Gujarat High Court
Ramanbhai Bholidas Patel Thro ... vs State Of Gujarat on 31 August, 2021
Bench: S.H.Vora
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10438 of 2021
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RAMANBHAI BHOLIDAS PATEL THRO PRIYESH RAMANBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR IH SYED, SR. COUNSEL WITH MR ANIQ A KADRI(11256) for the
Applicant(s) No. 1
MR MAUNISH T PATHAK(5892) for the Respondent(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
Date : 31/08/2021
ORAL ORDER
1. The present application u/s 439 of the Cr.P.C., 1973 is
filed at the instance of applicant, namely, Mr. Ramanbhai
Bholidas Patel - accused No.2 as per charge sheet for
enlarging him on regular bail in connection with FIR being
C.R. No. 11191020201399 of 2020 registered with
Vastrapur Police Station for the alleged offenses
punishable u/s 498-A, 307, 362, 384, 342, 325, 353-A,
354-A, 323, 294-B, 506(2), 199 and 120-B of the IPC. The
said FIR and subsequent report of addition of further
offenses came to be filed for the incident occurred on
1.8.2020 and subsequent to the dates of incident dated
01.8.2020. In nutshell, the offenses period ranges from
1.8.2020 and onward.
2. Brief facts of the FIR and crux of two reports filed for
addition of offenses u/s 307 and 342,353A 506(2), 362
AND 384 of the IPC are as under:-
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2.1 In the year 2011, the applicant's son got married to
the first informant and first informant gave a birth to a
baby girl named Arya. According to the first informant,
the incident has occurred on 1.8.2020 on the occasion of
Arya's birthday party when applicant, her husband, her
parents and other in-laws abused her and her mother and
demanded dowry. It is alleged by the first informant that
her husband at the behest of present applicant uttered
abusive words to the first informant and her mother in
front of other members. At that time, her husband and in-
laws were under the influence of alcohol and thereafter,
her husband started slapping the first informant and gave
punch on her nose and when her mother tried to
intervene, her husband beaten her. It is alleged that at
midnight, the first informant was thrown out of the house
with her eight year daughter by the family of in-laws and
at that time, the first informant suffered fractured on her
nose and one teeth was broken and therefore, she went
with her mother at her place. It is alleged that the
applicant being influential person and strong headed
person and because of his influence, no police turned up
though she dialed 100 number.
2.2 She took treatment of fracture and other injuries at
private hospital. As her complaint was not received/
registered, the first informant approached the media and
with the help of media and other relatives, ultimately the
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first informant succeeded in getting the present FIR
registered.
2.3 On 17.8.2020, the first informant gave further
statement to the effect that prior to one and half years, at
about 8:30 p.m., when her parents-in-law and husband
were consuming alcohol, they taunted her and when the
first informant requested not to utter such words, her
husband became angry and she was dragged to her room
and at that time, the present applicant pressed her neck
and her husband pressed her with the pillar, but anyhow,
she could save herself. Further, there is allegation on the
part of the first informant that once her hand was caught
by the applicant prior to 18 months. Consequent upon
further statement, the investigating agency filed report for
addition of section 307 and 353A of the IPC.
2.4 Again on 28.8.2020, further statement of the first
informant was recorded, wherein, she leveled the
allegation against the applicant and other accused
persons and narrated the incident, which took place on
24.8.2020. The sum and substance of the further
statement is such that the first informant was
kidnapped/abducted and brought to the office of one Mr.
Jankit Prajapati, common friend of the parties to the
proceedings. The first informant was pressurized to sign
certain documents and swear affidavit and thus, under
threat and force, she was compelled to sign documents
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pertaining to consent affidavits to be filed in the
proceedings of anticipatory bail and quashment of the
present FIR, so that the accused persons named could be
enlarged on anticipatory bail and so also, FIR can be
quashed. In her further statement, the first informant
stated that she was compelled to sign other documents
pertaining to consent divorce deed, relinquishment deed
of future rights of first informant and her daughter against
which, particular amount was forcibly paid and under such
situation, the first informant signed all the documents
provided by the family members of the applicant.
3. Broadly on such allegation made in the FIR and in
further statement recorded on 17.8.2020 and 28.8.2020,
the matter was investigated and charge sheet came to be
filed against the applicant and other accused persons.
The case was committed to the sessions Court for trial and
the same is numbered as Sessions Case No.46 of 2021.
