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CR.MA/11391/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 11391 of
2010
======================================
JAIRAJSING
GILUBHAI RAJ - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
======================================
Appearance
:
MR KB ANANDJIWALA for
Applicant(s) : 1,
MS MANISHA L SHAH APP for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH
H.SHUKLA
Date
: 05/10/2010
ORAL ORDER
The present application has been
filed by the applicant for regular bail under section 439 of the
Code of Criminal Procedure, 1973, after the charge sheet is filed.
The applicant is charged with
having committed offences under sections 386 and 506(2) of Indian
Penal Code, for which, First Information Report, being, I-C.R.No.36
of 2010, has been registered at Nadiad Rural Police Station.
The present application, in fact,
is a successive bail application. He has filed earlier Criminal
Miscellaneous Application No.10244 of 2010, which came to be
withdrawn vide order dated 16.09.2010. As transpires from the
application, the present application has been filed on the ground
that the mobile phone number was not belonging to the petitioner
from which the talks are said to have been made and it is stated in
this application to give an impression that it is only on the basis
of some inadvertent mistake made by learned APP in this connection
that mobile belonging to the applicant, ultimately learned counsel
for the applicant withdrew the petition, as the Court was not
inclined. Therefore, ground which is sought to be made is only on
the aspect of mobile whether it belongs to petitioner or not.
However, in another words, learned counsel is seeking review of the
earlier order.
Therefore, again Mr.Anandjiwala
has referred to the papers and emphasized on this aspect that the
said mobile number is not that of petitioner. He emphasized that
other mobile which has been recovered from the jail was of the other
accused who has been released, for which he pointedly referred to
the First Information Report at page-16 where the mobile number is
mentioned. Referring to FIR, he has submitted that entire FIR is
based on that fact which is not indicated as to the involvement of
the applicant accused. He has also referred to other papers and
submitted that considering the panchnama also, there is no evidence
to connect the accused or suggesting involvement of the accused for
the alleged offence, and, therefore, present application may be
allowed when other co-accused have been released as per order passed
in Criminal Miscellaneous Application No.6494 of 2010.
Learned counsel Mr.Anandjiwala has
also submitted that offence alleged is under section 386 of Indian
Penal Code for extortion and admittedly no amount has been given by
any one to the accused and there is no passing of money, and,
therefore, offence is not completed. He, therefore, submitted that
the present application may be allowed.
Learned APP Ms.Shah submitted that
present application is a successive bail application and no change
of circumstances has been claimed except the fact about the
inadvertent mistake of learned APP in stating that mobile phone
belonging to the accused. She, however, stated that, that is not the
only material and further she emphasized that one mobile phone has
been destroyed and one mobile which has been recovered from other
accused as there is no even the case of the prosecution that the
said number belonging to the present applicant. The case of the
prosecution is that he has made use of the same for alleged offence
which could be evident from the statement, and, therefore, at this
stage, present application may not be entertained as no ground can
be said to be made out. She has, therefore, submitted that in fact
this is asking for review of the order, which is not permissible, on
such a ground.
In view of rival submissions, it
is required to be considered whether the present application can be
entertained or not.
It is well settled that the Court
is not required to appreciate and scrutinize evidence in detail at
this stage. However, for considering prima facie case
suggesting the involvement of the applicant accused, relevant
aspects i.e. nature of
offence, manner in which alleged offence is said to have been
committed, role attributed etc. are relevant. In the facts of the
present case, from the nature of offence and the manner in which it
is alleged to have been committed itself is a matter of concerned.
Further, the ground made out for successive bail is also not
accepted as after the arguments were made at length, when the Court
was not inclined, matter was withdrawn, and it is not that only as
to whether mobile phone which is referred in the FIR belonging to
the accused or not was the only consideration. Therefore, after
having perused the papers when the Court was not inclined, it has
been withdrawn on merits and no other ground or circumstances have
been made out to entertain present application which is successive
bail application, the Court is of the opinion that present
application cannot be entertained. Further, again when the learned
counsel has pressed on merits itself requires to be stated that
having regard to the aforesaid circumstances stated above and prima
facie material suggesting the
role attributed to the applicant accused, present application cannot
be entertained inasmuch as what was emphasized was the use of mobile
phone in the jail by the accused or the alleged offence and no where
it belongs to him. Further admittedly one mobile has been destroyed,
therefore, without any further elaboration, present application
cannot be entertained and deserves to be rejected and accordingly
stands rejected. Rule is discharged.
(RAJESH
H. SHUKLA, J.)
Amit
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