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CR.MA/9703/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9703 of 2011
=======================================================
VISHRAM
KALYAN MINDHANI - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=======================================================
Appearance :
MR
SV RAJU, Sr. Adv. for SVRAJUASSOCIATES
for Applicant(s): 1,
MR RC KODEKAR APP for Respondent(s) : 1,
MR
BY MANKAD for Respondent(s) :
1,
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 01/08/2011
ORAL
ORDER
The
present application has been filed by the applicant-accused under
Section 439 of Criminal Procedure Code for regular bail, which is a
successive bail application after the rejection of Criminal Misc.
Application No.10563/2010 as per the order dated 24.09.2010.
The
applicant-accused is charged with having
committed offences
under Sections 325, 307, 504, 506(2) and 114 of the Indian Penal
Code, for which, FIR being I-C.R.No.84/2010 has been lodged at
Mundra Police Station, Kutch.
Learned
Sr. counsel, Mr.Raju for the applicant pointedly referred to earlier
order passed in Criminal Misc. Application No.10563/2010 dated
24.09.2010, which is produced at Annexure-C and submitted that it
was on the basis of the information and statement given by the
learned A.P.P. that the applicant herein has violated the condition
by entering into the district and, thereafter, assaulted the victim,
it has led to passing of the order. However, he submitted that in
fact, when the incident has occurred, the applicant was permitted to
enter into the district as per the order passed in Criminal Misc.
Application No.2122/2010 dated 12.03.2011 by this Court (Coram :
Z.K. Saiyed, J.) and as per the said order, the said condition was
deleted. Therefore, he submitted that ultimately the Court has to
consider the facts and merits of the case, for which, he referred to
the details and submitted that the applicant was only a driver and
other two persons, who are said to have assaulted the victim with
sword, have been released and the applicant had no enmity and as
stated, he is said to have assaulted on hand. He, therefore,
submitted that the present application may be allowed.
Learned
A.P.P., Mr.Kodekar resisted the present application.
Learned
counsel, Mr.Mankad appearing for the original complainant resisted
the present application and placed on record the affidavit-in-reply
contending as to what has transpired. He tried to submit that the
order was passed by the Sessions Court permitted the accused to
enter into the district and being aggrieved by the said order,
Criminal Misc. Application No.2287/2010 was preferred before this
Court by the victim and this Court (Coram : A.S. Dave, J.) passed an
order in the said Criminal Misc. Application No.2287/2010 setting
aside the order modifying the condition and immediately thereafter,
inspite of the said order, another Criminal Misc. Application
No.2122/2010 was preferred, wherein the order came to be passed. He,
therefore, submitted that there is misleading the Courts on facts
and, therefore, the present application may not be entertained.
Further, he submitted that the role is attributed to all the accused
and, therefore, the present application may not be entertained.
Having
heard learned Sr. Counsel, Mr.Raju for the applicant, learned
A.P.P., Mr.Kodekar for the respondent no.1-State and learned
counsel, Mr.Mankad for the complainant and having considered the
rival submissions, it transpires that when this Court has passed
earlier order in Criminal Misc. Application No.10563/2010 dated
24.09.2010 (Annexure-C), the facts were not clarified that the
applicant has been permitted to enter into district. Though the
learned counsel, Mr.Mankad has stated that it was without hearing
the complainant, the order came to be passed in Criminal Misc.
Application No.2122/2010 dated 22.03.2010 by the High Court, the
fact remains that coordinate bench has permitted the applicant to
enter into district modifying the order of the Sessions Court in
other offence. Therefore, it cannot be said that there is any breach
of any condition and if the complainant has any grievance, he could
have moved before the same bench for appropriate order. Therefore,
in the circumstances, what is required to be considered is the
merits of the matter with regard to grant of bail considering the
basic aspect/criteria like nature of offence, manner in which it is
alleged to have been committed, role attributed etc. The applicant,
who is a driver, is alleged to have assaulted with sword on hand and
charge is for the offence under Section 307 of the Indian Penal
Code. At the same time, other co-accused are also alleged to have
assaulted the victim with sword and are released on bail. The
applicant is admittedly a driver, who had no enmity with the victim.
In
the circumstances, when the other co-accused have been released; the
victim is out of danger and is discharged, the present application
deserves to be allowed.
Accordingly,
present application stands allowed. The applicant is ordered to be
released on regular bail in connection with I-C.R.No.84/2010
registered with Mundra Police Station on his executing a 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
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 the investigating officers.
(e) 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.
(f) surrender
his passport, if any, to the lower Court, within a week.
(g) mark
his presence before concerned Police Station 1st day of
every calender month between 11:00 AM and 2:00 PM for a period six
months.
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.
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.
Rule
is made absolute. Direct service permitted.
After
the order was dictated, learned counsel, Mr.Mankad has requested for
stay of the operation of the order releasing the applicant on bail.
In the facts and circumstances, as there is no justification for the
stay of the order, the request is rejected.
(RAJESH
H.SHUKLA, J.)
/patil
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