4. It requires to be noted that the applicant preferred
regular bail application prior to the charge sheet before
this Court and Sessions Court, but the same was not
entertained and thereafter, present successive bail
application is filed before this Court.
5. Before the matter is considered on its merits, it is
important to take note of two important events that took
place during the course of hearing of present application.
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
Firstly, the learned PP Mr. Mitesh Amin made a statement
at bar that certain documents/orders which are not made
part of the charge sheet papers, but placed on record with
the bail application by the applicant will be made part of
the charge sheet papers and same will also place before
the competent Court for further consideration of the
matter at trial. The Court appreciates such fairness shown
by learned PP for the State. The second but unusual stand
taken by learned PP needs to be noted, considered and
recorded as a passing remarks only. Learned PP alllged
that though State is ready to proceed with the trial and
not only that the state will commence and conclude the
trial within three months and for that draft charge is
provided to the Court concerned. Learned PP further
submitted that applicant is delaying the trial and sought
adjournment to file discharge application through his
advocate at the counsel's advise, but instead of filing the
same, the co-accused moved an application to speed up
the trial and thus, prevented the Court from proceeding
further to frame the charge. Learned advocate Mr. MT
Pathak for the first informant joined with the such
proposal and stated at bar that the first informant will
cooperate the learned trial judge and get her deposition
recorded at the earliest. The proposal is attractive on face
of it.If state takes such stand in each and every bail
matter and if the Court accepts the same as one of the
ground to reject the bail, in that event, the court can not
lose sight of ground reality at trial Court. The Court has
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never come across such stand in various bail applications
that Court hears day in and day out. The Court is not
ready to believe that the learned PP is unaware of the
situation at trial Court and how trials are conducted
despite direction issued by this Court or even in some
cases, by the Honorable Apex Court. In any event, it is
easy to say expedite the trial and promise to cooperate,
but where are the judges. It is an undisputed fact that the
Courts are overburdened, there are scarcity of judges and
infrastructure being faced by all the Courts. The trial
Courts have just started functioning after almost one and
half years of closing of judicial system on account of
pandemic situation. The Court concern before whom trial
is pending, there are priority cases also, the Court cannot
ignore it and pave the way of trial of the present case on
fast track basis, when trial against the offenders of
murder, rape or NDPS are waiting and in queue. In
support of his submission, learned PP placed on record
Rojkam of Sessions Case No.46 of 2021 for submitting that
trial is delayed at the instance of the accused persons.
Here I also failed to understand if any accused person
makes a request for adjournment on counsel advice to file
discharge application on particular date and if on
subsequent adjournment, wisdom prevails and if idea is
dropped to file discharge application then what is wrong in
it or how it can be said that the accused persons are
delaying trial when one of his family members whose bail
application is rejected and is behind bar including present
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applicant. One more unusual events Court noticed is such
that the state provided draft charge to the Court
concerned. There is no such practice or procedure
permissible u/s 226 and 227 of the Cr.P.C. No need to
record here as to what provision is contained in section
226/227 of Cr.P.C. As such, this submissions made by
learned PP is not only irrelevant, but falls beyond the
provisions of sections 438/439 of the Cr.P.C. However,
Court specifically records that no any bail application
either regular or anticipatory can be disallowed on such
stand/proposal. However, it is settled principle of law laid
down in plethora of decision rendered by Honorable Apex
Court that power under section 439 being discretionary, it
should be exercised judiciously and cautiously. In recent
decision rendered by the Hon in Criminal Appeal No.883
of 2021 in cases of Harjeet singh Vs. Inder Jeet Singh @
Inder and another, the Honorable Apex Court after
considering various decisions on the aspect of scope and
ambit of section 439 of the Code reiterated the factors to
be borne in mind while considering an application for bail.
Since learned advocate Mr. Pathak appearing for the first
informant cited the said case law in support of his
submission, the Court would like to reproduce the factors
to be borne in mind and also to decline the proposal made
by the learned PP and supported by learned advocate for
the first informant which reads as under:-
(i) Whether there is a prima facie or reasonable ground to
believe that the accused had committed the offense;
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(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, behavior, means, position and standing of the
accused;
(vi) likelihood of the offense being repeated;
(vii) reasonable apprehension of the witnesses being
influenced;
(viii) danger, or course, of justice being thwarted by grant of
bail.
