R/CR.MA/12679/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 12679 of
2017
RAJENDRAKUMAR HARGOVANDBHAI YOGI….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)
Appearance:
JAY R SHAH, ADVOCATE for the Applicant(s) No. 1
MARMIK A THAKKAR, ADVOCATE for the Applicant(s) No. 1
MS NILAM N CHAUHAN, ADVOCATE for the Respondent(s) No. 1
MS. JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 11/07/2017
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 328, 498A, 34 of the Indian
Penal Code and sections 3 and 7 of the Dowry Prohibition Act,
for which an FIR being C.R. No. I-44 of 2017 came to be
registered at Palanpur (West) Police Station, Dist.
Banaskantha.
2. Learned advocate appearing on behalf of the
applicant would submit that considering the nature of offence,
the applicant may be enlarged on anticipatory bail by imposing
suitable conditions.
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3. On the other hand, the learned APP appearing for
the respondent-State has opposed this application to the
nature and gravity of the offence. Learned Advocate
appearing for the original complainant has also opposed this
application.
4. This Court has heard the learned Advocates
appearing for the respective parties and perused the
investigation papers. Having considered the rival contentions,
the incident is alleged to have taken place at Palanpur and the
parents-in-law and the husband of the complainant is alleged
to have participated in the offence. The complainant has
alleged that poison was administered to her by the said three
accused and thereupon she was initially admitted in general
hospital, Palanpur and subsequently shifted to private hospital.
4.1 It is contended by the learned counsel for the
applicant that on the date and time of offence in question the
applicant was present in the office of the Chartered Accountant
Mahendra P. Pandya Co. at Mehsana and was not present in
Palanpur. The said fact has been verified by the investigating
agency from the Chartered Accountant and is found to be true.
Thus, prima facie, the contents of the FIR are belied in so far as
father-in-law of the complainant is concerned. The learned
counsel for the complainant submitted that different versions
have been given by the father-in-law of the complainant. On
one hand he has stated that he had gone to Mehsana to
enquire about the health of his brother-in-law and on other
hand he has stated that he had gone to the office of the
Chartered Accountant at Mehsana. Be it noted that both the
places are situated in the same city and it is possible for the
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applicant to visit both the places on the same day. The fact
remains that as indicated above, statement of the applicant
that he was in the office of the Chartered Accountant at
Mehsana has been verified to be true. It is also true that
normally during the hearing of the anticipatory bail application,
the court will not be guided by alibi. However, when prima
facie such alibi is found to be true, the interest of justice would
require the reliance upon the same even at anticipatory bail
stage; for the court exist for justice and thus cannot turn a
blind eye to substantial piece of the evidence which may
negate or nullify the prosecution case when such defence is
put during trial.
4.2 From the above referred facts, the case of the
applicant that he is sought to be falsely implicated cannot be
ruled out and therefore, he is entitled to anticipatory bail. This
court, therefore, exercises its discretion to grant anticipatory
bail to the applicant.
5. Learned Advocate for the applicant on instructions
states that the applicant is 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 applicant accused to oppose such
application on merits may be kept open.
6. In the result, this application is allowed. It is
directed that in the event of arrest of the applicant herein in
connection with the FIR being C.R. No. I-44 of 2017 registered
with Palanpur (West) Police Station, Dist. Banaskantha, the
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applicant shall be released on bail on his furnishing a personal
bond of Rs.10,000/- (Rupees ten thousands only) with one
surety of the like amount on the following conditions that he
shall:
(a) cooperate with the investigation and make
himself available for interrogation whenever
required;
(b) remain present at the concerned Police Station
on 17.7.2017 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 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
(g) it would be open to the Investigating Officer to
file an application for remand if he considers it
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proper and just and the learned Magistrate would
decide the same on merits;
7. Despite this order, it would be open for the
Investigating Agency to apply to the competent Magistrate, for
Police remand of the applicant. The applicant 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.
8. 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 is made
absolute.
Direct service is permitted.
(G.R.UDHWANI, J.)
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