Gujarat High Court
Hathiyabhai Dudhabhai Khunti vs State Of Gujarat on 21 September, 2023
NEUTRAL CITATION
R/CR.MA/6544/2023 ORDER DATED: 21/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6544 of 2023
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HATHIYABHAI DUDHABHAI KHUNTI
Versus
STATE OF GUJARAT
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Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 21/09/2023
ORAL ORDER
1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being I-C.R. No.11218015230021 of 2023 with Ranavav Police Station, Porbandar, for the offences punishable under Sections 406, 409, 120(b), 465, 467, 471, 477(a) of the Indian Penal Code and Sections 3 and 7 of the Essential Commodities Act.
2. Learned advocate appearing for the applicant submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. Learned advocate for the applicant has submitted that the Page 1 of 7 Downloaded on : Fri Sep 22 20:43:03 IST 2023 NEUTRAL CITATION R/CR.MA/6544/2023 ORDER DATED: 21/09/2023 undefined present applicant is falsely implicated in the offence. He has nothing to do with the offence. Learned advocate has submitted that present applicant is a senior citizen and he is having contract of door to door delivery. He has not committed any irregularity as the present applicant has subletted the contract to one Rahul and he has been arrested. It is submitted that there is no any abettment or connivance or collusion with the accused. It is submitted that the alleged key of the godown was with the third party i.e. Manager of the godown and he has misappropriated the material and siphoned away the goods. Even during the transportation whatever shortfall is noticed, the said amount is also recovered during the each trip. It is submitted that the allegation levelled against the present applicant is only that he was in contact with one Asvin and Asvin has siphoned away the stock. It is further submitted that nothing is required to be recovered and discovered from the accused. Learned advocate for the applicant has submitted that he is ready and willing to join the investigation. In view of the above, the applicant may be granted anticipatory bail.
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 would further submit that upon filing of such application by the Investigating Agency, the right of applicant accused to oppose such application on merits Page 2 of 7 Downloaded on : Fri Sep 22 20:43:03 IST 2023 NEUTRAL CITATION R/CR.MA/6544/2023 ORDER DATED: 21/09/2023 undefined may be kept open.
3. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. Learned APP has stated that the present applicant is involved in the present offence and large- scale conspiracy hatched. It is submitted that Essential Commodities like wheat, rice, sugar, grams, Tuvar pulse and groundnut oil to the tune of Rs.99,77,551/- are siphoned and in this regard, after the investigation, offence is registered. In this offence, there appears to be involvement of go-down keeper, Supervisor and transporter. It is alleged that they have forged the gate passes, stock register and siphoned the aforesaid amount and the applicant is facing charge of conspiracy. It is submitted that at the instance of the present applicant one Asvinbhai and other accused have siphoned away the said stock and thus, prima facie, involvement of the present applicant is revealed. Hence, custodial interrogation is required. Hence, he requested to dismiss the present application.
4. Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon'ble Apex Court on the point. It is well settled Page 3 of 7 Downloaded on : Fri Sep 22 20:43:03 IST 2023 NEUTRAL CITATION R/CR.MA/6544/2023 ORDER DATED: 21/09/2023 undefined that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects:
(1) present applicant is a 62 years old senior citizen; (2) considering the fact that role of the present applicant is that he is involved in the door step delivery. During the said delivery, no active participation of the present applicant has been noticed as he has subletted the contract against the condition of contract, whatever, because of alleged breach of contract, he has to face consequences as per the condition of the contract. It appears that there is no direct involvement or role attributed to the present applicant and Asvin and Rahul is involved in the offence Page 4 of 7 Downloaded on : Fri Sep 22 20:43:03 IST 2023 NEUTRAL CITATION R/CR.MA/6544/2023 ORDER DATED: 21/09/2023 undefined (3) This Court has taken care of custodial interrogation of applicant as right to seek remand of applicant is also kept open.
5. Considering the aforesaid aspects and the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. reported in (2011) 1 SCC 6941, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. reported in (1980) 2 SCC 665 and also the decision in the case of Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1, I am inclined to allow the present application.
6. In the result, the present application is allowed by directing that in the event of applicant herein being arrested in connection with the FIR being I-C.R. No.11218015230021 of 2023 with Ranavav Police Station, Porbandar, the applicant shall be released on bail on furnishing 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 30/09/2023 between 11.00 a.m. and 2.00 p.m. and the IO shall ensure that no unnecessary harassment or inconvenience is Page 5 of 7 Downloaded on : Fri Sep 22 20:43:03 IST 2023 NEUTRAL CITATION R/CR.MA/6544/2023 ORDER DATED: 21/09/2023 undefined caused to the applicant;
(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 his residence till the final disposal of the case till further orders;
(f) shall 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 it 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 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. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police Page 6 of 7 Downloaded on : Fri Sep 22 20:43:03 IST 2023 NEUTRAL CITATION R/CR.MA/6544/2023 ORDER DATED: 21/09/2023 undefined remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
8. 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.
9. Rule is made absolute to the aforesaid extent.
Application is disposed of accordingly. Direct service is permitted.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 7 of 7 Downloaded on : Fri Sep 22 20:43:03 IST 2023