Mansukhbhai @ Nako Kanjibhai Fatepara vs State Of Gujarat

Divyesh A. Joshi, J

Rule. Learned APP waives service of notice of Rule on behalf of respondent-State.

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with C.R. No. 11208053220904 of 2022 registered with the Taluka Police Station, District Rajkot for the offence punishable under Sections 302, 325, 323, 504 and 144 of the Indian Penal Code and Section 135 of the Gujarat Police Act.

Learned advocate Mr. Alok Thakor appearing on behalf of the applicant has submitted that so called incident has occurred on 01.10.2022 and FIR was registered on 02.10.2022 and in connection with the same, the applicant was arrested on 03.10.2022 and since then he is in judicial custody. It is also submitted that the investigation is already completed and the present application is filed after submission of the charge-sheet by the concerned Investigating Officer before the competent Court. It is also submitted that as per the case of the prosecution, the present applicant has inflicted wooden plank blow on the left side of the deceased, however except this, no other specific role is attributed to the present applicant. It is also submitted that as per the case of the prosecution, four accused persons were involved in the commission of offence, out of them, three accused persons, who had inflicted kick and fist blows, who have already been considered by the Co-ordinate Bench of this Court as well as by the learned trial Court. It is also submitted that the injured was taken to the hospital for the purpose of taking treatment, at that point of time, he has given history before the concerned Doctor, wherein he has categorically stated that kick and fist blows were given to him at the time of commission of crime. It is further submitted that Investigating Officer has also recorded the statements of witnesses under Section 164 of Cr.P.C. before the concerned Magistrate, wherein those witnesses have in categoric terms stated that the injured victim had consumed intoxicate articles and had come at the place of occurrence, at that point of time the present applicant had made phone calls to the police and during that period, the victim had tried to keep away from the place of occurrence, at that time, debris of cement concrete had been fallen down upon the deceased. Considering the above stated factual aspects and on the ground of principle of law of parity, the present applicant may be enlarged on regular bail by imposing suitable terms and conditions.

Learned APP appearing on behalf of the respondent-State has opposed the present bail application. It is submitted that the role of the present applicant is clearly spelt out from the body of the compilation of the charge sheet papers. It is further submitted that the role of the present applicant is quite different than other co-accused, who have been granted bail. Therefore considering the role attributed to the present applicant, the present application may not be considered.

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

I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. It is found out that the investigation is completed and after submission of the chargesheet, the present application is preferred and the applicant is in jail since 03.10.2022 i.e. almost more than one year. I have also considered the role attributed to the present applicant in the compilation of the chargesheet. Further other three co-accused persons, who have also attributed the role of inflicting kick and fist blows, have already been considered by the Co-ordinate Bench of this Court as well as by the learned trial Court. Therefore considering the above facts, the role attributed to the present applicant and on the ground of principle of law of parity, I am of the opinion that the present application deserves to be allowed.

This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012]1 SCC 40 as well as in case of Satender Kumar Antil v. Central Bureau of Investigation & Anr. reported in (2022)10 SCC 51.

In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with C.R. No. 11208053220904 of 2022 registered with the Taluka Police Station, District Rajkot, 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 injuries to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;

[e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. to 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 this 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 observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail.

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