By way of present successive application, filed under Section 439 of the Code of Criminal Procedure, the applicant has prayed to release him on regular bail in connection with offence being registered as C.R. No.I-64 of 2011 with Koshamba Police Station, District Surat for the offence punishable under Sections 147, 148, 149, 323, 324, 306, 302, 504, 427 and 120-B of the Indian Penal Code.
Heard Mr.B.B. Naik, learned senior counsel with Mr.Japan Dave, learned counsel for the applicant and Mr.S.V. Raju, learned Special Public Prosecutor with Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent-State.
Mr.Naik, learned senior counsel for the applicant, states that the applicant is innocent and is falsely involved in the present offence. He has contended that even as per the case of the prosecution, the applicant has not inflicted any blow to the deceased. The applicant has not played any vital role in the incident. He has further contended that presence of the applicant at the seen of offence is not established beyond reasonable doubt and therefore, ingredients of offence punishable under Sections 143, 147 and 149 of the Indian Penal Code cannot be attracted against the present applicant. He has further read statements of Mumtazbanu, Iqbal Mirchi, Babukhan and Tosif Khan and contended that looking to the statement of Mumtazbanu, role of the present applicant is vary specific and the applicant is cited as assailant and the applicant had given kick blow to Mumtazbanu. He has also contended that in similar offence, coordinate Bench of this Court has released the co-accused on bail in Criminal Miscellaneous Application No.17879 of 2011. He has also contended that looking to the role of the present applicant, when co-accused has already been released on bail, who has played similar role that of present applicant, the applicant may be released on the ground of parity also. He has further contended that the applicant is permanent resident of Surat and will be available during the hearing of the trial. Charge-sheet is filed in the matter and investigation is over. There is no chance of tampering with the evidence and even it is not the case of the prosecution. He, therefore, contended that looking to the overall facts of the case, present applicant may kindly be enlarged on regular bail.
As against this, Mr.Raju, learned Special Public Prosecutor with Mr.Jani, learned Additional Public Prosecutor for the respondent-State, has vehemently opposed the present application. He has contended that presence of the applicant is established from the statement of Mumtazbanu and therefore, say of the learned counsel for the applicant that applicant is not present at the seen of offence is wrong. He has also contended that it is true that muddamal weapon is not recovered from him, but the same is recovered from his father, who is also accused in the present offence. He has further contended that the applicant is one of the members of unlawful assembly and therefore, common object is required to be considered. He has contended that prosecution has proved prima-facie case against the present applicant and therefore, present application is required to be rejected.
Heard learned counsel for the respective parties as also perused papers produced before me. I have perused the role of co-accused, who is released on bail by coordinate Bench of this Court and the role of the present applicant. The applicant is on same footing as of the co-accused. I have also perused statements of Mumtazbanu, Babukha, Tosif Khan and Iqbal Mirchi also. From the statement of Mumtazbanu, it appears that the present applicant had given kick blow to her.
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-64 of 2011 with Koshamba Police Station, District Surat, for the offence alleged against him in this application on his executing a bond of Rs.25,000/- (Rupees twenty five 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) not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
f) furnish the 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;
g) surrender his passport, if any, to the lower Court within a week;
h) mark his presence before the Investigating Officer between 1st and 5th of each English calendar month between 09.00 hours and 14.00 hours;
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