ITEM NO.1502 COURT NO.2 SECTION II-B

(FOR JUDGMENT)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 10051/2022

ATULBHAI VITHALBHAI BHANDERI Petitioner(s)

VERSUS

STATE OF GUJARAT Respondent(s)

([HEARD BY: HON. AJAY RASTOGI AND HON. AHSANUDDIN AMANULLAH, JJ.]

IA No. 160204/2022 - EXEMPTION FROM FILING C/C OF THE IMPUGNED

JUDGMENT

IA No. 160205/2022 - EXEMPTION FROM FILING O.T.)

WITH

SLP(Crl) No. 331/2023 (II-B)

(IA No. 4409/2023 - EXEMPTION FROM FILING C/C OF THE IMPUGNED

JUDGMENT

IA No. 4411/2023 - EXEMPTION FROM FILING O.T.)

Date : 04-05-2023 These petitions were called on for hearing today.

For Petitioner(s) Mr. E. C. Agrawala, AOR

Mr. Sunil Murarka, Adv.

Mr. Ankur Saigal, Adv.

Mr. Gunnam Venkantewara Rao, Adv.

Ms. S. Lakshmi Iyer, Adv.

Ms. Anwesha Padhi, Adv.

Ms. Nitya Ramakrishnan, Sr. Adv.

Mr. Pradhuman Gohil, Adv.

Mrs. Taruna Singh Gohil, AOR

Ms. Ranu Purohit, Adv.

Mr. Alapati Sahithya Krishna, Adv.

Ms. Nidhi Mittal, Adv.

1 2023 INSC 496

For Respondent(s) Mr. S. V. Raju, A.S.G.

Mr. Ankit Bhatia, Adv.

Ms. Madhumitha Kesavan, Adv.

Mr. Hitaith Raja, Adv.

Mr. Harsh Paul, Adv.

Ms. Swati Ghildiyal, AOR

Ms. Sairica Raju, Adv.

Mr. Annam Venkatesh, Adv.

Ms. Devyani Bhatt, Adv.

Mr. Praveen Kumar Singh, Adv.

Hon’ble Mr. Justice Ahsanuddin Amanullah pronounced the

judgment of the Bench comprising Hon’ble Mr. Justice Ajay Rastogi

and His Lordship.

Special Leave Petition (Crl.) No(s). 10051/2022

Leave granted.

The appeal stands disposed of in terms of the signed

reportable judgment.

Pending applications stand disposed of.

Special Leave Petition (Crl) No. 331/2023

Leave granted.

The appeal is allowed in terms of the signed reportable

judgment.

The appellant be released on bail on such terms and conditions

as found appropriate by the learned Trial Court.

Pending applications stand disposed of.

(RASHMI DHYANI PANT) (RENU BALA GAMBHIR)

COURT MASTER COURT MASTER

(Two separate signed reportable judgments are placed on the file)

2

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1390 OF 2023

( @ SPECIAL LEAVE PETITION (CRL.) NO.10051 OF 2022 )

ATULBHAI VITHALBHAI BHANDERI … APPELLANT

VERSUS

STATE OF GUJARAT … RESPONDENT

J U D G M E N T

AHSANUDDIN AMANULLAH,J.

Leave granted.

2. The present Appeal is directed against the Final

Judgment and Order dated 07.09.2022 (hereinafter re -

ferred to as the “Impugned Judgment”) passed by the

2

High Court of Gujarat at Ahmedabad (hereinafter re -

ferred to as the “High Court”) in Criminal Miscel -

laneous Application No. 22475 of 2021, by which the

prayer for release of the Appellant on bail has been

dismissed.

THE FACTUAL PRISM:

3. The Appellant, along with others, is accused in

FIR Cr No.I-11202008202186 of 2020 registered with the

“A” Division Police Station, Jamnagar in the State of

Gujarat for offences punishable under Sections 3(1),

3(2), 3(3), 3(4) and 3(5) and 4 of the Gujarat Control

of Terrorism and Organised Crime Act, 2015 (hereinafter

referred to as the “GCTOC Act”) read with Sections 384,

385, 386, 387, 506(1), 506(2), 507, 201, 120B of the

Indian Penal Code, 1860 (hereinafter referred to as the

“IPC”). The Appellant is arrayed as accused No.4 in the

said FIR and is said to be involved in intimidating and

threatening the victim in connivance with the main ac -

cused no.1 Jaysukh @ Jayesh Muljibhai Ranpara (Patel),

3

running an organised crime syndicate for the purpose,

with the intention to extort money and in land-grabbing

by threatening people at large. As per the FIR details,

59 cases are registered against the said accused no.1.

