Salim Ahmed Mustak Ahmed Saiyeds vs State Of Gujarat

1. Rule. Mr.N.J.Shah, learned Additional Public Prosecutor, waives service of notice of Rule on behalf of the respondent­State. In the facts and circumstances of the case, the application is being heard and decided today.

2. This application has been preferred by the application under Section 439 of the Code of Criminal Procedure for grant of bail in connection with FIR being C.R. No.I­113/2008, registered with Vadi Police Station, for offences punishable under Sections 179, 420, 419, 467, 468, 471 and 114 of the Indian Penal Code. The applicant was arrested on 03.12.2008.

3. The present application is a successive bail application. The applicant had earlier filed Criminal Misc. Application No.1832/2009, which came to be withdrawn as recorded in order dated 26.02.2009, with liberty to approach the Sessions Court after filing of the charge­sheet. Thereafter, the applicant had filed Criminal Misc. Application No.7259/2009, which was also withdrawn by order dated 18.09.2009. Thereafter, the applicant had filed Criminal Misc. Application No.7311/2010 that also came to be withdrawn by order dated 29.07.2010.

4. The applicant has now filed the present application for grant of bail.

5. Heard Mr.Shakil S. Shaikh, learned advocate for the applicant and Mr.N.J.Shaikh, learned Additional Public Prosecutor for the respondent­State of Gujarat.

6. It is submitted by learned advocate for the applicant that the present bail application may be entertained, though it is a successive one, as circumstances have changed, inasmuch as the applicant has deposited the total amount of Rs.10,18,330/­ on 16.08.2012, after filing of the present application.

7. Learned advocate for the applicant has placed reliance on the judgment of Sanjay Chandra Vs. CBI reported in 2012 (1) SCC 40 and has submitted that as the total amount involved in the FIR has now been deposited, discretion may be exercised in favour of the applicant.

8. The aspect of deposit has been confirmed by learned Additional Public Prosecutor, who has submitted that the applicant has deposited the entire amount that was involved in the FIR. Learned Additional Public Prosecutor has further submitted that the trial is pending and the cross­examination of the complainant is going on. There are 36 witnesses, who are to be examined, therefore, trial may take a long time before conclusion.

9. Having heard learned counsel for the respective parties, and as the applicant has now deposited the entire amount that was involved in the FIR and in view of the principles of law laid down in Sanjay Chandra Vs. CBI (Supra), in the view of this Court, discretion may now be exercised in favour of the applicant, as there is a substantial change in circumstances, inasmuch as earlier the amount had not been deposited and now the entire amount has been deposited.

10. It has not been pointed out to this Court by learned Additional Public Prosecutor that there is an apprehension that the applicant would tamper with evidence or influence witnesses, if released on bail.

11. As a result of the aforesaid discussion, the application is allowed. The applicant is ordered to be released on regular bail, in connection with the compliant being C.R. No.I­113/2008, registered with Vadi Police Station, for offences punishable under Sections 179, 420, 419, 467, 468, 471 and 114 of the Indian Penal Code, on his executing a personal 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 in any manner;

(b) not act in a manner injurious to the interest of the prosecution and not tamper with the evidence or intimidate the witnesses;

(c) maintain law and order and co­operate with the investigating officers;

(d) not leave the local limits of the State of Gujarat without the prior permission of the concerned Sessions Judge.

(e) mark his presence before the Investigating Officer of the concerned police station on the 1st and 15th of every month of the English calendar year, any time between 10.00 A.M. to 5.00 P.M. till the commencement of trial;

(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 his residence without prior permission of this Court;

(g) surrender his Passport, if any, to the trial Court within fifteen days;

12. In case any breach of the above conditions is committed, the concerned Sessions Judge will be free to issue warrants or take appropriate action in the matter.

13. Bail be furnished before the lower Court having jurisdiction to try the case. It would be open to the concerned trial court to grant time to furnish the solvency certificate, if prayed for.

14. It is made clear that no observation made by this Court be construed as having any bearing on the merits of the case, at the time of trial. The trial Court will proceed in accordance with law, unaffected and uninfluenced by any observation contained in this order.

15. For the aforestated reasons, the application is allowed. Rule is made absolute. Direct service is permitted.

Gaurav+ (Smt. Abhilasha Kumari, J.)