Exhibit-___________

IN THE COURT OF THE METROPOLITAN MAGISTRATE

62ND COURT DADAR, MUMBAI

C.C. NO. 6200157/PW/2021

(CR. No. 224/2020, Sewree Police Station)

In the matter of Section 437 of the

Code of Criminal Procedure;

And

In the matter of bail in C.R. No. 224

of 2020registered with Sewree
Police Station, Mumbai;

Kailash Bhagwandas Gupta )

Aged 41 years, Indian Inhabitant, )
Residing at Bal Govind Society, )
Room No. 14, 1st Floor, Star )
Cinema Road, Matunga (W) Mumbai)
(presently languishing in custody) ) ...Applicant/Accused

-Verses-

The State of Maharashtra, )

Through the Public Prosecutor, )
at the instance of Sewree Police )
Station, Mumbai. CR No. 224/2020 ) ...Respondent/Complainant

APPLICATION FOR INTERIM BAIL

UNDER SECTION 437 OF THE CODE OF
CRIMINAL PROCEDURE.

MOST RESPECTFULLY SHEWETH:

1. The Applicant by filing the present application in this Hon’ble

Court seeks to invoke power vested with this Hon’ble Court
under Section 439 of the Code of Criminal Procedure and inter-
alia prays for release on Interim bail in connection with CR No.
224 of 2020 registered with Sewree Police Station, Mumbai on
23.11.2017 for alleged offences punishable under Sections 420,
465, 467, 468, 471 r/w. 34 of Indian Penal Code.

2. It is not really not necessary to burden present application with

several other details leading to the filing of the same and the
prosecution story in detail however, in nutshell is that:

2.1. One Satvandir Singh filed complaint against two

persons however, he was transferred and
thereafter, police called acting manager Jayant
Ramesh Pawar it is alleged that, he has deputed as
manager in Union Bank of India Darukhana Rai
Road Branch, Mumbai and working in loan
department. It is further alleged that in December
2017 accused Viral Dresswala approached to the
 bank and willing to take housing loan in the
property situated at Row House no.1,1st floor,
Bldg.No.9, Nerul, Navi Mumbai stands on the
name of his wife Asha Dresswala. He required
housing loan of Rs.1,30,00,000/-.

2.2. It is further alleged that Asha Dresswal has

purchased said row house from Janvi Deshmukh
and Union Bank of India disbursed loan amount
of Rs.1,29,00,000/- through RTGS.

2.3. It is further alleged that in the month of 2018 the

installment has been deducted however, from
September 2018 Asha Daruwala has not paid loan
installment and therefore, they conduct inquiry
they come to know that Asha Dresswala
alongwith other accused prepare false and bogus
documents obtained loan from the bank and
therefore, branch manager lodged report at Sewree
police station.

3. On the basis of report the accused was arrested and produced

before Ld.M.M.62th Court at Dadar, he was remanded in MCR
and thereafter in judicial custody remand and ever since, he is in
judicial custody.

4. The applicant is an innocent person and falsely implicated in the

instant crime therefore, prefers the present application for his
release on bail on the following amongst other grounds which
are urged without prejudice to one other.

GROUNDS

i. That, the applicant is an innocent person and is no

way concerned or connected with the alleged offence
and has been falsely implicated in the instant crime.
Neither his name is mentioned in the FIR, nor has any
role been cited in the alleged FIR.

ii. That, there is no any iota of evidence against the

applicant, the applicant is no way concerned or
connected with the said conspiracy. However, by
taking advantage of fact the applicant is being already
falsely implicated in another aforesaid FIRs,
prosecution seems to have grudge against him and that
being the case, with oblique and ulterior motive
implicated him in the instant FIR.

iii. That, on bare perusal of the FIR lodged by

Complainant, it clearly seen that the Co-Accused had
approached the complainant bank, they availed the
alleged loan, they prepared the forged documents,
even after careful perusal of the FIR and chargesheet
no role has assigned to the applicant.
 iv. That the investigation is completed and charge sheet
has been filed in the instant case and all the documents
are in the custody of the prosecution and thus, nothing
is likely to be recovered and/or discovered from the
Applicant and therefore, the custodial interrogation of
the applicant is not necessary.

