Kanti Sardul Bharvad vs State of Gujarat

C.K. Buch, J.—Rule. The service of Rule is waived by Mr. U.R. Bhatt, ld. A.P.P. for the respondent-State.

Heard Mr. B.M. Mangukiya, learned counsel appearing for the petitioners and Mr. U.R. Bhatt, ld. A.P.P. appearing for the respondent-State.

This is an application for bail preferred u/s 439 of the Criminal Procedure Code by the petitioners-orig. accused nos.1 and 2 for the offence

registered vide C.R. No.I-10/2001 with the Mandal Police Station, Tal. Viramgam, Dist. Ahmedabad. The petitioners were arrested on 10th

March, 2001 and since then they are under judicial custody. Both these petitioners alongwith other five accused persons are facing trial for the

offences punishable under Sections 147, 148, 149, 302, 323, 324 and 506(2) of the Indian Penal Code and Section 135 of the Bombay Police

Act.

Undisputedly this is the second - a successive application for bail. Earlier both these petitioners had applied for bail alongwith other co-accused

persons before this Court by filing a Criminal Misc. Application No.2446/2001. When the Bail Application was moved, no formal chargesheet

was submitted by the Investigating Agency. However, when the petition was taken up for hearing, the chargesheet was tendered on 12th April,

2001 before the learned Judicial Magistrate First Class. The entire papers of investigation were brought before the Court on the day of hearing i.e.

on 19th April, 2004, before the trial Court.

Considering the totality of facts and circumstances of the case emerging from the papers of investigation, the learned counsel appearing for the

petitioners-accused did not press the bail plea qua the present petitioners and other co-accused were enlarged on bail on certain conditions. A

copy of the order passed by this Court is produced with the present petition at Annexure-B pg.14.

I have gone through the relevant documents including the order of rejection of bail as it was not pressed by both these petitioners and the order

dated 16th January, 2004, passed by the learned Additional Sessions Judge, Viramgam, while dealing with the Misc. Criminal Application

No.4/04.

The grievance of the present petitioners is that they have cooperated with the trial through out. However, for no fault on their part, there is no

substantive progress in the trial but for certain reasons and circumstances beyond the control of the petitioners-accused, they are not able to see

any light at the end of the tunnel and the protraction of the trial has led both the petitioners to frustration. It is submitted by Mr.Mangukiya that

since trial was not progressing, the petitioners-accused were compelled to move an application before the learned Additional Sessions Judge,

Ahmedabad. The order of rejection of bail plea is neither a speaking order nor legal, at least temporary bail could have been granted. It is further

argued that the net effect of the rejection of the bail application is that the petitioners are languishing in judicial custody for the offence as if the

petitioners have to undergo sentence, a pre-trial conviction. The prosecution has failed in conducting the trial in the reasonable period and the

unreasonable period taken by prosecution in conducting trial has given rise to the second bail application u/s 439 of the Criminal Procedure Code,

in the background of the Article 21 of the Constitution of India. In response to the query raised by the Court, Mr. Mangukiya has fairly accepted

that at least the petitioners ought to have been granted bail for a fixed period and they are ready to surrender themselves to judicial custody on the

day on which the statement u/s 313 of the Code of Criminal Procedure is recorded by the trial Court or immediately on the day of conclusion of

the prosecution evidence. Though Mr. Mangukiya has attempted to submit the case on merit, the Court has refused to accept any such submission

and the Court is not inclined to pass any comment as to the facts emerging from police papers or from the evidence led by the prosecution in the

trial till date. Yesterday, this matter was kept for hearing and the Court was informed that tomorrow is the date of recording further evidence.

Today Mr. Mangukiya has informed the Court that there was no substantive progress in the trial and the witness summoned was not present and

the trial was adjourned.

On more than one occasions, the Apex Court has held that the Sessions trial should proceed on day to day basis. It is true that merely because

the trial does not proceed on day to day basis, would not by itself give rise to a cause to raise the bail plea. However, when the protection is

unreasonable and when the accused are undisputedly in judicial custody for more than two years, the Court can consider at least to grant

temporary bail or bail for a fixed period in the facts and circumstances of a given case. The Court is aware about the observations of the Apex

Court in the case of Bipin Shantilal Panchal, wherein the Apex Court has rejected the bail plea though the accused was in judicial custody for

several years and also the observations made by this Court, after considering decision dated 22nd April, 2004, of this Court (Coram : C.K. Buch,

J) in the case of Bholabhai Chaturbhai Patel v/s. State of Gujarat, while dealing with Criminal Misc. Application No.2926/2003. But it is pertinent

to note that the case against present petitioners does not fall in that grave category. Of course, the petitioners are facing trial for the offence

punishable u/s 302 of the I.P.C., but to appreciate the say and submission of Mr.Mangukiya whereby he has restricted his prayer for bail to a

limited period, it would be beneficial to quote relevant portion of the order dated 15.11.2004, passed by this Court (Coram :C.K.Buch, J) while

dealing with Misc.Criminal Application No.6388/2000, which reads as under :

It is pertinent to note that earlier bail applications filed by the applicants are dismissed on merits. However, by filing this application, the applicants

have prayed that as the trial is protracted for no fault of them, they should be granted bail on the basis of accepted principles of bail propounded

by the Apex Court as well as other High Courts.

