The present Criminal Misc. Application has been filed by the Applicant Accused for grant of Regular Bail under Section 439 of the Criminal Procedure Code, which is a successive bail application after Criminal Misc. Application No. 11636 of 2010 was withdrawn vide order dated 25.10.2010.
The applicant accused is charged with having committed offence under Sections 302, 324 and 114 of I.P. Code read with Section 135(1) of B.P.Act for which FIR being C.R.No.I-28 of 2010 has been registered with Satellite Police Station.
Learned Senior Counsel Mr. Prashant Desai appearing with learned Advocate Mr. Mrugen K. Purohit for the Applicant has referred to the papers including the FIR and the cross complaint as well as other papers and submitted that it was a case regarding a free fight where the Applicant himself is injured which is not in dispute. Further, he submitted that in any case, liberty has been reserved while disposing of earlier Criminal Misc. Application No.11636 of 2010 to file such application if the trial has not commenced. He submitted that though the trial has commenced effectively, it has not progressed as most of the witnesses have not been examined except the complainant who in his chief has not also pleaded. In the circumstances, the application may be allowed as he has been in jail for more than 3 years.
Learned APP Mr. H.L.Jani however resisted the application and submitted that the gravity of the offence and the role which is specifically attributed may be considered while deciding the successive bail application. He submitted that it is a successive bail application and as the earlier bail application has not been entertained, the present application may not be entertained unless there are change of circumstances. He submitted that the trial has commenced but it could not effectively progressed for various reasons but the prosecution is not at fault. Therefore, he submitted that the trial may be ordered to be expedited.
In view of the rival submissions, it is required to be considered whether the present application can be entertained or not.
It is well accepted that the Court is not required to appreciate and scrutinize the evidence at this stage. Further, it is a successive bail application and therefore unless there are change of circumstances, normally such applications are not entertained. However, while disposing of the earlier Criminal Misc. Application No.11636 of 2010, liberty was reserved to move such application if the trial has not commenced.
In the facts of the present case, effectively the trial has not commenced. Apart from further elaborate discussion, it is required to be mentioned that the applicant himself was an injured and there is a cross complaint. Therefore, considering the aforesaid aspects, including the delay in the trial, the present application deserves to be allowed.
Accordingly, the present application stands allowed. The applicant - AIYUBKHAN ANWARKHAN PATHAN is ordered to be released on bail in connection with I-CR No. 28 of 2010 registered with Satellite Police Station, on his executing a bond of Rs.10,000/- (Rupees Ten Thousand), with one solvent surety of the like amount to the satisfaction of the lower Court and subject to the conditions that he shall:
(a) not take undue advantage of his liberty or abuse his liberty.
(b) not to try to tamper or pressurize the prosecution witnesses or complainant in any manner.
(c) not act in any manner injurious to the interest of the prosecution.
(d) maintain law and order and should cooperate the investigating officers.
(e) mark his presence before Satellite Police Station on every 1st day of calendar month between 11:00 AM to 2:00 PM.
(f) furnish the address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change his residence without prior permission of the Court.
(g) surrender his passport, if any, to the lower Court, within a week.
If breach of any of the above conditions is committed, the concerned Sessions Judge will be free to issue warrant or take appropriate action in the matter.
Bail before the lower Court having jurisdiction to try the case. It would be open to the trial Court concerned to give time to furnish the solvency certificate if prayed for.
Rule is made absolute. Direct service permitted.
(Rajesh H.Shukla,J) Jayanti* Top