All these applications have been filed under Section 439 of the Code of Criminal Procedure, 1973, to release the applicants on regular bail in connection with CR No.I-64 of 2011 registered with Kausamba Police Station, Surat, for the offences punishable under Sections 147, 148, 149, 323, 324, 307, 302, 504, 427and 120(B) of IPC and Sec.135 of B.P.Act.
Heard learned Senior Counsel, Mr.R.R.Marshall with Mr.V.K.Bhatia for the applicant in Cri.Misc.Appln.No.4260 of 2012, learned Senior Counsel, Mr.N.D.Nanavaty with Mr.Yash N. Nanavati for the applicant in Cri.Misc.Appln.No.4591 of 2012, learned counsel, Mr.M.M.Saiyed for the applicant in Cri.Misc.Appln.No.5392 of 2012 and learned Special Public Prosecutor Mr.S.V.Raju with learned APP, Mr.L.B.Dabhi for the respondent-State and learned advocate, Mr.Rajesh N.Modi/Mr.Mehul M.Mehta for the original complainant in all these applications.
It is mainly submitted by learned counsel for the respective applicants that number of persons of their group(accused side) also received serious injuries and offence was registered and in the said incident also, persons of complainant side used deadly weapons in causing serious injuries. It is further submitted that fight took place between two groups and both the groups received serious injuries and injured persons of both the groups were admitted in the hospital and, therefore, considering the role attributed to each accused, bail applications be decided. It is further submitted that no injuries were caused to the deceased by any of the applicants but they caused injuries to the persons other than the deceased and they all were discharged from the hospital and considering all these facts, applicants may be enlarged on bail.
Learned Special Public Prosecutor, Mr.S.V.Raju, appearing with learned APP, Mr.L.B.Dabhi for the respondent-State vehemently opposed these applications contending that this is not a case of free fight but it appears prima facie from the papers of charge sheet that persons of the accused side were the aggressors and the accused persons numbering 22 came at the place of accident and caused injuries to Babukhan Unuskhan Pathan and he succumbed to the said injuries and murder took place. It is also argued that all the accused came with deadly weapons and used those deadly weapons in causing serious injuries to the deceased and other persons and, therefore, prima facie ingredients of offence punishable under Sec.149 of IPC are attracted and hence, in such kind of serious offences, Court should not use its discretion in releasing the accused on bail.
Considering the rival submissions made on behalf of the parties, this Court has gone through the charge sheet papers along with injury certificates of injured persons. This Court would not discard the fact that the accused side also received serious injuries and some of the accused were even hospitalised and took treatment. Hence, in the opinion of this Court, at this juncture, it could not be decided whether it is a case of free fight or prima facie ingredients of Sec.149 of IPC are attracted or not. Further, this Court would not like to discuss or appreciate the entire evidence appearing on record at this stage of deciding the bail applications as it may prejudice the parties at the time of trial.
As far as the applicant of Cri.Misc.Appln.No.4260 of 2012 Asif Maiyuddin Malek is concerned, it appears from the charge sheet papers that it is he along other accused came on motor cycle driven by the applicant and went at the place of offence and quarreled with the complainant and witnesses and threatened them by saying "tame loko bahu faati gaya cho thodi var beso ame aaviye che" and later on he came with other accused persons and they attacked on the deceased and other injured persons. It appears that he is the person behind the root cause and brought other accused to the place of incident. It is to be noted that in the incident, Babukhan Yusufkhan Pathan died due to serious injuries sustained by him and other witnesses particularly witness Babukhan Habibkhan Pathan and other injured persons sustained injuries. It is alleged that he was having sword in his hand. The sword was also discovered at his instance which bears the bloodstain marks. The allegation against him seems to be that he is the main person behind the entire episode and caused serious injuries to witness Babukhan Habibkhan Pathan, Nasrullakhan Pathan and other persons. This is supported by the statements of injured witnesses and other witnesses namely, Nasrullakhan Pathan, Babukhan Habibkhan, Rehana, Iqbal Mirza, Habibkhan, Tausif, Rizwan Mirza, Irshad, Zuberkhan, Imrankhan, Afzalkhan, Arbazkhan and independent witness Mumtaz. Therefore, there is a strong prima facie case against the present applicant involving him in the serious offence in question. Merely because it is contended that he did not cause injury to the deceased but caused injury on the witness is not sufficient to get him released at this stage particularly in view of the fact that it is the present applicant who is the root cause in the entire incident and hence, this Court would not like to use its discretion in enlarging him on bail even on the ground of parity with other co-accused who were released on bail by this Court vide common oral order dated 1-3-2012 passed in Cri.Misc.Appln.No.17879 of 2011 and other cognate matters as his case is standing on a different footing.
