Sadhubha Mafubha Darbar & vs State Of Gujarat on 7 November, 2017

R/CR.MA/24837/2017 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL)
NO. 24837 of 2017

SADHUBHA MAFUBHA DARBAR 1….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)

Appearance:
MR VIRAT G POPAT, ADVOCATE for the Applicant(s) No. 1 – 2
MR JK SHAH, APP for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI

Date : 07/11/2017

ORAL ORDER

1. This application is filed seeking bail under Section 438 of the
Code of Criminal Procedure, 1973 in respect of the offences
punishable under Sections 365, 376(d), 506(2) and 114 of the
Indian Penal Code for which FIR came to be registered at C.R.
No.I-46 of 2017 with Thara Police Station, Banaskantha.

2. Learned advocate appearing on behalf of the applicants
would submit that considering the nature of offence, the applicants
may be enlarged on anticipatory bail by imposing suitable
conditions.

3. On the other hand, the learned APP appearing for the
respondent-State has opposed this application.

4. Having considered the rival contentions it appears that
during the raid on a hotel one of the accused namely, Ganpatbhai
Rathod aged 27 years was found in the company with the
prosecutrix aged 22 years in a room and both of the said persons
were brought to the police station.

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5. So far as the petitioner no.1 is concerned, the allegations
against him is having raped the prosecutrix; presumably prior to
her being taken to the police station; on the same day, and
petitioner no.2 is stated to be driving the car, wherein the rape was
allegedly committed by petitioner no.1.

6. The prosecutrix has given her statement under Section 164 of
Cr.P.C. implicating all the three persons in the offence in question.
However, it is noticed from her FIR itself that she had voluntarily
accompanied the said Ganpatbhai to the said hotel. This is borne
out from her statement dated 15.08.2017 under Section 188 of
Cr.P.C.

7. Prima-facie, the movements of the prosecutrix are not in
conformity with the allegations of rape by petitioner no.1, in as
much as, after the so called rape she; instead of reporting to the
police, accompanied Ganpatbhai to the hotel and thereafter when
she was taken from the hotel to the police station and was allowed
to go home, sought legal advise and has lodged the FIR. Under the
circumstances, learned counsel for the petitioners has submitted
that the prosecutrix was in love with Ganpat, but the facts are
twisted only after her relation with the said person got exposed
because of her being taken to the police station by the police.

8. In the light of the above facts and submissions, in the opinion
of this Court, the case for admitting the petitioners to bail in
anticipation of their arrest is made out. Considering the nature of
role attributed to the petitioners and in absence of any
apprehension of the petitioners tampering with the evidence or
threating the witnesses, fleeing from justice at this stage, without
discussing the evidence in detail, the case for admitting the
petitioners to anticipatory bail is made out.

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9. Learned Advocate for the applicants on instructions states
that the applicants are ready and willing to abide by all the
conditions, including impositions of conditions with regard to the
powers of Investigating Agency to file an application before the
competent court for his remand. He would further submit that
upon filing of such application by the Investigating Agency, the
right of applicants accused to oppose such application on merits
may be kept open.

10. In the result, this application is allowed. It is directed that in
the event of arrest of the applicants herein in connection with FIR
registered at C.R. No.I-46 of 2017 at Thara Police Station, the
applicants shall be released on bail on his furnishing a personal
bond of Rs.10,000/- (Rupees ten thousands only) EACH with one
surety of the like amount on the following conditions that they
shall:

(a) cooperate with the investigation and make
themselves available for interrogation whenever
required;

(b) remain present at the concerned Police Station on
09.11.2017 between 11.00 a.m. and 2.00 p.m.;

(c) not directly or indirectly make any inducement,
threat or promise to any person acquainted with the
fact of the case so as to dissuade him/them from
disclosing such facts to the court or to any police
officer;

(d) not obstruct or hamper the police investigation and
not to play mischief with the evidence collected or yet
to be collected by the police;

(e) at the time of execution of bond, furnish the address
to the investigating officer and the court concerned and
shall not change their residence till the final disposal of

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the case till further orders;

(f) not leave India without the permission of the Court
and if having passport, shall deposit the same before
the Trial Court within a week; and

(g) it would be open to the Investigating Officer to file
an application for remand if he considers it proper and
just and the learned Magistrate would decide the same
on merits;

11. Despite this order, it would be open for the Investigating
Agency to apply to the competent Magistrate, for Police remand of
the applicants. The applicants shall remain present before the
learned Magistrate on the first date of hearing of such application
and on all subsequent occasions, as may be directed by the learned
Magistrate. This would be sufficient to treat the accused in the
judicial custody for the purpose of entertaining application of the
prosecution for police remand. This is, however, without prejudice
to the right of the accused to seek stay against an order of remand,
if, ultimately, granted, and the power of the learned Magistrate to
consider such a request in accordance with law. It is clarified that
the applicant, even if, remanded to the Police custody, upon
completion of such period of Police remand, shall be set free
immediately, subject to other conditions of this anticipatory bail
order.

12. At the trial, the Trial Court shall not be influenced by the
prima-facie observations made by this Court while enlarging the
applicants on bail. Rule is made is made absolute.

Direct service is permitted.

(G.R.UDHWANI, J.)

Dolly

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