IN THE HIGH COURT OF GUJARAT AT

AHMEDABAD
DISTRICT:
AHMEDABAD

CRIMINAL MISC.APPLICATION NO.________

OF 2014
(U/s. 439 of Criminal Procedure Code,
1973)

Nileshbhai Chandubhai Arvadiya,

Male, Aged 40 Years, Religion: Hindu,
Residing at:
602, Jai Ambe Society,
Canal Road, Sanala Road, Morbi.
Original Resident of village Tikar, (Ran),
Takula Halvad, District: Morbi.
(Arrested on 22.09.2015 and since then in
judicial custody)
Presently lodged at
Sabarmati Central Jail, Sabarmati,
Ahmedabad.
Petitioner
(Orig. Accused)

//Versus//

The State of Gujarat

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

To:
THE HONBLE THE CHIEF JUSTICE AND
OTHER HONBLE JUDGES OF THE HIGH
COURT OF GUJARAT AT AHMEDABAD.
The humble petition of the petitioner
above named;

MOST RESPECTFULLY SHEWETH THAT:-

1.The present petition is directed since the

petitioner is arrested in connection with the
First Information Report lodged with the Crime
Branch

Police

Station

for

the

offence

punishable under Sections 153, 153-A of the

Indian Penal Code, 1860 read with Sections
65, 66(C) of the Information Technology Act,

2000, which is registered as Crime Register

No. I - 80/2015. It is humbly submitted that in
the said First Information Report the petitioner
was

not

named.

However,

the

First

Information Report is lodged with the Morbi A

Division

Police

Station

for

the

offence

punishable under Sections 153, 153 A, 124

A of the Indian Penal Code, 1860 read with
Sections 66 and 66(C) of Information and
Technology Act, 2000, which is registered as
Crime Register No. I 156/2013, wherein the
petitioner

is

named

in

the

said

First

Information Report and shows as accused No.

1.
2.The petitioner states that the petitioner was
arrested from Ahmedabad on 22.09.2015. The
First Information Report being crime Register
No. I 156/2015 is now merged with First
Information Report No. 80/2015 lodged with

the Crime Branch Police Station, Ahmedabad.

The present application for regular bail is filled
before the filling of the charge sheet.
3.The shirt facts of the case are as under:
4.The petitioner states that the petitioner is
residing at the address mentioned in the
cause title and he is doing business of sales
and purchase in ceremonies. The petitioner
has two minor children, a boy and a girl. His
maternal grand mother (Naani) is expired on
25.09.2015 and the maternal uncle of the
petitioner has expired on 26.09.2015.
5.The petitioner states that the First Information
Report being Crime Register o. I 80/2015 is
lodged with the Crime Branch Police Station
on 01/09/2015. The alleged which had alleged
two months prior to the lodging of the First
Information Report, interalia alleging that the
persons belonging to the Patidar Community

are holding the meetings and taking out

rallies and the social media viz., Whats app,
Facebook

etc.,

are

being

utilized

and

deliberately with a view to see that there is a

class conflict and are using speeches which
would instigate the people at large. For which
the First Information Report has been lodged
with the Crime Branch Police Station, which is
recorded as Crime Register No. I 80/2015. It
may be noted that in the said First Information
Report

the

petitioner

was

not

named.

Annexed hereto and marked as Annexure A

to the petition is a copy of FIR vide Crime
Register No. I 80/2015 registered with the
Crime Branch Police Station, Ahmedabad.
6.The petitioner states that the First Information
Report being Crime Register No. I 156/ 2015
is lodged with the Morbi City A Division Police
Station on 22/09/2015 for the incident, which

is alleged to have occurred on 25/08/2015.

The said First Information Report is lodged by
the Police Sub Inspector, Purveyance Squad
Mr. Anantkumar N. Patel wherein it is alleged
that the petitioner has

abused the Honble

Chief Minister, the President of Bharatiya anta

Party and Honble Prime Minister of India by
using

derogatory

committed

the

words

offernce

of

and

thereby

sedation

and

therefore, on account of the language used by

the petitioner, the situation has been created,
which had instigated the people of Patidar
Community and which has resulted into riots
and which has caused damages to the public
properties. Therefore, the First Information
Report was lodged. Annexed hereto and
marked as Annexure B to the petition is a
copy of the FIR vide Crime Register No. I

156/2015 lodged with the Morbi City A

Division Police Station.
7.The petitioner states that the petitioner was
arrested from Ahmedabad on 22/09/2015. The
remand application is submitted by the Police
Inspector, Crime Branch, Ahmedabad City on
23/09/2015. The Learned Additional Chief
Metropolitan
Ahmedabad

Magistrate
vie

order

Court
dated

No.

