R/CR.MA/26051/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 26051 of
2017
SURESHBHAI MAHESHBHAI @ BIHARILAL MALI 5….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)
Appearance:
MR IH SYED, ADVOCATE WITH MR TUSHAR CHAUDHARY, ADVOCATE for the
Applicant(s) No. 1 – 6
MR HRIDAY BUCH, ADVOCATE WITH MR VR HALANI, ADVOCATE for the
Respondent(s) No. 1
MS MOXA THAKKAR, APP for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/02/2018
ORAL ORDER
1 By way of the present application under Section 438 of the Code
of Criminal Procedure, 1973, the applicants original accused persons
have prayed to release them on anticipatory bail in the event of their
arrest in connection with the First Information Report being I69 of
2017 registered with the Deesa North Police Station, District:
Banaskantha of the offence punishable under Sections 498A, 406, 323
and 328 read with 114 of the Indian Penal Code and Sections 3 and 7 of
the Dowry Prohibition Act.
2 The learned advocate appearing on behalf of the applicants would
submit that considering the nature of the offence, the applicants may be
enlarged on anticipatory bail by imposing suitable conditions.
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3 On the other hand, the learned A.P.P. appearing on behalf of the
respondentState has opposed this application for grant of anticipatory
bail to the applicants looking to the nature and gravity of the offence.
4 The following aspects are taken into consideration:
[1] The most important aspect is the order passed by this Court
dated 1st February 2018 in the Special Criminal Application
No.472 of 2018, which reads as under:
“1 By this writ application under Article 226 of the Constitution of
India, the writ applicant has prayed for the following reliefs:
8(a) Your Lordships may be pleased to admit and allow this
petition.
(b) Your Lordships may be pleased to issue writ of mandamus or
any other appropriate writ, order or direction transferring the
investigation of First Information Report being C.R. No.I69/2017
registered with Deesa North Police Station to the Deputy
Superintendent of Police, Banaskantha and/or to any other
independent agency and thereby further be pleased to direct the
said agency to carry out proper investigation.
(c) Your Lordships may be pleased to issue writ of mandamus or
any other appropriate writ, order or direction ordering the
investigation of the First Information Report being C.R. No.I
69/2017 registered with Deesa North Police Station under the
supervision of the respondent no.2 District Superintendent of
Police, Banaskantha.
(d) Pending admission, final hearing and disposal of this petition,
Your Lordships may be pleased to direct the respondent no.3 herein
to submit detailed report of the investigation carried out so far in
connection with First Information Report being C.R. No.I69/2017
registered with Deesa North Police Station.
(e) Your Lordships may be pleased to pass any other and further
orders as may be deemed fit and proper.
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R/CR.MA/26051/2017 ORDER2 The writ applicant got married with one Kavitaben Mali on 15 th
February 2015. Soon after the marriage, matrimonial disputes cropped up
between the parties, which, ultimately, led to the filing of the First
Information Report referred to above. The First Information Report is filed
for the offence punishable under Sections 498A, 406, 323 and 328 read
with 114 of the Indian Penal Code and Sections 3 and 7 of the Dowry
Prohibition Act.
3 I take notice of the fact that for the incident, which occurred on 3 rd
September 2017, the F.I.R. came to be lodged on 30 th September 2017 i.e.
almost after a period of twenty seven days. The allegations in the F.I.R. are
that on the date of the incident, all the accused persons together tried to
forcibly administer something spurious to the first informant. The case of
the applicant herein is that the F.I.R. is palpably false and nothing of the
sort, as alleged, occurred on 3rd September 2017.
4 The principal argument of the learned counsel appearing for the
writ applicant is that on 3rd September 2017, he was at Gandhinagar for
the purpose of appearing in the examination for recruitment on the post of
the ‘Municipal Accountant, Class III’ conducted by the Subordinate Services
Selection Board.
5 I requested Ms. Moxa Thakkar, the learned A.P.P. appearing for the
State to look into the matter in this direction so that the picture would be
clear.
6 The Investigating Officer is present in the Court today. He confirms
that on 3rd September 2017, when the incident, as alleged, is said to have
occurred, the applicant was not in the village, but, was actually at
Gandhinagar. It is confirmed, after thorough investigation that, the
applicant appeared in two papers, and therefore, in any circumstances, he
could not have been present in the village at the time when the alleged
incident is said to have occurred. If that be so, then it is apparent that the
allegations levelled in the F.I.R. are false.
7 The applicant is praying for transfer of the investigation, because,
according to him, his other family members i.e. his parents, etc., have also
been falsely involved in the alleged offence. There may be some
matrimonial disputes, but, prima facie, it appears that the respondent
No.2 has levelled false allegations.
8 I am of the view that the matter should be looked into by the
Deputy Superintendent of Police, District: Banaskantha. The Deputy
Superintendent of Police, Banaskantha shall see to it that the investigation
proceeds in the right direction. As it is confirmed that the applicant was
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not present at the time when the alleged incident is said to have occurred,
it is necessary to investigate whether in fact any such incident occurred or
not. Let such investigation to be carried out under the supervision of the
Deputy Superintendent of Police, Banaskantha.
9 With the above, this writ application is disposed of. Direct service is
permitted.”
[2] The case put up by the first informant appears to be very
doubtful.
[3] The investigation may proceed further in accordance with law.
However, in my view, a strong case is made out for grant of
anticipatory bail, more particularly, in view of what has been
observed by this Court in the order referred to above.
5 I have heard the learned advocates appearing for the respective
parties, perused the investigation papers and have also taken into
consideration the facts of the case, nature of the allegations, role
attributed to the applicantsaccused, and without discussing the
evidence in detail, at this stage, I am inclined to grant anticipatory bail
to the applicant.
6 This Court has also taken into consideration the law laid down by
the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre
vs. State of Maharashtra and Others, reported in [2011] 1 SCC 6941,
wherein the Hon’ble Apex Court reiterated the law laid down by the
Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia
Others, reported in (1980) 2 SCC 665.
7 The learned advocate for the applicant, on instructions, states that
the applicants are ready and willing to abide by all the conditions,
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including impositions of conditions with regard to the powers of the
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 the applicants
accused to oppose such application on merits may be kept open.
8 In the result, the present application is allowed by directing that in
the event of arrest of the applicants herein in connection with the First
Information Report being being I69 of 2017 registered with the Deesa
North Police Station, District: Banaskantha, the applicants shall be
released on bail on their furnishing a personal bond of Rs.10,000/
(Rupees ten thousand 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 12th
February 2018 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 facts 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 his residence till the final disposal of 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
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(g) it would be open to the Investigating Officer to file an
application for remand if he considers it just and proper and
the learned Magistrate would decide the same on merits;
9 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 rights of the accused to seek
stay against an order of remand if, ultimately, granted, and the powers
of the learned Magistrate to consider such a request in accordance with
law.
10 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 the 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 applicants on
bail. Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.)
chandresh
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