehicles etc. were put ablaze. Some trains were intercepted at different places by members of Patidar community.
5.6 Since the applicant was not arrested in any offence and was detained only under Sections 68 and 69 of the Gujarat Police Act, ultimately, was made free within a short time. Subsequent to 25.8.2016 i.e. post rally at GMDC Ground, violence in different parts of State of Gujarat took place in which about 200 persons have sustained injuries, 10 persons from public died and one police personnel died. Thereafter, the situation in State of Gujarat was under control and, therefore, Public Interest Litigation being Writ Petition (PIL) No.174 of 2015, was filed by public spirited litigant seeking appropriate directions against the State to take immediate steps to control the law and order situation. The said petition came to be dismissed by the Division Bench of this Court on 3.9.2015 by observing that peace has restored in the State of Gujarat and, therefore, there was no need to issue any directions as prayed for in the said PIL.
5.7 One Narendra A. Gadhvi @ Rahul Gadhvi had submitted an application on 9.9.2015 to the Police Inspector of Vastrapur Police Station (within whose jurisdiction GMDC ground is located) to lodge a complaint against the offenders with regard to the rally organized at GMDC ground on 25.8.2015. Since the said application was not registered as FIR, said Shri Gadhvi preferred a writ petition under Article 226 of the Constitution of India before this Court being Special Criminal Application (direction to lodge FIR) No.5549 of 2015. The coordinate Bench disposed of the said petition by directing the Police Inspector of Vastrapur Police Station to consider the application dated 9.9.2015 submitted by Mr. Gadhavi, whether the said application discloses any commission of any cognizable offences or not and after perusing the application and the material, if the Police Inspector is of the view that the same discloses commission of cognizable offences, he shall proceed to register the FIR.
5.8 On 28.9.2015, one Vipul R. Desai from a patidar community and resident of Surat city sent a written note in the nomenclature of suicide note to Police Inspector of Amroli Police Station and to higher Officers of city of Surat and declared that he shall commit suicide if certainest action would not be taken by Police authorities in connection with rally held on 17.8.2015 at Surat. Having received the same, the Police Inspector of Amroli Police Station visited the residence of said Vipul Desai. Since he was not there, he met his brother Narendra Desai and assured to take appropriate steps in the matter. Therefore, the statement of the said Vipul Desai was recorded on 2.10.2015 by which he had assured that he is not going to commit suicide. On 3.10.2015, the present applicant met said Vipul Desai in presence of media persons and used such a language and in such manner and method against Police personnel, which constitute an offence. On 4.10.2015, again said Vipul Desai visited Amroli Police Station and declared that no provocative language was used by the present applicant.
5.9 Being the convener and member of PAAS, applicant with other accused were directly and indirectly trying to disturb the peaceful atmosphere of the State, the police personnel of State of Gujarat was in the process of collecting various types of material with regard to illegal activities being carried out by the applicant and the members of PAAS and other leaders. Having found sufficient material against the applicant and other accused, the Police thought it fit that all the accused persons are indulging in such activities which would constitute several serious offences and, therefore, decided to file complaints against all the accused including the present applicant. Accordingly, one offence being I C.R. No.135 of 2015 was registered with Amroli Police Station on 18.10.2015 for the offences punishable under Sections 124A, 155, 153A, 505 (2) and 506 of Indian Penal Code. The said complaint came to be filed by Deputy Commissioner of Police, Zone III, Surat. The said offence was registered with regard to the offence took place on 3.10.2015 in presence of media people. In pursuance of registration of the said FIR, the applicant came to be arrested on 19.10.2015.
5.10. Another offence being I C.R. No.90 of 2015 was registered with DCB Police Station, Ahmedabad for the offences punishable under Sections 121,121A, 124A, 153A, 153B and 120-B of Indian Penal Code on 21.10.2015 mainly with regard to the incident taken place on 25.8.2015 at GMDC ground. The said complaint came to be filed by the Assistant Commissioner of Police (Crime), Detection of Crime Branch, Ahmedabad City. In pursuance of registration of the said FIR, the applicant came to be arrested on 23.10.2015.
5.11 Subsequent of registration of the offence before DCB Police Station, Ahmedabad against the applicant and other accused, the present applicant preferred an application under Section 482 of the Code for quashment of the FIR being Special Criminal Application No.6330 of 2015 and other allied matters. Similarly, for quashment of FIR registered with Amroli Police Station, the applicant preferred Special Criminal Application No.19858 of 2015. These petitions were partly allowed by the coordinate Bench and offences punishable under Sections 121, 153A, 153Bregistered against the applicant and other accused came to be quashed so far as offence registered with DCB Police Station is concerned. Similarly, offence registered with Amroli Police Station, offences punishable under Sections 153A, 505 (2) and 506 of Indian Penal Code came to be quashed.
5.12 The applicant preferred applications under Section 439 of the Code for releasing him on bail before the learned Sessions Court as well as before this Court. However, the same were not entertained since investigation in both the cases were going on.
