By way of present application, filed under Section 439 of the Code of Criminal Procedure, 1973, the applicants have prayed to release them on regular bail in connection with offence being C.R. No.I-147 of 2011 registered with Pardi Police Station for the offence punishable under Sections 143, 147, 149, 506(2), 302 and 120-B Indian Penal Code.
Heard Mr.P.M. Thakkar for M/s.Thakkar Associates for the applicants and Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent-State.
Mr.Thakkar, learned senior counsel for the applicants, submits that no prima-facie case is made out against the applicants. He has contended that the applicants were not named in the FIR and the offence was registered against unknown persons after delay of two days. Mr.Thakkar has read the statement of one Mr.Lalubhai Ravjibhai Nayka, one of the witness, and contended that the said witness did not disclose the names of the present applicants in the first statement recorded by the investigating officer. He has also contended that the said witness is not an eye-witness. He has further contended that there is no intention on the part of the applicants to kill the deceased. He has read the contention of the postmortem note and contended that there are no injuries because of which it can be said that the deceased had died due to the said injuries. He has read the medical certificate and contended that only abrasion is found on the body of the deceased. He has contended that at this stage he is not trying to establish that whether the case falls under Section 302 of the Indian Penal Code or not, but looking to the cause of death, it is not covered within the meaning of Section 299 of the Indian Penal Code. He has further contended that investigation is over and charge-sheet is filed and there are no chances of tampering with the evidence by the applicants. He, therefore, contended that looking to the overall facts of the case and circumstances, present applicants may kindly be enlarged on bail.
As against this, Mr.H.L. Jani, learned Additional Public Prosecutor, vehemently opposed the present application and has contended that this is a case of murder. He has read the medical certificate and contended that fracture is found on the body of the deceased. He has contended that the applicants are involved in a serious offence of murder. He has also contended that it is true that Mr.Lalubhai Ravjibhai did not disclose the names of present applicants in the first statement, but in his subsequent statements, he has given the names of present applicants. Intention and knowledge is not required to be decided at this stage. He has contended that looking to the seriousness of the offence, present application may kindly be rejected.
Heard learned counsel for the respective parties and also perused papers produced before me. It is true that in the first statement of Mr.Lalubhai Ravjibhai has not narrated anything against the applicants and in his further statements, he has disclosed the names of the applicants. This shows that just to falsely implicate the applicants in the offence in question, further improved statements were given. There is also delay of two days in filing the complaint. It appears from the papers that ingredient of provision of Section 299 is not established beyond reasonable doubt.
In the facts and circumstances of the case and now the charge-sheet is filed, without entering into the merits of the case, this Court is of the opinion that this is a fit case to exercise the discretion to enlarge the applicants on bail on imposing certain conditions.
Hence, the applicants are ordered to be released on bail in connection with C.R. No.I-147 of 2011 registered with Pardi Police Station for the offence alleged against them in this application on his executing a bond of Rs.10,000/- (Rupees ten thousand only) each with one solvent surety of the like amount to the satisfaction of the trial Court and subject to the conditions that they shall -
a) not take undue advantage of their liberty or abuse their 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) mark their presence before the Investigating Officer on every 15th day of each English calendar month between 09.00 hours and 14.00 hours;
g) furnish the address of their 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;
h) surrender their passport, if any, to the lower Court within a week.
The Authorities will release the applicants only if they are 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 applicants on bail. Rule is made absolute to the aforesaid extent.
Direct Service is Permitted.
(Z.
K. Saiyed, J) Anup Top