Dornah Anyango Ojijo vs State Of Gujarat

Divyesh A. Joshi, J

Rule. Learned Additional Public Prosecutor waives service of rule on behalf of respondent State.

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR No.11205046230001 registered with Cyber Crime Police Station, Border Range-Bhuj, Kachchh West – Bhuj for the offences punishable under Sections 406, 420, 114 and 201 of IPC and sections 66C and 66D of the Information Technology Act.

Learned advocate appearing on behalf of the applicants submitted that the applicants-accused were arrested on 07.09.2023 and since then they are in judicial custody. The investigation has concluded and charge-sheet has also been filed. It is further submitted that applicant No.1 is a lady and is pregnant. As per the opinion of the Doctor, the expected date of delivery is the last week of December 2023. It is further submitted that during the course of investigation, nothing has been recovered or discovered at the instance of the applicants and all the offences are exclusively triable by the Court of learned Magistrate. It is further submitted that the entire case of the prosecution is based upon documentary evidence and all documents have been recovered and collected by the Investigating Officer during the course of investigation. It is further submitted that considering the role attributed to the applicants and the penal provisions mentioned in the Statute, the bail application preferred by the applicants may be allowed.

Learned APP appearing on behalf of the respondent-State opposed the grant of regular bail looking to the nature and gravity of offence and there is nexus of the applicants with the transactions concerned. It is submitted that though nothing is recovered or discovered at the instance of the present applicants but, the police papers clearly go to show that certain amounts were siphoned away by creating multiple websites. During the course of investigation, it was found that the mobile instrument, which was used, is found from the conscious possession of the applicants-accused and it was at the instance of the said instrument that their involvement was found. Considering the aforesaid factual aspects, the bail application may not be entertained.

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

I have heard learned advocates appearing on behalf of the respective parties and perused the papers of investigation and considered the allegations levelled against the applicants and the roles played by the applicant. It is found from the record that the present application has been filed after the submission of charge-sheet. The investigation has concluded. There is no recovery or discovery at the instance of the applicants. The applicant No.1 is pregnant and is likely to deliver child soon.

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.

Considering the aforesaid aspects, the role attributed to the applicants and the penal provisions mentioned in the Statute, 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 applicants on regular bail.

Hence, the present application is allowed and the applicants are ordered to be released on regular bail in connection with FIR No.11205046230001 registered with Cyber on executing personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) each with one surety each 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 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 States of Gujarat and Delhi without prior permission of the Sessions Judge concerned;

[e] 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 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 bonds 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. During 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.

The application stands allowed accordingly. Direct service is permitted.