v. It is important to looked out that, the Applicant

is afflicted with AIDS, He require to take proper
medical diet and prescribed medicine but and such
medical facilities are also not available in prison.
Hence, his necessary tests could not be conducted;
even prescribed medicines are also not available in the
prison hence the jail authorities prescribed to purchase
the said medicines from outside. Hereto annexed and
marked as Exhibit- A (Colly) is the copy of
applicant’s medical reports, prescription and bill.

vi. It is pertinent to note that in the similar matter of

Dipak Shubhashchandra Mehta Vs. C.B.I. and
Ors, Criminal Appeal No. 348 of 2012 (Arising out
of S.L.P. (Crl.) No. 8995 of 2011) where the Accused
was chargesheeted in various matters of fraud and
cheating of huge amount of money the Hon’ble
Supreme Court of India was pleased to grant regular
bail on medical ground and held that:
 As observed earlier, we are conscious of the
fact that the present Appellant along with
the others are charged with economic
offences of huge magnitude. At the same
time, we cannot lose sight of the fact
that though the Investigating Agency has
completed the investigation and submitted
the charge sheet including additional
charge sheet, the fact remains that the
necessary charges have not been framed,
therefore, the presence of the Appellant in
custody may not be necessary for further
investigation. In view of the same,
considering the health condition as
supported by the documents including the
certificate of the Medical Officer, Central
Jail Dispensary, we are of the view that the
Appellant is entitled to an order of bail
pending trial stringent conditions in order
to safe guard the interest of the CBI.

vii. It is pertinent to note that, the Applicant’s wife Mrs.

Kesar Kailash Gupta has also deducted HIV Positive
hence she needs to attend her regular follow ups at the
concerned hospital and no one is there to take her to
the hospital, and now the prevailing medical
situation no one is there to take care of her she is on
the mercy of her neighbour. Hereto annexed and
 marked as EXHIBIT-B is the copy of Applicant’s
wife’s medical reports.

viii. The Applicant’s wife is suffering from various life

threatening diseases. She is highly prone for various
dangerous complication. After the arrest of present
Applicant and as there is no one to arrange medical
funds for his wife medication and treatment, therefore,
her health condition is deteriorated day-by-day, as she
needs quality of supervision and medication and in
eventuality may require further medical intervention,
but there is no one who can arrange everything in the
crucial time of poor health condition of the wife of
the applicant and/or gather medical funds.

ix. It is important to note that, applicant has a minor son

Harsh Kailash Gupta, aged 13 years, and old aged
parents who are suffering from various ailments and
fully depend on the Applicant, the applicant is the
only one who is taking care of them for their day to
day chores. The applicant’s wife and his old aged
parents require advance medical care and apart
from the applicant there is no responsible person who
can take care of them. Hereto annexed and marked as
Exhibit- C(colly) are copies of birth certificate of the
Applicant’s son, School ID and Adhaar Card.

x. The Applicant by filing the present application

invoking the jurisdiction and power vested to this
Hon’ble Court under section 437(1)(ii) of Cr.P.C.
clearly says that:

“such person shall not be so released if such

offence is a cognizable offence and he had
been previously convicted of an offence
punishable with death, imprisonment for life
or imprisonment for seven years or more, or
he had been previously convicted on two or
more occasions of a non- bailable and
cognizable offence: Provided that the Court
may direct that a person referred to in
clause (i) or clause (ii) be released on bail it
such person is under the age of sixteen
years or is a woman or is sick or infirm:
Provided further that the Court may also
direct that a person referred to in clause (ii)
be released on bail if it is satisfied that It is
just and proper so to do for any other
special reason: Provided also that the mere
fact that an accused person may be required
for being identified by witnesses during
investigation shall not be sufficient ground
for refusing to grant bail if he is otherwise
entitled to be released on bail and gives an
undertaking that he shall comply with such
directions as may be given by the Court.
i. That even if, the entire allegations of the prosecution
taken into consideration for the sake of argument
then also on the face of it, does not disclose prima-
facie case against the applicant herein and therefore,
question arises on what basis, can infer and/or
construe that the alleged participation of the
applicant in the crime and thus, whatever allegations
levelled against the applicant in the instant crime, are
baseless and without any merit and substance.

