Gujarat High Court
Vijay Fatehsinh Thakor vs State Of Gujarat on 17 September, 2014
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/13491/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 13491 of 2014
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VIJAY FATEHSINH THAKOR....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR MB RANA, ADVOCATE for the Applicant(s) No. 1
MR LB DABHI, ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 17/09/2014
ORAL ORDER
1. By way of present application filed under Section 439 of the Code of Criminal Procedure, the applicant has prayed for regular bail in connection with the First Information Report registered at C.R.No.I582 of 2013 with Vatva Police Station, Dist Ahmedabad for the offence punishable under Sections 363 and 366 of the Indian Penal Code.
2 The brief facts of the case arise from the record are as under:
2.1 Hansaben wife of Vilashkumar residing at B/103, Shailya Apartment, Near Punitnagar Crossing, Ghodasar, Vatva, Ahmedabad, lodged the aforesaid F.I.R. on 17.10.2013 and alleged that the present applicant has abducted her minor daughter aged about 17 years and 11 months.
2.2 Having come to know about lodgment of the F.I.R., the present
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applicant did not file an application under Section 438 of the Code of Criminal Procedure in the Court of City Civil Court, Ahmedabad being Criminal Miscellaneous Application No.4799 of 2013 and prayed that he may be released on anticipatory bail in case of his arrest with regard to the aforesaid offence. By oder dated 31.12.2013, learned Sessions Judge, Ahmedabad, allowed the said application and released the applicant on anticipatory bail by imposing certain terms and conditions.
2.3 Meanwhile, original complainant filed a Habeas Corpus Petition being Special Criminal Application No.3332 of 2013 before this Court.
Pursuant to the interim order passed in the said Habeas Corpus, the investigation was transferred to the Deputy Commissioner of Police, Zone6, Ahmedabad.
2.4 During the pendency of the writ petition, the investigation was carried out by the concerned officer. After getting some material, an application being Criminal Miscellaneous Application No.703 of 2014 under Section 439(2) of the Code of Criminal Procedure was preferred by the applicant before the learned Sessions Judge, Ahmedabad, requesting to cancel the bail granted in favour of the applicant. By order dated 09.04.2014, anticipatory bail granted in favour of the applicant came to be cancelled. Pursuant to the said order, the applicant was arrested on 18.05.2014.
2.5 The investigation was completed against the present applicant and chargesheet came to be filed on 11.07.2014 before the competent Court.
2.6 After submission of the chargesheet, the applicant filed an application being Criminal Miscellaneous Application No.2844 of 2014 under Section 439 of the Code of Criminal Procedure before the learned Page 2 of 7 R/CR.MA/13491/2014 ORDER Sessions Judge, Ahmedabad and prayed to release him on regular bail which has been rejected by the learned Sessions Judge by order dated 22.07.2014.
2.7 Hence, this application.
3 Mr. M.B. Rana learned advocate appearing for the applicant, would submit that during the course of investigation, the Investigating Officer is unable to get any material evidence against the present applicant which would involve him for the present offence. He would further submit that the applicant was subjected to police remand and no evidence is found against him. He would further submit that though the applicant is behind the bar since 18.05.2014 i.e. last four months, the authority is unable to trace out the daughter of the complainant nor could get sufficient material which would, prima facie, involved him in the offence. He would submit that the applicant cannot be kept behind the bar since the investigating agency is unable to find out the daughter of the complainant. Therefore, the applicant may be released on regular bail.
4 On the other hand, Mr.L.B. Dabhi, learned Additional Public Prosecutor for the respondentState would submit that there is sufficient evidence in the nature of statements of the elder sister of missing girl by the present applicant that the applicant was in constant touch with daughter of the complainant.
4.1 Next submission is that the statement of the Hotel Manager where the applicant used to meet the missing girl is also relevant.
4.2 He would submit that the applicant is not cooperating with the
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investigation. The reports of the Suspect Detection Test and Lie Detection Test of the applicant show that the applicant is not speaking the true.
4.3 The last submission is that there are other offences registered against the present applicant and if the applicant is released, there are likely of jumping the bail and would commit a crime again.
5 I have heard learned advocates appearing on behalf of the respective parties. Perused the investigation papers. The following aspects of the matter are that 5.1 The aforesaid F.I.R. is lodged way back in the year 2013 and the Deputy Commissioner of Police himself is investigating the case and he is failed to trace out the missing daughter of the complainant.
5.2 Though the applicant is behind the bar since 18.05.2014 and the applicant was unable to remain in contact with the missing girl of the complainant in any manner.
5.3 Habeas Corpus Petition is pending before this Court and the investigating agency is seeking time to find out the daughter of the complainant since 2013.
5.4 It is pertinent to note that having come to now about lodging of the F.I.R., immediately applicant had filed an application seeking anticipatory bail under Section 438 of the Code of Criminal Procedure which was allowed in the month of December 2013.
5.5 It is not the case of the investigating agency that after getting
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anticipatory bail, the applicant remained did not presence before the investing agency for interrogation or has committed any breach of conditions imposed upon the applicant. By the aforesaid order, the applicant was asked to mark his presence every Monday till the chargesheet is filed.
5.6 It is not the case of the investigating agency that the applicant has refused to remain presence whenever he was called by the investigating agency as per the order of anticipatory bail passed by the learned Sessions Judge.
5.7 As far as the statement of Shraddha (one of sister of missing girl) is concerned, it is merely a statement of elder sister of missing girl. However, the Investigating Officer is unable to get corroborative evidence documentary document like phone calls etc between the applicant and missing girl. On the contrary, it appears from the statement of Neelam (another sister) that she had relations with the present applicant. I am therefore of the opinion that it is not desirable to evaluate the evidence in nature of statement recorded of close relative of missing girl which are prima facie contradictory.
5.8 As far as the statement of Hotel Manager is concerned, it is not required to be dealt with in detail the Manager is not sure about as to whether a girl who had accompanied the present applicant or was the same missing girl or not.
5.9 As far as noncooperation on the part of the applicant is concerned, Suspect Detection Test and Lie Detection Test of the applicant are carried out. I have gone through the reports of the tests placed on record before this Court. It appears from the said reports that Page 5 of 7 R/CR.MA/13491/2014 ORDER only some part of the reports suggests that the applicant is not speaking correct things. However, this evidence would be subject to scrutiny by the trial Court at the end of trial.
5.10 In the facts and circumstances of the case and considering the nature of allegations made against the applicant in the F.I.R. and the fact that the daughter of the complainant is not traced out by the investigating agency since last 11 months and since the applicant is behind the bar since last four months and the applicant was available for interrogation since inception of lodgment of F.I.R., I am of the opinion that this is a fit case to exercise the discretion to enlarge the applicant on regular bail. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with the First Information Report registered at C.R.No.I582 of 2013 with Vatva Police Station, Dist Ahmedabad on executing a personal bond of Rs.25,000/ (Rupees Twenty Five Thousand Only) with one local surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that the applicant shall;
[a] not take undue advantage of his liberty or misuse his liberty; [b] not act in a manner injuries to the interest of the prosecution; [c] surrender his passport, if any, to the lower court within a week; [d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
[e] mark his presence before the concerned Police Station on every Monday for a period of six months, and thereafter, mark his presence at the concerned police station on any day of first week of each English Calender Month for another period of six months between 11:00 a.m. and 2:00 p.m., [f] furnish latest and permanent address of his residence to the Page 6 of 7 R/CR.MA/13491/2014 ORDER Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
6. The Authorities will release the applicant only if he not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(A.J.DESAI, J.) chandresh Page 7 of 7