Divyesh A. Joshi, J
1. The present application is filed under Section 439 of the Code off Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.11210055220924/2022 registered with the Salabatpura Police Station, Surat for the offence punishable under Sections 409, 420, 120(B) and 34 of the Indian Penal Code.
2. Learned advocate for the applicant submitted that the FIR has been registered on 10.11.2022 and the applicant has been arrested in connection with the said FIR on 26.02.2023 and since then, he is in judicial custody and now the investigation is completed and after submission of the chargesheet, the present application has been preferred. It is submitted that all the offences are exclusively triable by the Court of Magistrate and the trial will take its own time to conclude and, hence, the present application may be allowed. It is submitted that the transaction between the parties is of civil nature, however, criminal colour has been given by lodging aforesaid FIR just to extort money from the present applicant by using pressurizing tactics. It is submitted that the co-accused has already been granted bail by the concerned Sessions Court and, hence on the ground of principle of law of parity, the present application may be allowed.
3. Learned advocate for the applicant has put reliance upon following decisions,
(1) the judgment of the Hon’ble Apex Court in case of Bimla Tiwari Vs. State of Bihar & Ors., delivered in Special Leave Petition (Crl) No.834-835/2023;
(2) the judgment of the Hon’ble Apex Court in case of Ramesh Kumar Vs. the State of NCT of Delhi, delivered in Special Leave Petition (Crl) No.2358/2023;
(3) the judgment of the Coordinate Bench of this Court delivered in Criminal Misc. Application No.17198/2023 on 04.10.2023;
(4) the judgment of the Coordinate Bench of this Court delivered in Criminal Misc. Application No.18884/2023 on 20.10.2023;
(5) the judgment of the Coordinate Bench of this Court delivered in Criminal Misc. Application No.15295/2023 on 25.10.2023;
4. Referring to the aforesaid decisions of the Hon’ble Apex Court as well as the Coordinate Bench of this Court, it is submitted that the present case is squarely covered by the aforesaid decisions as in those cases, there were business transactions, which resulted into registration of offence and after considering the facts of the case, the concerned applicant – accused has been granted bail. It is, therefore, urged that the present applicant may be enlarged on regular bail by imposing suitable conditions.
5. Learned APP for the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that the role of the present applicant – accused is clearly spelt-out from the papers of the chargesheet and the applicant – accused has actively participated in the commission of crime and he has duped the complainant. It is, therefore, urged that the present application may not be entertained.
6. Learned advocate for the original complainant has also opposed the present application and submitted that there is active involvement of the present applicant – accused in the alleged commission of offence and he has duped the complainant. It is submitted that the applicant – accused has hatched conspiracy in connivance with other accused and, thereafter, obtained goods from the complainant and did not make the payment of outstanding dues and fled away. It is submitted that after the registration of the FIR, the applicant remained absconding and, thereafter, arrested by the police and, hence, his conduct is also required to be taken into consideration.
7. Learned advocates appearing on behalf of the respective parties do not press for further reasoned order.
8. 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 present application is preferred after submission of the chargesheet. The applicant has been arrested on 26.02.2023 and since then, he is in judgment custody. All the offences are exclusively triable by the Court of Magistrate. Further, the co-accused has already been enlarged on bail by the concerned Sessions Court. Therefore considering the facts of the present case and on the ground of parity, the present application deserves to be allowed.
9. 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.
10. 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.
11. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with the FIR being C.R. No.11210055220924/2022 registered with the Salabatpura Police Station, Surat 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. 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 this Court;
12. 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 concerned 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.
13. 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.
14. Rule is made absolute to the aforesaid extent. Direct service is permitted.