5.13 The decision of the coordinate Bench in quashing matters were challenged by the applicant – accused before the Hon’ble Supreme Court since only few offences were quashed and set aside. The Hon’ble Supreme Court directed the Investigating Agency to complete the investigation and asked to submit charge- sheet before the competent Court as well as all the papers of investigation were directed to be placed before it. It is pertinent to note that the matter is at large before the Hon’ble Supreme Court for consideration about the quashment of all the remaining charges.
5.14 As per the directions of the Hon’ble Supreme Court, with regard to the offence registered with DCB Police Station, charge-sheet is filed on 16.1.2016 and with regard to the offence registered with Amroli Police Station, charge-sheet is filed on 8.1.2016.
5.15 Subsequent to filing of the charge-sheets, the applicant preferred applications for regular bail before the concerned learned Sessions Court which came to be rejected. Hence, the present applications.
6. Mr. Zubin Bharda, learned advocate appearing with Mr. Rafik Lokhandwala for the applicant firstly, by taking me through the FIR lodged at DCB Police Station, would submit that the complainant, by reproducing certain provisions of the Constitution of India, 1950 and all the penal provisions which were initially levelled against the present applicant as well as other accused (whose names have been referred in the earlier part of this order), as well as by reproducing only part of certain communications amongst the Patidars, his speeches telecast in the TV media, newspaper media etc., would submit that the prosecution has tried to establish that only the applicant is sole responsible for several incidents which have taken place in various parts of the State of Gujarat from July 2015 till the date of filing of the FIR. He would submit that in the FIR, the complainant has deliberately reproduced only those part of the speeches etc., which would prima facie create an impression that the intention of the applicant and other leaders, was to commit offences, fall under Chapters VI & VII of the Indian Penal Code which relates to offences against the State. However, if the material collected by the Investigating Agency and made part of the charge-sheet prima facie establishes that the applicant had always declared that PAAS wanted to continue the agitation in a peaceful manner. He would submit that serious allegations were made against the applicant and other accused under Section 121 of Indian Penal Code as if the applicant along with others had all intentions to wage war against the Government though the demand of getting reservation in OBC category was made to the Government. He would submit that number of rallies were organized before 25.8.2015 i.e. prior to the rally organized at GMDC ground, Ahmedabad. However, no serious offences were registered for the same. He would submit that during the rally organized at GMDC ground on 25.8.2015, the applicant has never provoked lacs of people who were present, since they were also interested in getting the reservation. By taking me through the speech delivered by the applicant on 25.8.2015, he would submit that he has put forward reasons for getting reservation under the class, namely, OBC. He has also time and again stated that he wants to proceed with the agitation in non-violent method and time and again requested the crowed gathered to act in peaceful manner. Therefore, the allegations levelled against the applicant are without any basis. He would submit that the Investigating Agency has prepared several transcripts of certain communication between the applicant and the anchor of T.V. Channels as part of charge-sheet which did not constitute any serious offence as alleged by the prosecution. He, therefore, would submit that even at the stage of filing of FIR, the coordinate Bench has entertained the application filed by the applicant and other accused for quashment of FIR and quashed the serious offence under Section 121 of Indian Penal Code. He would submit that at the end of his speech at GMDC ground, he requested the crowed gathered at GMDC to leave the place since most of them have come from different parts of State of Gujarat. He would submit that only few thousand persons were present when he announced that he would remain on fast until the Hon’ble Chief Minister comes and accept the memorandum. He would submit that at that time, the Police personnel, without any reason applied lathicharge to those persons, including number of women who were sitting peacefully. Even the Police personnel started destroying the vehicles parked in several Societies belonging to public and in a particular area, where most of the residents were of Patidar community. This news spread in different parts of State, which resulted into several incidents. The high handed action of Police was also questioned before this Court by way of filing petition being Special Criminal Application No.5072 of 2015. The coordinate Bench by oral order dated 16.9.2015 directed a detailed investigation with regard to the allegations made against the Police personnel who damaged the properties of innocent citizens. He would further submit that since the applicant was detained under Section 68 and on the other hand, the Police personnel were acting in high handed manner, several incidents of attacking the Police stations and attacking the Police personnel came to be reported in different parts of State of Gujarat for which the applicant cannot be stated to have conspired as defined under Section 121A of the Indian Penal Code. He would further submit that the allegations levelled against the applicant that he has threatened that bombs shall be planted in the Assembly is not the bombs as interpreted by the Investigating Agency. However, if the speech is read as a whole, it was the ‘bomb of votes’ that means the intention of the applicant was to follow the principle of democracy and voting against Government in the next election. He would further submit that several communications between the applicant and the co- accused and other known and unknown persons would not directly or indirectly held the applicant liable for the language used by them.
