AASIFBHAI HAJIABDUL BHAYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present application is filed under Sec. 439 (2) read with Sec. 482 of the Code of Criminal Procedure for seeking quashment of the order dtd. 20/5/2017 passed by learned Sessions Judge, Devbhumi-Dwarka at Jam-Khambhalia in Criminal Misc. Application No.195 of 2017.

(2.) The case of the applicant i.e. original complainant is that on 18/2/2017, the complainant and his family members went to sleep at their house at about 11:00 p.m. and at midnight at about 3:00 a.m. i.e. on 19/2/2017, one of the family members woke up for natures call and found all the doors of the house and cupboards were open and locks were broken and found that all jewelries of family members including ancestral jewelry worth Rs.35,85,000.00 and cash of Rs.6,50,000.00 was stolen, so, totalling to around worth Rs.42,35,000.00 was stolen from the house, as a result of this, a substantive complaint came to be filed on 19/2/2017, which was registered as First Information Report being I-C.R. No.2 of 2017 before Salaya Marine Police Station for the offences punishable under Ss. 457 , 454 , 380 and 114 of the I.P.C. The respondent No.2 being an accused person came to be arrested by the authority and later on, learned Sessions Judge, Devbhumi- Dwarka vide order dtd. 20/5/2017 was pleased to grant bail application ordering the release of respondent No.2 by imposing suitable conditions as contained in the order and it is this order which is made the subject matter of challenge in the present proceedings.

(3.) Learned advocate Mr.Dipak Sindhi appearing on behalf of the applicant has submitted that order passed by learned Judge is not only without proper application of mind but is also against the very object of Sec. 439 of Cr.P.C. While exercising due discretion, learned Sessions Judge has not appreciated and dealt with any material aspects governing the grant of bail. A very serious offence has been committed by the respondent No.2 and it has been stated before the Court that muddamal to the extent of Rs.3,72,900.00 being the jewelry and 50,000/- cash has also been recovered from him which goes to show that the accused person is specifically involved in the commission of crime. It has further been submitted that the respondent No.2-accused is also a history- sheeter having several offences on head and so much so that during the pendency of the present proceedings, respondent No.2 has involved himself in almost similar kind of offences in more than four in numbers and as such looking to this track record of the respondent No.2 as well, the discretion which has been exercised deserves to be corrected. It has been submitted that while passing the impugned order, settled principles propounded by the Hon'ble Apex Court on the issue of bail have not been taken into consideration and has relied upon the decisions, which are narrated in the memo of the present application, and as such, has requested that since respondent No.2 has an audacity to commit the crime of similar nature even during the pendency of the present proceedings, the conduct ought not to be ignored and as such, present respondent No.2 does not deserve to be continued on the bail which permits him to commit further similar offences. Since the crime history of the respondent No.2 has also not been properly taken into consideration, the order deserves to be quashed.