ORDER (ORAL)

Z.K.Saiyed, J.—This is a successive bail application preferred under Section 439 of the Code of Criminal Procedure, 1973 in connection with the offence being CR No.I - 94 of 2014 registered with Palsana Police Station, District : Surat, for the offences punishable under Sections 302, 201, 394, 120(B) and 34 of the Indian Penal Code.

2. As per the aforesaid complaint, the present accused was in a financial crisis and therefore, he had asked one Manoj Agrawal to lend him some amount. It is further allegation in the aforesaid complaint against the present applicant that on 8.7.2014, the applicant called the said Manoj Agrawal and threatened him that if he did not pay the amount as demanded then he would kill him i.e. said Manoj Agrawal. Therefore, aforesaid complaint came to be filed. In this matter, charge- sheet is already filed and the arrest of the applicant was made on 2.8.2014.

It also appears that the present applicant is suffering from HIV Positive (at the advance stage) and the treatment is given by the Jail Authority through the Hospital. It also appears that the relevant medical papers are enclosed with this application. It reveals that the wife of the present applicant was in jail for the similar offences and she was released later on and then died due to cancer disease.

3. Learned senior advocate Mr. Nanvati for Mr. Daifraz Havewalla appearing for the applicant submitted that the applicant is an innocent person and he has been wrongly implicated in the offence as alleged. He also submitted that now, the present applicant has been diagnosed with HIV Positive and he is undergoing treatment. He also submitted that considering humanitarian ground, the applicant is required to be considered for bail looking to his serious disease like HIV Positive. Learned senior advocate Mr. Nanavati upon relying upon the oder dated 17.10.2015 passed by this Court in Criminal Misc. Application No.17776 of 2015, stated that the applicant of that case, was considered for bail on health and sympathetic grounds. He also relied upon the another order dated 12-15.6.2015 passed by this Court in Criminal Misc. Application No.10080 of 2015 and stated that in that matter also, this Court has considered the health ground of the accused while releasing him on bail. He also referred the medical papers, which reflect the the applicant is suffering HIV Positive. In view of the above, learned senior advocate Mr. Nanavati prays to allow present application on humanitarian ground by imposing suitable conditions.

4. As against, learned APP Mr. H.K. Patel strongly opposed the bail application of the applicant and submitted that no discretionary power under Section 439 may be exercised in favour of the applicant as the applicant is involved in serious offence.

5. Perused the application along with medical papers and it appears that the applicant is suffering from HIV Positive and he is undergoing treatment of the same.

6. This Court also perused the order dated 12-15.6.2016 passed by this Court in Criminal Misc. Application No.10080 of 2015, wherein at para 41, this Court has observed as under:

“The Apex Court in the case of Dipak Shubhashchandra Mehta (Supra), held that though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of merits of case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where accused is charged of having committed a serious offence Penal Code, 1860, Ss.406, 420, 467, 468, 471 and 120B.

The Apex Court in paras 31, 33 and 34 held as under :-

“31. This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused (Vide Babba v. State of Maharashtra and Vivek Kumar v. State of U.P.) But the same should not be applied to all cases mechanically.

33. Considering the present scenario and that there is no possibility of commencement of trial in the near