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CR.MA/2702/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2702 of 2011
=========================================
DEVENDRA
@ DEVJI MEGHAJIBHAI DEVDA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance
:
MR PM THAKKAR, SR. ADVOCATE, with MS
SANDHYA D NATANI for
Applicant(s) : 1,
MR HL HANI, ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 18/03/2011
ORAL
ORDER
The
present application has been filed by the applicant for grant of
regular bail under sec. 439 of the Code of Criminal Procedure after
the charge sheet is filed which is a successive bail application
after Criminal Misc. Application No. 7972 of 2010.
2. The
applicant-accused is charged with having committed offences under
sections 420, 464, 465, 466, 467, 468, 471, 472, 474 and 34 of IPC
for which FIR, being C.R. No. I-407/2009, has been registered with
Sector-7 Police Station, Gandhinagar.
3. Learned
Sr. Counsel Mr. P.M. Thakkar appearing with learned advocate Ms.
Sandhya Natani for the applicant has referred to the papers and
submitted that though on earlier occasion the applicant was not
released on bail, he has remained in jail without any progress of the
trial . He submitted that, therefore, considering the nature of
offence and the fact that other co-accused have been released as per
the order passed in Criminal Misc. Application No. 8618 of 2010 as
well as Criminal Misc. Application No. 15929 of 2010 dated 9.2.2011,
the present application may be allowed.
4. Learned
Sr. Counsel Mr. Thakkar has also referred to the details about the
role and submitted that even if it is assumed that there is a prima
facie case, still, considering the provisions of sec. 439 of Cr.P.C.
and the basic principles with regard to grant of bail, the present
application may be allowed. He submitted that even if there is a
prima facie case, when the trial is likely to take time, the normal
criteria which are to be considered are, (i) whether he is likely to
jump the bail, (ii) whether he is likely to interfere with the
witnesses and tamper with the evidence. He submitted referring to
the Rojkam that actually no progress has been made and in fact
warrant was issued to the complaint. He therefore submitted that the
present application may be allowed when other co-accused have been
released who are also attributed with active role like Jagatsing
Rajput @ Tiger (Criminal Misc. Application No. 15929 of 2010).
5. Learned
APP Mr. Jani resisted the application. He referred to the statements
of witnesses including the statement of one Iqbal and also the
statement of bank account of the applicant accused to emphasise that
he is the beneficiary and he has received the amount suggesting his
prima facie involvement. He submitted that the amount was deposited
and thereafter it was withdrawn and the account has been closed as
stated in the statement of the Manager of the bank. Learned APP Mr.
Jani strenuously submitted that when there is a prima facie case and
there is an active role attributed to th applicant with regard to the
forged document on the basis of which huge land has been sought to be
transferred, the present application may not be entertained. He has
also submitted that there are no change of circumstances.
Alternatively, it was submitted that some direction for expediting
the trial may be given.
I
6. In view
of rival submissions, it is required to be considered whether the
present application can be entertained or not.
7. It is
well accepted that this court is not required to appreciate and
scrutinize the evidence in detail at this stage. However, for
considering the prima facie case, relevant aspects like the
nature/gravity of offence, the manner in which it is alleged to have
been committed, the role attributed etc. have to be considered. In
the facts of the present case, without any further elaboration, it
would suggest that there is a prima facie case suggesting his active
involvement. However, at the same time, as rightly contended by
learned Sr. Counsel Mr. Thakkar, though initially he has not been
released on bail, but since the trial has not progressed or actually
not even commenced, his application is required to be considered
particularly when the other co-accused have been released on bail.
8. Therefore,
though the earlier application is rejected, the fact that there has
been a a delay in trial when the trial has not even commenced and the
other co-accused have been released, the present application is
required to be considered. Therefore, though there is a prima facie
case, the criteria for grant of bail have to be considered, viz. (i)
whether he is likely to jump the bail and whether his presence can be
secured, and (ii) whether he is likely to interfere with the
witnesses and tamper with the evidence. Therefore, applying the
aforesaid criteria for the purpose of deciding the bail application
even though there may be a prima facie case suggesting involvement
and the tole attributed and also the nature/gravity of the offence,
the present application is required to be considered having regard to
the aforesaid aspects of delay in trial as well as the fact that the
other co-accused have been released including the accused like
Jagatsing Rajput @ Tiger who has been released on bail as per the
order passed in Criminal Misc. Application No. 15929 of 2010 dated
9.2.201.
9. Therefore,
without any further elaboration which has been much emphasised by the
learned APP about the prima facie involvement or the role, the court
is of the opinion that the present application deserves to be allowed
in view of the discussion made hereinabove.
10. The
application is accordingly allowed. The applicant is ordered to be
released on bail in connection with C.R. No. I-407/2009
registered with Sector-7 Police Station, Gandhinagar.
on his executing a personal bond of Rs. 10,000/- (Rupees Ten Thousand
only) with one solvent surety for the like amount to the satisfaction
of the lower court and subject to the further conditions that he
shall :
(a) not
take undue advantage of his liberty or abuse his liberty.
(b) not to
try to tamper or pressurize the prosecution witnesses or complainant
in any manner;
(c ) not
act in any manner injurious to the interests of the prosecution.
(d) maintain
law and order and should co-operate with the investigating officers;
(e) mark
his presence before the concerned Police Station on the first Monday
of every calendar month between 11.00 am to 2.00 pm till the trial
commences.
(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
his residence without prior permission of the court.
(g) surrender
his passport, if any, to the lower court, within a week.
11. If
breach of any of the above conditions is committed, the concerned
Sessions Judge will be free to issue warrant or take appropriate
action in the matter.
12. 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.
Rule is
made absolute. D.S. permitted.
(Rajesh
H. Shukla, J.)
(hn)
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