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Mohhamad Kazim Mohhamad Nazir … vs State Of Gujarat on 16 July, 2021

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R/CR.MA/4050/2020 ORDER DATED: 16/07/2021

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION NO. 4050 of 2020

MOHHAMAD KAZIM MOHHAMAD NAZIR SHAIKH
Versus
STATE OF GUJARAT

Appearance:
MS TASNIM A ZABUAWALA(10756) for the Applicant(s) No. 1
DEVESH K SHAH(9595) for the Respondent(s) No. 1
KAIVAN M DASTOOR(9322) for the Respondent(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 1

CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

Date : 16/07/2021
ORAL ORDER

[1] Heard the learned advocates for the respective parties through
video conferencing.

[2] By way of the present application filed under Section 438 of the
Code of Criminal Procedure, 1973, the applicant-accused has
prayed for bail in connection with the FIR being
C.R.No.11191036200063 of 2020 registered with Navrangpura
Police Station, Ahmedabad City District Ahmedabad for the
offences under
Sections 498A, 323 and 114 of the Indian Penal
Code, 1860 and under
Section 4 of the Dowry Prohibition Act.

[3] Brief facts of the case are as under:-

[3.1] The complainant was married with the accused No.1 on
25.03.2018 and after few days of the marriage, accused No.1
shifted to Ahmadabad and started residing on rent at Khanpur
area. It is further alleged that the accused No.1 and complainant
has been residing in Ahmadabad since last 2 years. It is further
alleged by the complainant that accused No.1 is demanding Dowry
in form of vehicle and cash money, which was refused by the

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complainant. It is further alleged that, therefore, the accused No.1
and his family mentally tortured the complainant. It is further
alleged that all the accused demanded Dowry of Rs. 15 Lakhs and
also scooter Activa from complainant and therefore the
complainant was sent to her parental home. It is further alleged
that the complainant has refused to fulfill Dowry demand and
thereafter accused No.1 did not take her with him at matrimonial
home. It is also alleged that when she was four months pregnant,
she was beaten by her mother-in-law. It is alleged that she was
driven out from her matrimonial home in October, 2019, and since
then she is staying at her parental home.

[4] Learned advocate for the applicant has submitted that there
are absolutely vague allegations made against the present
applicant by the complainant with regard to physical harassment
meted out by him against her. It is submitted that the FIR does not
reveal any specific details with regard to assault. So far as the
allegation with regard to the demand of scooter is concerned,
learned advocate for the applicant has submitted that the applicant
was already possessing scooter i.e. Activa since the year 2018.
Further, it is submitted that the father of the present applicant is a
Government employee and there is a fixed deposit to the tune of
Rs.35 lacs and the present applicant was also having job, earning
Rs.60,000/- per month. It is submitted that during the pandemic,
the applicant has lost his job. It is submitted that looking to the
financial condition of the applicant and his family members, there
is no need for them to demand dowry. With regard to physical
harassment meted out to the complainant, it is submitted that no
specific details are given in the complaint. It is submitted that in

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fact the complainant is forcing the present applicant to stay away
from his parents and stay separately, which he does not want to do
so.

[5] Learned advocate for the applicant submits that the nature of
allegations are such for which custodial interrogation of the
applicant at this stage is not necessary. He further submits that the
applicant will keep himself available during the course of
investigation, as well as in the trial also and will not flee from
justice.

[6] Learned advocate for the applicant, on instructions, states
that the applicant is ready and willing to 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 further submits that upon filing of such
application by the investigating agency, the right of the applicant
accused to oppose such application on merits may be kept open.
Learned advocate, therefore, submits that considering the above
facts, the applicant may be granted bail.

[7] On the other hand, the learned Additional Public Prosecutor
appearing on behalf of the respondent- State has opposed grant
of bail looking to the nature and gravity of the offence. Learned
APP, while referring to the report of the Investigating Officer, has
submitted that the applicant has stated before the Investigating
Officer that he is ready and willing to take away his wife i.e. the
complainant, however, she has specifically denied. He has also
submitted that as per the statement, the applicant along with other
elderly members of the community had tried to bring the

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complainant at her home, but she has refused to do so and her
parents have also refused to send her.

[8] Learned advocate Mr.Devesh Shah appearing for the
complainant, while referring to the FIR, has submitted that in fact
the complainant was assaulted by the present applicant time and
again and also had favoured his mother when she was taunting
the complainant. It is submitted that cruelty has been meted out by
the present applicant and hence, the present application may be
rejected.

[9] Having heard the learned advocates for the parties and
perusing the material placed on record and taking into
consideration the facts of the case, nature of allegations, gravity of
offences, role attributed to the accused, without discussing the
evidence in detail, at this stage, I am inclined to grant bail to the
applicant.

[10] This Court has considered the following aspects;

(a) The allegations appears to be general in nature as no
specific details are given;

(b) The complainant left her matrimonial home in October, 2019
and has been staying at her parental home since then, however,
the FIR is registered on 04.02.2020;

(c) Prima facie considering the facts of the case, the custodial
interrogation of the applicant is not necessary at this stage;

Looking to the over all facts and circumstances of the
present case, I am inclined to consider the case of the applicant.

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R/CR.MA/4050/2020 ORDER DATED: 16/07/2021

[11] This Court has also taken into consideration the law laid down
by the Apex Court in the cases of
Sushila Aggarwal vs. State (Nct
of Delhi), AIR 2020 SC 831 and
Siddharam Satlingappa Mhetre vs
State of Maharashtra, AIR 2011 SC 312.

[12] In the result, the present application is allowed. The applicant
is ordered to be released on bail in the event of his arrest in
connection with FIR being C.R.No.11191036200063 of 2020
registered with Navrangpura Police Station, Ahmedabad City
District Ahmedabad on his executing a personal bond of
Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like
amount on the following conditions that he :

(a) shall cooperate with the investigation and make himself
available for interrogation whenever required;

(b) shall remain present at the concerned Police Station on
22.07.2021 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

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his residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the concerned
trial court and if having passport shall deposit the same before the
concerned trial court within a week.

[13] Despite this order, it would be open for the investigating
agency to apply to the competent Magistrate, for police remand of
the applicant, if he considers it proper and just and the Magistrate
would decide if on merits. The applicant shall remain present
before the concerned Magistrate on the first date of hearing of
such application and on all subsequent occasions, as may be
directed by the concerned Magistrate. This would be sufficient to
treat the accused in the judicial custody for the purpose of
entertaining the 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 concerned 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 bail order.

[14] At the trial, the concerned trial court shall not be influenced by
the prima facie observations made by this Court in the present
order.

[15] The application is allowed in the aforesaid terms. Rule is
made absolute to the aforesaid extent. Registry is directed to send
a copy of this order to the concerned authority/court through Fax

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message, email and/or any other suitable electronic mode.

[16] Learned advocate for the applicant is also permitted to send
a copy of this order to the concerned authority/court through Fax
message, email and/or any other suitable electronic mode.

(A. S. SUPEHIA, J)
ABHISHEK

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