Gujarat High Court
Patel Dineshkumar Ramjibhai vs State Of Gujarat on 4 September, 2020
Author: Ashokkumar C. Joshi
Bench: Ashokkumar C. Joshi
R/CR.MA/9987/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9987 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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PATEL DINESHKUMAR RAMJIBHAI
Versus
STATE OF GUJARAT
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Appearance:
DHARMIK R BAROT(8785) for the Applicant(s) No. 1
MS. MOXA THAKKAR, APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 04/09/2020
ORAL JUDGMENT
1. Heard learned Advocate Mr. Dharmik R.Barot for the Applicant and learned APP Ms. Moxa Thakkar for the Respondent State through video conference.
2. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for anticipatory bail in connection with the FIR being I - 3 4 o f 2 0 2 0 ( 1 1 2 0 6 0 3 3 2 0 1 0 9 2 ) registered with Unjha Police Station, District:
Mehsana for the offenses punishable under Sections 409, 420 and 120-B Page 1 of 6 Downloaded on : Sat Sep 05 01:47:53 IST 2020 R/CR.MA/9987/2020 JUDGMENT of Indian Penal Code, Section 53 of Disaster Management Act and Section 3 and 7 of Essential Commodities Act.
3. Learned advocate for the applicant has vehemently argued that in the present case the applicant is an innocent person and he has not committed any offence and therefore, he may be enlarged on anticipatory bail as per settled principle of law. He further submitted that the co- accused have been granted anticipatory bail as well as regular bail by the Co-ordinate Bench of this Court (i) in Criminal Misc. Application No. 9399 of 2020 in case of Rajput Vijaji Gopalji V/s. State of Gujarat dated 13.8.2020 (ii) Criminal Misc. Application No. 103712020 in case of Sen Dineshkumar Shivrambhai Vs. State of Gujarat dated 11.8.2020 (iii) Criminal Misc. Application No. 11337 of 2020 in case of Dipikaben Bhaveshbhai Patel Vs. State of Gujarat dated 20.8.2020 and (iv) Criminal Misc. Application No.10473 of 2020 in case of Parmar Vijaybhai Babubhai Vs. State of Gujarat dated 11.8.2020 and therefore, parity may kindly be extended. He further submitted that the applicant will keep himself available during the course of investigation and trial also, and will not flee from justice, therefore, the discretion may kindly be exercised in favour of the applicant and application may kindly be allowed.
4. 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 further submits that upon filing of such application by the Investigating Agency, the right of applicant accused to oppose such Page 2 of 6 Downloaded on : Sat Sep 05 01:47:53 IST 2020 R/CR.MA/9987/2020 JUDGMENT application on merits may be kept open. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted anticipatory bail.
5. Per contra, Learned APP appearing on behalf of the respondent - State has opposed grant of anticipatory bail and submitted before this Court that discretion may not be exercised and applicant may not be granted anticipatory bail.
6. Having heard the l e ar ne d a dvoc a te s for the pa r ti e s a n d t h e arguments advanced by them 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 applicant.
7. This Court has considered following aspects,
(a) as per catena of decisions of Hon'ble Supreme Court there are mainly two factors which are required to be considered by this court;
(i) prima facie case.
(ii) requirement of accused for custodial interrogation.
7.1 Further this Court has considered:
(a) There is no antecedent;
(b) Requirement of parity.
Therefore, in the facts and circumstances of the present case, this court is inclined to consider the case of the applicant.
Page 3 of 6 Downloaded on : Sat Sep 05 01:47:53 IST 2020R/CR.MA/9987/2020 JUDGMENT
8. 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. 9 This court has also considered the judgment in the case of Arnesh Kumar v. State of Bihar reported in (2014) 8 SCC 273, wherein the Hon'ble Apex Court has observe that whenever there is punishment of 7 years, then the court would be liberal to exercise the discretion. Further, by exercising the discretion under Section 438 Cr.P.C, the doors of remand by the Investigating Officer is open and therefore also this court is inclined to exercise powers under Section 438 of Cr.P.C. Further this Court has considered the aforesaid four orders passed by the Co- ordinate Bench of this Court, wherein three co-accused have been granted on anticipatory bail and one co-accused has been enlarged on regular bail.
9.1. In the result, the present application is allowed. The applicant is ordered to be released on anticipatory bail in the event of his arrest in connection with FIR being I - 3 4 o f 2 0 2 0 ( 1 1 2 0 6 0 3 3 2 0 1 0 9 2 ) registered wit h Unjha Po lice Stat io n , District: Mehsana for the offenses punishable under Sections 409, 420 and 120-B of Indian Penal Code, Section 53 of Disaster Management Act and Section 3 and 7 of Essential Commodities Act on executing a personal bond of Rs.10,000/-
Page 4 of 6 Downloaded on : Sat Sep 05 01:47:53 IST 2020R/CR.MA/9987/2020 JUDGMENT (Rupees Ten Thousand Only) with one surety of like amount on the following conditions:
(a) shall cooperate with the investigation and make available for interrogation whenever required;
(b) shall remain present at concerned Police Station on 2 4 . 0 9 . 2 0 2 0 between 11.00 a.m. and 1.00 p.m.;
(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 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 the remand application without being influenced of the Page 5 of 6 Downloaded on : Sat Sep 05 01:47:53 IST 2020 R/CR.MA/9987/2020 JUDGMENT observations made by this Court;
10. 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 order.
11. At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.
12. Rule is made absolute. Direct service is permitted by Fax / E-mail.
(DR. ASHOKKUMAR C. JOSHI,J) BEENA SHAH Page 6 of 6 Downloaded on : Sat Sep 05 01:47:53 IST 2020