10,

26.09.2015

granted the remand upto 28.09.2015 upto

11.00 a.m.
8.The petitioner states that as stated above, the
application for remand for the further period
was given by the concerned Police Inspector,
Crime

Branch,

Ahmedabad

City

on

26.09.2015. The Petitioner opposed the said

application through his advocate. At that point
of time it was informed by the concerned
Police Inspector that both the FIRs have been

merged and Section 124 A was added in the

First Information Report, vide Crime Register
No. I 80/2015.
9.The petitioner states that the petitioner was
sent to judicial custody, the petitioner is
therefore preferring the present petition for
regular bail under Section 439 of the Code of
Criminal Procedure, 1973, on the following
amongst other grounds which may be urged
at the time of hearing of this petition.
10. The petitioner submits that bone of the
ingredients of the charges Sections against
the petitioner has been satisfied. Therefore,
there is a fit case for this Honble Court to
exercise discretionary power to enlarge the
petitioner on bail.
11. The petitioner submits that it is pertinent to
note that the charging Sections against the
petitioner before the said First Information

Report is merged, Sections 153, 153(A) of the

Indian Penal Code, 1860 and Section 65 and
Section

66(C)

of

the

Information

and

Technology Act, 2000. Section 153 of the

Indian Penal Code provides for the maximum
punishment of one year and fine. Section 153A of the Indian Penal Code provides for
maximum period, which can extend up to
three years and fine or both. Section 153 of
the Indian Penal Code is bailable and triable
by the Court of Magistrate, whereas Section
153-A of the Indian penal Code is nonbailable. Sections 65 and 66 (C) of the
Information Technology Act also provides the
punishment upto three years, and therefore,
the said sections were also bailable offence.
The said sections are bailable one.
12. The petitioner submits that from the bare
reading of the First Information Report, no

ingredients of Section 153 of the Indian Penal

Code

constituting

the

offence

punishable

under Section 153 A of the Indian Penal

Code can be made out. Nor the ingredients
constituting the offence punishable under
Sections

65

and

66

of

the

Information

Technology Act, 2000 are disclosed. Therefore,

the allegations made in the said body of the
First Information Report failed to disclose
commission of any offence. The petitioner
would like to further submit to this Honble
Court that the respondent has claimed that
the Director General of Police has directed to
amalgamate bot the First Information Report,
one recorded in the DCB Police Station, at
Ahmedabad and second recorded at Morbi
Police Station, being Crime Register No. I
156/2015. It is pertinent to note that Section
124- A of the Indian Penal Code 1860 speaks

about sedition against the Government. With

profound respect is is submitted that the party
in power in the State and the Government
rules established are two different terns and
both are not substituting of each other. Both
terms

are

not

synonymous

also.

In

the

democratic country, every person has right to

express descent of voice against the party in
power. Assuming for the aske of argument
without admitting the same that the method
and mode of expression voice of descent
against the party in power is not in good taste
or good manner. However, language assuming
to have been used, which may be very bad in
taste would not constitute the offence of
crating sedation against the State. There is no
allegation what so ever made that the present
Government of Gujarat is to be thrown out. It
is pertinent to note that when the Lord

Maccula drafted the said Section, Section 124

A was in the draft. However, said section
was omitted while enacting the Indian Penal
Code, 1860. Section 124- A came to be
introduced in the Indian Penal Code by Act No.
XXVII of 1807 after the independent, the word
Her Majesty is omitted from the original
section. Before the independence there were
several cases which are notably recorded
under Section 124 A of the Act. The well
known

cases

are

Queen

Empresses

Jogendrachandra Bose (reported in 1892 19

LLR

Calcutta

35),

Queen

Empresses

Balgangadhar Tilak (22 ILR Bombay 112);

Queen Empresses V/S Ramchandra Narayan
1897 (22) ILR Bombay 152. Full Bench Queen
Empresses V/S Ambaprasad (1890) (20) ILR
Allahabad Full Bench. These freedom fighters
and others were prosecuted under Section

124- A of the Indian Penal Code, since the

charge against them was to over throw the
imperial Governments. However, the Section
124-A of the Indian Penal Code, 1860 cannot
be used against the expression of freedom of
guarantee under the Constitution of India.
Infact, from copy of the First Information
Report it is crystal clear that all such is
against the party in power and not against the
Government. The party in power and the
Government

are

not

synonymous.