It is alleged that the Appellant threatened the victim

and concerned witnesses to cancel the land deal per -

taining to survey No.961 or to pay a sum of

Rs.1,00,00,000/- (Rupees One Crore) to the Appellant,

which they refused. The allegation against the accused

no.1 is of threatening the victim. The role of the ap -

pellant is that he was involved in intimidating and

threatening the victim on behalf of the accused no.1

for ensuring the victim’s compliance with the extortion

demands. It is alleged that the appellant owns proper -

ties derived from funds of organised crimes. Further,

it is alleged that from the enquiry, it is revealed

that the Appellant was directly involved in collecting

the sum(s) extorted from the victim in the city, and

that he has also been found to be involved in passing

on information which is likely to assist the crime syn -

4

dicate in its activities, thereby abetting the actions

of the gang.

SUBMISSIONS BY THE APPELLANT :

4. Learned counsel for the Appellant submitted that

there are eight other First Information Reports in

which he has been charge-sheeted, out of the which

seven are prior to the year 2015 and one is of the year

2019. It was contended that the section(s), under which

the FIR in question has been lodged, do not indicate

his involvement in any organised crime. And thus,

without any basis, he has been made an accused in the

present case.

5. Learned counsel further submitted that as per the

allegations made in the FIR, the Appellant had arranged

a telephonic talk between the accused no.1, the com -

plainant as well as one Bhagwanjibhai Kanjariya; that

upon the complainant neither cancelling the deed of the

plot nor paying the purported extortion amount of Rs.

5

1,00,00,000/- (Rupees One Crore), the Appellant along

with the accused no.1 hatched a conspiracy and sent six

persons to the residence of the complainant and they

fired three rounds of bullets. This, according to

learned counsel, is false. As per the submission, the

four persons who gave the complaint before the police,

on the very next day of the FIR being lodged, had

stated that the Appellant did not make any telephonic

call to the accused no.1. Learned counsel drew the at -

tention of this Court to the Judgment in State of Gu-

jarat v Sandip Omprakash Gupta , 2022 SCC OnLine SC 1727

dated 15.12.2022, the relevant portions being Para -

graphs No. 49, 56 and 57, which has reiterated the

dictum laid down by this Court in State of Maharashtra

v Shiva alias Shivaji Ramaji Sonawane , (2015) 14 SCC

272, which stipulates that the offence of “organised

crime” could be said to have been constituted by at

least one incident of continuation apart from continu -

ing unlawful activity evidenced by more than one

chargesheets in the preceding ten years.

6

6. Thus, it was submitted that the last case, prior

to the present one, was registered against the Appel -

lant on 14.11.2019, i.e., before the GCTOC Act came

into force in the State of Gujarat (as the GCTOC Act

came into force in the State of Gujarat w.e.f.

01.12.2019). Learned counsel further submitted that out

of sixteen accused, four accused are absconding and, in

total, twelve accused are charge-sheeted, out of which

six accused are on bail. Thus, even on the ground of

parity, it is submitted that the Appellant be also en -

larged on bail.

SUBMISSIONS OF THE RESPONDENT-STATE:

7. Mr S V Raju, the learned Additional Solicitor Gen -

eral of India, appearing for the State, submits that

the Appellant-accused was well-acquainted with accused

no.1 Jaysukh @ Jayesh Muljibhai Ranpara (Patel). Mr

Raju submitted that the Appellant became close to ac -

cused no.1 Jaysukh @ Jayesh Muljibhai Ranpara (Patel)

