Umesh Ashok Tukaram Shirsade vs State Of Gujarat

A.G.Uraizee, J

Heard Mr.Kishan Daiya, learned advocate for the applicant and Ms. Shruti Pathak, learned Additional Public Prosecutor for the respondent – State.

By this application filed under Section 439 of the Code of Criminal Procedure, 1973, ("Code" for short) the applicant is seeking release on regular bail in connection with the F.I.R. being IC.R.No.62 of 2019 registered with Dindoli Police Station, District Surat punishable under Sections 302, 323 and 114 of the Indian Penal Code and Section 135 of the Gujarat Police Act.

Mr. Daiya, learned advocate for the applicant submits that, earlier bail application preferred by the applicant was withdrawn vide order dated 21.10.2020 with liberty to file fresh bail application, if the trial does not commence within one year after the Courts resume physical functioning. He further submits that the co-accused i.e. Komal @ Kamlesh Mangubhai Ganpat Suryawanshi and Amul Kamlesh Suryavanshi are released on bail by co-ordinate benches of this Court. It is his further submission that the allegation against the present applicant and co-accused Amul Kamlesh Suryavanshi are same that of giving blows on thighs of the applicant by means of knife. He further submits that there is no recovery or discovery of weapon (knife) from the applicant whereas the knife was recovered from co-accused Amul Kamlesh Suryavanshi under panchnama who is released on bail by co-ordinate bench of this Court. He, therefore, urges that looking to the role of the applicant and nature of the allegations, the applicant may be enlarged on bail pending trial.

On the other hand, Ms. Shruti Pathak, learned APP appearing for the respondent – State vehemently opposed this application. According to her submission the role played by the applicant cannot be equated with the role of co-accused Amul Kamlesh Suryavanshi. She submits that it is the applicant who initiated the attack on the thigh of the deceased by knife and thereafter other accused persons followed. According to her submission there are in all five witnesses who has seen the applicant giving blows to the deceased by means of knife. She further submits that the applicant is habitual offender and has six criminal antecedents in the nature of criminal offences punishable under Sections 363, 307, 324 etc. She accordingly submits that considering the role of the applicant and criminal antecedents, parity with the co- accused person Amul Kamlesh Suryavanshi is not available to the applicant. She further submits that trial has already started hence, there is all possibility that if release, the applicant would temper with the witnesses and prosecution evidence. She therefore, urges that the applicant may not be enlarged on bail and no discretion would be required to be exercised.

In have considered the submissions made at the bar on either side.

The perusal of the F.I.R. reveals that the applicant and other co-accused persons including co-accused Kamlesh Suryawanshi had inflected blows on the thigh of the deceased by means of knife. The submission of Ms. Pathak, learned APP that it was the applicant who had initiated the attack on the deceased and therefore his role was more serious than the role attributed to the co-accused persons cannot be accepted. It prima facie emerges from the F.I.R. itself that the applicant and other co-accused persons are standing near railway crossing and all of them were armed with knife. It may be that first blow on the thigh of the deceased is attributed to the applicant however, that does not make his role more serious as there is nothing in the F.I.R which indicate that because of the blow given by the applicant, the deceased felt down and thereafter other co-accused persons inflicted the blows by knife on the thigh of the deceased and thereafter the applicant facilitated the attack by the other co-accused persons.

When the co-ordinate bench of this Court, has after considering the various factors and the fact that another co-accused persons namely Komal @ Kamlesh Mangubhai Ganpat Suryawanshi is also released by this Court, has exercised the discretion of releasing the co-accused persons on bail and therefore, on the principle of parity, in my opinion the applicant also deserves to be enlarged on bail.

In view of the aforesaid facts, without discussing the evidence in detail, this Court, prima facie, is of the opinion that, this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, present application is allowed and the applicant is ordered to be released on regular bail in connection with the F.I.R. being IC.R.No.62 of 2019 registered with Dindoli Police Station, District Surat on executing personal bond of Rs.10,000/- (Rupees Ten thousand only) with one surety of the like amount to the satisfaction of the learned 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 India without prior permission of the Sessions Judge concerned;

[e] furnish latest 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 the trial Court;

[f] mark presence before the concerned police station in the first week of every month till the trial is over;

The Authorities will release the applicant only if the applicant 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 to the aforesaid extent. Direct service is permitted.