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Devshibhai @ Dhelabhai Madhabhai … vs State Of Gujarat on 18 September, 2017

R/CR.MA/21133/2017 ORDER


STATE OF GUJARAT….Respondent(s)

MR DH RAHEVAR, ADVOCATE for the Applicant(s) No. 1
MS JHAVERI APP for the Respondent(s) No. 1

Date : 18/09/2017

1. Heard learned Counsel for the applicant and learned APP on
behalf of the respondent-State.

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 363, 366, 376, 506(2), 354 and 114 of
the Indian Penal Code and under Sections 4, 8 and 17 of the
POCSO Act which FIR came to be registered at C.R. No.I-24 of
2016 with Mavsari Police Station.

3. Learned advocate appearing on behalf of the applicant would
submit that considering the nature of offence, the applicant may be
enlarged on anticipatory bail. 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.

4. On the other hand, the learned APP appearing for the
respondent-State has opposed this application to the nature and
gravity of the offence.

5. Considering the contradictory statement of the prosecutrix;

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R/CR.MA/21133/2017 ORDER

one in the FIR and the other in her medical history in relation to the
offence punishable under Sections 376 of the IPC, as also other
contents of the FIR and in absence of any apprehension of the
petitioner tampering with the evidence or threating the witnesses
or fleeing from trial; the petitioner is entitled to bail in anticipation
of his arrest.

6. In the result, this application is allowed. It is directed that in
the event of arrest of the applicant herein in connection with FIR
registered at C.R. No.I-24 of 2016 with Mavsari Police
Station, the 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
25/09/2017 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 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

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R/CR.MA/21133/2017 ORDER

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

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.


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