Gujarat High Court
Kalubhai Dulabhai Khachar (Kathi ... vs State Of Gujarat on 16 February, 2017
Author: C.L.Soni
Bench: C.L. Soni
R/CR.MA/3754/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL ) NO. 3754 of
2017
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KALUBHAI DULABHAI KHACHAR (KATHI DARBAR)....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR LAXMANSINH M ZALA, ADVOCATE for the Applicant(s) No. 1
PARIMALSINH J VAGHELA, ADVOCATE for the Applicant(s) No. 1
SWETA A DAVE, ADVOCATE for the Applicant(s) No. 1
MS MOXA THAKKAR, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 26/12/2016
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 connection with the F.I.R. registered vide C.R. No.II-3027 of 2008 lodged at Sayla Police Station, District- Surendranagar for the offences punishable under Rules 4(1), 21(1) and 22 under Mines and Minerals (Regulation and Development) Act, 1957, under Rules 5 and 42 of the Gujarat Minor Mineral Rules, under Section 379 of Indian Penal Code.
2. Learned advocate Mr. Zala for the applicant submitted that in connection with two other offences registered as C.R. No.II-3036 of 2008 and 3035 of 2008 where the allegations Page 1 of 4 HC-NIC Page 1 of 4 Created On Fri Feb 17 02:41:15 IST 2017 R/CR.MA/3754/2017 ORDER akin to the allegations made in the present F.I.R. were made against the accused of the said F.I.Rs, and they are granted anticipatory bail by this Court vide order dated 30.11.2016 passed in Criminal Misc. Application No.30902 of 2016 and 30629 of 2016. He, therefore, urged to extend benefit of the anticipatory bail to the applicant in connection with the present F.I.R. in line of those two orders under Section 438 of the Code.
3. Learned Additional Public Prosecutor Ms. Thakkar could not dispute that the applicants of above applications for anticipatory bail were charged with similar offences and faced similar allegations made in the present F.I.R. She however, submitted that since investigation is in progress, the Court may not exercise the discretion in favour of the applicant under section 438 of the Code.
4. The Court, having heard the learned advocates for both the sides and having considered the nature of the offences alleged in the FIR with the police papers, and having considered that in connection with similar offences, this Court has granted anticipatory bail, finds that discretion deserves to be exercised under Section 438 of the Code in favour of the applicant.
5. In the result, the present application is allowed. It is ordered that in case the applicant herein is arrested in connection with the F.I.R. registered vide C.R. No.II-3027 of 2008 lodged at 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 Page 2 of 4 HC-NIC Page 2 of 4 Created On Fri Feb 17 02:41:15 IST 2017 R/CR.MA/3754/2017 ORDER 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 23.02.2017 between 11:00 a.m. and 2:00 p.m.;
(c) shall not misuse his liberty;
(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 or till further orders;
(f) shall 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 Page 3 of 4 HC-NIC Page 3 of 4 Created On Fri Feb 17 02:41:15 IST 2017 R/CR.MA/3754/2017 ORDER 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.
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.) Gupta* Page 4 of 4 HC-NIC Page 4 of 4 Created On Fri Feb 17 02:41:15 IST 2017