Gujarat High Court
Yasinsha Motisha Fakir vs State Of Gujarat on 8 January, 2016
Author: S.H.Vora
Bench: S.H.Vora
R/CR.MA/13535/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 13535 of 2014
==========================================================
YASINSHA MOTISHA FAKIR....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
==========================================================
Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Applicant(s) No. 1
MR NITIN T GANDHI, ADVOCATE for the Respondent(s) No. 1
MR. LB DABHI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 08/01/2016
ORAL ORDER
1. By way of this application, the applicant, namely Yasinsha Motisha Fakir, presently in jail since 17.2.2011, seeks his enlargement on bail in connection with the offence registered as C.R. No.I - 39 of 2010 registered with Patdi Police Station on appropriate terms and conditions, now, registered as Criminal Case No.62 of 2012.
2. Briefly stated, a complainant came to be filed by one Shantibhai Thakkar inter alia contending that he is residing at village Savlas since last seven years and serving as Senior Telecom Office Assistant. In the complaint, it is alleged that one land situated at village Savlas bearing revenue survey Nos.368 to 370, 311, 372, 125 and 416 etc. were in his possession. It is the case of the complainant that the accused Page 1 of 18 HC-NIC Page 1 of 18 Created On Tue Jan 12 02:28:01 IST 2016 R/CR.MA/13535/2014 ORDER persons created forged and fabricated documents illegally and unauthorizedly selling off the lands of the complainant and his family members and with the forged and fabricated documents, sold all the parcels of land bearing survey Nos.368 to 370, 311, 372, 125 and 416 etc. It is specific case of the complainant that he came to now about the said transaction only when he went to pay the installment of the crop loan. Besides the allegation as to creation of forged and fabricated documents, a specific allegation was made against the applicant that he has allegedly threatened the complainant in the Police Station that one person of the complainant's family is already missing/ kidnapped and if the matter is not settled, then other family members may also be kidnapped.
3. It is relevant to note here that for the incident dated 25.9.2009, an FIR came to be registered on 4.6.2010. All other co-accused persons, who were party to the alleged offence of forgery of documents, were either granted anticipatory bail or regular bail and except the present applicant, all accused persons are on bail.
4. Before the present application is taken up, it is important to note that the present applicant moved an application for bail being Criminal Misc. Application No.10231 of 2011. Vide order dated 23.8.2011, the application of the applicant came to be rejected by the Court. On 3.2.2011, charge sheet came to be filed before the competent Court, wherein the applicant is shown as accused No.1. Before filing of the charge sheet before the competent authority, the present applicant approached the Hon'ble Apex Court for bail.
Page 2 of 18
HC-NIC Page 2 of 18 Created On Tue Jan 12 02:28:01 IST 2016
R/CR.MA/13535/2014 ORDER
The Hon'ble Apex Court declined the petition preferred by the present applicant vide order dated 8.11.2011. The Hon'ble Apex Court observed that the Court concerned will take up the matter and suitably dealt with the same as early as reasonably practicable. Thereafter, the applicant filed one more Criminal Misc. Application No.4277 of 2012 for bail before this Court. Vide order dated 4.5.2012, the said application was disposed of as withdrawn with a liberty to the applicant to prefer appropriate application before the learned trial Court under sub section (6) of section 437 of the Code of Criminal Procedure, 1973 (for short "the Code"). It is stated at bar that the applicant preferred such application before the trial Court, but it came to be rejected on 8.5.2012. Thereafter, the present applicant again approached this Court by way of Criminal Misc. Application No.10736 of 2013. Vide order dated 13.2.2014, this Court permitted the applicant to withdraw the application for bail, but directed the learned Magisterial Court to expeditiously proceed with the case so as to finish it on or before 31.12.2014. Meanwhile, the applicant preferred