6.1. Mr. Bharda would further submit that the organization PAAS was carrying on its agitation of getting reservation in OBC in a peaceful manner till 25.8.2015. The disturbances arose only subsequent to the high-handedness of the Police personnel. By taking me through the statement of one Pathik Nagin Patel, Advocate, he would submit that on 25.8.2015, at the end of the rally, the applicant declared that he will accept the memorandum from Hon’ble Chief Minister at his instance i.e. at the instance of said Pathik and that too in consultation with all other accused who were present at GMDC ground. Therefore, he would submit that it cannot be said that everything was preplanned and conspiracy was hatched before organizing the rally at GMDC ground. By taking me through the issues which were to be dealt with at GMDC ground, he would submit that it was categorically stated by PAAS that the rally is to be proceeded in a peaceful manner and everybody should restrain themselves in the rally. He, therefore, would submit that in sphere of moment, some incident took place at GMDC where two Police Officers were superficially injured, would not make the incident very serious though the reflections of people at large in State of Gujarat would have resulted into various incidents as stated herein above that too subsequent to assault by Police itself.
He would further submit that being the convener of an organization, namely, PAAS, he alone cannot be held to have committed all the offences for which he has been charged.
6.2 As far as the offence registered at Amroli Police Station is concerned, Mr. Bharda would submit that one Vipul Desai belonged to Patidar community intended to commit suicide and, therefore, the applicant went to Surat on 3.10.2015 and advised him not to commit suicide. However, certain sentences used by the applicant in presence of media at the time of meeting with the said Vipul Desai, has been treated out of its proportion by the Investigating Agency. He would submit that the incident of his meeting with Vipul Desai is of 3.10.2015, and when said Vipul Desai has categorically clarified about the say of the applicant on 4.10.2015, there was no need for the Investigating Agency to lodge the FIR after a period of 15 days. Certain offences have also been quashed by the coordinate Bench registered with Amroli Police Station. By taking me through the evidence collected in the said offence and transcript of mobile conversation of various members of Patidar community, no serious crime as alleged against the applicant is established. He would submit that the applicant has never attempted or there were no intentions of the applicant to bring into hatred or contempt or excites or attempt to excite disaffection towards the Government established by law, since he had not written or spoken such words. He would submit that he along with other accused was carrying on with his agitation by lawful means and in a peaceful manner and without exciting or attempting to excite the hatred contempt or disaffection amongst the community members.
6.3 As far as the offences with which the applicant is charged i.e. offences punishable under Sections 121A, 124A, 153A and 120-Bof Indian Penal Code, he would submit that by addressing various rallies and creating awareness with regard to the demand of inclusion of Patidar community in OBC, that too in peaceful manner and in democratic manner, without any intention to create disorder or to incite people to violence is not made out. There is no mensrea which is an essential element of offence under the above referred Section is prima facie established against the applicant. In support of his submission, he has relied on the decision of the Hon’ble Supreme Court in the case of
# Balwant Singh and another v. State of Punjab, 1995 (3) SCC 214
and the decision in the case of
# Indra Das v. State of Assam, (2011) 3 SCC 380
and submitted that the Association, namely, PAAS was formed to put forward the legitimate demand before the Government which cannot be treated as an offence though in some area of State of Gujarat, law and order situation was disturbed, that too, subsequent to the high-handed action on behalf of the Police.
6.4 He has also relied on the decision of the Hon’ble Supreme Court in the case of
# Nazir Khan v. State of Delhi, (2003) 8 SCC 46
and would submit that whatever the members of PAAS and the entire community of Patidar were agitating in democratic way, which resulted into disturbance of peace does not create any offence as put forward by the prosecution at the time of filing the charge-sheet. He has also relied on the unreported decision of the Delhi High Court in the case of Kanhaiya Kumar v. State of NCT of Delhi delivered in Writ Petition (Criminal) No.558 of 2016 and Criminal Misc. Application Nos.3237 and 3262 of 2016.
