1. Rule.
Shri A.J.Desai, learned Additional Public Prosecutor, waives service of Rule on behalf of respondent State. By consent, Rule is fixed forthwith.
2. The applicant accused, who has been arrested in connection with M.Case No.1 of 2010 registered with Bhadarva Police Station for the offences punishable under Sections 465,466,467,468,471,472,474,114 and 120-B of the Indian Penal Code has moved this Court under Section 439 of the Code of Criminal Procedure for seeking bail pending trial.
3. The accused moved the application being Criminal Misc. No.618 of 2010 which came to be rejected on 20.4.2010. Thereafter, the applicant moved Criminal Misc. Application No. 1137 of 2010 before the concerned Sessions Court, which also came to be rejected on 22.7.2010.
4. Shri Sanjay Suthar, learned advocate appearing on behalf of learned advocate Shri N.K.Majmudar for the applicant submitted that the person in whose favour the alleged forged document is supposed to have been executed has already been released by this Court (Coram:Z.K. Saiyed, J.) vide order dated 13.9.2010 passed in Criminal Miscellaneous Application No.9456 of 2010. Hence, on ground of parity also this applicant is required to be enlarged on bail.
5. Learned advocate Shri Sanjay Suthar has submitted that the applicant is ready and willing to abide by the terms and conditions imposed by the Court, if the applicant is enlarged on bail.
6. This Court has taken into consideration the documents produced on record and the reasoning assigned by the Sessions Courts while rejecting the bail applications of the applicant. The applicant deserves to be enlarged on bail for the following reasons:
(i) Looking to the peculiar facts and circumstances of the case and the fact the chargesheet has already been filed and the investigation is over, the accused-applicant , according to me, is entitled to seek parity as one Bimalbhai Mahendrabhai Patel, accused in whose favour the document is said to have been forged, is already enlarged on bail. Hence, this Court is persuaded to exercise discretion in favour of the accused applicant hereinabove for enlarging him on bail on appropriate terms and conditions.
(ii) Looking to the averments and nature of evidence and role of the applicant, he deserves to be enlarged on bail pending trial.
(iii) The chargesheet is filed and investigation is over and therefore, there is remote possibility of applicant influencing the witnesses or tampering with the evidences.
(iv) The applicant has his wherewithal at his ordinary place of residence and therefore, his presence could be procured by imposing appropriate conditions during trial.
(v) The prosecution has not voiced any grievance or expressed any apprehension that he is likely to flee from justice, if he is released on bail.
(vi) The prosecution has also not expressed any grievance or apprehension that he is capable of tempering with evidences or influencing the witnesses, if he is released on bail.
(vii) The Sessions Court has not appreciated these aspects and therefore, the said order deserves to be quashed and set aside and accordingly, it is quashed and set aside.
7. The aforesaid observations are made only for the purpose of examining the prayer for bail pending trial. These observations are prima-facie and shall have no bearing whatsoever upon the trial and the trial Court shall not be influenced by it in any way and come to its own conclusion after analyzing the evidence that may be led during the trial.
8. Considering the submissions made on behalf of the parties and having regard to the circumstances and facts of the case, the application is allowed and the applicant is ordered to be released on bail in connection with M.Case No.1 of 2010 registered with Bhadarva Police Station on his executing a bond of Rs.5,000/- (Rupees Five Thousand only) with one 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 misuse his liberty:
(b) not act in a manner injurious to the interest of the prosecution:
(c) maintain law and order;
(d) not leave the State of Gujarat without the prior permission of the Sessions Court concerned;
(e) furnish the address of his residence at the time of execution of the bond and shall not change the residence without prior permission of this Court;
(f) mark his presence before concerned Police Station on every 15th day of each English Calendar month initially for a period of 6 months between 9.00 a.m. to 2.00 p.m.
(g) surrender his passport, if any, to the lower Court within a week.
9. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or to take appropriate action in the matter.
10. Bail before the lower Court having jurisdiction to try the case.
11. Rule is made absolute. Direct Service is permitted.
(S.
R. Brahmbhatt, J. ) sudhir Top