1. This is an application preferred under Section 439 of the Code of Criminal Procedure by the applicant who came to be arrested in connection with CR No. I-50 of 2011 registered at Savarkundla Police Station, Dist. Amreli, for the offence punishable under Sections 376, 354, 323 and 506(2) of the Indian Penal Code and Section 135 of the Bombay Police Act.
2. Learned counsel Mr. Bhavin Raiyani, appearing on behalf of the applicant submitted that the applicant is an innocent person and he has been wrongly implicated in the case. He submitted that from the bare reading of the complaint, there is no role attributed to the applicant. Even there is no prima facie evidence about recovery or discovery by the Investigation Agency. The statement of the prosecutrix is also required to be considered. From the bare reading of the complaint, it transpires that the victim filed complaint on 13.8.2011 regarding the threat from the accused but she did not make any allegation regarding the rape committed by the applicant or any assault made by the applicant. The FSL report, medical evidence are not supporting the case or statements made by the prosecutrix. He also submitted that nothing is produced to show that due assault made by the present applicant, the prosecutrix has received injury on right knee of her leg. He also submitted that there is some dispute about cultivating of agriculture land, but in fact, the applicant has not made any assault or rape on the prosecutrix. Therefore, the applicant may kindly be released on bail by imposing suitable conditions.
3. Learned APP Mr. Jani strongly opposed the application of the applicant and submitted that considering the seriousness of offence, in which the applicant is involved, gravity of the offence, quantum of punishment of the alleged offence, discretion may not be exercised in favour of the applicant.
4. Perused the application along with other papers and on perusal of the role attributed to the applicant as reflected in the FIR, police papers, medical expert opinion and prima facie, it appears that there is no case made out against the applicant and there is no recovery or discovery made out and even the ingredients of alleged offence are not established, I am of the view that the applicant deserve to be enlarged on bail. At this stage of bail, this Court is not discussing the evidence in detail nor going into merit of the case. This is successive bail application.
5. In the facts and circumstances of the case, the application is allowed and the applicant is ordered to be enlarged on bail in connection with CR No. I-50 of 2011 registered at Savarkundla Police Station, District : Amreli, on his executing a bond of Rs.10,000/- [Rupees ten thousand only] with one 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 act in a manner injurious to the interest of the prosecution;
[c] surrender his passport, if any, to the lower Court within a week;
[d] not leave the State of Gujarat without the prior permission of the Sessions court concerned;
[e] furnish the present address of his 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;
[f] he shall not enter into the entire area of village Dolati, District : Savarkundla, till the trial is over;
[g] maintain law and order.
6. 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.
7. Bail bond to be executed before the lower Court having jurisdiction to try the case.
8. 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.
9. Rule is made absolute to the aforesaid extent. Direct Service is permitted.
(Z.K.SAIYED,J.) ynvyas Top