Gujarat High Court
Hardevsinh Mahipatsinh Parmar vs State Of Gujarat on 5 December, 2018
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.A/1738/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1738 of 2018
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HARDEVSINH MAHIPATSINH PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR Y J PATEL(3985) for the PETITIONER(s) No. 1
HCLS COMMITTEE(4998) for the RESPONDENT(s) No. 2
MR NEERAJ SONI(3433) for the RESPONDENT(s) No. 2
MR KL PANDYA APP(2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 05/12/2018
ORAL ORDER
1. Denial of bail for the offences punishable under Sections 395, 323, 504 and 506(2) of the Indian Penal Code (for short IPC) and under Sections 3(1)(R)(S), 3(2)(5-a) of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the Act) in connection with FIR registered at C.R. No.I-54 of 2018 with Muli Police Station, Surendranagar; by an order dated 02/11/2018 passed in CR.MA NO.1231 of 2018 by the learned additional Sessions Judge, Surendranagar has given to this appeal filed under Section 14-A of the Act.
2. On consideration of the rival contentions, it appears that the offence under Section 323 of the IPC is bailable; whereas 506(2) of the IPC is not bailable. Insofar as Section 395 is concerned, it appears from the facts on record that during the scuffle and quarrel between the complainant and the accused, he allegedly snatched the necklace made of gold of the complainant; however prima facie, it cannot be said that accused had intention or knowledge to commit the offence under Section 395 of the IPC (See decision 2011 (3) GLH 739).
Insofar as Section 3 of the Act is concerned, no averment that the petitioner is not a member of the SC & ST are made in the FIR and under similar circumstances in Gorige Pentaiah vs. State Page 1 of 3 R/CR.A/1738/2018 ORDER of Andhra Pradesh & Ors. [2008 (12) SCC 531], FIR came to be quashed for lack of such averments. Sustainability of the case under the said provision appears to be doubtful. It also appears that in past the petitioner was involved in similar offence wherein however according to the learned Counsel, the petitioner has been acquitted.
Considering the overall circumstances of the case, the trial Court ought to have exercised the discretion by enlarging the petitioner on bail. Non-exercise of the discretion has resulted into miscarriage of justice.
3. For the foregoing reasons, the impugned order which ignores the above factual and legal scenario cannot be sustained; impugned order is therefore quashed and set aside. The appeal is allowed and appellant is ordered to be released on bail in connection with FIR being C.R. No.I-54 of 2018 with Muli Police Station, Surendranagar on executing a bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution;
(c) surrender his passport, if any, to the lower court within a week;
(d) not leave the territory of India without prior permission of the Sessions Judge concerned;
(e) mark presence in the concerned police station once in a calendar month.
(f) furnish the present address of residence along with the proof to the Investigating Officer concerned and also to the trial court at the time of execution of the bond and shall indicate change of residential address if any to the trial court.
(g) not enter within the radius of one kilometer of the residence or working place of the victim;
4. The competent authority will release the appellant only if he is not required in connection with any other offence for the time Page 2 of 3 R/CR.A/1738/2018 ORDER being.
4.1 If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to take appropriate action in the matter.
4.2 Bail bond to be executed before the lower court having jurisdiction to try the case.
4.3 It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. 4.4 At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicants on bail.
5. Rule made absolute to the aforesaid extent. Direct service is permitted.
(G.R.UDHWANI, J) SOMPURA Page 3 of 3