Gujarat High Court
Malabhai Shamlabhai Rabari vs State Of Gujarat on 30 November, 2016
Author: C.L.Soni
Bench: C.L. Soni
R/CR.MA/30629/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL ) NO. 30629
of 2016
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MALABHAI SHAMLABHAI RABARI....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR LAXMANSINH M ZALA, ADVOCATE for the Applicant(s) No. 1
MR HARADIK SONI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 30/11/2016
ORAL ORDER
1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973 ('the Code'), the applicant has prayed to release him on bail in case of his arrest in connection with the FIR being CR No.II-3035 of 2008 registered with Sayla Police Station, District Surendranagar, for the offences punishable under Sections 4(1), 21(1) and 21(5) of Mines and Minerals (Regulation and Development) Act, 1957, Rule 4(1) and 42 of the Gujarat Minor Mineral Rules, Section 1H J of Gujarat PASA Act and Section 379 of the Indian Penal Code.
2. Learned advocate Mr. Zala appearing for the applicant, submitted that the FIR is of the year 2008 and during the long duration after the FIR, the applicant is not alleged to have been indulging into any illegal activity. He submitted that in connection with the FIR, the applicant had filed quashing Page 1 of 4 HC-NIC Page 1 of 4 Created On Thu Dec 01 00:16:42 IST 2016 R/CR.MA/30629/2016 ORDER petition and the applicant has not been absconding but has always been available for investigation. Mr. Zala submitted that in connection with the alleged unauthorized excavation of minerals (black trap), the State Government-Revisional Authority, has quashed the order made by the Collector of cancellation of quary lease the applicant on the ground of non- payment of penalty in the departmental proceedings and the matter was remanded and now on remand, the question about the measurement of lease area and other questions shall be required to be considered. He submitted that considering the nature of allegations made in the FIR especially considering the fact that the State Government has remanded the matter to find out the quantum of excavation of the minerals by taking measurement of the lease area, the Court may exercise discretion under Section 438 of the Code in favour of the applicant.
3. Learned APP, Mr. Hardik Soni, submitted that the applicant is alleged to have illegally and unauthorisedly excavated minerals of black trap and caused huge financial loss to the State exchequer in connection and in connection with such serious allegations made in the FIR, since the investigation is in progress, the Court may not exercise discretion under Section 438 of the Code in favour of the applicant.
4. The Court, having heard the learned advocates for both the sides and having considered the nature of allegations made in the FIR and having also considered that the FIR is of the year 2008 with the aspect that the Revisional Authority has remanded the matter for fresh decision on the question of levy of penalty as well as of cancellation of lease deed of the applicant vide order dated 26/8/2016, finds that discretion deserves to be exercised in favour of the applicant under Page 2 of 4 HC-NIC Page 2 of 4 Created On Thu Dec 01 00:16:42 IST 2016 R/CR.MA/30629/2016 ORDER Section 438 of the Code.
5. In the result, the present application is allowed. It is ordered that in case the applicant herein is arrested in connection with FIR being CR No.II-3035 of 2008 registered with Sayla Police Station, District Surendranagar, he shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten Thousands only) with one surety of like amount, on the following conditions that he shall:
(a) cooperate with the investigation and make himself available for interrogation whenever required;
(b) remain present at the concerned Police Station on 5th December, 2016 between 11:00 a.m. and 2:00 p.m.;
(c) not misuse his liberty;
(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 or till further orders;
(f) not leave India without the permission of the Court and, if having passports shall surrender the same before the Trial Court within a week.
6. This order shall not be construed to divest the Investigating Agency to ask for remand of the applicant if required. In such case, 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 Page 3 of 4 HC-NIC Page 3 of 4 Created On Thu Dec 01 00:16:42 IST 2016 R/CR.MA/30629/2016 ORDER 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.
7. 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. Rule is made absolute. The present application is disposed of accordingly.
Direct service is permitted.
(C.L.SONI, J.) RADHAN Page 4 of 4 HC-NIC Page 4 of 4 Created On Thu Dec 01 00:16:42 IST 2016