6.5 He would further submit that considering the material gathered by the Investigating Agency during the investigation, it cannot be said that the applicant had conspired to overawe the Government by means of criminal force or the show as criminal force for the offences punishable under Section 121A and/or Section 124A of Indian Penal Code. He would further submit that the intentions of the applicant, while delivering speeches, giving interviews to TV media persons or circulating certain messages can be established only at the time of trial and that too after examining number of witnesses. The present application has been filed by the applicant for releasing him on bail during the pendency of the trial and, therefore, the criteria of releasing an accused before conviction would be different. He would submit that while examining an application under Section 439 of the Code, certain factors are required to be considered by the Court, namely, the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant and prima facie satisfaction of the Court in support of the charge. He would submit that if the material of the charge-sheet is perused, the language of accusation are not of serious in nature and whatever has happened in State of Gujarat, the applicant had no control over the other members and hence, on this ground, the bail may not be denied to the applicant. He would submit that as stated herein above, the complainant in each case is the Senior Officers like Assistant Commissioner of Police and most of the witnesses are also the police officials and, therefore, there is no question of tampering with the witnesses. He would submit that when the Hon’ble Supreme Court is examining the applicability of charges, since some of the charges have already been quashed by the coordinate Bench and, therefore, the applicant can be released on bail by imposing appropriate terms and conditions. He would further submit that the co-accused with regard to the offence registered with DCB Police Station, Ahmedabad i.e. Dinesh Bhagvanji Patel (Bambhaniya) vide order dated 28.4.2016 passed in Criminal Misc. Application No.7729 of 2016, Ketan Lalitbhai Patel vide order dated 28.4.2016 passed in Criminal Misc. Application No.7731 of 2016 and Chirag Bharatbhai Patel vide order dated 28.4.2016 passed in Criminal Misc. Application No.7733 of 2016, have already been released on bail by this Court since they have filed an undertaking that they shall not repeat such offences, indulge in any activities which may disturb the law and order situation across the State or instigate the public at large in any manner and shall abide by whatever other conditions imposed by the Court. He would submit that the applicant has also filed such undertaking in both the cases and, therefore, the applicant who is the convener of the organization, namely, PAAS, may be released on bail by imposing appropriate terms and conditions. He would further submit, on instructions from the applicant himself, that the apprehension put forward by the State that there are possibilities of repetition of crime and disturbance in law and order situation is concerned, the same can be taken care of since the applicant is ready and willing to remain outside the limits of State of Gujarat for a period of six months. He, therefore, would submit that the applicant may be released on regular bail by imposing appropriate terms and conditions.
6.6 He would submit that the applicant is behind bar since about 9 months and, therefore, even if the statements of the witnesses relied upon by the prosecution as well as the transcript of several messages which do not establish a grave offence, would not result into conviction at the end of the trial. Therefore, considering the period undergone by the applicant and when the trial has not even commenced in one of the case and when the applicant is ready and willing to file an undertaking and has assured that he shall remain outside the limits of State of Gujarat, the application may be entertained. He would submit that when the applicant has assured that if he is released on bail, he would carry on his agitation in democratic manner and shall not indulge in such activities which would create any offence and when the applicant would be constantly under check by the Investigating Agency, the apprehension put forward by the State that the applicant would repeat the offence is without any basis. He would further submit that this is an application under Section 439 of the Code and, therefore, certain criterias are required to be considered before accepting such application like availability of accused at the time of trial, possibilities of repeating the crime if he is released on bail, tampering with the evidence etc..
7. On the other hand, Mr. Mitesh Amin, learned Public Prosecutor has vehemently opposed these applications and submitted that since the applicant is facing serious charges for the offences punishable under Sections 121A, 124A and 120-B of Indian Penal Code in one offence registered at Ahmedabad and under Sections 124A, 115 and 201 of Indian Penal Code for the another offence registered at Surat for which the punishment provided is upto life imprisonment, the Court would be slow to release an accused on bail during the pendency of the trial.
He would submit that under the leadership of the applicant, an organization was formed, namely, PAAS which is not registered under any of the statutes which permits such formation of an organization. The intention of forming such organization of the applicant, from the beginning, was to get support from his community, namely, Patidar for their inclusion in other backward class (OBC) so that they can easily get reservation in Government jobs as well as admissions in educational institutions. He systematically organized several public gathering from July 2015 onwards. He having found support from public at large started circulating the intentions of PAAS to get reservation in OBC by forwarding the same by an Internet application, namely, ‘Whatsapp’. He advised several persons to form a group so that such messages can be spread amongst the Lacs of Patidars within no time. He would submit that though the applicant was aware that some scuffle had taken place at Mehsana, Visnagar, Rajkot, Amreli,Surat etc., he planned a huge rally to be organized at GMDC ground, Ahmedabad. He would submit that the applicant lead the rally and delivered a long speech in such a manner and by using such a language that the public gathered at GMDC ground would easily misguided and led to understand the demand of reservation as if it is their fundamental right. He would submit that the applicant was aware that a commission has been set up in the State of Gujarat way back in the year 1994 to examine whether a particular community can be included in other backward class or not. However, he never requested the Commission by submitting a detailed representation / application for inclusion of the caste in the same class. He would submit that the applicant had not agitated his grievances in democratic manner and according to law, meaning thereby, not requesting the Commission to include their caste on justifiable grounds.
7.1 He would further submit that though the coordinate Bench has quashed and set aside the charge for the offences punishable under Section 121 i.e. waging or attempting to wage war etc. against the State, however, has observed that a prima facie case has been made out under Section 121A of Indian Penal Code i.e. hatching conspiracy to commit offences punishable under Section 121. He would submit that under the leadership of applicant and members of PAAS, members of Patidar community in several parts of State of Gujarat were asked to use force to stall the traffic on the highways by adopting different methods. Therefore, it is established that he had conspired to overawe the State Government for which the punishment is upto imprisonment for life.
