R/CR.MA/26692/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL)
NO. 26692 of 2017
JAYKUMAR MAHESHBHAI NAGINBHAI PATEL….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)
Appearance:
MR RUSHABH R SHAH, ADVOCATE for the Applicant(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 30/11/2017
ORAL ORDER
1. By way of the present application under Section 438 of the Code of
Criminal Procedure, 1973, the applicant has prayed to release him on
anticipatory bail in case of his arrest in connection with the FIR
registered at C.R. No. I- 98 of 2017 with Kadodara GIDC Police
Station, Dist.: Surat Rural for the offence punishable under Section 376
of the Indian Penal Code, 1860 (for brevity, ‘the IPC’).
2. Learned advocate for the applicant submits that, in fact, it is the case of
love affair between the applicant and the prosecutrix and both have
entered into the marriage agreement also. Besides, the nature of
allegations are such for which custodial interrogation at this stage is not
necessary. Further, the applicant is available during the course of
investigation and will not flee from justice. In view of the above, the
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applicant may be granted anticipatory bail.
2.1 The learned advocate for the applicant, on instructions, states that the
applicant will abide by all the conditions including imposition of
conditions with regard to 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.
3. The learned Additional Public Prosecutor, on the other hand, opposes
the present application looking to nature and gravity of offence.
4. Regard being had to the submissions made by the learned advocates for
the parties and perusing the papers on record and as well as taking into
consideration the facts of the case, nature of allegations, gravity of
offence, role attributed to the accused, without discussing the evidence
in detail, at this stage, I am inclined to grant anticipatory bail to the
applicant. 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 Ors., reported
at (2011) 1 SCC 6941, wherein the Hon’ ble Apex Court has reiterated
the law laid down by the Constitution Bench in the case of Shri
Gurubaksh Singh Sibbia Ors., reported at (1980) 2 SCC 665.
5. In the result, the present application is allowed by directing that in the
event of applicant herein being arrested pursuant to the above-referred
FIR, the applicant shall be released on bail on furnishing a personal
bond of Rs. 10,000/- (Rupees Ten thousand only) with one surety of
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like amount on the following conditions:
(a) shall cooperate with the investigation and make himself
available for interrogation whenever required;
(b) shall remain present at concerned Police Station on 04.12.2017
between 11.00 a.m. and 2.00 p.m.;
(c) shall 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 from disclosing such facts to the Court or to any
police officer;
(d) shall 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) shall 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) shall 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 it on merits.
6. 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
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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.
7. 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.
8. Rule is made absolute to the aforesaid extent. Application is disposed
of accordingly. Direct service is permitted.
[ P. P. Bhatt, J. ]
hiren
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