R/CR.MA/31420/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 31420 of
2017
LAKHAN @ LALO KISHORDAS VAISHNAV 3….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)
Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Applicant(s) No. 1 – 4
MR JK SHAH ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 16/01/2018
ORAL ORDER
1. Appearance of the learned advocate for the original complainant
be recorded.
2. This application is filed seeking bail under Section 438 of the
Code of Criminal Procedure, 1973 in respect of the offences punishable
under Sections 376, 376(2), 366, 506(1), 114 of the Indian Penal Code
( for short ‘the Act’) and Section 67A of the I.T.Act for which FIR came
to be registered at C.R. No. I 39 of 2017 with Khadia Police Station.
3. 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. Learned
Advocate for the applicants on instructions states that the applicants are
ready and willing to abide by all the conditions, including the condition
with regard to the powers of Investigating Agency to seek remand of the
petitioners; subject to the petitioner right to oppose it.
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4. On the other hand, the learned APP appearing for the
respondentState has opposed this application.
5 Having considered the rival contentions including that of the
complainant it is noticed from the papers produced with the petition that
initially the statement of the prosecutrix aged 23 years was recorded on
26.10.2017 wherein she pleaded live in relations, voluntary sexual
encounters with the petitioner no.1 and made the positive assertion that
she had love affair with the petitioner no.1 and she has no complaint
against anyone, in the FIR lodged after about a month the prosecutrix
has come out with entirely contrary version to the one made on
26.10.2017.
5.1 In addition to what is stated above, the learned counsel for the
petitioners has produced copies of the all photographs of the petitioner
no.1 and the prosecutrix to show that their relations were intimate and
cordial between the two.
6. According to the learned counsel for the complainant, the
prosecutrix had gone with the petitioner no.1 with an understanding that
he would with her and allowed him to establish physical relations with
her only with an understanding that he would marry her. Nowhere in
the complaint or in other statement noted hereinabove such a statement
is found.
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7. In the circumstances, the case for bail in anticipation of the arrest
of the petitioner no.1 is made out in absence on apprehension against
him tampering with the evidence, threatening the witnesses or fleeing
from trial.
8. So far as other petitioners are concerned they are accused only
as abettor, the case against them is that they had induced and
instigated the prosecutrix to go and establish relations with the
petitioner no.1.
9. Accordingly, 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.I39 of 2017 at Khadia Police Station, the applicants shall
be released on bail on their 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
22.01.2018 between 11.00 a.m. and 2.00 p.m.;
(c) applicant no. 1 will not enter into limits of Khadia
Police Station;
(d) not directly or indirectly make any inducement, threat
or promise to any person acquainted with the fact of the
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case so as to dissuade him/them from disclosing such facts
to the court or to any police officer;
(e) not obstruct or hamper the police investigation and not
to play mischief with the evidence collected or yet to be
collected by the police;
(f) 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 the case
till further orders;
(g) 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
(h) 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;
10. 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
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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 applicants, 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.
11 At the trial, the Trial Court shall not be influenced by the prima
facie observations made by this Court while enlarging the applicant on
bail. Rule is made absolute to the above extent. Direct service is
permitted.
(G.R.UDHWANI, J.)
niru*
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