Gujarat High Court
Salmanbhai Iqbalbhai Shaikh vs State Of Gujarat on 13 July, 2023
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
R/CR.MA/4266/2023 ORDER DATED: 13/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4266 of 2023
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SALMANBHAI IQBALBHAI SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
MR FARAJKHAN N PATHAN(11559) for the Applicant(s) No. 1
MR HANNAN A QURESHI(11351) for the Applicant(s) No. 1
AMAN A SHAIKH(8366) for the Respondent(s) No. 1
MR. SOHAM JOSHI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 13/07/2023
ORAL ORDER
1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant - accused have prayed for anticipatory bail in connection with the FIR bearing No. 11191028221364 of 2022 registered with Vejalpur Police Station, Ahmedabad City for the offences punishable under Sections 498(A), 323, 294(b), 506(1) and 114 of the Indian Penal Code and under Section 3 and 7 of the Dowry Prohibition Act, 1961 and Section 3 and 4 of the Muslim women (Protection of Rights on Marriage) Act, 2019.
2. Learned advocate for the applicant submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. He further submits that the applicant will keep themselves available during the course of investigation, trial also and will not flee from justice.
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3. 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 their remand. He 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. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted anticipatory bail.
4. 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.
5. 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 applicant.
6. This Court has considered following aspects,
(i) the entire FIR was revolving around alleged harassment done to the complainant by the present applicant and other family members and applicant has given triple Talaq to the complainant and thereafter he was not ready and willing to accept the complainant by treating the aforesaid triple Talaq as legal, valid and final;
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(ii) when this Court specifically put query to learned advocate for the complainant that if now the applicant shows his willingness to take her back, whether she would be in a position to go there or not? Reply given by learned advocate Ms. Aman A. Shaikh appearing for the complainant is that now the complainant has completed the period of iddat therefore, she also has accepted the Talaq and therefore, she is not ready to go back to the residence of the present applicant;
(iii) rest of the allegations made in the application are matter of evidence and as the FIR itself states that after incident occurred on 02.10.2022 the attempts for settlement were made and as those attempts were failed after about more than 2 months FIR was registered, therefore, considering the aforesaid delay in registering FIR as well as considering the fact applicant is ready and willing to co-operate in the investigation;
(iv) there is no antecedent reported against the present applicant.
7. In the facts and circumstances of the present case, since the custodial interrogation of the applicant is not required, I am inclined to consider the case of the applicant.
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.
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9. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of their arrest in connection with FIR bearing No. 11191028221364 of 2022 registered with Vejalpur Police Station, Ahmedabad City on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) each with one surety each 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 20.07.2023 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 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 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 Page 4 of 5 Downloaded on : Thu Jul 13 20:45:42 IST 2023 R/CR.MA/4266/2023 ORDER DATED: 13/07/2023 for remand if he considers it proper and just and the learned Magistrate would decide it on merits;
10. 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. 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 to the aforesaid extent.
(NIRZAR S. DESAI,J) RB DESAI Page 5 of 5 Downloaded on : Thu Jul 13 20:45:42 IST 2023