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CR.MA/9119/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9119 of 2010
=========================================================
GANGA
MALDEBHAI ODEDARA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance :
M/S
THAKKAR ASSOC. for
Applicant(s) : 1,
MR MR MENGDEY, APP for Respondent(s) : 1,
MR
KD VASAVADA for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 13/09/2010
ORAL
ORDER
1. Present
application has been filed by the applicant for grant of regular bail
under Section 439 of Cr.P.C. after the charge-sheet is filed.
2. The
applicant accused is charged with having committed offences under
Sections 302, 307, 147, 148, 149, 323, 324, 325, 504 and 506(2) of
Indian Penal Code and Section 25(1)(a) of the Arms Act and Section
135 of the B.P.Act for which F.I.R. being CR No.I-4/2007 has been
registered with Kirti Mandir Police Station, Porbandar.
3. Learned
Senior Counsel Mr. Thakkar appearing for the applicant referred to
the papers and the role attributed and submitted that the applicant
is the original accused No.5 who is alleged to been attributed with
fire arm. However, he submitted that no injury has been caused to the
deceased with the fire arm which is evident from the P.M. report. He
has also referred to the medical certificate of both the hospitals at
Porbandar and Jamnagar and submitted that the applicant is not
attributed with any kind of injury except to one witness and
therefore present application may be allowed considering the fact
that the charge-sheet is now filed. He further submitted that the
District Court has referred to the aspect of proceeding under Section
70 as well as the antecedent of the applicant. He submitted that in
most of the cases the applicant has been acquitted including the
offence under Section 302. He has also submitted that the complainant
is also having antecedent for which he referred to the list of cases
registered against the complainant. He, therefore, submitted that the
present application may be allowed subject to any conditions.
4. Learned
A.P.P. Mr. M.R.Mengdey referred to the police papers and strenuously
submitted that the incident is stated to have been occurred in
January-2007 and the present applicant accused was arrested only in
September-2009. He further submitted that there are other cases
pending against the applicant and therefore the present application
may not be allowed. He also submitted referring to the statement that
there was indiscriminate firing, though nobody injured. But,
considering the antecedent and conduct, the present application may
not be allowed.
4.1. Learned
Counsel Mr. Vasavda referred to the order passed by the Sessions
Court and emphasized on the aspect that applicant was absconding. He
has also submitted that it is not a simple case of involvement in one
offence but there are number of offences registered and they are
working as a separate Gang and therefore public interest may also be
considered. He, therefore, submitted that present application may not
be allowed.
5. Having
regard to the rival submissions, it is required to be considered
whether the present application can be entertained or not.
5.1. At
this stage, the Court is not required to appreciate or scrutinize the
evidence in detail. However, for considering the prima facie case,
the relevant aspects like, the nature of offence/gravity, manner in
which the offence is alleged to have been committed, role attributed
and weapon used are required to be considered.
5.2. In
the facts of the present case, as referred, no injury has been caused
with the fire arm as it is evident from the P.M. report. Therefore,
without any further elaboration, having noted the objections with
regard to the conduct and the antecedent and also considering the
role attributed and the fact that now the charge-sheet is filed, the
present application deserves to be allowed subject to the conditions
hereinafter.
6. Accordingly,
present application stands allowed. The applicant is ordered to be
released on regular bail in connection with the F.I.R. being CR
No.I-4/2007 registered with Kirti Mandir Police Station, Porbandar,
on his executing a bond of Rs.5,000/- (Rupees Five Thousand) 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
to try to tamper or pressurize the prosecution witnesses or
complainant in any manner.
(c) not
act in any manner injurious to the interest of the prosecution.
(d) maintain
law and order and should cooperate with the investigating officers.
(e) mark
his presence before concerned Police Station on 1st Monday
of every month of English calender 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.
(h) not
enter the Taluka Porbandar for a period of six months.
7. 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.
8. 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.
9. Rule
is made absolute to the aforesaid extent. Direct service is
permitted.
(RAJESH
H.SHUKLA, J.)
jani
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