As far as the applicants of Cri.Misc.Appln.No.4591 of 2012 and Cri.Misc.Appln.No.5392 of 2012 are concerned, it appears that they did not cause any injuries to the deceased. The allegation against them is that they caused injuries to the injured but the injured persons were already discharged from the hospital. The applicants of Cri.Misc.Appln.No.4591 of 2012 were in custody since 1-5-2011 and 18-5-2011 respectively while applicant of CriMisc.Appln.No.5392 of 2012 has been in custody since 1-5-2011. Therefore, looking to the particular individual role attributed to each of these applicants accused in the papers of charge sheet and the manner in which the incident took place and now the charge-sheet is filed, without entering into the merits of the case, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion to enlarge these applicants on bail. It is also to be noted that otther similarly situated accused were released on bail by this Court considering their individual role vide common oral order dated 1-3-2012 passed in Cri.Misc.Appln.No.17879 of 2011 with Cri.Misc.Appln.No.399 of 2012 with Cri.Misc.Appln.No.613 of 2012 with Cri.Misc.Appln.No.712 of 2012 with Cri.Misc.Appln.No.795 of 2012 and hence, these applicants are entitled to be released on the ground of parity.
Cri.Misc.Appln.No.4591 of 2011 and Cri.Misc.Appln.No.5392 of 2012 are therefore allowed and applicants of these applications are ordered to be released on bail in connection with CR No.I-64 of 2011 registered with Kausamba Police Station, Surat, for the offence alleged against them in these applications on each of them executing personal bond of Rs.25,000/- (Rupees twentyfive thousand only) with one solvent surety each of the like amount to the satisfaction of the trial Court and subject to the conditions that -
a) they shall not take undue advantage of liberty or abuse liberty;
b) they shall not to try to tamper or pressurise the prosecution witnesses or complainant in any manner;
c) they shall maintain law and order and should cooperate the Investigating Officer;
d) they shall not act in a manner injurious to the interest of the prosecution;
e) they shall not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
f) they shall mark presence before the Kausamba Police Station, Surat, once in a month more particularly between 1st and 5th of month between 10.00 a.m. and 2.00 p.m. for one year;
g) they shall not to enter the Surat Rural for a period of six months without prior permission of the Court but for attending the court in connection with the case and for marking presence, they shall be free to enter and shall leave the limits immediately thereafter;
h) furnish the address of their residence along with the proof to the Investigating Officer 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;
i) surrender their passport, if any, to the lower Court within a week.
If the breach of any of the above conditions is committed, the concerned Court will be free to issue warrant or take appropriate action in the matters.
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 in Cri.Misc.Appln.No.4591 of 2011 and Cri.Misc.Appln.No.5392 of 2012.
Cri.Misc.Appln.No.4260 of 2012 is however rejected. Rule is discharged in said application.
Trial court is directed to dispose of the trial as early as possible preferably within nine months from the date of receipt of copy of this order failing which, applicant of Cri.Misc.Appln.No.4260 of 2012 is at liberty to approach again and at that time, it will be decided in accordance with law and without being influenced by this order.
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 in this common order.
Direct service is permitted.
Office is directed to place a copy of this judgment in each matter.
[M.D.SHAH,J.] radhan Top