The instant application is filed seeking regular bail under Section 439 of the Code of Criminal Procedure in connection with Kalol Taluka Police Station CR No. I - 201 of 2011 for the offences punishable under Sections 467, 468, 471, 302, 379 read with 120-B of the Indian Penal Code and section 25[1]B][a] of the Arms Act and section 135 of the Bombay Police Act.
Mr.
Rajkumar Chaumal, Learned advocate for the applicant submitted that in the instant matter, the investigation is over and the charge-sheet is filed. Considering the charge-sheet papers, it clearly transpires that there is no eye witness to the alleged incident and the prosecution case is based upon the circumstantial evidence. It is submitted that as per the prosecution case, the applicant, who is original accused no. 5 in the charge-sheet, is not connected with the alleged motive attributed to accused nos. 1, 2 and 3. It is further submitted that as per the prosecution case, the role attributed to this applicant - accused is that he fired a shot from his country made fire arm. It is submitted that considering PM Report of the deceased, there is no fire arm injury found on the body of the deceased, but the cause of death is due to stab injuries, which according to the prosecution case, allegedly caused by the original accused no. 4. Mr. Rajkumar further submitted that the two co-accused persons, namely original accused nos. 2 and 3, who had prima-facie nexus with the motive and who were also, according to the prosecution case, found present on the scene of offence at the time when the alleged offence came to be committed, were released on bail by this Court vide order dated 24/2/2012 and 26/4/2012 respectively in Criminal Misc. Application No. 1485/2012 and Criminal Misc. Application No. 4562/2012. It is, therefore, submitted that the instant application may be allowed.
Per contra, Mr. Nanavati, Learned APP appearing for the respondent - State opposed this application and submitted that the instant case is based upon circumstantial evidence and considering the statement of petrol pump owner, it becomes prima-facie clear that along with other co-accused persons, applicant original accused no. 5 was seen last in the company of the deceased when the deceased was alive.
Having considered the submissions advanced on behalf of both the sides, so also considering the relevant papers, it prima-facie transpires that the role attributed to the applicant original accused no. 5 is that he fired a shot from his fire arm, but no fire arm injuries are found on the body of the deceased. As per the prosecution case, the cause of death of the deceased is injuries caused by sharp cutting instrument and according to the prosecution case, the same were allegedly caused by original accused no. 4. It further transpires that two co-accused persons, namely accused nos. 2 and 3 were allegedly last seen together in the company of the deceased while the deceased was alive along with the applicant-accused no. 5, came to be released on bail by this Court and the orders are annexed at Annexure-D colly. In the above view of the matter, this Court is of the opinion that the discretionary powers vested in this Court under section 439 of the Cr. P.C., are required to be exercised in favour of the applicant - accused and the application deserves to be allowed.
Learned counsel for the parties do not press for further reasoned order.
In the facts and circumstances of the case, the application is allowed and the applicant is ordered to be released on bail in connection with Kalol Taluka Police Station CR No. I - 201 of 2011, on executing a bond of Rs.25,000/- (Rupees Twenty 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;
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution;
[c] maintain law and order and should cooperate the Investigating Officer;
(d) not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
[e] 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 the residence without prior permission of this Court;
[g] surrender passport, if any, to the lower court within a week.
The Authorities will release the applicant only if not required in connection with any other offence for the time being.
If breach of any of the above conditions is committed, the trial Court 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. It would be open to the trial Court concerned to give time to furnish the solvency certificate, if prayed for.
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. D.S. Permitted.
(J.C.UPADHYAYA, J.) * Pansala.
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