R/CR.MA/23064/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23064 of 2019
VIDYABEN W/O SURENDRABHAI KALYANDAS GAJJAR
Versus
STATE OF GUJARAT
Appearance:
MR YS LAKHANI, SENIOR ADVOCATE WITH MR PRAGNESH M
GANDHI(5328) for the Applicant(s) No. 1,2,3
MR. RAHUL R DHOLAKIA(6765) for the Applicant(s) No. 1,2,3
MR RAJESH K SAVJANI(2225) for the Respondent(s) No. 1
MR LB DABHI, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 08/01/2020
ORAL ORDER
1. By way of the present application under Section
438 of the Code of Criminal Procedure, 1973 (‘the
Code’ for short), the applicantsaccused have
prayed for anticipatory bail in connection with
the FIR being C.R. No.I63 of 2019 registered with
Bopal Police Station, District Ahmedabad Rural,
for offence under Sections 354A, 498A, 323, 506(2)
and 114 of the Indian Penal Code and Sections 3
and 7 of the Dowry Prohibition Act.
2. It has been mainly alleged in the FIR that the
first informant got married with applicant No.3 on
14.12.2015 and started residing with her inlaws
at Kadi. Thereafter, on 16.01.2016, the first
informant and applicant No.3 shifted to Ahmedabad.
It is alleged in the FIR that whenever the first
used to visit Kadi, applicant Nos.1 and 2 used to
ask her to bring dowry from her parental house. It
is further alleged in the FIR that when the
Page 1 of 8
Downloaded on : Fri Jan 10 00:54:09 IST 2020
R/CR.MA/23064/2019 ORDER
accused persons realised that the first informant
would not bring any money from her house, mental
and physical harassment was caused to the first
informant. It is also alleged in the FIR that
applicant No.2 used to molest the first informant
and used to make depraved gestures towards her.
The said incident was informed by the first
informant to applicant No.3 – husband. However,
applicant No.3 did not pay any heed to the same
and on the contrary, he had supported his father.
It is alleged in the FIR that the first informant
was driven out of her matrimonial house on
07.04.2019 and since then, she is residing at her
parental house. Thereafter, on 06.10.2019, the
accused persons visited the parental house of the
first informant and threatened her with dire
consequences. Therefore, the FIR is registered
against the applicants.
3. Heard learned Senior Advocate Mr.Y.S. Lakhani
assisted by learned advocate Mr.Pragnesh M. Gandhi
for the applicants, learned Additional Public
Prosecutor Mr.L.B. Dabhi for the respondent State
and learned advocate Mr.Rajesh K. Savjani for the
original first informant.
4. Learned Senior Advocate appearing for the
applicants mainly contended that the allegations
levelled in the FIR are false, fabricated and
smacks of malice and the allegations pertaining to
cruelty and dowry are general in nature. It is
contended that the only dispute between applicant
No.3 husband and the first informant wife is
with regard to the place of residence. It is
Page 2 of 8
Downloaded on : Fri Jan 10 00:54:09 IST 2020
R/CR.MA/23064/2019 ORDER
submitted that the first informant is insisting
that they should reside at Gandhinagar whereas
applicant No.3 insisted that the first informant
wife should come to Kadi where the parents of
applicant No.3 reside. At this stage, learned
Senior Advocate has referred the documentary
evidence placed on record including the WhatsApp
conversation exchanged between applicant No.3 and
the first informant and the letters written by
applicant No.3 as well as the first informant and,
thereafter, contended that the allegations
levelled in the FIR are primafacie not believable
and the applicants are falsely implicated in the
alleged offence.
5. It is further submitted that custodial
interrogation of the applicants is not required
and the age of applicant No.1, who is a lady
accused, is fiftynine years whereas the age of
applicant No.2 is sixtyone years.
6. It is further submitted that except alleged
offence punishable under Section 498A of the
Indian Penal Code, all the other offences of the
IPC are bailable offences and so far as offence
punishable under Section 498A of the IPC is
concerned, the same is punishable with three years
imprisonment.
7. Lastly, it is contended that when the applicants
are falsely implicated by filing the FIR in
question, this Court may exercise discretion in
their favour by enlarging them on anticipatory
bail.
