Sirajsha Hamidsha Rafai (Fakir) vs State Of Gujarat
2022 Latest Caselaw 270 Guj

     R/CR.MA/17787/2021                               ORDER DATED: 07/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 17787 of 2021

==========================================================
                          SIRAJSHA HAMIDSHA RAFAI (FAKIR)
                                      Versus
                                STATE OF GUJARAT
==========================================================
Appearance:
MAYANK R CHAVDA(9250) for the Applicant(s) No. 1
MR RAJENDRA R CHAVDA(10209) for the Applicant(s) No. 1
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                  Date : 07/01/2022

                                   ORAL ORDER

1. This application has been filed under section 439 of the Code of Criminal Procedure for regular bail in connection with FIR being I-C.R. No.53/2019 registered with B-Division Police Station, Junagadh for offences punishable under sections 302, 307, 308, 120B and 34 of IPC, Section 25(1)(B-A) of Arms Act and Section 135 of the Gujarat Police Act.

2. Mr. Mayank R.Chavda, learned advocate for the applicant submitted that, the allegation against the present applicant is of supplying fire arm to accused no.1. Mr. Chavda submits that it is highly improbable, since the applicant was in judicial custody and further fact that the said fire arm was procured from one Akbarsha Ayushah Rafai, does not get verification from the father of the said person, since the said Akbarsha Ayushah Rafai died

R/CR.MA/17787/2021 ORDER DATED: 07/01/2022

because of motor accident on 28.03.2019. Mr. Chavda, thus submitted that there is nothing on record to connect the present applicant in the matter. He further stated that in earlier FIR registered under Section 302 and other section of IPC, he has been acquitted in Session Case No.28/2018 on 01.10.2021. Mr. Chavda states that the very judgment would prove the fact that the applicant was an under trial prisoner. It was, therefore, prayed that the present application may be allowed and the applicant herein may be released on regular bail.

3. Mr. Pranav Trivedi, learned Additional Public Prosecutor submitted that, it was only because of the fire arm supplied by the present applicant that the incident has occurred. It was, therefore, prayed that no discretion may be exercised in favour of the applicant.

4. Heard learned advocates on both the sides and perused the material on record. The documents on record suggests that the applicant was in jail as under trial prisoner in Sessions Case No.28/2018 and was acquitted on 01.10.2021 and the FIR is of 27.03.2019. Taking this fact into consideration, this Court finds this to be a fit case, where discretion could be exercised in favour of the applicant.

5. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being I-C.R. No.53/2019 registered

R/CR.MA/17787/2021 ORDER DATED: 07/01/2022

with B-Division Police Station, Junagadh 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 India without prior permission of the concerned trial court;

[e] 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;

6. The authorities shall adhere to its own Circular relating to COVID-19 and, thereafter, 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.

R/CR.MA/17787/2021 ORDER DATED: 07/01/2022

7. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.

(GITA GOPI, J.) Pankaj