1. By this application under section 439 of the Code of Criminal Procedure, 1973, the applicant - original accused prays to be enlarged on bail in connection with the first information report registered vide Adajan Police Station I-C.R. No.101/2011 for the offences punishable under sections 420, 464, 465, 467, 468, 471, 474, 120(B) read with section 114 of the Indian Penal Code.
2. Mr.
L.R. Pathan, learned advocate for the applicant has invited attention to the allegations made in the first information report and has further pointed out that an agreement to sell came to be executed in favour of the applicant herein way back on 25th November, 1991. Subsequently, the applicant was convicted for an offence under section 302 I.P.C. and was undergoing life imprisonment. Under the circumstances, he could not take any further steps pursuant to the agreement to sell. However, subsequently, in the year 2010 based on the power of attorney executed in his favour, he had executed a sale deed dated 11th October, 2010 in favour of his wife. Referring to the agreement to sell dated 25th November, 1991, it was pointed out that the entire consideration in respect of the disputed land had been paid at the relevant time and constructive possession had been handed over to him. It was further pointed out that subsequently, the applicant had instituted a suit being Regular Civil Suit No.485/2010 against the first informant wherein notice had been issued and duly served upon him and as such he was well aware of the fact regarding existence of the sale deed in question as well as the agreement to sell. It was submitted that despite the aforesaid facts being within the notice of the first informant, the first information report has been lodged as late as on 18th September, 2011. It was further submitted that the entire dispute is civil in nature, however, the police machinery is being used to settle a civil dispute. It was submitted that considering the nature of the offences alleged against the present applicant as well as the fact that investigation has been completed and chargesheet had been submitted, the applicant should be granted bail in the interest of justice.
3. On the other hand, Ms. Archana Raval, learned Additional Public Prosecutor has opposed the application by inviting the attention of the court to the findings recorded by the trial court while rejecting the bail application made by the applicant.
4. Since this is an application under section 439 of the Code, at this stage, the court is not required to give detailed reasons as the same would have a bearing on the ultimate outcome of the proceedings. However, considering the nature of the offences alleged, which prima facie appear to be in the nature of a civil dispute, the court is of the view that this is not a case where the applicant is required to be kept behind the bars during the pendency of the trial. Under the circumstances, the court is inclined to exercise discretion in favour of the applicant.
5. The application is, therefore, allowed. The applicant is ordered to be released on bail in connection with the first information report registered vide Adajan Police Station I-C.R. No.101/2011 on executing a bond of Rs.5,000/- (Rupees Five thousand only) with one surety of the like amount to the satisfaction of the trial court and subject to the conditions that he shall not take undue advantage of liberty or misuse liberty;
not act in a manner injurious to the interest of the prosecution;
surrender his passport, if any, to the lower court within a week;
not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
mark presence at the concerned police station on the first Sunday of every month between 10.00 a.m. and 3.00 p.m. for three months only;
furnish the present address of residence to the I.O. and also to the Court at the time of execution of the bond and shall not change his residence without prior permission of this Court.
6. The authorities will release the applicant only if not required in connection with any other offence for the time being.
7. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.
8. Bail bond to be executed before the lower court having jurisdiction to try the case.
9. It is clarified that any observation made in this order is only for the purpose of considering the question of grant of bail and the same shall not be taken into consideration by the trial court during the course of trial.
10. Rule is made absolute accordingly to the aforesaid extent. Direct Service is permitted.
( Harsha Devani, J. ) hki Top