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CR.MA/11724/2008 2/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 11724 of 2008
=========================================================
HARESH
DEVABHAI BARESA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance :
MR
NISHITH P THAKKAR for Applicant(s) : 1,
MR
M.R.MENGDEY, ADDL. PUBLIC PROSECUTOR for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 25/09/2008
ORAL
ORDER
1. Rule.
Mr.M.R.Mengdey, learned APP waives service of Rule on behalf of
respondent No.1-State. With the consent of the learned Advocates
appearing on behalf of the respective parties, the petition is taken
up for final hearing today.
2. Present
application is filed by the applicant ? original accused under
Section 439 of the Criminal Procedure Code for releasing him on bail
in connection with complaint being C.R.No.I-73 of 2002 registered
with Himatnagar Town Police Station.
3. Criminal
complaint / FIR was registered against the applicant and other
co-accused at Himatnagar Town Police Station being C.R.No.I-73 of
2002 for the offence under Sections 147, 148, 149, 395, 435, 436,
336, 447 of the Indian Penal Code and under Section 135 of the Bombay
Police Act which is after submission of the charge-sheet is numbered
as Criminal Case No.1674 of 2002 pending in the Court of learned
Civil Judge, Himatnagar. Said criminal case was at the stage of
committal. It appears that the applicant was released on bail and was
required to remain present on each date of hearing before the learned
trial Court. However, the applicant had not remained present before
the learned trial Court regularly on each date of adjournment and
non-bailable warrant was issued against the applicant in the year
2004 and the applicant came to be arrested in the year 2007 pursuant
to the said non-bailable warrant and thereafter, the applicant
submitted application to cancel the said warrant and the learned
trial Court cancelled the non-bailable warrant and the applicant was
released on bail. That thereafter, the applicant remained present
before the learned trial Court on some of the adjournments, however,
again started remaining absent on each date of adjournments regularly
and again warrant came to be issued against the applicant. The
applicant came to be arrested in the month of February, 2008. He
submitted application to recall the order of issuance of non-bailable
warrant which came to be dismissed by the learned trial Court and
hence, the applicant has preferred the present application under
Section 439 of the Criminal Procedure Code for releasing him on bail.
4. After
the matter was argued, Mr.N.P.Thakkar, learned Advocate for the
applicant has requested him to permit to withdraw present applicant
and has not pressed for reasoned order. However, he has submitted
that there are other accused who are released on bail, who were
absconding and/or not remaining present before the learned trial
Court on each date of adjournment regularly. He has drawn the
attention of the Court to Rojkam of Criminal Case No.1674 of 2002. He
has also further submitted that one similar non-bailable warrant came
to be issued against accused No.9- Kiranbhai Siddnatbhai Nepali who
was also not remaining present on each date of adjournment regularly
and in his case only penalty was imposed of Rs.100/- and the learned
4th Additional Senior Civil Judge and JMFC, Himatnagar has
cancelled warrant by order dated 26.06.2008. Considering the request
made by Mr.Thakkar, learned Advocate for the applicant to permit him
to withdraw present application, permission is accordingly granted.
Present application is dismissed as withdrawn. However, before
parting with the order, it is observed and directed to the learned
JMFC, Himatnagar that those accused who are already released on bail
and not complying with the conditions and/or not remaining present on
each date of hearing regularly and non-bailable warrants are issued
and trial is delayed, in that case, the learned JMFC, Himatnagar to
initiate proceedings against the accused persons for cancellation of
bail and/or issue non-bailable warrant immediately and if accused are
not traceable in that case upon surety and even Public Prosecutors
also must oppose application for cancellation of non-bailable warrant
as due to other accused trial is delayed for no fault of others.
Those accused who are violating the conditions of bail and/or not
remaining present on each date of adjournment regularly, strict
action must be taken. With these, present application is dismissed as
withdrawn. Rule discharged. Registry is directed to communicate this
order to the learned JMFC, Himatnagar immediately.
[M.R.Shah,J.]
satish
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