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2019 DIGILAW 244 (GUJ)

Nazim @ Baba Minaz Shaikh v. State of Gujarat

2019-03-19

A.P.THAKER

body2019
JUDGMENT : A.P. THAKER, J. 1. This is an appeal under Section 14(A)(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 at the instance of the appellant original accused against the order dated 05.02.2019 passed by the learned 9th Additional Sessions Judge, Surat in Criminal Misc. Application No.556 of 2019. 2. It is the case of the appellant that the FIR has been registered being I - C.R.No.207 of 2018 with Kosamba Police Station, Surat for the offences punishable under Sections 307, 504, 506(2) and 120(B) of the Indian Penal Code and Section 3(2)(v), 3(1)(r)(s), 3(2)(va)2 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. According to him, on 18/19.11.2018, the complainant had some quarrel with one Mohmmad Hussain (accused No.1). That on 21.11.2018, the friend of the complainant called him and asked him to come at Dadri Faliyu to solve the quarrel which happened between Mohmmad Hussain and the complainant and, therefore, the complainant went there. It is also submitted that on going there, the present appellant ran towards the complainant for giving blow with an intention of killing him and while protecting himself, the complainant get hurt and injury on his left wrist which was cut off and on this basis, the complainant has filed the complaint against both the accused. According to him, he was arrested on 23.11.2018 and, thereafter, after filing of the charge-sheet, he has preferred bail application before the Sessions Court, Surat, which came to be rejected by the learned 9th Additional Sessions Judge, Surat vide order dated 05.02.2019 passed in Criminal Misc. Application No.556 of 2019. It is also submitted by the appellant that he is innocent and he has been falsely implicated in the alleged offence. According to him, no offence under the provisions of the Atrocity Act is made out and he is of very young age and is still studying and he is resident of Mangrol and there are no chances that the appellant will run away and he assures that he will cooperate with the investigating agency and will no temper with the evidence or try to influence and pressure the witnesses. It is further submitted by the appellant that the complainant has been discharged from the hospital after medical treatment and he was never in danger as alleged by him in the FIR. It is further submitted by the appellant that the complainant has been discharged from the hospital after medical treatment and he was never in danger as alleged by him in the FIR. He has contended that no recovery or discovery of any muddamal has been recovered from the appellant and the co-accused has also been enlarged on bail by the learned trial Court. He has also contended that the investigation is over and the charge-sheet has been filed and, therefore, no further investigation is required. He has prayed to release him on bail. 3. Heard Mr. K.K. Desai, learned advocate for the appellant, Ms. Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 State and Mr. Bomi Shethna, learned advocate for respondent No.2. 4. Mr.K. K. Desai, learned advocate for the appellant has mainly contended the same facts which are narrated in the memo of appeal. He has submitted that because of trivial fight between two students and the present appellant has no any criminal antecedent and this is his first offence and he is a young boy and he is still studying. He has contended that now, the injured has been discharged from the hospital, and therefore, the present appeal may be allowed and the appellant may be released on bail on appropriate conditions. 5. Per contra, Ms. Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 State has vehemently submitted that the appellant has used the sword and has cut the left wrist of the injured, which is supported by the medical evidence. She has contended that with an intention to kill the complainant, the present accused has used the weapon like sword and while saving himself, the complainant has got injury on his wrist. She has also contended that considering the seriousness of the offence, the appeal may be rejected. 6. Mr. Bomi Shethna, learned advocate for respondent No.2 has submitted that the injury was serious and with a pre-plan, the accused has used the sword for killing the complainant and at the time of incident, the complainant has tried to save himself and due to hurt injury on the wrist and if he had not tried to save himself then he might have died. He has also submitted that as narrated in the FIR, the accused had tried to give blow on the head of the complainant and this is a serious offence and, therefore, the appeal may be rejected. 7. Against the said submission, Mr.Desai, learned advocate for the appellant has submitted that even in the FIR, it has been stated that due to some sudden provocation, the accused has inflicted sword blow and, therefore, there was no intention on the part of the accused to kill the complainant. 8. On perusal of the FIR, it appears that some dispute has arisen between the complainant and one Mohmmad Hussain and for settling the same, the complainant was called by the friend of Mohmmad Hussain on the day of occurrence and at that time, there was some sudden provocation, the appellant has used the sword and tried to give blow on the head of the complainant and while saving himself, the complainant got injury on his left wrist which was ultimately imputed. This is an admitted fact on record. Now, admittedly, in this case, the charge-sheet is filed and the investigation is over. It also appears that the dispute is between the students and due to trivial fight, the incident has taken place in a heat of moment. It appears that now, the injured is discharged from the hospital and there is no case that the present appellant has any criminal antecedent. In these circumstances, if the present appellant is enlarged on bail, no prejudice will be caused to the other side. 9. In view of the above, this appeal is allowed accordingly. It appears that now, the injured is discharged from the hospital and there is no case that the present appellant has any criminal antecedent. In these circumstances, if the present appellant is enlarged on bail, no prejudice will be caused to the other side. 9. In view of the above, this appeal is allowed accordingly. The appellant herein is ordered to be released on regular bail in connection with I C.R.No.207 of 2018 registered with Kosamna Police Station, District: Surat on executing his personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one solvent 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 trial court within a week; (d) not leave the territory of India without prior permission of the concerned Sessions Court; (e) mark presence in the concerned Court regularly; (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. 10. If breach of any of the above conditions is committed, the concerned Sessions Judge will be free to take appropriate action in the matter. 10.1 Bail bond to be executed before the trial Court having jurisdiction to try the case. 10.2 It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. 11. The competent authority will release the appellant only if he is not required in connection with any other offence for the time being. 12. At the trial, the trial Court shall not influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the appellant on bail. 13. Appeal is accordingly disposed of. Direct service is permitted, today.