an application below Exh.130 for separation of his trial qua other accused. Vide order dated 7.7.2014, the learned trial Court ordered separation of the trial of the present applicant and accused Nos.2 to 4 and 8 and 10. At this stage, it is relevant to note that the accused Nos.2 and 3 against whom the trial was separated, filed an application for discharge before the trial Court. As trial Court refused to discharge, they filed Special Criminal Application No.2744 of 2013 and Criminal Revision Application No.498 of 2014 respectively before this Court. It is stated at bar that in both the matters, this Court has granted stay of trial of further proceedings of the case. When this matter was taken up for Page 3 of 18 HC-NIC Page 3 of 18 Created On Tue Jan 12 02:28:01 IST 2016 R/CR.MA/13535/2014 ORDER hearing, this Court also passed an order calling for the remarks of the learned JMFC, Patdi to place on record the reasons as to why trial qua accused Nos.1 to 4 and 8 and 10 is not proceeded in Criminal Case No.62 of 2012 though this Court directed to expeditiously proceed with the case so as to finish it on or before 31.12.2014. Vide letter dated 18.12.2015, the learned trial Judge informed to this Court that because of stay granted by this Court in above matters and also because of pendency of other matters, the case is not proceeded further though as per order below Exh.130, the trial is separated qua the present applicant. So, it is relevant to take note of the fact that the trial is stayed by this Court.
5. The Court is also required to note one more fact that in the present proceedings, there is serious allegation against the present applicant as to committing murder of the nephew of the complainant, namely Kiritbhai Kanjibhai Thakkar. It is stated at bar that the complainant filed three Habeas Corpus petitions under Article 226 of the Constitution of India, but till date, the corpus is not traced. Lastly, the complainant preferred Special Criminal Application No.5067 of 2014. Vide order dated 20.8.2015, while disposing of the said petition, the Division Bench of this Court made following observations in para 2 to 5, which reads as under:
"2.0. At the outset, it is required to be noted that nephew of the petitioner corpus is missing since 9.10.2009. It is also required to be noted that earlier the petitioner preferred Special Criminal Application No. 1452 of 2010 for the very relief, however the same came to be disposed of by the Division Bench of this Court vide order dated 7.2.2011 observing that as per the affidavits filed by the Investigating Agency that all requisite steps have been taken to trace the corpus, but have gone in vain. Thereafter having Page 4 of 18 HC-NIC Page 4 of 18 Created On Tue Jan 12 02:28:01 IST 2016 R/CR.MA/13535/2014 ORDER noted that no purpose shall be served by keeping the matter alive, the Division Bench disposed of the aforesaid petition by directing the Investigating Agency to continue the search of the corpus with all seriousness and zeal and ensure that the corpus is traced. That even thereafter, still corpus was not traced, the petitioner has again preferred present application. It is required to be noted that thereafter investigation has been handed over to CID, Crime since 2012.
3.0. Shri Kodekar, learned Additional Public Prosecutor has stated that all efforts are made by even the CID, Crime to trace the corpus, however even CID, Crime also failed to trace out the corpus. It is submitted that one suspect person is already in jail and he was taken on remand and even lie dictation test was also conducted by him, however no fruitful result is achieved. It is submitted that even the Investigating Agency applied before the learned Magistrate for brain mapping test of the suspect person however said application was rejected. It is submitted that even the Investigating Agency has carried out the investigation as and when it is suggested by the petitioner. It is submitted that therefore, all efforts are made and being made to find out a corpus.
4.0. In view of the above and considering the fact that corpus is missing since 9.10.2009 and from reports submitted by the Investigating Agency (CID, Crime) it appears that all efforts are made to trace corpus, however still corpus is not traced. The attempts are still being continued.