7

during the 2015 Municipal Election and was an accused

in the Patel Reservation Movement riots. It was conten -

ded that apart from the present case, eight other cases

have been registered against the Appellant and he is

trying to pressurize the authorities by spreading false

news with regard to land deal relating to survey No.961

being cancelled; but when his efforts failed, witnesses

were threatened and intimidated to cancel the land

deal(s). It was further submitted that the Appellant

facilitated the first meeting on 01.11.2019 between the

accused no.1 and PWs No. 5 and 6 and others and when

the extortion money was not paid, another meeting was

conducted in which Rs. 2,19,00,000/- (Rupees Two Crores

and Nineteen Lakhs) was paid to the members of the or -

ganised crime syndicate. Again, on 20.02.2022 after the

arrest of the Appellant, his son is accused of facilit -

ating a call between PW 5 and accused no.1 and extort -

ing Rs. 25,00,000/- (Rupees Twenty Five Lakhs). It was

submitted that the Court may consider the prayer for

bail only after the examination of protected witnesses,

8

whose statements directly prove the involvement of the

Appellant in the crime(s). Moreover, it was submitted

that out of the six co-accused released on bail, five

are out on default bail, and only one accused had se -

cured regular bail.

ANALYSIS, REASONING AND CONCLUSION:

8. Having examined the rival contentions, the Court

does not consider it necessary to go into the legal as -

pect pertaining to the applicability of the GCTOC Act

in praesenti, as the current Appeal has been filed only

for the purpose of seeking bail during the pendency of

the trial.

9. Had there been no other case against the Appellant

and no material, at least prima facie, to indicate his

regular participation in any crime, the Court could

have considered his prayer, but keeping in view his al -

leged role, we are not inclined to exercise discretion

in his favour, for now. When we speak of discretion, we

9

have in mind “ judicial discretion ” as explained in

Gudikanti Narasimhulu v Public Prosecutor , (1978) 1 SCC

240:

“3. What, then, is “judicial discretion” in

this bail context? In the elegant words of Ben -

jamin Cardozo [ The Nature of the Judicial

Process — Yale University Press (1921)]:

“The Judge, even when he is free, is still not

wholly free. He is not to innovate at pleasure.

He is not a knight-errant roaming at will in

pursuit of his own ideal of beauty or of good -

ness. He is to draw his inspiration from conse -

crated principles. He is not to yield to spas -

modic sentiment, to vague and unregulated

benevolence. He is to exercise a discretion in -

formed by tradition, methodized by analogy,

disciplined by system, and subordinated to “the

primordial necessity of order in the social

life”. Wide enough in all conscience is the

field of discretion that remains. ”

Even so it is useful to notice the tart terms

of Lord Camden that [ 1 Bovu, Law Dict.,

Rawles' III Revision p. 885 — quoted in Judi -

cial Discretion — National College of the State

Judiciary, Rano, Nevada p. 14] “the discretion

of a Judge is the law of tyrants: it is always

unknown, it is different in different men; it

is casual, and depends upon constitution, tem -

per and passion. In the best, it is oftentimes

caprice; in the worst, it is every vice, folly

and passion to which human nature is

liable....”

4. Some jurists have regarded the term “judi -

cial discretion” as a misnomer. Nevertheless,

the vesting of discretion is the unspoken but

inescapable, silent command of our judicial

10

system, and those who exercise it will remember

that discretion, when applied to a Court of

Justice, means sound discretion guided by law.

It must be governed by rule, not by humour; it

must not be arbitrary, vague and fanciful, but

legal and regular.

An appeal to a Judge's discretion is an appeal

to his judicial conscience. The discretion must

be exercised, not in opposition to, but in ac -

cordance with, established principles of law .

[Judicial discretion, (ibid) p. 33] ”

(emphasis supplied)

10. The fact, that out of the twelve charge-sheeted ac -

cused, six co-accused have not been granted bail, five

have availed the benefit of default bail and only one

is on regular bail, have also persuaded this Court not

to interfere. We have also considered the allegations

levelled and perused carefully the statements of the

witnesses shown to the Court. In Niranjan Singh v Prab -

hakar Rajaram Kharote , (1980) 2 SCC 559 , this Court

opined:

“3… Detailed examination of the evidence and

elaborate documentation of the merits should be

avoided while passing orders on bail applica -

tions. No party should have the impression that

his case has been prejudiced. To be satisfied

about a prima facie case is needed but it is

11

not the same as an exhaustive exploration of

the merits in the order itself .”

