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3. The Misc. Cri. Application No. 2311 of 1992 has been filed by Dr. (Mrs.) Nita Mehta, who happens to be the younger sister of the deceased Dr. Madhuben Shah. The other petition has been filed by the applicant Mahendra Vora, who happens to be the husband of yet another sister of the deceased. The much debated question, arising under the special facts and circumstances of the case is-whether, when the material collected by the Investigating Agency, thus far, is clearly divisible in two distinctly separate compartments, the earlier one clearly ruling out any possibility of the involvement of the petitioners in the offence, while the latter one, of course flowing from the very same complainant and witnesses but at a much belated stage, amidst a variety of allegations of police duress and coersion, tending to indicate their involvement, the petitioners are entitled to the orders in nature of Anticipatory Bail under Section 438 of the Code?

16. It has been the constant complaint of the petitioners, of certain witnesses and of Dr. (Mrs.) Saroj Damani who approached this Court by filing a petition, that during the second phase of the investigation, the Police had resorted to those practices which are popularly known as 'third degree methods'. this Court does not propose to inquire and investigate into the above said allegation being made by the petitioners and certain witnesses. The petition filed by Dr. (Mrs.) Saroj Damani for the transfer of investigation to the C.B.I, or any other such agency, also came to be withdrawn at a late juncture. Any how the fact remains that when the second phase of the investigation was going on the relations of the witnesses, whose statements were to be recorded during the second phase, were required to approach the Courts at Rajkot for obtaining the search warrants. The fact remains that a Habeas Corpus Petition also came to be filed before this Court. The further fact remains that, in certain proceedings though the Courts at Rajkot had ordered the production of the person concerned 'forthwith', in some cases the person could be produced by the Police after about 35 to 36 hours. Because of this position, though this Court at this juncture does not want to express any opinion in respect of the allegation of resorting to 'third degree methods', it cannot be overlooked that not only the petitioners but witnesses and their relations have felt that there was something in the nature of coersion or duress during the second phase of interrogation. This position has been eloquently brought out, by the production of copies of various applications and the orders pronounced by the Courts. It therefore appears that, there was something beyond the normal police investigation which had compelled certain people to come before the Courts and to pray for either search warrants or the Habeas Corpus writ. Thus, the fact remains that there are two different versions, one implicating the petitioners and the othes ruling out their complicity in the commission or crime. Dilip Patel on whose say the case of the prosecution appears to be resting has three different versions and being on the list of prime suspects he speaks of the presence of Mahendra Vora, in the house, as late, as 12th June, 1992. In view of this situation, it appears very clearly that the decision rendered by the learned single Judge of this Court in case of Solanki Ravibhai Dipubhai and Ors. v. State of Gujarat and Anr., (supra) would come into play.

(8) The find of the weapon from beneath the Sofa Cushion cannot be taken as a decisive factor to come to the conclusion that not an intruder but an inmate of the house must be the murderer. This is especially so because of the anomalous situation created by the photo pictures produced both by the Investigating Agency and the petitioners. The ladder, the open door of the gallery and an open lock with key therein on the outerside of the door should not be over looked.
(9) That the second phase of the investigation from 12th June, 1992 is surrounded by the allegation of duress and coersion and the institution of various proceedings for Search Warrants and Habeas Corpus writ coupled with the fact that though the concerned persons were ordered to be produced before the Courts forthwith, they could be produced quite late and in one case only after a lapse of thirty-five hours.