ii. That, the Applicant is not a beneficiary of any booty

of the crime.

iii. That, on bare perusal of the FIR lodged by Informant

, it clearly seen that the applicant have not involve in
any way in the alleged crime. Letter on the Applicant
have charged under section 120(B) of IPC.

iv. Further, in order to constitute the offence of criminal

conspiracy under Section 120-B and 34 of IPC, the
following ingredients are required to be satisfied. (i)
An agreement between two or more persons. (ii) The
agreement must relate to doing or causing to be done
either (a) an illegal act. or (b) an act which is not
illegal in itself but is done by illegal means. But none
of the requirements are fulfilled in the present case.

v. That, to charge the Applicant under section 120B and

34 of IPC, there is prime requirement to invoke those
sections of IPC, is to establish common intention and
 in the present case there is no substantive or
corroborative evidence to establish common
intention.

vi. that the offences of criminal conspiracy cannot be

deemed to have been established on mere suspicion
and surmises or inference nor supported by cogent
and acceptable evidence. In the matter of Jasdeep
Singh @ Jassu Vs. State of Punjab, Criminal Appeal
No. 1584 of 2021 the Hon’ble Apex Court
beautifully observed the precincts of Section 34 of
IPC. The Hon’ble Apex Court Held that “Mere
Common Intention Per Se May Not Attract Section
34 IPC Without An Action In Furtherance”

vii. that false implication and the allegations levelled

against the applicant herein and so far as their
alleged involvement in the instant crime is
concerned, is with malafide intention and ulterior
motive to trigger illegal pressure upon him.

viii. that from the nature of allegations and the aforesaid

facts, custodial interrogation of the applicant at this
stage is not necessary and further the applicant will
keep himself available during the course of
investigation, trial also and will not flee from justice,
in the event, this Hon’ble Court protected his life and
liberty.
ix. The applicant most respectfully states and submits
that so far as the allegations slapped in the remand
reports against the applicant are concerned, patently
absurd and inherently improbable and the basic
ingredients of the offences alleged are totally
misplaced and not prima facie case is made out by
the allegations in the complaint. The impugned
proceeding is frivolous, vexatious and mala fide
which would degenerate into a weapon of
harassment or persecution if allowed to continue
having regard to the veiled object of the lame
prosecution.

x. Even this Hon’ble Court was also released the

accused on interim bail by considering his and his
wife’s medical condition. Hereto annexed and
marked as Exhibit- D is the copy of order dated
27.01.2021.

xi. That the investigation is completed and charge

sheet has been filed in the instant case and all the
documents are in the custody of the prosecution
and thus, nothing is likely to be recovered
and/or discovered from the Applicant and therefore,
the custodial interrogation of the applicant is not
necessary.
xii. The applicant state that there is no iota of evidence as
against the applicant justifying their prosecution and
therefore, his arrest in the instant case is illegal,
arbitrary and nothing sort of colourable exercise of the
powers vested with the investigating agency. It would
not be exaggeration to state that arrest of the applicant
smacks of malafide and considering the facts that
further custody of the applicant even for a day is
nothing sort of incarceration, therefore, it is necessary,
expedient, in the interest of justice, good conscience
and fair play that this Hon’ble Court may be pleased to
direct the release of the applicant on bail on such
reasonable terms and conditions as this Hon’ble Court
may deem fit and proper.

xiii. In the case of Partho Nirmal Dasgupta Vs. State of

Maharashtra, Criminal Bail Application No. 389 of
2021 the Hon’ble High Court of Bombay was pleased
to release the Accused and held that ” The accused
cannot be incarcerated in custody for indefinite
period particularly in the facts of this case and since
the offences are triable by the Magistrate.”