5.0. In view of the above, we are of the opinion that no purpose is going to be served by keeping the matter pending. Under the circumstances we disposed of present Special Criminal Application. However, facts reveals that the petitioner nephew has been missing since 9.10.2009, we direct the Investigating Agency to continue the search of the corpus with all seriousness and zeal and ensure that the corpus is traced. In the facts and circumstances, we direct that investigation be supervised by the higher authority of the CID, Crime not below the rank of Dy.Sp. It goes without saying that if the petitioner has any clue, it will be open for the petitioner to approach the concerned Investigating Officer and the Page 5 of 18 HC-NIC Page 5 of 18 Created On Tue Jan 12 02:28:01 IST 2016 R/CR.MA/13535/2014 ORDER concerned Investigating Officer to carry out the investigation in the same direction as may be suggested. With this, present Special Criminal Application is disposed of."
6. Pending such petitions for Habeas Corpus, the complainant gave an application below Exh.174 before the trial Court for further investigation on 5.2.2015. As per order dated 31.3.2015, the learned trial Judge rejected the said application, which is now subject matter of Special Criminal Application No.3150 of 2015 before this Court. It is matter of fact that the nephew of the complainant is missing since 9.10.2009 and therefore, the investigation was handed over to CID (Crimes) since 2012. However, the CID (Crimes) also failed to trace out the corpus. Thereafter, the complainant filed one Special Criminal Application No.3697 of 2013 for transferring the investigation to the CBI. It is stated at bar that the said application is still pending.
7. In this factual background, the present application being 4th successive bail application before this Court is filed mainly on the ground that as on date, the charge is not framed though this Court directed to conclude the trial latest by 31.12.2014 and stay is operating qua further proceedings of the case. Normally, once bail application preferred u/s 439 of the Code is rejected after charge-sheet, recourse available to the applicant will be either to obtain verdict of involvement or innocence in the offence alleged against the applicant by following procedure laid down under Chapter 19 of the Code. Since, the State could not satisfy the Court as to any remote possibility of commencement of trial in near future, the Court left with no option, but to consider the bail application preferred by the applicant.
Page 6 of 18
HC-NIC Page 6 of 18 Created On Tue Jan 12 02:28:01 IST 2016
R/CR.MA/13535/2014 ORDER
8. Learned advocate Mr. Ashish Dagli appearing for the applicant would contend before this Court that there is no likelihood of commencement and conclusion of trial in near future on account of stay operating qua further proceedings on account of stay granted by this Court in the above matters. In support of his submission, learned advocate Mr. Dagli pressed into service the decision rendered in case of Sanjay Chandra Vs. CBI reported in 2012(1) GLH 93 and in case of State of Kerala v. Raneef reported in AIR 2008 SC 340.
9. Per contra, learned APP Mr. L.B. Dabhi would contend that there is no change in circumstances after rejection of successive bail application on thrice occasions and also refused by the Hon'ble Apex Court, there is no change in any circumstances so as to entertain present application. It is also his contention before this Court that the trial is not delayed on account of either prosecution or complainant and therefore, the present application may be declined, more so, the corpus is still not traced.
10. At the time of hearing of this bail application and considering the seriousness of the allegations of the offence alleged against the applicant, the complainant was provided audience and on behalf of the complainant, learned advocate Mr. N.T. Gandhi was heard. Learned advocate Mr. Gandhi would contend that the complainant's nephew came to be kidnapped from the house of one Tribhovanbhai Virjibhai whose statement has been recorded by the investigating agency on 14.6.2010. He has also drawn my attention to the mobile call details of both the present applicant and the Page 7 of 18 HC-NIC Page 7 of 18 Created On Tue Jan 12 02:28:01 IST 2016 R/CR.MA/13535/2014 ORDER complainant's nephew during the period from 7.10.2009 to 9.10.2009 so as to demonstrate before the Court that at or about 12:51 on 9.10.2009, both the applicant and the complainant's nephew were at the same location and thereafter, mobile phone of the complainant's nephew found switched off. In support of his submission, he has also