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CR.MA/8658/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 8658 of 2010
=========================================================
RAKESHBHAI
@ LALLO KANUBHAI VYAS - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
BM GUPTA for
Applicant(s) : 1,
MR JM PANCHAL WITH MR KJ PANCHAL, SPL PP for
Respondent(s) : 1,
MR KG MENON WITH MR AJAYKUMAR CHOKSI for
Respondent(s) : 2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 19/11/2010
ORAL
ORDER
The
petitioner is one of the accused in a post Godhra riot case arising
out of FIR being C.R. No. I-98/2002 in which in one of the suburbs
of city of Ahmedabad righteous mob committed murders killing
several people belonging to a particular community. Initially the
investigation into the said crime was carried out by local police.
Such investigation however, was later on handed over to the Special
Investigation Team (SIT for short) appointed by the Apex Court.
Further investigation was undertaken. Statements of several
witnesses were recorded including further statements of witnesses
whose statements were already previously recorded by the police. In
further investigation, involvement of the petitioner was revealed.
Witnesses stated before the investigating agency having cited the
petitioner as part as part of righteous mob. Essentially three
witnesses namely, Imtiaz Ahmedbhai Kureshi(PW-131) exh.546,
Abdulkadar Rasulmiya Malek(PW-65)exh.329 and Sadikhussen Nannumiya
Malek(PW-128) exh. 540, involved the petitioner in the alleged
incident. The petitioner was arrested on 13.9.2008. He had
previously moved the Sessions Court seeking regular bail. Such bail
application was turned down by the Sessions Court by order dated
29.12.2008. The petitioner has thereupon filed Criminal Misc.
Application No.692/2009 before this Court seeking bail. Such bail
application however, was dismissed as not pressed by order dated
13.11.2009. Thereafter, the petitioner has moved this fresh bail
application on various grounds including the ground that witnesses
who had involved the petitioner have now been examined before the
Court, there is no question of tampering with evidence, that trial
is likely to take much longer time, all the other accused have been
released on bail, petitioner is already in jail since nearly two
years.
Counsel
for the petitioner drew my attention to the relevant portion of the
statements of the witnesses recorded by the investigating agency
describing the role of the petitioner in the said offence. He also
drew my attention to the deposition of these witnesses before the
Court where reference to the petitioner has been made. From the
above he submitted that petitioner who was already in jail since
more than two years should be released on bail pending trial since
trial is likely to take longer time for completion. He further
submitted that other accused who have been attributed roles much
more serious than the petitioner have been released on bail by
different Courts by different orders.
Counsel
for the petitioner opposed the bail application contending that the
petitioner was part of unlawful assembly. He is not only identified
before the Court by several witnesses, he has also been attributed
specific role. It is further contended that this is a successive
bail application. In the previous round, petitioner has not pressed
the application for bail.
Having
thus heard learned advocates appearing for the parties and having
perused the material on record, I find that insofar as witnesses who
had involved the petitioner in statements before the police, have
already been examined by the prosecution before the trial Court.
Witness Imtiaz Ahmedbhai Kureshi(PW-131) exh.546 has stated before
the Court that while he was in the camp at Shah-alam he had learnt
that in house of Sattarbhai where shouts of help were heard, three
persons had been burnt alive. He had further learnt that besides
others, the present petitioner was also responsible for setting the
house on fire. Witness Abdulkadar Rasulmiya Malek(PW-65)exh.329 has
also spotted the petitioner being part of the mob and throwing
stones. Witness Sadikhussen Nannumiya Malek(PW-128) exh. 540 in his
deposition had also stated to have seen the petitioner as part of
the mob. He had also attributed role to the petitioner of being
responsible for setting the house of Sattarbhai on fire where four
people were burnt alive.
Though
it is true that the present application has been filed after once
previous bail application was withdrawn, in facts of the present
case, I am of the opinion that petitioner is required to be released
on bail. Firstly, previous bail application was withdrawn more than
a year back. Secondly, though it is stated that as many as 149
witnesses have already been examined before the trial Court and
further at-least 25 to 30 witnesses still remain to be examined, it
is therefore not possible to foresee within the near future trial
getting completed. Thirdly, as pointed out by the counsel for the
petitioner virtually all the accused in the said case have been
enlarged on bail by different Courts. Fourthly, the petitioner has
been in jail for nearly two years. Fifthly, witnesses who have
involved the petitioner, their deposition is already recorded before
the Sessions Court. No possibility of tampering with evidence
therefore, remains.
In
the result the petitioner is ordered to be released on bail in
connection with C.R. No. I-98/2002 on his furnishing bond of
Rs.50,000/-(Rupees Fifty Thousand only ) with one surety of like
amount to the satisfaction of the lower Court and subject to
following conditions that he shall :
not
take undue advantage of his liberty or abuse his liberty;
not
act in a manner injurious to the interest of the prosecution;
maintain
law and order;
mark
presence before the Naroda Police Station on every 1st
and 15th day of English Calendar month between 11:00 am
to 2:00 pm:
not
leave the Ahmedabad District without prior permission of the
Sessions Judge concerned, till the trial is over;
furnish
the address of his residence at the time of execution of the bond
and shall not change the residence without prior permission of this
Court;
surrender
his passport, if any, to the Lower Court immediately.
If
breach of any of the above conditions is committed, the Sessions
Judge concerned will be free to take appropriate action in the
matter.
Bail
before the Lower Court having jurisdiction to try the case.
Rule
is made absolute. Application is disposed of accordingly.
Direct
service is permitted.
(Akil
Kureshi,J.)
(raghu)
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