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CR.MA/12614/2010 3/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 12614 of 2010
=========================================================
BABUBHAI
@ MAHUMMAD HUSAIN MEHABUBBHAI SAIYED - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
NISHITH P THAKKAR for
Applicant(s) : 1,
MR LB DABHI, APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 22/10/2010
ORAL
ORDER
1. Rule.
Mr LB Dabhi, learned APP appears and waives service of notice of rule
on behalf of the respondent State.
2. The
petitioner has preferred this application under Section 439 of the
Code of Criminal Procedure, 1973 seeking regular bail in connection
with Madhavpura Police Station bearing CR No. I 21 of 2009 for the
offence punishable under Section 392 read with Section 114 of the
IPC.
3. Considering
the facts and circumstances of the case, the matter is taken up for
final hearing today.
4. Mr
NP Thakkar, learned advocate representing the petitioner submitted
that in the FIR, no name of the accused is given. However, the
incident allegedly occurred on 13.01.2009 and pursuant to Section
41(1)(D) of the Code of Criminal Procedure, 1973, one chain came to
be recovered from the petitioner by the police on 01.01.2010 and
wrongly implicated the petitioner in this case. It is further
submitted that the entire investigation is over and charge-sheet is
filed and during the investigation, no Test Identification Parade was
conducted putting the petitioner in such parade. It is further
submitted that even during the course of investigation, the chain
recovered by the police from the petitioner pursuant to Section
41(1)(D) of the Code of Criminal Procedure, 1973 was not shown to
first informant Pushpaben by the police. It is further submitted
that the offence alleged against the petitioner is exclusively
triable by the Court of learned JMFC. Therefore, it is submitted that
the application may be allowed.
5. Per
contra, Mr LB Dabhi, learned APP representing the State vehemently
opposed this application and submitted that the serious offence is
alleged against the petitioner and from the petitioner, the chain was
recovered and therefore, the involvement of the petitioner in the
incident is prima facie established. Therefore, it is submitted that
the application may be rejected.
6. Having
considered the submissions advanced on behalf of both the sides and
considering the fact that in the FIR, the petitioner is not named as
an accused, however, after about 1 year from the date of the
incident, a chain came to be recovered from the petitioner by the
police and further the fact that during the police investigation, no
attempt was made by the police to show the chain to the complainant
and further the fact that no Test Identification Parade was conducted
so also the fact that the offence alleged against the petitioner is
triable by the Court of learned JMFC, this Court is of the opinion
that the application deserves to be allowed and the petitioner should
be released on bail.
7. Considering
the submissions made on behalf of the parties and having regard to
the facts and circumstances of the case, the application is allowed
and the petitioner is ordered to be released on bail in connection
with Crime Register No. I 21 of 2009 registered at Madhavpura
Police Station for the offence alleged against him in this
application on his executing bond of Rs.5,000/- (Rupees five thousand
only) with one solvent surety of the like amount to the satisfaction
of the lower Court and subject to the conditions that he shall,
(a) not
take undue advantage of his liberty or abuse his liberty.
(b) not
try to tamper or pressurize the prosecution witnesses or complainant
in any manner.
(c) maintain
law and order and should co-operate the investigating officers;
(d) not
act in any manner injurious to the interest of the prosecution.
(e) not
leave the local limits of State of Gujarat without the prior
permission of the concerned Trial Court;
(f) furnish
the address of his 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 Court.
(g) surrender
his passport, if any, to the lower Court, within a week.
8. If
breach of any of the above conditions is committed, the concerned
Trial Court will be free to issue warrant or take appropriate action
in the matter.
9. Bail
before the lower Court having jurisdiction to try the case. It would
be open to the Trial Court concerned to give time to furnish the
solvency certificate if prayed for.
10. Rule
is made absolute to the aforesaid extent. Direct service is
permitted.
[J.C.UPADHYAYA,
J.]
mrpandya
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