drawn my attention to the fact that the applicant is involved in series of serious offences and therefore, considering the antecedent, the applicant may not be enlarged on bail. It is one of the contentions of learned advocate Mr. Gandhi that one Mr. Ramanuj Premdas filed civil litigation on the basis of one forged Banakhat alleged to have been executed by the complainant's nephew on 18.8.2009. In order to demonstrate that the complainant's nephew obtained Rs.12 lac in piecemeal from said Mr. Ramanuj Premdas. According to him, said Mr. Ramanuj Premdas is applicant's friend and such fact is reduced in his affidavit annexed as page No.129. It is also contended by learned advocate Mr. Gandhi that the applicant is not cooperating with the investigating agency and for that purpose, he has read before me the averments made by the investigating agency in para 3 of the additional affidavit, annexed at page No.139, which reads as under:
"3. It appears from the papers of the investigation that a Lie Detector Test was carried out on one Yasinsha Motisha against whom allegations were made by the petitioner in the FIR. In the Lie Detector Test, it had come on record that the said Yasinsha Motisha was not telling th truth to the agency. I respectfully submit that to get information from the said Yasinsha Motisha, the then investigating agency thought it fit to keep watch on him so that the whereabouts of the missing person can be traced out. Similarly, on 4.1.2011, statement of Yasinsha Motisha was recorded but he was not cooperating with the investigating agency, therefore, an application was Page 8 of 18 HC-NIC Page 8 of 18 Created On Tue Jan 12 02:28:01 IST 2016 R/CR.MA/13535/2014 ORDER made before Ld. Judicial Magistrate First Class, Patdi for Brain Mapping Test of the said Yasinsha Motisha, but the Ld. Magistrate rejected the prayer made by the investigating officer."
11. In support of his submission, learned advocate Mr. Gandhi has pressed into service following case laws:-
(1) Gobarbhai Naranbhai Singala Vs. State of Gujarat and others reported in AIR 2008 SC 1134 (2) Ash Mohammad v. Shiv Raj Singh alias Lalla Babu and another reported in 2012 CRI.L.J. 4670 (3) Neeru Yadav V. State of Uttar Pradesh and another reported in 2015 CRI.L.J. 4862 (4) Prasanta Kumar Sarkar Vs. Ashis Chatterjee and another reported in 2011 CRI.L.J. 302
12. Having heard the submissions made at bar and considering the facts of the case, it is not in dispute that the applicant is going to face trial for the offences punishable under sections 465, 467, 468, 471, 365, 344, 120-B and 114 of the IPC. It is also reported at bar that from the date of arrest of the applicant, till date, the applicant was granted temporary bail in all for 460 days on different occasions. NO doubt, this Court is not considering this aspect to accept the present application, but it is clear that at no point of time, there is any allegation against the applicant that he has abused or misused the liberty extended to him. No such complaint is made before this Court by learned APP Mr. Dabhi as to tempering with any evidence or abusing the liberty extended to the applicant for limited period on different occasions.
Page 9 of 18
HC-NIC Page 9 of 18 Created On Tue Jan 12 02:28:01 IST 2016
R/CR.MA/13535/2014 ORDER
13. Learned advocate Mr. Gandhi for the original
complainant placed reliance in case of Gobarbhai Naranbhai Singala (supra) so as to contend that the applicant may not be granted bail on the ground that trial of the case is not progressed/begun. In the facts and circumstances of the case before the Hon'ble Apex Court, the trial could not progress or begin as the matter was adjourned on the ground that one or the other accused was not present. So factually, the case cited at bar is not applicable to the facts of the present case, because in the case on hand, the trial could not be proceeded on account of stay operating against further proceedings granted by this Court and for that, no blame can be found against the present applicant. In second and third case of Ash Mohammad (supra) and Neeru Yadav (supra), the Hon'ble Apex Court found that enlargement of accused on bail for the offence under section 365 of the IPC to a history sheeter is merely because the accused in custody for seven months is improper. In case on hand, it is true that the applicant is going to face trial of section 365 of the IPC, for which maximum punishment is provided o the extent of seven years, whereas the applicant is behind the bar since last about five years. It is true that the the applicant was involved in all 10 cases, the details of which are as under:
Sr. Police Station Crime No. Sections
No.
