[1] By way of present application, filed under Section 439 of the Code of Criminal Procedure, 1973, the applicant has prayed to release him on regular bail in connection with C.R.No.I-170 of 2005 registered with Kamlabaug Police Station, District - Porbander for the offence punishable under Sections 302, 201, 34, 120(B), 465, 467, 471 of the Indian Penal Code and under section 25(1)(B,A) of the Arms Act and under section 135 of the Bombay Police Act.
[2] It is submitted by Mr.Popat, learned advocate for the applicant that more than 70 witnesses including Investigating Officer were examined during trial. During the pendency of trial, application under section 319 of Criminal Procedure Code was submitted by the original complainant for joining one person i.e. Babubhai Bokariya as accused. This application was allowed by the learned Sessions Court vide order dated 29.03.2008. Said order was challenged by said Babubhai before this Court by way of filing Special Criminal Application No.638 of 2008 and this Court vide order dated 11.12.2008 confirmed the order passed by the Sessions Court. Both the orders were challenged by said Babubhai before the Hon'ble Apex Court by way of filing SLP (Cri.) No.9184 of 2008 and the matter is referred to five Judges Bench. It is submitted that since 2008, stay is granted over the trial and present applicant accused is in jail since 17.05.2006. Applicant accused preferred regular bail being Criminal Misc. Application No.257 of 2010 before the Sessions Court and it was dismissed by the learned Sessions Judge vide order dated 16.12.2010. It is also submitted by learned advocate for the applicant that other co-accused are released on bail by this Court as well as by the Sessions Court. Hence, present application.
[3] This Court has gone through the papers of charge sheet. Mr.Popat, learned advocate for the applicant took this Court to relevant papers of charge sheet. It is alleged that two accused committed murder of deceased - Mulabhai Modhwadia. It is alleged that party was arranged by the son of the accused person and deceased was called to join the party. After party was over, when deceased was returning home by his car, his car was intercepted by three accused persons who were coming in Maruti Van. Thereafter, murder was committed. It is alleged that thereupon three accused persons came at Dharampur Patidya along with other accused and Maruti van was burnt and they attempted to destroy the evidence. As per police papers, when actually murder took place, present applicant accused was not present, but, as a part of conspiracy he was present at Dharampur Patidya.
[4] Incident took place in two parts. In part one, three accused committed murder of deceased. In part two, three accused reached at Dharampur Patidya by maruti van where present applicant accused along with other accused were present. It is alleged that in part two on incident, maruti van was burnt by the present applicant accused along with other accused with intention to destroy evidence.
[5] There is no evidence which would show that present applicant accused was present when murder took place. Present applicant accused was called by main accused at Dharampur Patidya. Present applicant accused along with other co-accused reached Dharampur Patidya and later on Maruti van was burnt. Except statement of co-accused, there is no eye witness to say that present applicant accused was present at Dharampur Patidya.
[6] In the facts and circumstances of the case and considering the nature of allegations and role attributed to the applicant and now the charge-sheet is filed and the fact that applicant accused is in jail since 17.05.2006, without entering into the merits of the case this Court is of the opinion that this is a fit case to exercise the discretion to enlarge the applicant on bail.
[7] Hence, the applicant is ordered to be released on bail in connection with C.RNo.I-170 of 2005 registered with Kamlabaug Police Station, District - Porbander for the offence alleged against him on his executing personal bond of Rs.20,000/- (Rupees twenty thousand only) with one solvent surety of the like amount to the satisfaction of the trial 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 pressurise the prosecution witnesses or complainant in any manner;
c) maintain law and order and should cooperate the Investigating Officer;
d) mark presence before the concerned Police Station on every 1st of English Calender month between 11.00 a.m. and 2.00 p.m. till trial is over.
e) not act in a manner injurious to the interest of the prosecution;
f) not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
g) furnish the address of residence 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;
h) surrender passport, if any, to the lower Court within a week.
[8] 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 matter.
[9] Bail before the lower Court having jurisdiction to try the case. At the trial, the trial Court shall not be influenced by the observations made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
[M.D.Shah, J.] satish Top