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2020 DIGILAW 753 (GUJ)

Mukesh Shivabhai Purabiya v. State of Gujarat

2020-09-07

ASHOKKUMAR C.JOSHI

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JUDGMENT : ASHOKKUMAR C. JOSHI, J. 1. This Application is filed by the Applicant-Accused under Section 439 of the Code of Criminal Procedure for enlarging the applicant on Regular Bail in connection with I-C.R. No. 11191044200712 of 2020 registered with Ghatlodia Police Station, District Ahmedabad for the offence punishable under Section 306 of IPC. 2. Heard learned Advocate Mr. M.J. Mehta for the Applicant and learned APP Ms. Moxa Thakkar for the Respondent-State through Video Conference. 3. Rule. Learned APP waives service of Rule for the Respondent State of Gujarat. Submission of the Parties: 4. Learned Advocate for the Applicant/Accused has submitted that the Applicant Accused is innocent as he has not taken part in the offence as alleged. He has family roots in the society and therefore, he is not likely to flee away from justice. That the charge sheet is filed. That he will abide by whatever conditions imposed by the Hon'ble Court. He has further vehemently submitted that there is no direct involvement of the Applicant Accused in the present case so far as allegation is concerned. There are no antecedents against the Applicant Accused. The alleged offence was started in the month of September 2019 till 3rd May 2020 but no complaint filed, hence gross delay in complaint. Therefore, indirectly it is a case of consent of the deceased and vague allegations have been made by invoking ingredients of section 306 of the IPC. He has, therefore, prayed that discretion may kindly be exercised and grant bail to the Applicant Accused. 5. Per contra, learned APP has vehemently argued that though there is no antecedent, however, looking to the nature and gravity of offence, involvement of the Applicant/ Accused cannot be discarded. It is submitted that the charge sheet is yet to be filed. Further, it is submitted that the son of the complainant has passed away prior to 10 months of filing of the FIR. She further submitted that if the Hon'ble Court is inclined to grant bail then in such case strict conditions may be imposed to secure the presence of the Applicant Accused. Merits of the Case: 6. This court has considered the following aspects: (a) That even if it is a prima facie case, then also as such there is no antecedent. She further submitted that if the Hon'ble Court is inclined to grant bail then in such case strict conditions may be imposed to secure the presence of the Applicant Accused. Merits of the Case: 6. This court has considered the following aspects: (a) That even if it is a prima facie case, then also as such there is no antecedent. (b) Further as per catena of decisions of Hon’ble Supreme Court, there are mainly 3 factors which are required to be considered by this court i.e. prima-facie case, availability of Applicant accused at the time of trial and tampering and hampering with the witnesses by the accused. (c) That the learned Advocate for the Applicant has submitted that the Applicant Accused is not likely to flee away. (d) That the Applicant Accused is in custody since 23.07.2020. (e) The incident was started in the month of September 2019 till May 2020 and to some extent it appears that there was some consent of the deceased. Delay in filing complaint, for which no explanation is given. (f) The law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra vs. C.B.I. (2012) 1 SCC 40 , wherein it is held that bail is a rule and jail is an exception and there should not be pretrial punishment. 7. Having heard the learned Advocates for the parties and perusing the record produced in this case as well as taking into consideration the facts of the case, nature of allegations, gravity of accusation, availability of the Applicant Accused at the time of Trial etc. and the role attributed to the present Applicant accused, the present Application deserves to be allowed and accordingly stands allowed. The Applicant Accused-Mukesh Shivabhai Purabiya is ordered to be released on regular bail in connection with I-C.R. No. 11191044200712 of 2020 registered with Ghatlodia Police Station, District Ahmedabad on executing a personal bond of Rs. 15,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the following conditions that he shall: (a) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence. (b) maintain law and order and not to indulge in any criminal activities. (b) maintain law and order and not to indulge in any criminal activities. (c) furnish the documentary proof of complete, correct and present address of his residence to the Investigating Officer and to the Trial Court at the time of executing the bond and shall not change his residence without prior permission of the trial Court. (d) provide his contact numbers as well as the contact numbers of the sureties before the Trial Court. In case of change in such numbers inform in writing immediately to the trial Court. (e) file an affidavit stating his immovable properties whether self acquired or ancestral with description, location and present value of such properties before the Trial Court, if any. (f) not leave India without prior permission of the Trial Court. (g) surrender passport, if any, to the Trial Court within a week. If he does not possess passport, he shall file an Affidavit to that effect. (h) mark presence before the concerned police station between 11:00 a.m. to 1:00 p.m. once in a month i.e. on the first Monday of each English calender month, till the charge-sheet is filed. (i) shall maintain all the rules and regulations framed by the Municipal Corporation regarding contemporary status of corona virus/Covid-19, State Government or by any competent authority, including social distancing. 8. Bail bond to be executed before the Trial Court having jurisdiction to try the case. It would be open for the Trial Court concerned to give time to furnish the solvency certificate if prayed for. 9. If breach of any of the above conditions is committed, the Trial Court concerned will be free to issue warrant or take appropriate action according to law. The Authorities will release the Applicant forthwith only if he is not required in connection with any other offence for the time being. 10. Rule is made absolute. The Registry is directed to communicate this order by Fax/by Email to the concerned Court/Authority.