Lasu @ Lakhman Mehtalbhai Mohaniya vs State Of Gujarat

Dr. Ashokkumar C. Joshi, J

This successive regular bail application is filed by the Applicant - Accused under Section 439 of the Code of Criminal Procedure for enlarging the applicant on regular bail in connection with I- C.R. No. 94 of 2016 registered with Limkheda Police Station, District- Dahod for the offences punishable under Sections 395, 396 and 397 of the Indian Penal Code and Sections 25(1)(ba) and 27(1) of the Arms Act.

Heard learned Advocate Mr. Maulik Soni for the Applicant and learned APP Mr. R.C. Kodekar for the Respondent -State.

The brief facts of the case are that on 04.09.2016 the complainant and his family had taken dinner and after closing house, went to sleep at terrace, at that time, at about 9:30 P.M., the complainant heard some sound and when he threw light with torch, the robbers gave abuses and broke the front door of his house, because of fear the complainant ran away from rear door of his house. That, the complainant heard the shouting about robbers, the robbers entered into the complainant's home and by beating the mother and daughter-in-law of the complainant, they robbed cash from shop and ornaments worth Rs. 1,94,000/-. That, one Balvantbhai@ Ganpatbhai Shankarbhai Baria received injury on head by fire arms. Accordingly, FIR came to be lodged.

Submission of the Parties:

Learned advocate for the applicant - accused has submitted that this is a successive bail application. He submitted that the Court, while disposing of the Criminal Misc. Application No. 2717 of 2020, the same was disposed of as withdrawn, without entering into any merits of the case. Accordingly, the present application is filed. He further submitted that the applicant has preferred bail application in the concerned court below, however the same was rejected by the court below. He submitted that the applicant is an innocent person and is falsely implicated in the crime in question. It is submitted that the applicant has no direct role played by the applicant in the commission of the crime. Further, the applicant is in custody since 25.10.2016.

4.1 Learned advocate for the applicant has vehemently argued that in the present case, co-accused - Rameshbhai Palas has been enlarged on regular bail by the co-ordinate Bench in Criminal Misc. Application No. 23576 of 2019 and also other co-accused - Apsingbhai Malabhai Palas has been enlarged on regular bail by the co-ordinate Bench, in Criminal Misc. Application No. 12032 of 2018. He further submitted that there are only 11 offences against the present applicant.

4.2 Learned advocate for the applicant - accused has submitted that the applicant has family roots in the society and therefore, he is not likely to flee away from justice. That, the charge-sheet is filed and hence, there is no possibility of tampering and hampering with the evidence. That, the applicant will abide by whatever conditions imposed by the Court. He has, therefore, prayed that discretion may kindly be exercised and grant bail to the applicant - accused.

Per contra, learned APP has vehemently opposed the present application for grant of regular bail. It is submitted that the applicant has committed robbery of Rs.1,94,000/- including gold and silver. He also submitted that the applicant has past antecedents and as many as 11 offences have been registered against the applicant. Further, it is urged that this is a successive bail application and there is no change in circumstances. Thus, looking to the nature and gravity of the offence, it is requested that this Court may not exercise the discretion in favour of the applicant.

Merits of the Case:

This court has considered the following aspects:

(a) in the present case it is an admitted fact that the applicant - accused has come for this application after the charged sheet is filed;

(b) as per catena of decisions of Hon'ble Supreme Court, there are mainly three factors which are required to be considered by the court i.e. prima facie case, availability of applicant - accused at the time of trial and hampering and tampering with the witnesses by the accused;

(c) the learned advocate for the applicant has submitted that the applicant is not likely to flee away;

(d) the applicant is in custody since 25.10.2016;

(e) law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. C.B.I., (2012) 1 SCC 40, wherein it is held that bail is a rule and jail is an exception and there should not be pre-trial punishment.

(f) the Apex Court in the decision in the case of Prabhakar Tewari vs. State of U.P., reported in (2020) 11 SCC 648 has observed as under:

"On considering the submissions of the learned counsel for the parties. Having regard to the circumstances of this case, in our opinion, there has been no wrong or improper exercise of discretion on the part of the High Court in granting bail to the accused. The factors outlined in the case of Mahipal (supra) for testing the legality of an order granting bail are absent in the order impugned. The materials available do not justify arriving at the conclusion that the order impugned suffers from non-application of mind or the reason for granting bail is not borne out from a prima-facie view of the evidence on record. The offence alleged no doubt is grave and serious and there are several criminal case pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail. The High Court has exercised its discretion in granting bail to the accused Vikram Singh upon considering relevant materials. No ex-facie error in the order has been shown by the appellant which would establish exercise of such discretion to be improper. We accordingly sustain the order of the High Court granting bail. This appeal is dismissed."

Having heard the learned advocates for the parties and perusing the papers available on record as well as taking into consideration the facts of the case, it appears that the applicant is implicated in the offence punishable under section 396 of the IPC. At this stage, the Court is not required to go deep into the evidence as it is purely a matter of trial. This Court also considered the co-accused have been enlarged on regular bail by the co-ordinate Bench. The learned APP has heavily relied upon the antecedents of the applicant, however, considering the decision of the Hon'ble Apex Court in Prabhakar Tewari (supra) as well as the principle laid down Sanjay Chandra (supra), there should not be pre-trial punishment. Least is to say that, charge-sheet in the case on hand is filed and hence, there is no possibility of tampering and/or hampering with the evidence. Considering the charge-sheet papers as well as the nature of allegations, gravity of accusation, availability of the applicant - accused at the time of the trial etc. and last but not the least, the role attributed to the present applicant - accused, the present application deserves to be allowed and is accordingly, allowed. The applicant - accused is ordered to be released on regular bail in connection with the aforesaid FIR on executing a personal bond of Rs.25,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the following conditions that he shall:

(a) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence;

(b) maintain law and order and not to indulge in any criminal activities;

(c) furnish the documentary proof of complete, correct and present address of his residence to the Investigating Officer and to the trial Court at the time of executing the bond and shall not change his residence without prior permission of the trial Court;

(d) provide his contact numbers as well as the contact numbers of the sureties before the trial Court. In case of change in such numbers inform in writing immediately to the trial Court;

(e) file an affidavit stating his immovable properties whether self acquired or ancestral with description, location and present value of such properties before the trial Court, if any;

(f) not leave India without prior permission of the trial Court.

(g) surrender passport, if any, to the trial Court within a week. If he does not possess passport, he shall file an affidavit to that effect;

(h) mark presence before the concerned police station on every 1st day of each English calendar month between 12:00 p.m. to 2:00 p.m. for a period of one year or till the trial is concluded, whichever is earlier;

(i) shall maintain all the rules and regulations framed by the Corporation regarding contemporary status of corona virus/Covid-19, State Government or by any competent authority, including social distancing.

Bail bond to be executed before the trial Court having jurisdiction to try the case. It would be open for the trial Court concerned to give time to furnish the solvency certificate if prayed for.

If breach of any of the above conditions is committed, the trial Court concerned will be free to issue warrant or take appropriate action according to law. The authorities will release the applicant forthwith only if he is not required in connection with any other offence for the time being.

At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.

Rule is made absolute to the aforesaid extent.

Direct service is permitted.