The instant application is filed seeking regular bail after charge-sheet under Section 439 of the Code of Criminal Procedure in connection with Sola High Court Police Station, District: Ahmedabad CR No.I-79 of 2012 for the offences punishable under Sections 376, 506(2), 323 and 114 of the Indian Penal Code and Section 135 of the Bombay Police Act.
Learned Senior Counsel Mr.S.V.Raju with learned advocate Mr.B.S.Raju for the applicant, at the outset, submitted that, in the instant matter, now the entire investigation is over and chage-sheet is filed. It is submitted that previously, the applicant had filed regular bail application before this Court being Criminal Misc.Application No.5647 of 2012 and said application came to be withdrawn on 11.06.2012, as during the pendency of said application, charge-sheet came to be filed, and therefore, said bail application was withdrawn reserving the liberty of the applicant to move the Sessions Court for bail.
2.1 Learned Senior Counsel Mr.S.V.Raju with learned advocate Mr.B.S.Raju for the applicant, at the outset, took me through the F.I.R. and the relevant charge-sheet papers and submitted that considering the F.I.R and the charge-sheet papers, even at this stage, it can be said that the applicant is wrongly implicated in this case. It is further submitted that even considering the history given by the prosecuterix before the medical officer no-where it has been stated that she was compelled to consume alcohol. My attention was also drawn to the history given by the aplicant-accused before the medical officer and submitted that in his history, he has clearly stated that because of some financial transaction, he was implicated in this case. It is further submitted that considering the F.I.R. and the statement of Mr.Harsh Kanaiyalal-a boy-friend of complainant
-prosecuterix, it is apparently unusual that this witness would have left the prosecuterix in the company of the applicant and co-accused no.2. It is therefore, submitted that since the entire investigation is over and charge-sheet is filed and considering the peculiar facts and circumstances of the case, the application may be allowed. It is submitted that the applicant shall abide by all the terms and conditions, which shall be incorporated by this Case.
Mr.Kodekar, learned Additional Public Prosecutor for the respondent-State vehemently opposed this application and submitted that considering the F.I.R. and the charge-sheet papers prima-facie, case is made out, qua the applicant and the application may be dismissed.
I have considered the submissions advanced on behalf of both the sides. I have also considered the relevant part of the F.I.R. lodged by the prosecuterix. It is the case of the prosecution that through some agents the prosecuterix went to the premises of the applicant - original accused for the purpose of dancing. It further transpires that the prosecuterix used to stay with her boy-friend-Mr.Harsh Kanaiyalal and considering the statement of Mr.Harsh Kanaiyalal, nothing transpires that he was not permitted to enter the premises of the applicant at the time when the alleged dancing took place. I have also considered the medical report of the prosecuterix including the history given by her before the medical officer and other relevant observations made by the medical officer. It would not be just and appropriate for this Court to go much deep into the examination of evidence collected by the police but, suffice it to say that considering the F.I.R., so also considering the statement of Mr.Harsh Kanaiyala and other relevant statements and the medical evidence collected by the Investigating Officer, including the history given by the prosecuterix before the medical officer, so also I have taken into consideration the history given by the applicant before the concerned medical officer and further the fact that now the entire investigation is over and charge-sheet is filed, subject to laying down strict terms and conditions, this Court is of the opinion that the application deserves to be granted. The earlier bail application was withdrawn by the applicant and pending said application, charge-sheet was filed as per the order dated 11.06.2012, passed in earlier bail application, the same was permitted to be withdrawn, expressly reserving the liberty of the applicant to move for bail before the Sessions Court. Hence, the same was not dismissed on merits. As the Sessions Court rejected the bail application. Hence, this bail application was filed.
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 first information report registered at Sola High Court Police Station, District: Ahmedabad CR No.I-79 of 2012 , 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) surrender passport, if any, to the lower court within a week;
(d) not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
(e) mark presence at the concerned police station on the first Sunday of every month between 10.00 a.m. and 3.00 p.m. for three months only;
(f) 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;
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 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.
For modification and/or deletion of any of the conditions herein above, the applicant/s will be at liberty to approach the concerned Court and such Court shall decide the application for modification and/or deletion of any of the conditions of this order in accordance with law.
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.
(J.C.UPADHYAYA, J.) Girish Top