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Nileshbhai Swarupchand Mali vs State Of Gujarat on 28 June, 2017

R/CR.MA/16071/2017 ORDER

of 2017

STATE OF GUJARAT….Respondent(s)

MR J M PANCHAL, ADVOCATE for the Applicant(s) No. 1
MR K J PANCHAL, ADVOCATE for the Applicant(s) No. 1
MR MITESH AMIN APP for the Respondent(s) No. 1


Date : 28/06/2017


1. RULE. Learned PP waives service of Rule on behalf of
the respondent-State.

2. This is an application by the applicant under Section
438 of the Code of Criminal Procedure, 1973 for anticipatory bail in
the event of his arrest in connection with FIR registered at C.R.
No.I-52 of 2017 before Khokhra Police Station, for the offence
under Sections 376 and 506(2) of the Indian Penal Code.

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 by imposing suitable

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

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R/CR.MA/16071/2017 ORDER

complainant has also opposed this application.

5. This Court has heard the learned Advocates appearing
for the respective parties and perused the investigation papers and
have also taken into consideration the facts of the case.

5.1 The petitioner is alleged to have established physical
relations with the complainant on the promise of getting married
with her, which according to the complainant was not subsequently
performed. It is also alleged that the factum of the petitioner being
a married person was suppressed by the petitioner and that she
gathered the knowledge of his marital status on 05/02/2017. The
complaint is thereafter filed after three months.

5.2 Learned Counsel for the petitioner has drawn attention
of this Court to the admitted fact that the prosecutrix had come
into contact with petitioner in 2016 when both of them were
serving at the same place. It is stated that they were partners in
the business and that in fact the prosecutrix knew the petitioner’s
whole family which included his wife and children. It is pointed out
that from her own account, she has uploaded the photographs of
the petitioner’s children on the face-book.

5.3 Considering the totality of the above circumstances,
and without discussing the evidence in detail, at this stage, this
Court is inclined to grant anticipatory bail to the applicant.

6. 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

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right of applicant accused to oppose such application on merits
may be kept open.

7. 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-52 of 2017 before Khokhra
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
05/07/2017 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

(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;

8. 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

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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.

9. 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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