Gujarat High Court
Alfejkha Nizamkha Pathan vs State Of Gujarat on 12 October, 2023
NEUTRAL CITATION
R/CR.MA/17393/2023 ORDER DATED: 12/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 17393
of 2023
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ALFEJKHA NIZAMKHA PATHAN
Versus
STATE OF GUJARAT
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Appearance:
ADILHUSHAIN M SAIYED(9723) for the Applicant(s) No. 1
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 12/10/2023
ORAL ORDER
Rule. Learned APP waives service of notice of rule on behalf of respondent-State.
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 C.R. No.11199039230373 of 2023 registered with Palej Police Station, District : Bharuch, for the offences punishable under Sections 295, 429 and 114 of the Indian Penal Code, 1860 and Sections 10, 8(1), 8(2), 8(3), 8(4), 6B(1) & (2) & (5) (1), (1A) of Gujarat Animal Preservation Act and Section11(1)(I) of the Preservation of Animal Cruelty Act.
2. Learned advocate 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 Page 1 of 7 Downloaded on : Thu Oct 12 20:48:38 IST 2023 NEUTRAL CITATION R/CR.MA/17393/2023 ORDER DATED: 12/10/2023 undefined from justice. Learned advocate for the applicant has submitted that the present applicant is falsely implicated in the offence and he has nothing to do with the offence. Learned advocate for the applicant has submitted that nothing is found from the possession of the applicant. Even, he was not present at the spot. It is only alleged that the present applicant is about to come for purchase cow beef, except this no allegation is levelled against him. Under the instructions, It is submitted that applicant does not have any past antecedents. 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 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 Page 2 of 7 Downloaded on : Thu Oct 12 20:48:38 IST 2023 NEUTRAL CITATION R/CR.MA/17393/2023 ORDER DATED: 12/10/2023 undefined offence. It is stated that the co-accused are absconder and present applicant is about to purchase the cow beef and prior to the purchase, the incident took place and he fled away. It is stated that prima facie role is attributed to the present applicant. Investigation is at preliminary stage. Hence, custodial interrogation is required and she requested to dismiss the present application.
4.1. It would be apposite to refer Section 6B of the Gujarat Animal Preservation (Amendment) Act, 2011, which reads thus:
"6B. Prohibition against selling or buying beef or beef products.--
(1) No person shall directly or indirectly sell, keep, store, transport, offer or expose for sell or buy beef or beef products in any form.
(2) Whenever any person transports or causes to be transported the beef or beef products, such vehicle or any conveyance used in transporting such beef or beef products alongwith such beef or beef products shall be liable to be seized by such authority or officer as the State Government may appoint in this behalf. (3) The vehicle or conveyance so seized under sub-
section (2) shall not be released by the order of the court on bond or surety before the expiry of six months from the date of such seizure or till the final judgment of the court, whichever is earlier. Explanation.- For the purpose of this section "beef means flesh of any animal specified in sub-section (1 A) of section 5, in any form.".
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, Page 3 of 7 Downloaded on : Thu Oct 12 20:48:38 IST 2023 NEUTRAL CITATION R/CR.MA/17393/2023 ORDER DATED: 12/10/2023 undefined 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 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) allegation is levelled against the applicant is that he is likely to purchase the cow beef of the slaughter cow, except this no allegation is levelled against him; (2) Thus, it appears that he has not purchased the beef for sale or he is not indulged in any illegal activity as prescribed under Section 6B;
(3) Nothing is required to be recovered and discovered from the accused. However, right to seek remand of applicant is also kept open;Page 4 of 7 Downloaded on : Thu Oct 12 20:48:38 IST 2023
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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 C.R. No.11199039230373 of 2023 registered with Palej Police Station, District :
Bharuch, 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 18/09/2023 between 11.00 a.m. and 2.00 p.m. and the IO shall ensure that no unnecessary harassment or inconvenience is caused to the applicant;Page 5 of 7 Downloaded on : Thu Oct 12 20:48:38 IST 2023
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(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 remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
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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 : Thu Oct 12 20:48:38 IST 2023