Habib Ismail Shekh vs State Of Gujarat

Divyesh A. Joshi, J

Rule. Learned APP waives service of notice of Rule for and on behalf of respondent – State.

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regularbailinconnectionwith C.R.No.11210005221409 of 2022 registered with Athwalines Police Station, Surat for the offence punishable under Sections 302, 307, 324 and 504 of the IPC and under Section 135 of the Gujarat Police Act.

Learned advocate Mr. Panchal appearing on behalf of the applicant submits that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions. Learned advocate Mr. Panchal submits that the so-called incident occurred on 09.10.2022 and on the same day, FIR has been registered. The applicant accused was arrested on 09.10.2022 and since then he is in judicial custody. The investigation is completed and after submission of charge-sheet present application is preferred. The FIR is registered against three accused persons. The applicant is accused No.3 in the FIR. It is submitted that there is no recovery of knife at the instance of the applicant accused. It is alleged against the applicant that applicant has caught hold the deceased at the time of commission of crime along with the co-accused. Except that, no other specific role is attributed to the applicant. The role of the present applicant accused is similar to that of the accused No.1. The accused No.1 is already enlarged on bail by the learned trial Court. Therefore, considering the principle of parity, applicant may be enlarged on bail by imposing suitable terms and conditions.

Learned APP appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence.

Learned advocate Mr. Nimesh Patel on behalf of the original complainant has objected present bail application with vehemence and submits that appropriate order may be passed.

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. The applicant accused has been arrested on 09.10.2022 and since then he is in judicial custody. The investigation is completed and after submission of charge-sheet present application is preferred. The FIR is registered against three accused persons. The applicant is accused No.3 in the FIR. It is found from the record that there is no recovery of knife at the instance of the applicant accused. It is alleged against the applicant that applicant has caught hold the deceased at the time of commission of crime along with the co-accused. Except that, no other specific role is attributed to the applicant. The role of the present applicant accused is similar to that of the accused No.1. The accused No.1 is already enlarged on bail by the learned trial Court. Therefore, considering the principle of parity, I am inclined to consider the present bail application.

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 and the applicant is ordered to be released on regularbailinconnectionwith C.R.No.11210005221409 of 2022 registered with Athwalines Police Station, Surat 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 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.

The present application stands allowed accordingly. Rule is made absolute. Direct service is permitted.