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CR.MA/12585/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 12585 of 2010
=========================================================
HARIKRISHNA
MAGANBHAI PATEL - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
YOGESH S LAKHANI, SENIOR COUNSEL with MR PRAVIN S GONDALIYA for M/S S
G ASSOCIATES for
Applicant(s) : 1,
MS CM SHAH, APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 20/10/2010
ORAL
ORDER
1. RULE.
Ms CM Shah, 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 Panigate Police Station, Baroda bearing CR No. I 123 of 2010
for the offence punishable under Sections 465, 467, 468, 471, 472,
473 read with Section 114 of the IPC and Sections 18A(1)(c) and 18(c)
of the Drugs and Cosmetics Act.
3. Considering
the facts and circumstances of the case, the matter is taken up for
final hearing today.
4. Mr
Yogesh S Lakhani, learned Senior Counsel with Mr Pravin S Gondaliya,
learned advocate for the petitioner submitted that in this case, the
investigation is over and charge-sheet is filed. Considering the
entire papers of charge-sheet, it would reveal that the petitioner is
arraigned as an accused in this case solely upon the oral statement
of co-accused Nilesh during seizure Panchnama. That during search of
the petitioner, nothing incriminating came to be found. That except
the statement of co-accused before the police, during the course of
search Panchnama, there is no evidence whatsoever collected by the
police and placed along with the charge-sheet to connect the
petitioner with the crime. It is further submitted that about 35
co-accused persons came to be released on bail, either by this Court
or by the Trial Court and against some of them, more serious
allegations were levelled by the prosecution than the petitioner.
They were actually found in possession of certain forged documents.
It is further submitted that the petitioner is not named in the FIR.
Therefore, it is submitted that the application may be allowed.
5. Per
contra, Ms CM Shah, learned APP representing the State vehemently
opposed this application and submitted that the petitioner is main
accused and the other co-accused persons who came to be released on
bail played lesser role in the incident. It is further submitted that
considering the seizure Panchnama, co-accused Nilesh Kantibhai Patel
referred the name of the petitioner before the Panchas. Therefore, it
is submitted that the application may be dismissed.
6. Having
considered the submissions advanced on behalf of both the sides and
more particularly the fact that the investigation is over and
charge-sheet is filed so also the fact that out of 43 accused persons
arraigned in the charge-sheet, 35 co-accused persons have been
released on bail either by this Court or by the Trial Court and the
fact that the prosecution attempted to establish the complicity of
the petitioner on the basis of the statement of co-accused Nilesh
Kantibhai who is also released on bail as well as considering the
fact that from the search conducted, nothing incriminating could be
found out from the petitioner and the fact that the offences alleged
against the petitioner are triable by the Court of learned JMFC,
without further entering deep into the evaluation of the evidence
collected by the prosecution, this Court is of the opinion that the
discretionary powers vested in this Court under Section 439 of the
Code of Criminal Procedure, 1973 deserves to be exercised in favour
of the petitioner.
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 123 of 2010 registered at Panigate Police
Station, Baroda 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
territory of India 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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