6. The Honorable Apex Court also laid down while
setting aside the order of the Calcutta High Court in the
matter of Ashish Chaterjee Vs. State of West Bengal in
Cr.MA No.272 of 2010 vide order dated 11.1.2010 in the
matter titled as Prasanta Sarkar Vs. Ashish Chaterjee 2010
(14) SCC 496, in para 10, that it is manifest that if the
High Court does not advert to these relevant
considerations and mechanically grants bail, the said
order would suffer from the vice of non application of
mind, rendering it to be illegal. So, the proposal made at
bar does not find any place in the legal proposition settled
in the case law cited at bar and therefore, it is declined.
7. Before the matter is considered on its merits, one
more submission made by learned PP needs to be dealt
with. Learned PP Mr. Amin heavily relied upon order of
refusal of bail against one Mr. Dashrathbhai Bholidas Patel
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
- accused No.3 as per charge sheet rendered by the
Coordinate Bench on 17.2.2021 in Cr.MA No.20180 of
2020. The said order is placed in support of the
submission made at bar and annexed with the affidavit of
the investigating officer. In order to convince this Court
that the Coordinate Bench dealt with the issue of payment
of Rs. five crore and four lakh paid in cash and demand
draft were made with a view to influence the witnesses by
giving threats and according to him, such finding of facts
is final and binding to this Court. Similarly, learned PP has
also referred to the decision rendered by the very
Coordinate Bench in the matter of bail application of the
husband of the first informant rendered on 13.1.2021 in
Cr.MA No.18943 of 2020 so as to contend that applicant
and his brother used husband of the first informant as tool
to commit the offenses wherein the Coordinate Bench
while enlarging the husband of present first informant on
bail observed in para 7(e) as under:-
"(e) during the course of submission, learned Public
Prosecutor has contended that the present applicant
was used as a tool by his father and uncle i.e. The co-
accused for committing the alleged offenses. Thus, I
have considered the role attributed to the present
applicant, which is prim-facile different from his father
and uncle, as contended by the leaned Public
Prosecutor."
8. In support of the submission, learned PP pressed into
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service two decisions rendered by the Honorable Apex
Court,not pertaining to the bail proceedings, but to
contend that not to take view contrary to the view taken
by the Coordinate Bench in the matter of accused No.3.
The decision referred to and relied upon by learned PP for
such submission is reported in cases of U.P. Gram
Panchayat Adhikari Sangh and others Vs. Dayaram Saroj
and others reported in (2007) 2 SCC 138 and in case of
Sant Lal Gupta and others Vs. Modern Cooperative Group
Housing Society Limited and others reported in (2010) 13
SCC 336.
9. I have minutely examined the decision relied upon by
learned PP. It is necessary to reproduce observation made
by Honorable Apex Court in case of Sant Lal Gupta (supra)
in para 16 to 18, which reads as under:
"16. Be that as it may, the High Court has referred to
its Division Bench judgment in B.B. Chibber Vs. Anand
Lok Coop. Group Housing Society Ltd, wherein the
same provision had been considered and it had
categorically been held that deeming approval was
not legally permissible. In view of the above, it was
neither desirable nor permissible by the coordinate
Bench to disapprove the earlier judgment and take
view contrary to it. More so, extension of the period
frm 6 months to 1 year amounts to legislation.
17. A coordinate Bench cannot comment upon the
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discretion exercised or judgment rendered by another
coordinate Bench of the same Court. The rule of
precedent is binding for the reason that there is a
desire to secure uniformity and certainty in law. Thus,
in judicial administration precedents which enunciate
the rules of law form the foundation of the
administration of justice under our system. Therefor,e
it has always been insisted that the decisoin of a
coordinate Bench must be followed. (Vide
Tribhovandas Purshottamdas Thakkar Vs. Ratilal Motila
Patel, Sub-Committee of Judicial Accountability v.
Union of India and State of Tripura v. Tripura Bar
Assn.).
18. In Rajasthan Public Service Commission v.
Harish Kumar Purohit, this Court held that a Bench
must follow the decision of a coordinate Bench and
take the same view as has been taken earlier. The
earlier decision of the coordinate Bench is binding
upon any latter coordinate Bench deciding the same
or similar issues. If the latter Bench wants to take a
different view than that taken by the earlier Bench,
the proper course is for it to refer the matter to a
larger Bench."