7.2 Coming to the cases on hand, he would further submit that the District Collector, Ahmedabad having considered the situation at Ahmedabad at GMDC ground decided to visit the place where the rally was organized and went to accept the memorandum which the applicant and other organizers of PAAS intended to deliver. He would submit that the applicant instead of handing over the same to the Collector, declared that the same shall be handed over to Hon’ble the Chief Minister only and that too at the place of the rally, which clearly spell out the intentions of the applicant. He would submit that after declaration made by the applicant that he shall hand over the memorandum to Hon’ble the Chief Minister and further declaring that he shall go on fast until the same is accepted, he informed the members of rally that whosoever wants to join for fast, they can remain present on the ground. Along with other persons, he visited the office of the Collector to hand over the memorandum. After handing over the memorandum to the Collector, the applicant again visited the ground and started raising slogans. At that time, the concerned Police Officer who was present on the ground opined that to avoid any untoward incident, it was required to detain the applicant and to keep him in a safe place and hence, was detained under Section 68 of the Gujarat Police Act at about 20.25 hours and thereafter, was released under Section 69 of the Gujarat Police Act at 22.35 hours.
7.3. Mr. Amin would further submit that the applicant was never arrested by any Police Officer though the applicant along with other created such a scene as if they have been arrested by the Police. Therefore, immediately riots in the city of Ahmedabad and other parts of the State of Gujarat took place since the administration was already charged pursuant to the rally organized under the leadership of the applicant wherein lacs of persons had attended the same.
He would submit that subsequent to the release of the applicant on 25.8.2015 itself and pursuant to the timely steps taken by the State of Gujarat, the law and order situation was under control and everything was getting normal. The State was successful to ease the situation by inviting the leaders of PAAS including the applicant for talks and to examine the demand. Accordingly, such meetings were held but the suggestions put forward by the State Government were declined by the applicant by using such a language which would insite and excite the members of his caste i.e. treating the offer made by the State as “Lollipop”. Even thereafter, the State had restrained itself to take immediate steps against the applicant since everything was normal.
7.4 Mr. Amin would further submit that his intentions of getting reservation in OBC were not being satisfied, applicant with ulterior motives, tried to arrange several meetings at different places. One of such meeting was organized on 22.9.2015 at village HC-NIC Page 19 of 34 Created On Sat Jul 09 03:00:00 IST 2016 Tenpur, Tal. Bayad, Dist. Aravalli. The applicant attended the said meeting. Special Criminal Application (Habeas Corpus) No.5607 of 2015 came to be circulated by one of the members of Committee of PAAS at about 2 O’clock in the early morning at the residence of the coordinate Bench on 23.9.2015 alleging that the applicant has been illegally detained by the Police agency subsequent to Tenpur meeting and there is a threat to his life and, therefore, corpus may be produced before the Court. The applicant along with his lawyer remained present before the Court and ultimately the Division Bench issued certain guidelines while filing a writ petition of habeas corpus considering the conduct of the petitioner. He, therefore, would submit that by spreading such false news of his arrest, the applicant and his colleagues wanted that the atmosphere in the State of Gujarat is spoiled.
7.5 He would further submit that this was not sufficient for him. Therefore, he visited Vipul Desai at Surat on 4.10.2015, that too after informing the media persons through his colleagues and uttered the words that two to three police personnel should be killed and Patidar should not commit suicide. These words were deliberately uttered in presence of media so that it can spread to entire State of Gujarat, though applicant was aware that the said Vipul Desai had already stated before the Police that he did not want to commit any suicide. He, therefore, submitted that there was no reason for the applicant to visit said Vipul Desai and give such speeches in the presence of media. He would submit that even he won over the said Vipul Desai who went to Police on next day i.e. 4.10.2015 and tried to clarify the statement made by the applicant which indicates that the applicant is an influential leader who can get the witnesses hostile in no time.
7.6 Mr. Amin would further submit that since the applicant had under his leadership held several meetings which led to dissatisfaction amongst the members of those castes which were already included in OBC and, therefore, they also started organizing rally in different parts of State. The law and order situation in the State was getting deteriorated pursuant to conduct of the conveners of PAAS as well as other leaders of the Patidar community and, therefore, the State Government after collecting certain material thought it fit to file different FIRs against the present applicant and other accused.
7.7 He would further submit that subsequent to the FIR, the Investigating Agency in both the cases was successful in collecting different types of material against the present applicant and other accused in support of the charges levelled against them. By taking me through the statement of several witnesses like Ambalal Ghanshyam Makwana, Devendra C. Chite, K. M. Bhuva – Police Sub-Inspector, DCB Crime submitted that the intentions of the applicant was to spread the violence within the State by beating media persons, burning buses and damaging Police station etc. He would submit that sufficient scientific evidence has been collected during the course of investigation like transcript of Whatsapp, messages, call interceptions between the applicant and other accused and as well as amongst other accused and the members of Patidar community, which prima facie establish an offence against the present applicant. The speeches delivered by the applicant at various platforms suggest that the applicant was instigating the members of his community to take extreme steps in order to achieve their goals of reservation. He has taken me through the transcript of such speeches and submitted that serious offence has been made out against the applicant which would disentitle him from getting any bail during the pendency of the trial. He would submit that the applicant is the convener and leader of PAAS, who addressed several meetings and pursuant to his speeches and his conduct, violence was spread in State of Gujarat. He would submit that other co-accused have been released on filing their undertakings. However, similar undertaking filed by the applicant is different than the undertakings filed by the co-accused which is an eye-wash. Therefore, the case of the applicant cannot be compared with other accused who have been enlarged on bail by this Court.