(emphasis supplied)

11. In Vilas Pandurang Pawar v State of Maharashtra ,

(2012) 8 SCC 795, this Court observed “…Moreover, while

considering the application for bail, scope for appre -

ciation of evidence and other material on record is

limited. The court is not expected to indulge in criti -

cal analysis of the evidence on record… ”. We are in re-

spectful agreement with the law exposited in these

cases. We consciously refrain from detailing our views

on the merits of the matter.

12. Insofar as parity is concerned, we need only re -

produce the apt observations from Ramesh Bhavan Rathod

v Vishanbhai Hirabhai Makwana (Koli) , (2021) 6 SCC 230 ,

of which we take note:

“26.… Parity while granting bail must focus

upon the role of the accused . Merely observing

that another accused who was granted bail was

armed with a similar weapon is not sufficient

to determine whether a case for the grant of

bail on the basis of parity has been estab -

lished. In deciding the aspect of parity, the

role attached to the accused, their position in

12

relation to the incident and to the victims is

of utmost importance . The High Court has pro -

ceeded on the basis of parity on a simplistic

assessment as noted above, which again cannot

pass muster under the law. ”

(emphasis supplied)

13. In the facts and circumstances, at the pre sent junc-

ture, this Court is not inclined to allow the prayer

for enlarging the Appellant on bail. Accordingly, the

prayer for bail is hereby rejected.

14.However, the stand taken on behalf of the State of

Gujarat is that the prayer for bail of the Appellant

may be considered only after the protected witnesses

are examined. In this context, learned Additional Soli -

citor General has indicated that six months’ time be

granted for recording statements of the protected wit -

nesses.

15. In such light, it is observed that upon the com -

pletion of recording of statements of the said protec -

ted witnesses, the Appellant i s at liberty to renew his

plea for bail,if so advised.

13

16.The Appeal stands disposed of accordingly, with

liberty afore granted. Pending application(s), if any,

stand consigned to records.

.......................J.

[AJAY RASTOGI]

........................J.

[AHSANUDDIN AMANULLAH ]

NEW DELHI

MAY 4, 2023

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1391 OF 2023

( @ SPECIAL LEAVE PETITION (CRL.) NO.331 OF 2023 )

MUKESHBHAI VALLABHBHAI ABHANGI … APPELLANT

VERSUS

STATE OF GUJARAT … RESPONDENT

J U D G M E N T

AHSANUDDIN AMANULLAH,J.

Leave granted.

2. The present Appeal is directed against the

Final Judgment and Order dated 28.11.2022 (herein -

after referred to as the “Impugned Judgment”)

passed by the High Court of Gujarat at Ahmedabad

(hereinafter referred to as the “High Court”) in

Criminal Miscellaneous Application No.13783 of

2

2021, whereby the Appellant’s prayer for release

on bail has been dismissed.

THE FACTUAL PRISM:

3. The Appellant is accused along with others in

FIR Cr No.I-11202008202186 of 2020 registered with

the “A” Division Police Station, Jamnagar, Gujarat

for offences punishable under Sections 3(1), 3(2),

3(3), 3(4) and 3(5) and 4 of the Gujarat Control

of Terrorism and Organised Crime Act, 2015 (here -

inafter referred to as the “GCTOC Act”) read with

Sections 386, 387, 506(1) and 506(2) of the Indian

Penal Code, 1860 (hereinafter referred to as the

“IPC”). The present Appellant is arrayed as ac -

cused no.8 in the said FIR.

4. The case was registered on the basis of

secret information received that accused no.1

Jaysukh Muljibhai Ranpariay @ Jayesh Patel was op -

erating an organised crime syndicate in the city

of Jamnagar in the State of Gujarat, involving,

3

inter alia, extortion, land grabbing, contract

killing, money-laundering etc.

