Noratan Malchandbhai Chajed vs State of Gujarat

Mr. Z.K. Saiyed, J.(Oral)—This is a successive bail application preferred under Section 439 of the Code of Criminal Procedure, 1973 in connection with the offence being CR No.I - 94 of 2014 registered with Palsana Police Station, District : Surat, for the offences punishable under Sections 302, 201, 394, 120(B) and 34 of the Indian Penal Code.

As per the aforesaid complaint, the present accused was in a financial crisis and therefore, he had asked one Manoj Agrawal to lend him some amount. It is further allegation in the aforesaid complaint against the present applicant that on 8.7.2014, the applicant called the said Manoj Agrawal and threatened him that if he did not pay the amount as demanded then he would kill him i.e. said Manoj Agrawal. Therefore, aforesaid complaint came to be filed. In this matter, charge-sheet is already filed and the arrest of the applicant was made on 2.8.2014. It also appears that the present applicant is suffering from HIV Positive (at the advance stage) and the treatment is given by the Jail Authority through the Hospital.

It also appears that the relevant medical papers are enclosed with this application. It reveals that the wife of the present applicant was in jail for the similar offences and she was released later on and then died due to cancer disease.

Learned senior advocate Mr. Nanvati for Mr. Daifraz Havewalla appearing for the applicant submitted that the applicant is an innocent person and he has been wrongly implicated in the offence as alleged. He also submitted that now, the present applicant has been diagnosed with HIV Positive and he is undergoing treatment. He also submitted that considering humanitarian ground, the applicant is required to be considered for bail looking to his serious disease like HIV Positive. Learned senior advocate Mr. Nanavati upon relying upon the order dated 17.10.2015 passed by this Court in Criminal Misc. Application No.17776 of 2015, stated that the applicant of that case, was considered for bail on health and sympathetic grounds. He also relied upon the another order dated 12-15.6.2015 passed by this Court in Criminal Misc. Application No.10080 of 2015 and stated that in that matter also, this Court has considered the health ground of the accused while releasing him on bail. He also referred the medical papers, which reflect the applicant is suffering HIV Positive. In view of the above, learned senior advocate Mr. Nanavati prays to allow present application on humanitarian ground by imposing suitable conditions.

As against, learned APP Mr. H.K. Patel strongly opposed the bail application of the applicant and submitted that no discretionary power under Section 439 may be exercised in favour of the applicant as the applicant is involved in serious offence.

Perused the application along with medical papers and it appears that the applicant is suffering from HIV Positive and he is undergoing treatment of the same.

This Court also perused the order dated 12-15.6.2016 passed by this Court in Criminal Misc. Application No. 10080 of 2015, wherein at para 41, this Court has observed as under:

"The Apex Court in the case of Dipak Shubhashchandra Mehta (Supra), held that though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of merits of case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where accused is charged of having committed a serious offence Penal Code, 1860, Sections 406, 420, 467, 468, 471 and 120B.

The Apex Court in paras 31, 33 and 34 held as under :-

This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused (Vide Babba v. State of Maharashtra and Vivek Kumar v. State of U.P.) But the same should not be applied to all cases mechanically.

Considering the present scenario and that there is no possibility of commencement of trial in the near future and also of the fact that the appellant is in custody from 31.3.2010, except the period of interim bail i.e. from 15.9.2011 to 30.11.2011, we hold that it is not a fit case to fix any outer limit taking note of the materials collected by the prosecution. This Court has repeatedly held that when the under trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated.

As posed in Sanjay Chandra case we are also asking the same question i.e. whether the speedy trial is possible in the present case for the reasons mentioned above. The Apex Court in the case of Sanghian Pandian Rajkumar (Supra), held that court granting bail in non-bailable offences should exercise its discretion in a judicious manner and not as a matter of course. For grant of bail in such offences, though detailed examination of evidence and elaborate discussion on merits of the case need not be undertaken, reasons for prima facie conclusion why bail is being granted must be indicated in such order, particularly when the accused is charged with having committed a serious offence. In the said case, three murders were allegedly committed by senior police officers, who were appellants in that case. They were in judicial custody pending trial for last 7 years. There was no possibility of conclusion of trial within reasonable period. Many of the co-accused were already granted bail by trial Court/High Court and Supreme Court in that case. In view of such facts, appellants in that case ordered to be released on bail subject to conditions imposed therein.

The Apex Court in paras 10 and 23 held as under :-

Before considering the claim of the parties and materials relied upon for and against the grant of bail, it is necessary to highlight the law relating to grant of bail in non-bailable offences. At the foremost, the court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though, for grant of bail, detailed examination of evidence and elaborate discussion on merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie conclusion why bail was being granted, particularly, when the accused is charged of having committed a serious offence. In Kalyan Chandra Sarkar v. Rajesh Ranjan this Court, while considering Sections 437 and 439 of the Code of Criminal Procedure, 1973 (in short the Code) held that, amongst other circumstances of the case, the following factors are required to be considered by the court before granting bail : (SCC p.536, para 11).

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the Court in support of the charge.

In the light of the details allegations in the charge-sheet filed before the Court, many of the co-accused were granted bail by the trial Court/High Court and this Court and of the fact that both the appellants are in custody for nearly 7 years pending trial and also in view of the fact that it would not be possible for the Special Court to conclude the trial within a reasonable period as claimed by the learned ASG, we are inclined to consider their claim for bail."

This Court has also referred the decision in the case of Dipak Shubhashchandra Mehta v. Central Bureau of Investigation and Anr., (2012) 4 SCC 134 and in the case of Sanghian Pandian Rajkumar v. Central Bureau of Investigation and Anr., (2014) 12 SCC 23.

Having heard the learned Counsel for both the sides and looking to the facts and circumstances of the case, more particularly, the applicant is suffering from disease of HIV Positive and in view of the aforesaid order as quoted herein above as well as also on humanitarian ground, I am inclined to grant bail to the applicant. At this stage, this Court is not going into the merits of the case.

Considering the above, this application is allowed. The applicant is ordered to be released on bail in connection with CR No.I 94 of 2014 registered with Palsana Police Station, Dist. Surat, for the alleged offence, on his executing a personal bond of Rs.25,000/- (Rupees Twenty-five Thousand only) with one solvent 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 his liberty or abuse his liberty;

(b) not to try to tamper or pressurise the prosecution witnesses or complainant in any manner;

(c) maintain law and order and should cooperate the Investigating Officer;

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

(e) not leave the State of Gujarat without the prior permission of the concerned trial Court;

(g) mark his presence before the concerned police station on every last day at 11:00 a.m. of each English Calender month;

(h) furnish the latest address of his residence to the I.O. 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;

(i) surrender his passport, if any, to the lower Court within a week.

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 learned 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, learned 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. Direct service today is permitted.