1 DCB Crime 16/2007 364, 365, 384, 387, 506(2),
114 IPC
2 Gayakwad 247/94 Arms Act Sec.25(1)(1-B)A
3 Viramgam 46/94 Sec. 302 IPC
Town
Page 10 of 18
HC-NIC Page 10 of 18 Created On Tue Jan 12 02:28:01 IST 2016
R/CR.MA/13535/2014 ORDER
4 Sanand 312/94 Arms Act Sec.25(1)(1-B)A
5 Karanj 345/94 379 IPC
6 Gandhinagar 287/97 384 IPC
Sector 7
7 Adalaj 221/98 400, 401 IPC
8 Sarkhej 170/97 365, 394 IPC
9 Adalaj 66/97 392, 114 IPC
10 Hadwad 29/98 Arms Act Section 25(1)(A-
B)
It is a matter of fact that out of ten cases, in nine cases, the applicant earned acquittal in respect to the offence which occurred in the year 1994 to 1998 and as on today, the applicant is facing trial in respect to one offence being registered vide I - C.R. No.29 of 1998 under the provisions of the Arms Act registered with Halvad Police Station and the present one. So on considering the antecedents of the applicant and more particularly, when he earned acquittal in 9 cases, it is not proper and legal to deny bail to the applicant by terming him as history sheeter. Lastly, learned advocate Mr. Gandhi placed reliance on case of Prasanta Kumar Sarkar (supra) so as to contend before this Ho'ble Court that the present applicant has kidnapped the corpus which is still not traced and therefore, considering the heinous crime committed by the applicant, the applicant may not be granted bail, particularly when the charges are yet not framed. In this connection, it is relevant to note that there is no charge or offence registered against the present applicant either under section 300 or 364A of the IPC, but it is the case of the complainant that as the applicant has kidnapped the complainant's nephew, he would be charged or is likely to be charged with the offence punishable under sections 302 or Page 11 of 18 HC-NIC Page 11 of 18 Created On Tue Jan 12 02:28:01 IST 2016 R/CR.MA/13535/2014 ORDER 364A of the Code. But, as a matter of fact, as on today, the applicant is not facing any charge either under section 302 or 364A of the Code. Therefore, it is not legal and proper to deny bail to the applicant in absence of any specific registration of offence. In case, in future, if any report is moved by the investigating agency requesting the Court to add charge either under section 300 or 364A, in that event, the prosecution is always at liberty to rearrest the applicant for such charge. But, so long as no such offence punishable under section 300 or 364A has been registered, no bail can be denied to the applicant.
14. The submissions of learned advocate Mr. Gandhi that the applicant is involved in the commission of offence u/s 300 or 364A of the Code in view of statement of witnesses namely, Mr. Tribhuvanbhai Virjibhai, an affidavit of one Mr. Ramanuj and non-cooperation of the applicant in the matter of investigation to trace the corpus loses relevancy because no offence is yet registered either u/s 300 or 364A of the code. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case. While granting, the Court has to keep in mind the nature of accusation, the severity of punishment, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tempered with and such other aspect. No such apprehension has been raised either fleeing from trial or tempering with the witnesses. The Court cannot postpone the grant of bail on account of the fact that corpus is yet traced by the investigating agency. No doubt, it is unfortunate that corpus is yet not traced though thrice, Special Criminal Applications Page 12 of 18 HC-NIC Page 12 of 18 Created On Tue Jan 12 02:28:01 IST 2016 R/CR.MA/13535/2014 ORDER (Habeas Corpus) preferred by the complainant. Normally, the Court would not have granted bail to applicant, who failed to get bail on thrice occasion before this Court and also Hon'ble Apex Court, but considering the peculiar facts of the case as recorded herein above, it is not proper and legal to deny bail to the applicant in view of the fact that there is no likelihood of commencement of trial in near future due to stay operating qua further proceedings in Criminal Case No.62 of 2012.