7.8 As far as the undertaking of the applicant with regard to remaining outside the limits of State of Gujarat for a period of six months is concerned, Mr. Amin would submit that even if he remains outside State of Gujarat, there are all possibilities that he may continue his illegal activities by using electronic devices by using different types of applications and Internet. Therefore, the applicant may not be released on bail. In support of his submissions, he relied on the decision of the Hon’ble Supreme Court in the case of Kedarnath Singh v. State of Bihar, AIR 1962 SC 955 and submitted that the Apex Court by upholding the validity of Section 124A of Indian Penal Code confirmed the conviction of a person who had used such a language against the Police Officer and attempted to bring into hatred.
7.9 He has further relied upon the decision of the Hon’ble Supreme Court in the case of
# Destruction of Public and Private Property In Re v. State of Andhra Pradesh and others, 2009 (5) SCC 212
and submitted that the Hon’ble Supreme Court has appointed a Committee to examine the various aspects including the damage to the public property by a public at large. However, to be borne by the actual perpetrators of the crime as well as the organization of such events etc. He would submit that the manner and method in which the applicant has carried out the agitation has resulted huge damage to the public property and, therefore, such person may not be released on bail. He has also relied upon the decision of Patna High Court in the case of
# Mir Hasan Khan and others v. The State, 1951 Criminal Law Journal 462
and submitted that a conviction imposed by the Trial Court was confirmed for the offences punishable under Section 121A of the Indian Penal Code. He, therefore, would submit that the petition be dismissed.
8. I have heard learned advocates appearing for the respective parties, perused the papers of charge-sheet and examined those documents upon which both the parties have put more emphasize. Prima facie, what I found during the hearing as well as from the record, that the applicant, a young man aged about 22 years, formed an organization in the month of June – July 2015, namely, PAAS with an intention to have reservation in Government jobs and in educational institutions for the community which he belongs, namely, Patidar, like other cast which are either included in SC, ST or OBC, on various grounds. Having similar interest in getting reservations, initially few Patidars started organizing rallies at the instance of PAAS which caught immediate momentum, since number of Patidars are residing in almost all parts of State of Gujarat. Having found some support from his cast people, the applicant with the help of Committee Members of PAAS and other leaders of Patidar community, who were not directly concerned with the organization, namely, PAAS organized a rally at Surat on 17.8.2015 wherein around 3 Lacs Patidar participated. It is pertinent to note at this stage that no serious incident took place on 17.8.2015 at Surat. Having found huge support at Surat, the applicant along with other members of the organization, arranged another rally named as ‘Mahakranti Sabha’ on 25.8.2015 at G.M.D.C. Ground at Ahmedabad. The applicant, members of PAAS and interested persons started informing their community people by using different types of ‘applications (apps)’ which are being used through electronic devices via Internet. Some pamphlets were also circulated and distributed in State of Gujarat. Perusing the pamphlet, which is a part of the charge-sheet, it appears that elderly people, women, children were requested to join the rally. It was further observed in the said pamphlet that the members of groups of Patidar shall have to make the rally successful by remaining present themselves at the rally. It was also stated that all persons shall have to maintain peaceful atmosphere at the rally and all should join the rally in peaceful manner. Everybody was requested to restrain themselves so that no untoward incident takes place since women, children and elderly persons were invited to attend the rally.
9. Accordingly, a rally was organized at G.M.D.C. Ground, Ahmedabad wherein lacs of people from Patidar community remained present. Several persons delivered speeches with regard to the demand of reservation in Government jobs and educational institutions. The applicant being the convener and leader of PAAS delivered a speech which has been perused by this Court. He has stated that everybody should prepare themselves to go to Jail and call upon to see that they should march over the capital of State of Gujarat. However, he has also stated that the agitation should be continued in a peaceful manner. He has also requested the members of the rally, who were from distant place, to leave since he intended to go on fast until the Hon’ble Chief Minister of State of Gujarat visits the place of rally and accept the memorandum prepared by PAAS. It is true that he has given interviews on various T.V. Channels. I have gone through the transcript of his interview wherein he has stated that though the Police personnel has attacked the innocent people, the agitation would proceed in a peaceful manner. Another interview with regard to the allegation of implanting bomb in assembly is concerned, the same is part of clipping No.2 recorded at Junagadh. The same, prima facie, suggests that the bomb is with regard to the bomb of votes. It is true that at some places, he has used some harsh language with regard to the conduct of Police personnel who have attacked innocent citizens subsequent to his temporary detention under Sections 68 & 69 of the Gujarat Police Act.