When the matter was listed for admission hearing on 10.1.2000, attention of this Court was drawn by learned counsel appearing for the applicants

to the fact that the learned Trial Judge was to record evidence immediately after 4.11.2000 i.e. after Diwali holidays and it was impliedly

undertaken by the prosecution to keep I.O. Shri Salve present before the Court. Considering the sid assurance given by Ld. PP, the learned Addl.

Sessions Judge has rejected the application for bail as aforesaid. Now, I am told that because of severe injuries sustained by Mr.Salve in a

vehicular accident, it would not be possible for Mr. Salve to appear before the Court for a pretty long time. Applicants are, therefore, rightly

relying on the two orders where the accused of other two Sessions Cases are granted bail on similar facts where Mr.Salve could not appear for his

deposition in the capacity of an Investigating Officer before the Court. Those orders are at Annex.A & B respectively. It is submitted that under

the circumstances, the learned Addl. Sessions Judge has committed error in not granting bail to the applicants and prayed to release the applicants-

accused on bail.

This Court is not evaluating legality or validity of the aforesaid order passed by the learned Addl. Sessions Judge rejecting bail application, but it is

amply clear from the facts reflected in para-6 of the order rejecting bail that the learned Addl. Sessions Judge has rejected the bail application on

the assurance given by the learned PP who resisted the bail application that prosecution would be able to procure presence of Mr. Salve. Today, I

am told that bailable warrant issued to procure presence of I.O. Mr.Salve has returned unserved. This matter was kept for orders today and things

had rested on the appearance of Mr. Salve before the Sessions Court. As Mr.Salve has not appeared and there is no certainty as to his

appearance in the Court for deposition, in view of the orders at Annex.A & B, applicants require to be released on bail. Ld. APP Mr. Patel,

however, submitted that if this Court is inclined to grant bail to the applicants, the applicants should be granted bail for temporary period and

applicants should be asked to surrender as and when I.O. Mr. Salve appears before the Court for his deposition. This submission being fair, is

accepted. If applicants are granted bail for a period of 2 (two) months from the date of their release on usual conditions and with a condition that

they shall surrender immediately on I.O. Mr.Salve appearing before the Court for giving his deposition, it would meet the ends of justice.

Both the present petitioners were granted temporary bail by this Court while dealing with Criminal Misc. Application No.3211/2001 because of

the death of Kokilaben, mother of the petitioner no.1 and the wife of petitioner no.2 and no untoward incident had occurred during this period. It is

not a matter of dispute that number of witnesses are yet to be examined and three different counsel are defending the different set of accused.

When this petition was listed for hearing for the first time on 4th May, 2004, the Court had expressed its view that hearing can be adjourned

beyond summer vacation so that the prosecution can conclude evidence. Undisputedly, on one occasion the matter was transferred to newly

established Court at Viramgam, Dist. Ahmedabad and on the other occasion the Presiding Judge was under orders of transfer. However, it is on

record and a copy of Rojnama shown to the Court clearly reveals that as such there is no substantial progress in trial since January, 2004.

Considering the date of arrest and the fact that other accused are granted bail, the request for temporary or a bail for fixed period can be accepted

without entering into the merits of the matter. Even on 15th June, 2004, when this matter was listed, the learned Additional Public Prosecutor was

asked to get the details of the progress of the trial and on instructions received from the concerned Police Officer, who was present in the Court

yesterday, the learned A.P.P. Mr. Bhatt has fairly accepted that all the witnesses are required to be examined and the trial may take some time. So

this totality has taken me to a conclusion that the discretion requires to be exercised in favour of both the petitioners-accused and both the

petitioners-accused should be granted bail for a fixed period on certain stringent conditions. Undisputedly, the Court is of the view that certain

stringent conditions are able to take care of apprehensions that are expressed before the Court on behalf of the prosecution. The accused can be

prevented from entering into a particular area or the entire area under a particular police station or taluka and heavy bail can also be taken.

For short, the application is partly allowed. The petitioners-accused are hereby released on temporary bail for a fixed period i.e. upto the date

on which the prosecution concludes the evidence and the Court posts the case for recording of statement of the accused u/s 313 of the Criminal

Procedure Code in connection with offence registered vide C.R. No.I-10/2001 with Mandal Police Station (Sessions Case No.65/2001) on each

of the petitioners-accused herein executing a bond of Rs.10,000/-(Rupees Ten Thousand) with one solvent surety of the like amount and subject

to the conditions that they shall :

(a) not take undue advantage of their liberty or abuse their liberty;

(b) not act in a manner injurious to the interest of the prosecution;

(c) maintain law and order;

(d) furnish the address of their residence at the time of execution of the bond and shall not change the residence without prior permission of this

Court;

(e) surrender their passport, if any, to the lower Court within a week;

(f) surrender themselves into judicial custody before the trial Court on the day on which prosecution concludes the evidence and the learned A.P.P.

appearing in the matter submits a pursis of closure of evidence and the trial is proceeded for recording statement of the accused u/s 313 of the

Criminal Procedure Code.

Failure on the part of the petitioners-accused to appear before the Court during the trial shall confer jurisdiction to issue non-bailable warrant

against the petitioners without obtaining any order of either cancellation or rejection of bail.

The petitioners-accused shall not enter into the area under Mandal Police Station, Tal. Viramgam, Dist. Ahmedabad, without prior permission

of this Court.

In case of breach of any of the above conditions by the petitioners-accused, the learned Additional Sessions Judge, Ahmedabad, will be free

to issue warrant or to take appropriate steps in the matter.

Bail before the lower Court.

Rule is made absolute accordingly. Direct Service is permitted.