15. In case of Raneef (supra), the Hon'ble Apex Court observed that delay in conclusion of trial is an important factor to be considered and in para 12(4), the Hon'ble Apex Court has observed as under:
"12(4) In deciding bail application an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, nor violated in such a case? Of course, this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail."
16. Similarly, in case of Sanjay Chandra (supra), in para 14, 15 and 16, the Hon'ble Apex Court observed as under:
"14) In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed Page 13 of 18 HC-NIC Page 13 of 18 Created On Tue Jan 12 02:28:01 IST 2016 R/CR.MA/13535/2014 ORDER to be innocent until duly tried and duly found guilty.
From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.
15) In the instant case, as we have already noticed that the "pointing finger of accusation" against the appellants is `the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor :
The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice." The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and Page 14 of 18 HC-NIC Page 14 of 18 Created On Tue Jan 12 02:28:01 IST 2016 R/CR.MA/13535/2014 ORDER the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. This Court, in Kalyan Chandra Sarkar Vs. Rajesh Ranjan- (2005) 2 SCC 42, observed that "under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of non-bailable offences are entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so."
16) This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined:
"2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.
3. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, Page 15 of 18 HC-NIC Page 15 of 18 Created On Tue Jan 12 02:28:01 IST 2016 R/CR.MA/13535/2014 ORDER the record of the petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren once every fortnight."
17. In view of the above principles and as recorded herein above, the applicant is behind the bar for about five years and there is no likelihood or possibility of commencement and conclusion of trial in near future as is evident from the fact that the charge is yet not framed and trial though directed by this Court could not commence and conclude trial because of stay operating against further proceedings in the case. In this factual background, any further detention would violate the personal liberty of the applicant guaranteed under Article 21 of the Constitution of India. Therefore, the Court is inclined to grant bail to the applicant not only on the ground of delay likely to be caused in trial on account of the fact that there are 76 witnesses to be examined, but there is no likelihood of commencement of trial in near future on account of the stay operating on further proceedings of the case filed against the applicant and other co-accused persons.
Page 16 of 18
HC-NIC Page 16 of 18 Created On Tue Jan 12 02:28:01 IST 2016
R/CR.MA/13535/2014 ORDER
18. In view of above facts and circumstances of the case, this application is required to be allowed and the applicant is required to be enlarged on bail. Accordingly, the present application is allowed. The applicant is hereby ordered to be enlarged on bail in connection with offence registered vide I - C.R. No.39 of 2010 registered with Patdi Police Station for the offences punishable under sections 344, 365, 465, 467, 468, 471, 120-B and 114 of the IPC on his furnishing a bond of Rs.25,000/- and solvent surety of the like amount on the following terms and conditions:-
(i) the applicant shall not take undue advantage of his liberty or abuse his liberty;
(ii) the applicant shall not act in a manner injurious to the interest of the prosecution and maintain law and order;
(iii) the applicant shall mark his presence on every alternate Monday with the CID (Crimes), Investigation Unit, Surendranagar and shall also attend the trial Court regularly;
(iv) the applicant shall furnish his address
and mobile number to the investigating
agency before release and shall not change his address and mobile number without prior permission of the Court;
(v) the applicant shall not enter the local limits of Ahmedabad City and Ahmedabad Rural;
Page 17 of 18
HC-NIC Page 17 of 18 Created On Tue Jan 12 02:28:01 IST 2016
R/CR.MA/13535/2014 ORDER
(vi) the applicant shall surrender his
passport, if any, to the lower Court within a week from today.
19. It is made clear that if the applicant commits breach of any of the above conditions, the prosecution will be at liberty to move appropriate application for cancellation of bail. Accordingly, the applicant is enlarged on bail if not required in connection with any other offence.
Direct service is permitted.
(S.H.VORA, J.) shekhar Page 18 of 18 HC-NIC Page 18 of 18 Created On Tue Jan 12 02:28:01 IST 2016