10. At the end of rally at G.M.D.C. Ground, Ahmedabad on 25.8.2015, most of the participants have left the place. However, few thousand people have accompanied the leaders who were present at the ground and had declared to go on fast. It is an undisputed fact that under whatever circumstances, the Police personnel had thought it fit to detain the applicant under Section 68 of the Gujarat Police Act, the news spread amongst the entire State of Gujarat about the same which ultimately resulted into number of unfortunate incidents wherein few people lost their lives. It is equally true that the applicant was immediately released since there was no FIR against him with regard to any incident in connection with G.M.D.C. ground rally. I have also gone through the statements of independent witnesses who were present at the time of rally at G.M.D.C. which have been recorded subsequent to the lodgment of the FIR, which are on the same line of the speech delivered by the applicant. It is equally true that in scuffle took place at G.M.D.C. ground, wherein two police personnel sustained superficial injuries for which certificates have been issued by the Sola Civil Government Hospital. Now, dealing with the offences for which the applicant is facing charges are concerned, it is not right stage to decide whether sufficient material is available to prima facie come to the conclusion that he has committed offences punishable under Section 121A etc. i.e. hatching conspiracy for waging war against the State etc., since the matter is at large before the Hon’ble Apex Court under Section 482 of the Code. The Hon’ble Apex Court has time and again advised the Courts not to scrutinize the evidence in detail at the stage of considering an application underSection 439. However, it is an admitted position that number of persons from the Patidar community were interested in getting reservation and, therefore, they were circulating the messages amongst their community. Therefore, prima facie, the applicant alone cannot be held liable for miscreants of the other persons.
11. As far as charge levelled against the present applicant under Section 124A of Indian Penal Code is concerned, I have gone through the speeches delivered by the applicant at various places, transcript of interviews on television, different types of messages circulated amongst the members of Patidar community etc. However, at this stage, I would not like to discuss the gravity and effect of the same since the trial Court would decide the same after recording oral evidence and perusing documentary evidence, particularly when several Patidars were also interested in reservation and when the innocent persons have suffered due to the conduct of the Police which is prima facie accepted by the coordinate Bench while dealing a writ petition filed by one of such residents. Therefore, in my opinion, the applicant alone cannot be kept behind bar since the other members of PAAS have been enlarged on bail by this Court by imposing appropriate terms and conditions. It is not desirable and advisable to discuss the evidence collected by the Investigating Agency as if the order is being dictated at the end of trial. Therefore, I would like to consider several principles laid down by the Hon’ble Apex Court while dealing with an application under Section 439 of the Code.
12. As far as another offence being I C.R. No.135 of 2015 registered with Amroli Police Station, Dist.Surat is concerned, the statement made by the applicant before the Media that too in the month of October, 2015 would be viewed in totality and considering the surrounding circumstances and what would be the quantum of punishment if the applicant is convicted. The person who had declared that he wanted to commit suicide was from Patidar community and under which circumstances, the applicant had uttered the word that a Patidar man does not commit suicide but he shall done away with 2 – 3 Police personnel are required to be scrutinized at the end of the trial.
As far as the decision of the Hon’ble Apex Court in the case of Kedarnath Singh (Supra) is concerned, while dealing with the constitutional validity of Section 124A, has upheld the conviction after considering the language used by the convict, that too after completion of the trial. In case of
# Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and another, (2004) 7 SCC 528
the Hon’ble Apex Court has laid down certain criteria while dealing with an application under Section 439 of the Code. For the purposes of the present application, paragraph 11 of the said judgment is reproduced as under :-
“11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are,
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
(b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(c) Prima facie satisfaction of the Court in support of the charge; (See
# Ram Govind Upadhyay Vs. Sudarshan Singh and others, (2002) 3 SCC 598
# Puran Vs. Rambilas and another, (2001) 6 SCC 338
13. I have considered the nature of accusation and severity of punishment in case of conviction as well as the nature of supporting evidence. Considering the accusation made against the applicant, I have examined the same and also the possibilities of punishment which may be imposed in case of conviction. As far as apprehension of tampering with the witnesses or apprehension of threat to the complainant is concerned, most of the witnesses are Police personnel or Government Officers. The complainants, in each of the complaints, is a Senior Police Officers like Deputy Commissioner of Police and Assistant Commissioner of Police (Crime) and, therefore, there are least possibilities of tampering with the witnesses. As far as repetition of committing crime is concerned, I have dealt with the same in paragraph below.
