The present Criminal Misc. Application has been filed by the Applicant - Original Accused No.4 under Section 439 of the Criminal Procedure Code for grant of Regular Bail, which is a successive bail application after Criminal Misc. Application No. 8129 of 2009 was withdrawn as per the order passed by this Court dated 17.7.1009.
The Applicant - Accused is charged with having committed offence under Sections 302, 34 and 114 of the Indian Penal Code as well as for the offence under Section 35 of the Bombay Police Act, for which FIR being I-CR No. 194 of 2008 has been registered with Sayajiganj Police Station.
Heard learned Advocate Mr. Hriday Buch for the Applicant and learned APP Mr. H.L.Jani for the Respondent.
Learned Advocate Mr. Hriday Buch for the Applicant has submitted that the Applicant has been in jail for about 4 ½ years and the trial has not progressed as it should have. He has stated that therefore considering the provisions of Article 21 of the Constitution of India and the principles regarding grant of bail, the present Application may be allowed subject to any condition. He has submitted that the trial may further prolong as it is not likely to conclude in near future. He submitted that there are 40 witnesses and therefore the present Application may be allowed.
Learned APP Mr. H.L.Jani for the Respondent has confirmed that only one witness is examined.
Therefore, 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 while considering such applications for bail, the relevant criteria like, nature / gravity of offence, the manner in which it is committed, role attributed, etc. are required to be considered. However, though initially, the Application was not entertained, the earlier Criminal Misc. Application No. 8192 of 2009 was withdrawn. However, thereafter 2 ½ years have passed and admittedly the progress of the trial is very slow as only one witness is examined.
Therefore, considering the broad proposition of law with regard to the grant of bail, though normally, the successive bail applications are not required to be entertained unless there are change in the material fact situation or special reasons, the delay in the trial is also one of the aspect, which will have to be considered. The Hon'ble Apex Court has also considered this aspect about the delay in the trial as one of the factors which will have to be considered while deciding such successive applications when the trial has not progressed.
In the circumstances, the present Application deserves to be allowed and accordingly stands allowed.
The applicant - MOHAMADSAFI @ JAGGU MISKINSHA DIWAN is ordered to be released on bail in connection with I-CR No. 194 of 2008 registered with Sayajiganj 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 Sayajiganj 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