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Nikesh Pannalal Giri & 2 vs State Of Gujarat on 15 December, 2017

R/CR.MA/29543/2017 ORDER



STATE OF GUJARAT….Respondent(s)

HIREN R PANDYA, ADVOCATE for the Applicant(s) No. 1 – 3
MR VICKY B MEHTA, ADVOCATE for the Applicant(s) No. 1 – 3
MS CM SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1


Date : 15/12/2017


1. Appearance of the learned counsel for the complainant be

2. This is an application by the applicants under Section 438 of
the Code of Criminal Procedure, 1973, for anticipatory bail in the
event of their arrest in connection with FIR registered at C.R. No.I-
35 of 2017 before Mahila Police Station, Ahmedabad (East) for the
offence punishable under Sections 498A, 323, 294(b), 506(2), 354,
406, 420, 120B the Indian Penal Code.

3. Heard learned advocate for the applicants, learned APP for
the respondent State and learned counsel for the complainant.

4. Having considered the rival contentions including that of the
complainant, the case for admitting the petitioners to bail in
anticipation of their arrest is made out; despite not pressing the

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R/CR.MA/29543/2017 ORDER

application under Section 438 of Cr.P.C. by the petitioners in the
court below inasmuch as, it is a settled legal position that the two
courts contemplated in Section 438 i.e. Sessions Court and the
High Court have concurrent jurisdiction, and therefore, withdrawal
or not pressing the petition in the Sessions Court would not
preclude the High Court from exercising the jurisdiction and would
not preclude the petitioners from exercising his right under Section
438 of Cr.P.C.

The gist of the allegation in the FIR are about not
establishing the physical relations by petitioner Nikesh; her
husband with her and asking the complainant to establish physical
relations with petitioners No.2 and 3; as also expression of their
desire to establish physical relations with her. Superfluous
allegation about demand of dowry and about forcing the
complainant to sign the divorce deed are also made in the FIR. It is
not the case of the complainant that the physical relations were
established with her by petitioners No.2 and 3 nor it is her case
that the petitioners had used physical force for establishing
physical relations with her, by petitioners No.2 and 3.

In the above context, the submissions of the learned counsel
for the petitioners to an effect that it is only after filing the petition
for divorce being MJ Petition No. 63 of 2017 before the Senior Civil
Judge at Vasai, that such allegations are made against the
petitioners are required to be appreciated.

Having regard to the fact that all the necessary facts
required for the prosecution of the petitioners are already revealed
in the FIR, there does not seem to be any necessity of arresting the
petitioners and therefore assertion by the investigator to arrest the
petitioners is misconceived in law.

Under the above circumstances, this application is allowed
and the case for admitting the petitioners to anticipatory bail is
made out.

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5. Learned advocate for the applicants on instructions states that
the applicants are ready and willing to abide by all the conditions,
including the conditions with regard to the powers of Investigating
Agency to seek remand of the applicants; subject to the applicants’
right to oppose it.

6. In the result, this application is allowed. It is directed that in the
event of arrest of the applicants herein in connection with FIR
registered at C.R. No.I-35 of 2017 at Mahila Police Station,
Ahmedabad (East), the applicants shall be released on bail on
their furnishing a personal bond of Rs.10,000/- (Rupees ten
thousands 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

(b) remain present at the concerned Police Station on
19/12/2017 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 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 their 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

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R/CR.MA/29543/2017 ORDER

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
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 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
applicants on bail. Rule is made is made absolute.

Direct service is permitted.


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