xiv. In similar situated matter, the accused/applicant had

filed bail application, being Criminal Application Nos.
1817 of 2009 and 1748 of 2009 – Deepak Hiralal
Goplani Vs. State of Maharashtra, the Hon’ble High
Court after hearing the said applications was pleased to
 release the applicant therein and made observations
therein which are reproduced herein below:

“3. I perused the FIR and the other material

placed before the court. It is true that prima
facie case is made out against the applicant.
However, looking to the fact that the
investigation is over and the chargesheet has
already been filed against the applicant and
considering the fact that offence under all the
sections is triable by the Judicial Magistrate
First Class, in my opinion, continued
detention of the applicant is not necessary
and he is entitled to be enlarged on stringent
condition.”

xv. Similarly, in Sanjay Chandra Vs C.B.I. The Honorable

Apex Court while granting Bail made the following
observation :
………………………….. “Every person,
detained or arrested, is entitled to speedy
trial. Criminal - Bail plea in 2G Spectrum
Scam - Trial proceedings in respect of the
offences under Sections 420-B, 468, 471
and 109 of Indian Penal Code, 1860 and
Section 13(2) read with 13(i)(d) of
Prevention of Corruption Act, 1988 Held,
 there are seventeen accused persons.
Statement of the witnesses runs to several
hundred pages and the documents on
which reliance is placed by the
prosecution, is voluminous. The trial may
take considerable time and as it appears
the Appellants, who are in jail, have to
remain in jail longer than the period of
detention, had they been convicted. It is
not in the interest of justice that accused
should be in jail for an indefinite period.
The offence alleged against the Appellants
is a serious one in terms of alleged huge
loss to the State exchequer that by itself
should not deprive the Appellants from
relief of bail when there is no serious
contention of the Respondent that the
accused, if released on bail, would
interfere with the trial or tamper with
evidence. No good reason seen to detain
the accused in custody, that too, after the
completion of the investigation and filing
of the chargesheet. Hence, Appellants
ordered to be released on
bail”……………

xvi. That, in the similar case Anuj Luthra vs The State

Of Madhya Pradesh, Petition for Special Leave to
 Appeal (Crl.) No.9385/2018, the Hon’ble Supreme
Court of India, was pleased to release the Accused:
the petitioner is in custody since 16.07.2018 on a
charge of having committed under Sections 420,
406, 467 and 468 IPC, in our considered view, the
petitioner is entitled to the benefit of bail.

xvii. That the entire case is based on documents

and the documents are already in possession of the
investigating agency. The applicant begs to refer to
and rely upon the following judgments of the
Hon’ble High Court, Bombay:

xviii. Shyam Bhatia Vs. State of Maharashtra in which

this Hon’ble Court was pleased to observed that:

“….In the matter of forgery and

misappropriation and/or criminal breach
of trust, in a case like this document will
speak for themselves. There is no necessity
for detaining the applicant in the police
custody because a man may lie but the
documents will not….”

xix. Mahendra Jogilal Chaurasia Vs State of

Maharashtra, Criminal Bail Application No. 293
of 2013, the Hon’ble High Court of Bombay while
allowing the abovementioned bail application made
following observations:
 “The only ground on which the bail appears
to have been denied is investigation was
going on at the relevant time and that there
are other cases pending against the
applicant / accused. However, it is reported
that case is based on the documents and
each of them have been seized. Even in the
CR No. 124/1999, CR No. 447/2007, C.R.
No. 253/2009 and CR No.55/2010 the
applicant is named as accused. They are
identical offences. In each one of them,
except CR No.55/2010, the applicant /
accused is released on bail. Considering
the nature of the allegations and the case
being based on documents, applicant
deserves to be enlarged on bail”

xx. Umesh Ramesh Brid Vs. The State of

Maharashtra, Criminal Bail Application No. 389
of 2013, in which this Hon’ble Court was pleased to
observe that:

“To my mind, when the offences alleged are of

forgery and cheating and the Applicant is
in custody since 23rd January, 2013, further
custodial interrogation is unnecessary. The
co- accused have been enlarged on bail
with appropriate conditions and, even if the
cheques are yet to be seized, the Applicant
 can be enlarged on bail”

xxi. Rajashri Medithi Vs. State of Maharashtra,

Criminal Bail Application No. 431 of 2013, while
allowing the bail application the Hon’ble Court
observed that:

“The offence alleged involve essentially

documents and details of bank account.
They have been seized and now
chargesheet has also been filed. There is
no apprehension that the applicant will not
be available for trial”

xxii. Sudeep Kumar Ganesh Khanna Vs. State of

Maharashtra, Criminal Bail Application No. 398
of 2013, in which this Hon’ble Court was pleased to
observe that:

“To my mind, even if the allegations are

taken to be serious and involving white
collared criminals so also the magnitude
of the crime being enormous having
involvement of sum of Rs.60 crores
approximately, still, after the Applicant
was arrested in November, 2012 and is in
custody since then, after the ChargeSheet
being filed, his detention is no longer
necessary. By imposing appropriate
 conditions and even if he is involved in
several such cases, he can be enlarged on
bail. The documents have been seized.
Even necessary prohibitory steps,
including attaching Bank Accounts, have
been taken…..

xxiii. FURTHER RELIED ON.

(i) Mehmood Mohammed Sayeed vs State of

Maharashtra – (2002) 1 SCC 677.
(ii) Menino Lopes vs State of Goa – 1994 (96)
Bom. L.R. 176 : 1665(1) Bom. CR. 334.
(iii) Khemlo Sakharam Sawant vs State –
2002(1) Bom. C.R. 689.
(iv) Mohammad Azam Khan vs State of UP SLP
(Cri) no 2717 of 2021.
(v) Bhagirath Sinh Judeja vs State of Gujrat –
AIR 1984 SC 372.
(vi) M/s. Ghel Employees Stock Option Trust vs
M/s. India Infoline Ltd. 2013 ALL MR (Cri.)
4423 (SC).
(vii) Indian Oil Corporation vs M/s. NEPC India
Ltd. 2019 ALL SC R (Cri.) 140
(viii) P. Chidamdaram vs Directorate of
Enforcement AIR 2020 SC 1699 10]
Jagannath vs State of Maharashtra 1981
CRI LJ 1808.
(ix) C.O. Verghese vs M.K. Singhi and another
1997 CRI L.J. 3282.
(x) Sheila Sebastian Vs R. Jawaharaj and
another – (2018) 7 SCC 581.
(xi) Arnab Goswami vs State of Maharashtra –
CR Appeal 742 to 744 of 2020,
(xii) Vijay Narayandas Rizwani vs Dilip @
Dhanraj Navalrai Rizwani – 1996 Vo. I Bom
CR 322.
(xiii) Anju Chaudhary vs. State of Uttar Pradesh
and another – (2013) AIR Supreme Court
Weekly 245
(xiv) Siddharam Mhetre vs State of Maharashtra
– AIR 2011 – SC 312
(xv) Mohammad Ibahim vs State of Bihar – 2009
(8) SCC 751 18] Dr. Suresh Motwani vs
State of Maharashtra – 2003 ALL MR Bom.
CRI 2212
(xvi) Sai Chandra Shekar vs Directorate of
Enforcement – AIR online 2021 Del. 227
(xvii) Trupti Suhas Bane vs State of Maharashtra
– The Judgment of Hon'ble High Court of
Bombay dated 05.05.2021 in CR BA
1620/2020 with interim bail application No.
264/2021.
(xviii) Laxman Irappa Hatti vs State of
Maharashtra – 2004 ALL MR (Cri.) 3073
(xix) Mohan Raikwar vs State of M.P. 2000
(Vol.II) DMC 45 MP High Court.
 (xx) Sunil Kumar Gayaprasad Mishra vs State of
Maharashtra – 2009 ALL MR (CR) Bom.
2038
(xxi) Vijay Dinkarrao Kulkarni vs State – 2009
ALL MR (CR) 2713.
(xxii) Anagha wife of Nikhil Bhusari vs State –
Cr.Appln.No. 212 of 2020, dated
12.06.2020.
(xxiii) Amit Chandrashekhar Bhagwat vs State –
Hon'ble High Court of Bombay Bench at
Nagpur in Cr.Appln.No. 338 of 2020, dated
26.06.2020.

