Dilipbhai @ Dilabhai Sondabhai Jograna vs State Of Gujarat

Divyesh A. Joshi, J

Rule. Learned APP waives service of notice of rule for respondent – State of Gujarat.

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.11211035230247/2023 registered with the Muli Police Station, Surendranagar for the offence punishable under Sections 302, 326, 323, 504, 506(2) and 114 of the Indian Penal Code and under Section 135 of the Gujarat Police Act.

Learned advocate for the applicant submitted that the so-called incident has taken place on 25.08.2023, for which, the FIR has been lodged on 27.08.2023 and the applicant has been arrested in connection with the same on 28.08.2023 and since then, he is in judicial custody. Learned advocate submitted that now the investigation is completed and after submission of the chargesheet, the present application is preferred. Learned advocate submitted that at the place of occurrence, the complainant along with his relatives including the deceased, Bhaveshji had gone to receive one lady viz., Manisha, who happens to be the distant sister of the complainant as she eloped with one Nagjibhai and married to him, however there some altercation took place and the accused named in the FIR had beaten them with wooden log but they escaped from further beating except the deceased, Bhaveshji and on the next day, when they have made search of Bhaveshji, they found dead body of the deceased and, hence, aforesaid FIR under Section 302 etc. of the IPC came to be registered. Learned advocate, however, submitted that thereafter, the dead body of the deceased was sent for postmortem, where the concerned doctor has opined that the deceased died due electrocution and associated injuries may be occurred by falling down while electric shock. Learned advocate submitted that because of the above fact and on receipt of such medical opinion, the concerned Investigating Officer has filed ‘C’ summary with a specific opinion that no offence as alleged under Section 302 of the IPC, is made out, however earlier it was rejected by an order dated 27.10.2023 and subsequently when once again, on the strength of the material collected by the concerned IO, ‘C’ summary has been filed, by an order dated 21.11.2023, the concerned Magistrate has accepted the said report. Learned advocate submitted that in fact, thereafter, another FIR under Section 304, 201 etc. of the IPC came to be registered with same Police Station. Learned advocate, therefore, submitted that the applicant has not committed any offence as alleged and he has been wrongly roped in the aforesaid commission of crime with oblique motive. Learned advocate submitted that the co-accused, Nagjibhai Sabhad has already been granted bail by the concerned trial court. It is, therefore, urged that considering the nature of the offence and on the principle of law of parity, the applicant may be enlarged on regular bail by imposing suitable conditions.

Learned APP for the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that the role of the present applicant is clearly spelt out from the papers of the chargesheet and, hence, the present application may not be entertained.

Learned advocates appearing on behalf of the respective parties do not press for further reasoned order.

I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. It is found out from the record that the present application is preferred after submission of the chargesheet and now the investigation is completed and the applicant is in jail since 28.08.2023. It is found out from the investigation papers that initially the offence of murder under Section 302 etc. of the IPC has been registered only on the ground of assumption and presumption by the complainant due to earlier incident of assault upon them, however when the dead body was sent for postmortem, the concerned doctor, after performing postmortem, has categorically opined that the cause of death is due to electrocution and on receipt of postmortem report, the concerned IO has supported ‘C’ summary before the concerned court, which has been accepted by the concerned court subsequently. I have considered the role attributed to the applicant in the papers of the chargesheet and the fact that one of the co-accused, Nagjibhai Sabhad has been considered by the concerned trial court. Therefore considering the above factual aspects and on the ground of parity, the present application deserves to be allowed.

This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012] 1 SCC 40 as well as in case of Satender Kumar Antil v. Central Bureau of Investigation & Anr. reported in (2022) 10 SCC 51.

In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with the FIR being C.R. No.11211035230247/2023 registered with the Muli Police Station, Surendranagar on executing a personal bond of Rs.15,000/- (Rupees Fifteen 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 injuries 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 before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;

[f] furnish the present address of 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;

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 concerned 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. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, 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.