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Vakhatbhai Alias Vakhabhai … vs State Of Gujarat on 16 August, 2017

R/CR.MA/19430/2017 ORDER



STATE OF GUJARAT….Respondent(s)

MR TEJAS M BAROT, ADVOCATE for the Applicant(s) No. 1
MR LR PUJARI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1

Date : 16/08/2017

1. 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 being M-Case No. 1 of
2017 registered with Chaklashi Police Station for the offence
punishable under Section 376 of the Indian Penal Code.

2. Heard learned advocate for the applicant and learned APP
for the respondent State.

3. It is pointed out that initially in the FIR the allegations were
confined to Section 354 of the IPC and the petitioner was admitted
to bail. However, after one and half month, a private complaint
was given by the victim in relation to the same incident now
making grievance for the offence punishable under Section 376 of
IPC. It also appears that the learned competent Magistrate
unmindful of the legal position that two complaints i.e. FIR and the
private complaint cannot be entertained for the same incident,
proceeded to issue the orders under Section 156(3) for the later
complaint, and it is submitted that, as the investigating officer was

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R/CR.MA/19430/2017 ORDER

bound by the order passed by the learned Magistrate, he has
carried out the investigation on that basis as well.

This court would not enter into the merits of the accusations
made by the prosecutrix either in the first complaint i.e. FIR or in
a private complaint, suffice it to say that since the course of action
adopted by her by filing two complaints for the same incident is
apparently illegal, that by itself would be the ground for the
petitioner to seek anticipatory bail. Accordingly this application is
required to be allowed and the petitioner is required to be admitted
to anticipatory bail.

4. 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.

5. 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 M – Case No. 1 of 2017 with Chaklashi 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
23/08/2017 between 11.00 a.m. and 2.00 p.m. and
mark his presence with the concerned police station
twice a week;

(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 from disclosing
such facts to the court or to any police officer;

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(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;

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 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

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. Rule is made is made absolute.

Direct service is permitted.

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