5. It was revealed that for such purpose, to de -

rive monetary benefits, he threatened land-owners

and realtors/developers by intimidating and

threatening them with physical injury and threats

to their lives. It was also unearthed that various

WhatsApp calls were intercepted, revealing the

names of other persons, who stand arrayed as co-

accused. The Appellant is associated with Shivd-

hara Buildcon, a construction company involved in

several land development projects in Jamnagar. It

was alleged by Secret Witness 11 (hereinafter re -

ferred to as “SW11”) that in order to pay

Rs.16,00,00,000/- (Rupees Sixteen Crores) debt

with regard to J.J. Jasodanath Scheme, the Appel -

lant had offered a property near his office. When

SW 11 refused the offer, the very next day, the

Appellant involved accused no.1 in order to pres -

surize SW11. Thereafter, SW11 was threatened and

pressurised by the organised crime syndicate to

4

explore the proposal, under which approximately

50,000 square feet, comprising of 26,000 square

feet from the appellant’s J.J. Jasodanath Scheme

and 24,000 square feet from one Ashvin Virani

(PW85) who was running the scheme Jay Hari-3

(Khodal Villa) were to be shown to be returned to

SW11. But it is alleged that SW 11 was later on

threatened to execute around 18 seperate sale

deeds with either creditors of the leader of the

organised crime syndicate (accused no.1), or cred -

itors of the Appellant-accused no.8, or persons

known to the present Appellant. In effect, it was

alleged that the Appellant had extorted 50,000

square feet of land from the afore-described per -

sons.

SUBMISSION BY THE APPELLANT :

6. It was submitted that the High Court erro -

neously relied on the First Information Report

filed against the Appellant in the year 2014, des -

pite the factum that it stood quashed by the High

5

Court vide order dated 24.12.2014. Moreover, it

was contended that the incident, for which the

2014 FIR was lodged, was of a personal nature and

there was no allegation of the Appellant whatso -

ever being, in any way, concerned with any organ -

ised crime syndicate. It was pointed out that no

charge-sheet had been filed against him.

7. Learned counsel drew the Court’s attention to

State of Gujarat v Sandip Omprakash Gupta , 2022

SCC OnLine SC 1727, dated 15.12.2022, the relevant

being at Paragraphs No. 49, 56 and 57, which af -

firms State of Maharashtra v Shiva alias Shivaji

Ramaji Sonawane, (2015) 14 SCC 272 , which stipu-

lates that the defence of “organised crime” could

be said to have been constituted by at least one

incident of continuation apart from continuing un -

lawful activity evidenced by more than one

chargesheets in the preceding ten years.

8. Learned counsel also referred to the decision

dated 30.05.2022 passed by this Court in SLP

6

(Crl.) No. 1815 of 2022 titled ‘ Mohammed Iliyas

Mohammed Bilal Kapadiya v State of Gujarat’, since

reported as 2022 SCC OnLine SC 713 , wherein also

Section 2(c) of the GCTOC Act was involved and

bail was granted on the ground that “ only one

charge sheet was filed in respect of an activity

which can be said to have been undertaken by the

appellant/applicant as a member of an organised

crime syndicate on behalf of such syndicate ” as

opposed to the requirement of “ more than one

chargesheet” under Section 2(c) of the GCTOC Act.

SUBMISSIONS OF THE RESPONDENT STATE :

9. Mr S V Raju, learned Additional Solicitor

General of India appearing for the State submits

that the appellant was in close contact with ac -

cused no.1 Jaysukh @ Jayesh Muljibhai Ranpara (Pa -

tel) and during interrogation, the co-accused have

stated that the Appellant used to supply informa -

tion to Jaysukh @ Jayesh Muljibhai Ranpara (Patel)

relating to projects of the developers and thus,

7

facilitated the whole exercise of extortion. It

was further submitted that the mobile phone(s)

seized from the Appellant during the investigation

revealed that he was in touch with the organised

crime syndicate. It was submitted that the Im -

pugned Judgment did not warrant any interference

by this Court.

ANALYSIS, REASONING AND CONCLUSION:

10. Our discretion must be exercised judiciously.

Guidance is forthcoming from Gudikanti Narasimhulu

v Public Prosecutor, (1978) 1 SCC 240:

“3. What, then, is “judicial discretion”

in this bail context? In the elegant

words of Benjamin Cardozo [ The Nature of

the Judicial Process — Yale University

Press (1921)]:

“The Judge, even when he is free, is

still not wholly free. He is not to inno -

vate at pleasure. He is not a knight-er -

rant roaming at will in pursuit of his

own ideal of beauty or of goodness. He is

to draw his inspiration from consecrated

principles. He is not to yield to spas -

modic sentiment, to vague and unregulated

benevolence. He is to exercise a discre -

tion informed by tradition, methodized by

analogy, disciplined by system, and sub -

ordinated to “the primordial necessity of

order in the social life”. Wide enough in

8

all conscience is the field of discretion

that remains.”

