Gujarat High Court
Abdul Kadarbhai Mohmedbhai Memon & 3 vs State Of Gujarat on 12 January, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/162/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL ) NO. 162 of
2015
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ABDUL KADARBHAI MOHMEDBHAI MEMON & 3....applicants(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
RAFIK LOKHANDWALA, ADVOCATE for the applicants(s) No. 1 - 4
Mrs.Krina Calla, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 12/01/2015
ORAL ORDER
1. Rule returnable forthwith. Mrs. Krina Calla, the learned APP waives service of notice of rule on behalf of the respondentState.
2. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicants original accused have prayed to release them on anticipatory bail in case of their arrest in connection with the FIR registered at C.R.No.I 130 of 2014 before Kalupur Police Station, Ahmedabad of the offence punishable under Sections 406, 420, 465, 468, 471 of the IPC
3. Mr. Rafik Lokhandwala, the learned advocate appearing on behalf of the applicants would submit that considering the nature of offence, the applicants may be enlarged on anticipatory bail by imposing Page 1 of 4 R/CR.MA/162/2015 ORDER suitable conditions.
4. On the other hand, the learned APP Mrs.Krina Calla, appearing for the respondentState has opposed granting of this application and granting of anticipatory bail to the applicants looking to the nature and gravity of the offence.
5. I have heard the learned Advocates appearing for the respective parties, perused the investigation papers and have also taken into consideration the facts of the case, nature of allegations, role attributed to the applicantsaccused and without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicants. The offences are triable by the learned Magistrate. It appears that the applicants, after availing of the loan facilities from the Bank have not repaid the same to the Bank. Bank has also initiated the appropriate proceedings for recovery of the loan amount under the SARFAESI Act . The proceedings are pending before the Debt Recovery Tribunal. The allegations so far as the forgery are concerned, are based on the premise that the figures mentioned in the balancesheet are not true and correct. This Court has also taken into consideration the law laid down by the Honble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. as reported at [2011] 1 SCC 6941, wherein the Honble Apex Court reiterated the law laid down by the Constitutional Bench in the case of case of e case of e case of Shri Gurubaksh Singh Sibbia & Ors., as reported at (1980) 2 SCC 665.
6. The learned Advocate for the applicants on instructions states that the applicants are ready and willing to abide by all the conditions including imposition of condition with regard to the powers of the Page 2 of 4 R/CR.MA/162/2015 ORDER 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 applicants accused to oppose such application on merits may be kept open.
7. In the result, the present application is allowed by directing that in the event of arrest of the applicants herein in connection with the FIR registered at C.R. No.I 130 of 2014 before Kalupur Police Station, Ahmedabad, the applicants shall be released on bail on furnishing a personal bond of Rs.10,000/ (Rupees ten thousand only) each with one surety of like amount on the following conditions that they shall:
(a) cooperate with the investigation and make themselves available for interrogation whenever required;
(b) remain present at concerned Police Station on 19.01.2015 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 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 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 Page 3 of 4 R/CR.MA/162/2015 ORDER
(g) it would be open to the Investigating Officer to file an application for remand if they consider 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 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 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.
9. At the trial, the Trial Court shall not be influenced by the primafacie observations made by this Court while enlarging the applicants on bail. Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.) bina Page 4 of 4