Vasim Alias Shahil S/O Nizamuddin Gori 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. 86 of 2019 registered with Kalol Taluka Police Station, District- Gandhinagar for the offences punishable under Sections 302, 394, 397, 34 and 114, etc., of the Indian Penal Code and Section 135 of the Gujarat Police Act.

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

The brief facts of the case are that on 10.07.2019 about 7:30 A.M. one watchman Mr. Nagjibhai Rabari working at Virat Company came to the complainant and told him that someone killed the uncle of the complainant, and thereafter the complainant immediately went with said Mr. Nagjibhai at Kadi-Chhatral road, at that time on the land nearby Vikram Tharmo Company, near the shop of one Mr. Thakor Kantiji, the dead body of the uncle of complainant was lying under the tree. That, there was bloodstain on the land and articles of the uncle of complainant were also seen there. That, Police came to the place of incident and took the dead body of the uncle of the complainant to the hospital to perform the post-mortem. That the day before the incident, the uncle of the complainant told the complainant that he was going to purchase grocery, some unknown persons with an intention to rob his uncle, sustained injuries with sharp weapons and killed him. 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 Application No. 11435 of 2020 as withdrawn, had granted liberty to file a fresh application after six months. 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 also submitted that there are only 8 offences registered against the present applicant. 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 19.07.2019.

4.1 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 there are 8 offences registered against the present 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 19.07.2019;

(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 302 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. The learned APP has heaving 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 in 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 bail in connection with the aforesaid FIR on executing a personal bond of Rs.15,000/-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.