Gujarat High Court
Dilipbhai Natvarbhai Devda vs State Of Gujarat on 11 October, 2023
NEUTRAL CITATION
R/CR.MA/14622/2023 ORDER DATED: 11/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 14622
of 2023
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DILIPBHAI NATVARBHAI DEVDA
Versus
STATE OF GUJARAT
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Appearance:
MR.KIRIT R CHAUDHARI(3745) for the Applicant(s) No. 1,2,3,4
MR DHARM K RAVAL(10689) for the Respondent(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 : 11/10/2023
ORAL ORDER
1. Learned advocate Mr.K.R. Chaudhari does not press this application qua applicant No.1. Hence, the present application is disposed of as not pressed qua applicant No.1.
2. So far as applicant No.2 is concerned, learned advocate Mr.Chaudhari for the applicants has submitted that the applicant No.2 has been arrested during the pendency of the present application. Therefore, the present application does not survive and has become infructuous qua applicant No.2. Hence, the present application is disposed of as having become infructuous qua applicant No. 2.
3. Rule. Learned APP waives service of notice of rule on behalf of respondent-State.
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4. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant Nos.3 and 4 accused have prayed to release them on anticipatory bail in the event of their arrest in connection with the FIR being CR No.11195019230611 of 2023 registered with Deesa Rural Police Station, Banaskantha, for the offences punishable under Sections 192, 193, 196, 354, 366, 376, 464, 465, 471, 504, 506(2), 468 and 114 of the Indian Penal Code.
5. Learned advocate Mr.Chaudhari for the applicants submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. Besides, the applicant Nos.3 and 4 are available during the course of investigation and will not flee from justice. Learned advocate Mr.Chaudhari has submitted that the present applicant Nos.3 and 4 are falsely implicated in the offence and they have nothing to do with the offence. It is submitted that marriage was solemnized and registered. It is submitted that the allegation against applicant no.3 is that he has performed marriage rituals of priest (Brahmin vidhi) and falsely solemnized the marriage. So far as applicant no.4 is concerned, the allegation against him is that he has taken undue advantage to the complainant, while the complainant along with her husband was returning with accused persons, except this no allegation is levelled against the accused. It is submitted that complaint is filed belatedly after a period of 56 days. It is submitted that the as per the allegations there was affair between the applicant No.1 and complainant and the Page 2 of 8 Downloaded on : Thu Oct 12 20:42:59 IST 2023 NEUTRAL CITATION R/CR.MA/14622/2023 ORDER DATED: 11/10/2023 undefined marriage was solemnized, due to social pressure, the present complaint is filed. It is further submitted that nothing is required to be recovered and discovered from the accused. Learned advocate for the applicants has submitted that applicant Nos.3 and 4 are ready and willing to join the investigation. In view of the above, the applicant Nos.3 and 4 may be granted anticipatory bail.
Learned advocate for the applicants, on instructions, states that the applicant Nos.3 and 4 are 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 would further submit that upon filing of such application by the Investigating Agency, the right of applicant Nos.3 and 4 - accused to oppose such application on merits may be kept open.
6. Learned Additional Public Prosecutor appearing on behalf of the respondent - State and learned advocate appearing for the complainant have opposed grant of anticipatory bail looking to the nature and gravity of the offence.
7. Learned APP has submitted that prima facie, role attributed to the present applicant No.3 is that he falsely solemnized the marriage and performed the rights and rituals and present applicant No.4 has played active role and he has also taken undue advantage to the complainant. It is submitted that investigation Page 3 of 8 Downloaded on : Thu Oct 12 20:42:59 IST 2023 NEUTRAL CITATION R/CR.MA/14622/2023 ORDER DATED: 11/10/2023 undefined is at primary stage and involvement of the present applicant Nos.3 and 4 are found. In view of above, custodial interrogation is required and she requested to dismiss the present application.
8. Learned advocate appearing for the complainant has adopted the same arguments canvassed by the learned APP and has submitted that marriage certificate is fabricated and applicant No.4 stood as a witness. In view of above, the present application may not be allowed.
9. 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, 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 Page 4 of 8 Downloaded on : Thu Oct 12 20:42:59 IST 2023 NEUTRAL CITATION R/CR.MA/14622/2023 ORDER DATED: 11/10/2023 undefined touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects:
(1) it appears that there affair between the complainant and applicant No.1. Allegation against the applicant no.3 is only he has performed the marriage vidhi as a priest (Brahmin), except this no allegation is levelled against him. So far as, applicant no.4 is concerned, he stood as a witness while they were returning along with applicant no.1, he has taken undue advantage, except this no allegation is levelled against him.
(2) complaint is filed belatedly after a period of 56 days of the alleged incident and applicant no.4 stood as a witness and registration of the marriage is not disputed;
(3) nothing is required to be recovered and discovered;
(4) This Court has taken care of custodial interrogation of applicant Nos.3 and 4 as right to seek remand of them is also kept open;
10. 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 Page 5 of 8 Downloaded on : Thu Oct 12 20:42:59 IST 2023 NEUTRAL CITATION R/CR.MA/14622/2023 ORDER DATED: 11/10/2023 undefined 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.
11. In the result, the present application is allowed qua applicant Nos.3 and 4 by directing that in the event of applicant Nos.3 and 4 herein being arrested in connection with the FIR being FIR being CR No.11195019230611 of 2023 registered with Deesa Rural Police Station, Banaskantha, the applicant Nos.3 and 4 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:
(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 17/10/2023 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 Nos.3 and 4;
(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 them 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;Page 6 of 8 Downloaded on : Thu Oct 12 20:42:59 IST 2023
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(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change their 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;
12. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant Nos.3 and 4. The applicant Nos.3 and 4 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 Nos.3 and 4, 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.
13. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant Nos.3 and 4 on bail.
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14. Rule is made absolute to the aforesaid extent. Application is disposed of accordingly. Direct service is permitted.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 8 of 8 Downloaded on : Thu Oct 12 20:42:59 IST 2023