Samirkhan Badruddinkhan Pathan vs State Of Gujarat

Divyesh A. Joshi, J

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regularbailinconnectionwith C.R.No.11210069230135 of 2023 registered with Althan Police Station, District Surat for the offence punishable under Sections 420, 120B, 506(2) and 507 of the Indian Penal Code.

Learned advocate Mr. Hardik Jani 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. Jani submits that investigation is already completed and present application is filed after submission of the charge-sheet. The applicant accused is arrested on 30.03.2023 and since then he is in judicial custody. It is submitted that as per the case of the prosecution, the so-called incident is occurred on 16.12.2022 and FIR has been registered on 28.02.2023. Thus, there was gross delay of 2 months and 11 days in registering the FIR for which no explanation is offered. It is further submitted that three different versions have been narrated in the story put forward by the prosecuting agency. The complainant has come with a specific case in the FIR that there was some business transaction made between the complainant and main accused. However, at the time of submission of charge-sheet, the prosecuting agency has come with a case that there was some business transaction between the brother-in-law of the complainant and accused No.1 and one application in the form of complaint has been tendered by the brother-in-law of the complainant before Gajipur Police Station on 25.12.2022. It is submitted that if this Hon’ble Court would go through the said application, then it appears that narration of the facts and story of the said application is altogether different than the story narrated in the FIR. It is submitted that entire case of the prosecution hinges upon the documentary evidence. The applicant is not named in the FIR, however, during the course of investigation, he has been arraigned as an accused on the basis of the statement made by the co-accused. There is no recovery and/or discovery at the instance of the present applicant. All the offences are exclusively triable by the Court of Magistrate. It is further submitted that if at all, at the end of trial, the prosecuting agency would succeed in proving the charges levelled against the applicant, then the maximum punishment for the offence alleged against the applicant accused would be of 7 years. The applicant is in jail since last more than 9 months. Thus, considering the overall facts of the present case, applicant may be enlarged on bail by imposing suitable terms and conditions.

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

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. It is found out from the record that applicant accused is arrested on 30.03.2023 and since then he is in judicial custody. The investigation is already completed and present application is filed after submission of the charge-sheet. That entire case of the prosecution hinges upon the documentary evidence and all the documents are recovered by the investigating agency. The applicant is not named in the FIR, however, during the course of investigation, he has been arraigned as an accused on the basis of the statement made by the co-accused. There is no recovery and/or discovery at the instance of the present applicant. All the offences are exclusively triable by the Court of Magistrate. Thus, looking to the overall facts and circumstances of the present case, I am inclined to consider present 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 regular bail in connection with C.R.No.11210069230135 of 2023 registered with Althan Police Station, District 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.