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CR.MA/781/2011 4/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 781 of 2011
=========================================================
DHANRAJ
JAKHUBHAI SEDA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance :
SV
RAJU ASSOCIATES for
Applicant(s) : 1,
MR AJ DESAI, ADDITIONAL PUBLIC PROSECUTOR for
Respondent(s) : 1,
MR BY MANKAD for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 22/02/2011
ORAL
ORDER
This
application is filed by the applicant / accused no.1 under Section
439 of the Code of Criminal Procedure in connection with First
Information Report registered as I-C.R. No.84/2010 with Mundra
Police Station, Mundra, District Kutch for the offences punishable
under Sections 325, 307, 504, 506(2) and 114 of Indian Penal Code.
Mr.
S.V. Raju learned Senior Counsel submitted that the applicant is
arrested on 27.12.2010, that he was admitted in Ashirvad Hospital,
Bhuj being a patient of chronic renal failure and has undergone
dialysis. It is further submitted on 18.06.2008 coronary
angiography was done and on 16.09.2008 one of the kidneys of the
applicant was transplanted at Civil Hospital, Ahmedabad and has
undergone dialysis almost for 174 times in the years 2008 and 2009.
It is further submitted that the version of the complainant in the
FIR is full of lies and not supported during course of
investigation. What is stated in the FIR about injuries caused by
inflicting a blow of sword is not confirmed and medical officer of
Community Health Centre, Mundra-Kutch who has noticed the injuries
only mentions about the incisive wound on the left hand of the
complainant and nothing more was disclosed. No any other injury was
noticed. However, the certificate issued by the Doctor of a private
hospital cannot be relied at the stage of considering the case of
the applicant for bail. On the contrary, it is submitted that the
investigation need to be carried out in a free and fair manner by
considering all relevant aspects. It is also submitted that
considering various elements of the case coupled with the above
aspect and only injury on the hand of the complainant, he may be
enlarged on bail.
Mr.
B.Y. Mankad learned Advocate for the complainant has opposed grant
of bail on the ground that the applicant herein has inflicted injury
on a witness of the case and he is involved in a serious crime
punishable with severe punishment and ordinarily, this Court would
not like to examine nature of injuries etc. at the stage of bail. It
is further submitted that the applicant herein was absconding and an
application was submitted by the Investigating Officer under Section
70 of the Criminal Procedure Code and warrant was also issued by the
authority. It is therefore, submitted that considering the overall
facts and that the applicant herein is an influential and head
strong person, he cannot be enlarged on bail.
It
is further submitted that considering the conduct and behaviour of
the applicant who has abused the process of law, he does not deserve
any relief by this Court. In view of the pendency of various cases
with different C.R.’s which reflect to the nature and character of
the applicant who is not a law abiding citizen and therefore, he
does not deserve any relief.
I
have heard learned APP Mr. A.J. Desai, who submitted that
considering the overall facts and circumstances, the applicant does
not deserve any bail.
In
the rejoinder, Mr. S.V. Raju learned Senior Counsel submits that out
of the four cases which was registered prior to 2001, the petitioner
was acquitted and the other cases are pertaining to Section 504 and
506(2) IPC.
Considering
the overall facts and circumstances of the case and considering the
principles laid down by the Hon’ble Apex Court with regard to
exercise of powers under Section 439 of the Criminal Procedure Code
in the case of Jayendra Saraswathi Swamigal v. State of
Tamilnadu reported in (2005)2 SCC 13, I am
inclined to consider the case of the applicant on the ground that
the applicant against whom the allegations are levelled, nature of
injuries reflected from the Certificate dated 21.06.2010 issued by
the Medical Officer, Class II show that it was on the left hand and
not on the vital parts of the body and therefore, the injured was
discharged from the hospital. Besides, the applicant is available
for trial and will co-operate with the investigation. Besides,
considering the various elements as noticed earlier, by imposing
suitable conditions the applicant is ordered to be enlarged on bail.
Learned
Counsels for the parties do not press for further reasoned order.
In
the facts and circumstances of the case, the application is allowed
and the applicant is ordered to be released on bail in connection
with First Information Report registered as I-C.R. No.84/2010 with
Mundra Police Station, Mundra, District Kutch on executing a bond of
Rs.5,000/- (Rupees Five Thousand Only) with one surety of the like
amount to the satisfaction of the 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 injurious to the interest of the prosecution;
c)
surrender passport, if any, to the lower court within a week;
d)
not leave the State of Gujarat without prior permission of the
Sessions Judge concerned;
e)
mark presence at the concerned Police Station on the first Sunday of
every month between 10.00 a.m. and 3.00 p.m. for three months only;
f)
furnish the present 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 this
Court;
g)
the applicant shall not enter into the limits of Taluka Mundra and
Taluka Bhuj for a period of three months, except for marking
presence or attending the trial.
The
authorities will release the applicant only if 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 lower court having jurisdiction to
try the case.
At
the trial, the 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.
Sd/-
(Anant
S. Dave, J.)
Caroline
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