xxiv. That, even if, the assertions made in the impugned

FIR and/or charge sheet filed by the investigating
agency are taken on their face value in their entirety,
then also the same do not disclose the offence against
the present accused as alleged by the prosecution, as
the necessary and requisite ingredients of the offence
are completely lacking therein, therefore, it is
necessary, expedient, in the interest of justice, good
conscience, fair play, equity this Hon’ble Court be
pleased to release the applicant on bail by exercising
powers vested with this Hon’ble Court under section
437 of Cr.P.C.

xxv. That, in the recent case of Deepak Virendra

Kochhar Vs. Directorate of Enforcement & Ors.
Criminal Bail Application No. 1322 of 2020, the
 Hon’ble High Court of Bombay was pleased to release
the accused on bail. While granting Bail the Hon’ble
Justice Shri. Prakash D. Naik held that: “The trial is
not likely to commence and conclude immediately.
The debatable issues are to be adjudicated during
trial. The question of tampering evidence does not
arise. The applicant is permanent resident of
Mumbai. The question of absconding does not arise.
Considering the circumstances, further detention of
the applicant is not necessary. Hence, case for grant
of bail is made out.”

xxvi. That, charge sheet has been filed but there is no

possibility of the trial would commence soon and
the trial may take ages to be concluded and during
the lockdown it was directed by the Hon’ble
Supreme Court of India as well as the Hon’ble High
Court to take or entertain only urgent matter, hence
in the present situation there is no hope to proceed
the matter further or conclude the trail in future.
Hence, further detention of the applicant in the
case will amount to curtailment of his personal
liberty and violation of his constitutional and
fundamental rights.

xxvii. That, the consequences of pre-trial detention are

grave and the accused who is presumably innocent
is subjected to the psychological and physical
 torture, usually under more onerous conditions than
are imposed on convicted accused. Equally
important, the burden of his detention frequently
falls heavily on the innocent member of his family;

xxviii. That the High Hon’ble Court in the matter of

Shashikant Kisan Bailskar and Anr. Vs. The State
of Maharashtra – 1992 (2) Cri. L.C. 559 after
hearing the parties therein released the applicant on
bail, with the observations that:
“In my view the ends of justice will be met
in case they are released on bail with
directions that they should report to some
police station at Bombay. It will be unfair
to detain them in jail for such a long time
since they are ready to abide the conditions
laid down by the Court.”

xxix. The Applicant is implicated in the present crime

only on the basis that he is falsely implicated in other
crime in the similar situation the Hon’ble Apex Court
in Maulana Mohammed Amir Rashadi Vs. State of
Uttar Pradesh and Anr. – (2012) 2 SCC 382,
observed that:

eventhough the prosecution brought to the

notice that (i) the accused is habitual
offender and criminal background and
having more than three dozen cases
 involving serious offences against him (ii)
second respondent therein was in jail, (iii)
trial has commenced and assured that will
not be prolonged and concluded within a
reasonable time, the Hon’ble Apex Court
has not interfered with the order passed by
the Hon’ble High Court by virtue of which
the Hon’ble High Court has been pleased
to release the applicant therein.

xxx. Arrest and detention of a person in police custody

causes incalculable harm to his reputation and self-
esteem. It visits a person with disastrous
consequences and his reputation and image is
shattered, if his arrest is effected, irrespective of his
complicity or material available against him and
therefore, as has been observed by the Apex Court in
the matter of Joginder Kumar Vs. State of U.P.-
(1994) 4 SCC 260. The Apex Court in the said
decision has clearly held that arrest of a person
causes incalculable harm to a person’s reputation and
self-esteem and therefore, arrest is to be avoidable as
far as possible and is required to be resorted to only
in heinous offences.