8. Learned Additional Public Prosecutor appearing on
Page 3 of 8
Downloaded on : Fri Jan 10 00:54:09 IST 2020
R/CR.MA/23064/2019 ORDER
behalf of the respondent – State has opposed this
application and submitted that from reading the
FIR, primafacie case is made out against the
applicants and, therefore, this Court may not
exercise discretion in their favour.
9. Learned advocate Mr.Rajesh K. Savjani appearing
for the first informant has also opposed this
application and contended that serious allegations
are levelled against the applicants and,
therefore, this application be dismissed. Learned
advocate for the first informant has placed
reliance upon the judgment dated 07.12.2017
rendered by the Delhi High Court in Criminal Misc.
Application No.14404 of 2017. It is submitted that
in similar type of case, the Delhi High Court has
rejected the application filed by the concerned
accused and the said order was not interfered with
by the Honourable Supreme Court. Learned advocate
has placed on record a copy of the aforesaid
order.
10. 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 anticipatory bail to the applicants.
11. This Court has mainly considered following
aspects:
(a) applicant No.1 is lady accused aged about
fiftynine years whereas applicant No.2 is
aged about sixtyone years;
Page 4 of 8
Downloaded on : Fri Jan 10 00:54:09 IST 2020
R/CR.MA/23064/2019 ORDER
(b) I have also considered the material placed on
record including the WhatsApp conversation
exchanged between applicant No.3 and the
first informant as well as the letters
written by the concerned parties. From the
said material, it is revealed that prima
facie, the first informant is insisting that
they should reside at Gandhinagar whereas
applicant No.3 is insisting that the first
informant – wife should come to Kadi where
applicant Nos.1 and 2 are residing;
(c) after considering the material placed on
record, if the allegations levelled against
the applicants are examined, false
implication of the applicants cannot be ruled
out. It is the specific contention of the
applicants that the FIR in question is filed
by the first informant with a view to
pressurize the applicants and with malafide
intention;
(d) looking to the facts and circumstances of the
present case, custodial interrogation of the
applicants is not required and it is not the
case of the prosecution that the applicants
will not be available for the purpose of
investigation or will not remain present at
the time of trial;
(e) I have also considered the order passed by
the Delhi High Court, upon which, reliance is
placed by the first informant. However, as
observed hereinabove, in the facts and
circumstances of the present case, the said
Page 5 of 8
Downloaded on : Fri Jan 10 00:54:09 IST 2020
R/CR.MA/23064/2019 ORDER
order would not render any assistance to the
learned advocate appearing for the first
informant; and
(f) in this type of cases, powers under Section
438 of the Code are required to be excised
and, hence, in the aforesaid facts and
circumstances of the present case, this Court
is inclined to exercise discretion in favour
of the applicants.
12. 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
694, wherein the Hon’ble Apex Court reiterated the
law laid down by the Constitution Bench in the
case of Shri Gurubaksh Singh Sibbia Ors. Vs.
State of Punjab, reported at (1980) 2 SCC 565.
13. In the result, the present application is allowed.
The applicants are ordered to be released on bail
in the event of their arrest in connection with a
FIR being C.R. No.I63 of 2019 registered with
Bopal Police Station, District Ahmedabad Rural, on
their executing a personal bond of Rs.10,000/
(Rupees Ten Thousand Only) each with one surety of
like amount on the following conditions:
(a) shall cooperate with the investigation and
make themselves available for interrogation
whenever required;
(b) shall remain present at concerned Police
Station on 16.01.2020 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
Page 6 of 8
Downloaded on : Fri Jan 10 00:54:09 IST 2020
R/CR.MA/23064/2019 ORDER
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 their 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; 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;
14. 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
Page 7 of 8
Downloaded on : Fri Jan 10 00:54:09 IST 2020
R/CR.MA/23064/2019 ORDER
applicants, 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.
15. At the trial, the concerned trial court shall not
be influenced by the prima facie observations made
by this Court in the present order.
16. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(VIPUL M. PANCHOLI, J)
piyush
Page 8 of 8
Downloaded on : Fri Jan 10 00:54:09 IST 2020