14. In another decision of the Hon’ble Apex Court in the case of
# Chaman Lal v. State of U.P. And another, (2004) 7 SCC 525
it has been observed that a detailed examination of evidence and elaborate documentation of merits of the case is not required, while dealing with an application under Section 439. However, when a serious offence has taken place, the Court shall give reasons without discussing the merits or de-merits of the case. I have also considered the decision of the Hon’ble Apex Court in the case of
# Bhagirathsinh Judeja v. State of Gujarat, AIR 1984 SC 372
15. Apart from the above aspects, I have also considered the following aspects :-
A) That the applicant is behind bar since October, 2015 i.e. more than 8 months. Investigation is over in each case long back and charge-sheets have been filed in the month of January, 2016.
B) The applicant has filed an undertaking in both the cases on the same terms like other accused, who have been enlarged on bail, namely, Dinesh Bhagvanji Patel (Bambhaniya), Ketan Lalitbhai Patel and Chirag Bharatbhai Patel who have been released by this Court on filing undertakings before this Court and State has not opposed grant of their bail applications. These accused are members of PAAS since its formation.
16. The undertaking filed by the applicant in the present applications reads as under :-
“a. That the applicant, if granted discretionary reliefs, shall continue to agitate the grievances of the Patidar Community without indulging directly or indirectly into any activity which may amount to an offence inviting criminal prosecution.
b. That the applicant, if granted discretionary reliefs, shall not do or indulge in any acts or activities disturbing the law and order across the State.
c. That the applicant, if granted discretionary reliefs, shall continue the agitation for reservation on behalf of the Patidar community in a peaceful and democratic manner and shall not indulge in any acts or activities instigating the public at large in any manner whatsoever and shall also maintain public peace.
d. That the applicant, if granted discretionary reliefs, shall abide by all the conditions imposed by this Hon’ble Court and shall not breach any of such conditions as may be imposed by this Hon’ble Court.”
C) That the applicant has shown his readiness and willingness to remain outside State of Gujarat for a period of six months from the date of his release, wherein such readiness and willingness has not been shown by any other accused who have been enlarged on bail asking them to remain out of a particular District.
D) That peace is prevailing in the entire State of Gujarat since long.
E) That the case of the applicant qua quashment of the FIR itself is pending before the Hon’ble Apex Court and that too before a larger Bench where the Hon’ble Apex Court is considering the liability of an individual when the public properties are damaged in the name of agitations, burns, strikes etc. in light of the decision of the Hon’ble Apex Court in the case of
# Destruction of Public and Private Properties, in Re. v. State of Andhra Pradesh and others, (2009) 5 SCC 212.
F) There are no possibilities that the trial would be completed in short time since the offence registered with Amroli Police Station, District Surat is concerned, there are 148 witnesses and as far as the offence registered with DCB Police Station, Ahmedabad is concerned, there are 503 witnesses.
17. As far as the apprehension put forward by the learned Public Prosecutor that if the applicant is released on bail and even if he is ready and willing to remain outside State of Gujarat for a period of six months, there are possibilities of repeating the offence is concerned, there is no material put forward by the Investigating Agency that even if the applicant remains outside the limits of the State of Gujarat, he shall continue the same activities.
18. It is needless to say that whatever observations have been made herein above are made purely keeping in mind the ratio laid down by the Apex Court in bail matters and are purely of prima facie nature.
19. Considering the entire facts and circumstances of the case discussed above, I am of the opinion that this is a fit case to exercise the discretion to enlarge the applicant on bail. Hence, the applications are allowed and the applicant is ordered to be released on bail in connection with I C.R. No.90 of 2015 with DCB Police Station, Ahmedabad as well as offence registered as I C.R. No.135 of 2015 with Amroli Police Station, Dist. Surat on executing a bond of Rs.50,000/- (Rupees Fifty Thousand only) in each case with two local sureties of Rs.25,000/- in each case 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] file a fresh notarized undertaking before the concerned Trial Court within a period of two days from the date of his release on the same line as filed before this Court and shall also declare that he is ready and willing to remain outside the territorial limits of State of Gujarat for a period of six months from the date of his release;
[d] surrender passport, if any, to the lower Court within a period of two days;
[e] give details of his temporary address outside State of Gujarat where he is going to reside for a period of six months and shall not change the said address without prior permission of this Court;
[f] the Investigating Officer shall inform the local Police of the concerned State within whose local jurisdiction the applicant is going to reside for a period of six months;
[g] responsible Police Officer shall take appropriate steps to see that the applicant reaches safely to the place where he is going to stay for a period of six months. This exercise shall be undertaken within a period of two days from the date of his release.
[h] mark presence at the nearest Police Station where the applicant is going to reside for a period of six months on every Monday of each English Calendar month for a period of six months;
[i] after entering into the limits of State of Gujarat, mark presence at the concerned Police Station on every Monday at Ahmedabad and every Thursday at Surat of each English calendar month for a period of six months and thereafter on any day of the first week of every English calendar month, till the trial is over, between 11.00 a.m. and 2.00 p.m.;
[j] 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 this Court;
17. 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. 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.
18. Rule made absolute to the aforesaid extent. Direct service is permitted.