xxxi. The Apex Court in the matter of Siddharam

Satlingappa Mhetre Vs. State of Maharashtra –
 (2011) 1 SCC 694 has laid down certain parameters
for grant of bail.

xxxii. “Bail and not jail” is the sound principle which has
to be kept in mind by the courts dealing with grant of
bail and in respect whereof there are several judicial
pronouncement and the first judgment in this respect
rendered by none other than Justice V.R. Krishna
Iyer in the matter of Gudikanti Narasimhulu Vs.
Public Prosecutor - (1978) 1 SCC 240 and which
view was again reiterated recently in the matter of
Sanjay Chandra Vs. CBI – (2012) 1 SCC 40 in the
matter of 2G Spectrum Scam.

xxxiii. The applicant most respectfully state and submit

that it is settled principle of law that the Hon’ble
Apex Court in the matter of CBI Vs. K. Narayana
Rao – (2012) 3 SCC (Cri) 1183 has held that the
offences of criminal conspiracy cannot be deemed to
have been established on mere suspicion and
surmises or inference nor supported by cogent and
acceptable evidence.

xxxiv.That, in Criminal Misc. Application No. 10393

of 2016. Noratan Malchandbhai Chajed Versus
State of Gujarat, the Hon’ble Gujurat High Court
observed that:

“…….looking to the facts and circumstances

 of the case, more particularly, the applicant
is suffering from disease of HIV Positive
and in view of the aforesaid order as
quoted herein above as well as also on
humanitarian ground, I am inclined to
grant bail to the applicant. At this stage,
this Court is not going into the merits of
the case.”

xxxv. That, in Wernli Mnonika Barbara vs State, 121

(2005) DLT 420, 2005 (83) DRJ 399 the Hon’ble
High Court was pleased to release the accused on
various other grounds alongwith that the applicant is
suffering from HIV. The Hon’ble Court observed
that:

“………………on humanitarian
grounds also, the petitioner is
entitled to bail”

xxxvi.That, The Hon’ble Apex Court of the country and

Hon’ble High Courts was pleased to release the
accused persons on bail, only on medical ground,
more specifically suffering from HIV.
xxxvii. Further, It is well settled principle of law
that the object of bail is to secure the appearance of
the accused person at his trial by reasonable amount
of bail. The object of bail is neither punitive nor
penetrative. Deprivation of liberty must be
considered a punishment, unless it can be required to
ensure that an accused person will stand his trial
when called upon. The courts owe more than verbal
respect the principle that punishment begins after
conviction, and that every man is deemed to be
innocent until duly tried and duly found guilty.

xxxviii. That, the investigating agency alleged that if

the applicant is released on bail, he likely to tamper
with the evidence. This apprehension is totally
misplaced, as if the applicant released on bail and
attempt to hamper and/or tamper with the evidence
that would be a good case for cancellation of bail, but
it will result in miscarriage of justice to keep the
applicant in custody on the basis of the mere
apprehension.

xxxix.That, no foundation for the belief that the applicant

would in fact leave India and abscond in the event of
he being released on bail. The applicant is a person
having his family in India.
xl. Further, in other matters where the Applicant
implicated as an accused, he has been release on bail by
the respective courts:

(i) in RCC No. I- 1037/19 Vashi Police Station,

Applicant preferred bail application. After
hearing the Ld. Magistrate vide order dated
23.10.2019 was pleased to allow the said bail
application.

(ii) Applicant also preferred Criminal Bail

Application No. 207 of 2020 before the Hon’ble
Sessions Court for Gr. Bombay in connection
with the CR. No. 114 of 2019 registered with
L.T. Marg Police Station, after hearing the the
Hon’ble Sessions Court vide order dated
01.02.2020 was pleased to allow the said bail
application.

