Mamad @ Kakado Chanesar Sumara vs State Of Gujarat

Umesh A. Trivedi, J

Ms. N.S.Jethva, learned advocate has instructions to appear for and on behalf of the original first informant – Krupeshbhai Chandrakantbhai Thakkar, who is present before the Court and duly identified by her. She is permitted to file her appearance for and on behalf of the original first informant. Registry is directed to accept the same and reflect her name in the first informant.

RULE returnable forthwith. Learned APP Ms. Krina Calla waives service of Rule on behalf of the respondent State as also learned advocate Ms. N.S.Jethva waives service of Rule on behalf of the original first informant.

Ms. Jethva, learned advocate representing the first informant produces the xerox copy of an affidavit, executed on 27.02.2023, stating therein that the matter is settled with the present applicant and if he is released on bail, first informant has no objection. It is further stated in it that for getting him acquitted of the charge wherever his signature is required, he is ready to make the same including the quashing of the FIR. Copy of the said affidavit is ordered to be taken on record.

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being C.R.No.11205042230048 of 2023 registered with Bhuj City ‘A’ Division Police Station, Dist.: Kutchchh, for offence under Sections 406, 420 and 411 of the Indian Penal Code.

Learned Advocate appearing on behalf of the applicant submits that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions.

Learned APP appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence.

Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order.

Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

Following aspects are considered:

(a) Though investigation is yet not over, the co-accused with whom there was settlement by the first informant when he preferred a regular bail application before the Court of Sessions, it has considered the same and released the co-accused on regular bail, based thereon, considering the fact that maximum sentence which can be imposed upon the accused is 7 years as also the offence is triable by the Court of Magistrate and filing of the charge-sheet may take further time which would amount to pre trial conviction;

(b) Since applicant – accused has repaid amount which came to his share and complainant has no objection if he is released and if FIR is quashed, I deem it fit to release the present applicant on bail, more particularly, Sessions Court has already released the co-accused based on very same ground;

In the facts and circumstances of the present case, I am inclined to consider the case of the applicant.

This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, reported in [2012] 1 SCC 40.

Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R.No.11205042230048 of 2023 registered with Bhuj City ‘A’ Division Police Station, Dist.: Kutchchh, on executing a personal bond of Rs.15,000/- (Rupees Fifteen 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 passport, if any, to the lower court within a week;

[d] not leave the India without prior permission of the concerned trial court;

[e] mark presence before the concerned Police Station on 5th Day of every English calendar month till the charge-sheet files, between 11:00 a.m. and 2:00 p.m.;

[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the concerned trial court;

The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.

At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

Rule is made absolute to the aforesaid extent. Direct service is permitted.