Even so it is useful to notice the tart

terms of Lord Camden that [ 1 Bovu, Law

Dict., Rawles' III Revision p. 885 —

quoted in Judicial Discretion — National

College of the State Judiciary, Rano,

Nevada p. 14] “the discretion of a Judge

is the law of tyrants: it is always un -

known, it is different in different men;

it is casual, and depends upon constitu -

tion, temper and passion. In the best, it

is oftentimes caprice; in the worst, it

is every vice, folly and passion to which

human nature is liable....”

4. Some jurists have regarded the term

“judicial discretion” as a misnomer. Nev-

ertheless, the vesting of discretion is

the unspoken but inescapable, silent com -

mand of our judicial system, and those

who exercise it will remember that dis -

cretion, when applied to a Court of Jus -

tice, means sound discretion guided by

law. It must be governed by rule, not by

humour; it must not be arbitrary, vague

and fanciful, but legal and regular.

An appeal to a Judge's discretion is an

appeal to his judicial conscience. The

discretion must be exercised, not in op -

position to, but in accordance with, es -

tablished principles of law . [Judicial

discretion, (ibid) p. 33] ”

(emphasis supplied)

11. In order not to prejudice either side, we are

eschewing copious reference to the evidentiary ma -

terial available on the record. In Niranjan Singh

9

v Prabhakar Rajaram Kharote , (1980) 2 SCC 559 ,

this Court observed:

“3… Detailed examination of the evidence

and elaborate documentation of the merits

should be avoided while passing orders on

bail applications. No party should have

the impression that his case has been

prejudiced. To be satisfied about a prima

facie case is needed but it is not the

same as an exhaustive exploration of the

merits in the order itself .”

(emphasis supplied)

12.In Vilas Pandurang Pawar v State of Maharash -

tra, (2012) 8 SCC 795 , this Court opined “…More-

over, while considering the application for bail,

scope for appreciation of evidence and other mate -

rial on record is limited. The court is not ex -

pected to indulge in critical analysis of the evi -

dence on record…”.

13.Being in respectful agreement with the law

exposited in these cases, we refrain from detail -

ing our views on the merits.

14.Having considered the matter, the Court finds

that for the purposes of considering grant of bail

to the Appellant, at this stage, the fact that

10

there was only one case prior to the present case,

that too of the year 2014 and the FIR thereof hav -

ing been quashed by the High Court, even prior to

the filing of the charge-sheet, even for the sake

of argument, if accepted, helps the Appellant and

tilt the balance in his favour. The Appellant has

succeeded in making out a prima facie case for the

grant of bail.

15. The Appellant is in jail since 16.10.2020

viz. for over 2½ years. Admittedly, it is the

first time, he is accused of such nature of

crimes.

16. Accordingly, let the Appellant be released

on bail on such terms and conditions as found ap -

propriate by the learned Trial Court.

17. With a view to protect the State’s interests,

we impose the following conditions in addition:

I.The Appellant shall report to the In -

vestigating Officer on every Monday

between 10AM to 1PM.

II.The Appellant would give an undertak -

ing to the Trial Court with regard to his

good behaviour.

11

III. The Appellant shall in no way at -

tempt to influence the witnesses or

tamper with the record.

IV. The Appellant’s passport, if not

already surrendered, shall be surrendered

to the Trial Court.

18. Any violation of the terms and conditions of

the bonds or the undertaking would entitle the re -

spondent to move swiftly for cancellation of the

bail to the Appellant.

19.The Appeal is allowed accordingly. Any

pending application(s) is/are closed in this

light.

...................,J.

[AJAY RASTOGI]

....................,J.

[AHSANUDDIN AMANULLAH ]

NEW DELHI

MAY 4, 2023