(iii) Further, Applicant filed another bail application

being Bail Application No. 411 of 2020 before
the Hon’ble Sessions Court, in connection with
CR No. 73 of 2019 registered with Gavdevi
Police Station, after hearing the same, vide order
dated 17.02.2020 the Hon’ble Court was pleased
to release the applicant on bail.

(iv) in CR No. 276/19 Parksite Police Station,

Applicant preferred bail application. After
 hearing the Ld. Magistrate vide order dated
01.07.2020 was pleased to allow the said bail
application

Hereto annexed and marked as Exhibit- D

(Colly) are the copies of order dated 23.10.2019,
01.02.2020 17.02.2020 and 01.07.2020.

xli. That, the applicant has not yet been convicted in any of
the case, by any court of law.

xlii. That, it is well settled principle of law and the Hon’ble

Apex Court in its catena of decisions held that personal
liberty is a very precious fundamental right and it
should be curtailed only when it becomes imperative
according to the peculiar facts and circumstances of the
case.

xliii. That, law is well settled that the consequences of pre-

trial detention are grave and accused presumed
innocent arc subjected to the psychological and
physical deprivations of jail life, usually under more
onerous conditions than are imposed on convicted
accused. Equally important, the burden of his detention
frequently falls heavily on the innocent member of his
family.
 xliv. That, it is further settled principle of law that the
right to life and liberty is guaranteed by Article 21 of
the Constitution of India and the liberty of the person,
who even may an accused person, cannot be curtailed
unless the circumstances so required.

xlv. That, before filing of the present bail application, the

applicant had preferred bail application before this
which has been rejected by the Ld. Judicial Magistrate.

xlvi. Thereafter, the Applicant approached the Hon’ble

Sessions Court, through the bail application no. 705 of
2021, after hearing the Hon’ble Sessions Judge vide
order dated 26.03.2021 was pleased to reject the same.

xlvii. Thereafter, Applicant filed bail application interim

bail before this Hon’ble Court on medical and covid
ground which was allowed by this Hon’ble Court on
15.07.2021

5. That, the applicant has been residing along with his family at the
address mentioned in the cause title of the present application and
thus, he has deep roots in the society and hence, there is no
possibility of absconding and/or running away from the course of
justice. Hereto annexed and marked as Exhibit- E (Colly) is the
copies of Aadhar Card, Driving License, Ration Card Electricity bill,
Tax Receipt and.
6. That, the applicant is ready and willing to co-operate with the
investigating agency and to abide by all the reasonable terms and
conditions which this Hon’ble Court may impose while granting bail
and further he is ready to furnish surety to the satisfaction of this
Hon’ble Court at the time of granting bail by this Hon’ble Court.

7. That, applicant undertakes that neither he will abuse the favour of

bail shown to him nor will tamper with the evidence/witness even
after granted bail.

8. The Applicant has not filed any other application, either in this
Hon’ble Court or in any other court(s) of India, touching the subject
matter of the present application, save and except what have been
stated hereinabove.

9. The applicant craves leave of this Hon’ble Court to add, alter,

amend, delete and/or rescind any of the averments and/or
submissions mentioned hereinabove, with the leave of this Hon’ble
Court.

10. Under the facts and circumstances, the Applicant therefore most
humbly prays as under:

a. that this Hon’ble Court may be pleased to release the

Applicant on bail in connection with CR. No. 224 of 2020
registered with Sewree Police Station, Mumbai, on such
terms and conditions as this Hon’ble Court may deem fit
and proper;
 b. that this Hon’ble Court may be pleased to release the
Applicant on interim bail in connection with CR. No. 224
of 2020 registered with Sewree Police Station, Mumbai on
such terms and conditions as this Hon’ble Court may deem
fit and proper;

c. that this Hon’ble Court may be pleased to dispense with the

verification of the applicant since he is in custody;

d. any other further order and/or direction be given as the

nature and circumstances of the case may require;

Muumbai
This 4th day of February, 2022

Hulyalkar & Associates

Advocate for the Applicant.