In

Democracy, every citizen has right to express

his descent. He can be punished, if such act is
punishable as slender or defamation. But no
offence can be said to have been made out
against the State. Therefore, there is no case
made

out

against

the

petitioner.

The

petitioner is therefore, entitled for regular bail.

13. The petitioner thus being aggrieved and

dissatisfied with the impugned Order dated
08.08.2014 passed by Ld. Additional Sessions
Judge,

Ahmedabad

cancelling

his

bail

application, assails the same on the following

amongst other grounds inter alia: -

GROUNDS

A. The petitioner submits that the impugned

Order rejecting the bail of the petitioner is
contrary to law, evidence on record and is
unwarranted in the facts and circumstances of
the case.
B. The petitioner submits that the F.I.R in
question wherein

the offence is alleged to

have been committed prior to 2 months from

the date of lodging F.I.R. Thus when the F.I.R
has been lodged belatedly, the Court below

ought to have considered the aspect of delay

and false implication of the petitioner for the
alleged offences in question.
C.The petitioner submits that the petitioner was
under police remand till and that no recovery
and or discovery are made during the course
of remand and this aspect of matter becomes
clear from the Affidavit.

14. The petitioner states that the petitioner has

not preferred any other application on the
subject matter of the application, in any other
Court of Law in India, including the Honble
Supreme Court of India, save and except the
present petition.
15. The petitioner craves leave to add, alter,
amend and rescind in the memo of the
present petition as and when necessity so

arises, with kind permission of this Honble

Court.
16. In

the

afore

mentioned

premises

the

petitioner most humbly prays before this

Honble Court that:
A. This Honble Court may be pleased to admit
and allow the present petition.
B. This Honble Court may be pleased to to
enlarge the petitioner on regular bail as
contemplated by the provisions of Section 439
of

Criminal

Procedure

Code,

1973

in

connection with the complaint registered with

Crime Branch, Police Stattion, Ahmedabad
vide Crime Register No. I 80/2015 on any
terms and conditions, what which may be fir
thought fit and proper to be imposed upon the
petitioner.
C.This Honble Court may be pleased to quash
and set aside the impugned Order dated

03.10.2015

marked

and

annexed

as

Annexure-C Colly of this petition in the

interest of justice.

D. This Honble Court may be pleased to

dispense with the Affidavit of the petitioner as
the petitioner is in judicial custody.

E.This Honble Court may be pleased to grant

such other and further relief/s as may be
deemed fir, just and proper in the facts and
circumstances of the case.

AND FOR THIS ACT OF KINDNESS AND

JUSTICE THE PETITIONER, AS IN DUTY
BOUND SHALL EVER PRAY.

_______________________

JAGRUTI
DEKAVADIYA
Place: Ahmedabad
Date: __.08.2014

(Advocate for

the Petitioner)

IN THE HIGH COURT OF GUJARAT AT

AHMEDABAD
DISTRICT:
AHMEDABAD

CRIMINAL MISC.APPLICATION NO.________

OF 2014
(U/s. 439 of Criminal Procedure Code,
1973)

Kanaiyalal Rambharose Sharma

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

INDEX

Annexure
Nos

Particulars

Page
Nos

------------

Memo of Petition

Copy of F.I.R being I.C.R

No.39/14.

Copy of the Affidavit dated

08.08.2014.

C Colly

Copy

of

Application

Criminal
No.3110

Misc.
of

2014 along with the Order

dated 08.08.2014 passed
thereon below Exh.1.
D Colly

Copies of Affidavit dated

30.05.2013 and Application
dated 29.06.2013.

IN THE HIGH COURT OF GUJARAT AT

AHMEDABAD
DISTRICT:
AHMEDABAD

CRIMINAL MISC.APPLICATION NO.________

OF 2014

(U/s. 439 of Criminal Procedure Code,

1973)

Kanaiyalal Rambharose Sharma

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

C.R. No:
Police Station:

I-39/2014
Meghaninagar,

Ahmedabad
Sections:

Sec. 406, 465 and 468 of

I.P.C,
1860. Sec.467 &
471 of I.P.C
came to be added
subsequently
in face of Order dated
08.08.2014.
Complaint lodged on: 16.03.2014
Date of offence:
from the lodging

Prior to 9 months

of F.I.R. on
16.03.2014.
Date of arrest:

31.07.2014 at 20:15

Hrs.
Regular Bail:

Before Charge-Sheet

Order passed on:

08.08.2014 by the

Addtl. Sessions
Judge, Ahmedabad in
Criminal
Misc. Application
No.3110/2014
rejecting the same.