By way of present successive application, filed under Section 439 of the Code of Criminal Procedure, 1973, the applicant has prayed to release him on bail in connection with C.R. No.I-85 of 2011 registered with Anjar Police Station for the offence under Sections 302, 364, 365, 201, 506(2), 114 and 120(B) of the Indian Penal Code.
Heard Mr.K.R. Dave, learned counsel for the applicant and Mr.H.L. Jani, learned Additional Public Prosecutor appearing for respondent-State.
Mr.Dave, learned counsel for the applicant, states that co-accused have already been released on bail by co-ordinate Bench of this Court. He has contended that the offence was committed on 09th March, 2011 and complaint was filed on 16th April, 2011. Thus, there is a gross delay in filing the complaint. He has also contended that car is recovered from the possession of the present applicant, but nothing is recovered from the car. He, therefore, contended that looking to the overall facts and circumstances of the case, applicant may kindly be released on bail.
As against this, Mr.H.L. Jani, learned Additional Public Prosecutor has vehemently opposed the present application and contended that applicant has made extra judicial confession before Tausif. He has also contended that question of last seen together is established and presence of the present applicant is proved.
Heard learned counsel for the respective parties and also perused papers produced before me. It is true that extra judicial confession is made by the applicant before one Tausif, but as per the observation of the Apex Court in catena of decision, extra judicial confession is weakest evidence. It is also clear that co-accused have already been released on bail by co-ordinate Bench of this Court.
Hence, 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, 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 the applicant on bail.
Hence, the applicant is ordered to be released on bail in connection with C.R. No.I-85 of 2011 registered with Anjar Police Station for the offence alleged against him in this application on his executing a bond of Rs.10,000/- (Rupees ten 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) not act in a manner injurious to the interest of the prosecution;
e) mark presence at Gandhidham Police Station on every last day of each English calendar month between 09.00 hours and 14.00 hours;
f) not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
g) not enter into area of Anjar Police Station till the disposal of the trial;
h) furnish new 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 the residence without prior permission of this Court;
i) surrender his passport, if any, to the lower Court within a week.
The Authorities will release the applicant only if he is not required in connection with any other offence for the time being.
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.
Bail bond to be executed before the lower court having jurisdiction to try the case.
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 while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent.
Direct Service is Permitted.
(Z.
K. Saiyed, J) Anup Top