10. The submissions made by learned PP on the basis of
two decisions of Coordinate Bench rendered in the matter
of two co-accused persons with a view to see that this
Court does not take a different view than taken by the
coordinate Bench while considering role of present
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applicant in light of decision rendered by the Honorable
Apex Court cited at bar, the Court is totally in
disagreement with the learned PP for the simple reason
that the observations made by the coordinate Bench while
considering bail application of two co-accused are on facts
and no any issue on law is decided. Each bail application
needs to be considered on its merits and more
particularily role played by each accused persons and
availabity of materials in support of the charge. Remotely,
I don't find any substance in the submissions made at bar
by learned PP on this issue or even relevancy of the
judgment of the Honorable Apex Court cited at bar. As
such, the stand of learned PP is not only inconsistent but
surprising because the accused persons are charged with
an offence u/s 120-B of the IPC. There is an allegation that
all the accused persons conspired together and committed
the offense, as aforesaid. When it is so and if some of the
co-accused persons enlarged on bail and more
particularly, husband Mr. Maunag Ramanbhai Patel, then
on the ground of parity, the present applicant becomes
entitled to get the bail. Instead of taking such short cut
and considering stand of learned PP taken in this matter, it
is now necessary that bail application of present applicant
requires to be dealt with on its merits including aspect of
parity bearing in mind the principles of law settled by the
Honorable Apex Court in plethora of decision with regard
to bail matters as aforesaid.
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11. While disagreeing with the submissions so far made
by learned PP, as aforesaid, now the Court would like to
record the submissions made at bar.
12. Learned Senior Counsel Mr. Syed submits that the
present FIR is purely a matrimonial dispute, which has
amicably been settled. The impugned FIR refers to the
offense from the year 2012 to 2020. The offense u/s 307
and 353A was subsequently added to the FIR vide report
dated 17.8.2020 alleging the offense of an incident which
allegedly took place eighteen months prior to filing of the
FIR. No any allegation worth the name was made at very
first instance when diary entry was made on 3.8.2020
when first informant was admitted in the Sterling Hospital
for the incident that took place at 3:30 am on 2.8.2020.
Similarly, the first informant while giving medical history,
she blamed only her husband for the injury suffered by
her. Here, except husband, no one is blamed or any role is
attributed to any of the co-accused persons. He has
further submitted that the applicant is 65 years old aged
person and he suffers from various ailments and
therefore, he may be enlarged on suitable condition, as
the applicant has cooperated with the investigating
agency and now charge sheet is filed. He has further
submitted that the dispute between the husband and first
informant was amicably settled and the same can be
noticed from the conversation made between the
applicant's brother and first informant and her mother
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annexed at Annexure G to the present application, which
took place on 4.8.2020. Thereafter, learned Senior
Counsel Mr. Syed submitted that the first informant en
cashed the demand draft of Rs.250 lakh annexed at
Annexure K to the application and thereafter, the first
informant took her belongings including her passport and
acknowledged the receipt thereof duly signed in presence
of two witnesses including her mother on 2.9.2020
annexed at Annexure L to the application. Having settled
the matter, the first informant agreed to see that accused
persons are enlarged on anticipatory bail and present FIR
is quashed, the first informant through her advocate filed
affidavit in the judicial proceedings filed before this Court,
but subsequently, the first informant withdrew her consent
as per communication dated 8.9.2020 annexed at page
No.85-86 to the application. Learned Counsel has further
submitted that consent affidavit was filed by the first
informant through her advocate Mr. MT Pathak and the
same was placed on judicial proceedings voluntarily and
without any threat or pressure as no such allegation as to
pressure is leveled at all as she leveled in her further
statement recorded on 28.8.2020.
13. Learned Senior Counsel Mr. IH Syed after drawing
the attention of the Court to an application filed by one
Ms. Neemaben w/o Maulik Shah u/s 451 of the code for
withdrawal of Rs.254 lakh seized from her house during
the course of investigation of the present FIR. In the said
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application, said Ms. Neemaben claimed the ownership of
money to which the first informant files no claim pursis
annexed at page No.94. Prior to it, the said witness
Neemaben on 27.8.2020 in her police statement disclosed
that prior to two days of her statement, her sister Jankiben
gave her Rs.254 lakh in cash to keep in her custody paid
to her sister as an inducement to not to produce evidence
in the complaint registered by her daughter Fiju. In
nutshell, it is submitted by learned Senior Counsel Mr. IH
Syed that parties more particularly, first informant and
husband settled the issue at the interference of family
members and subsequently, on account of
intervention/interference of third party, the family dispute
is brought on street with reckless allegations though first
informant and the applicant were living happy married life
and the same is eloquent from the photographs which first
informant herself uploaded on 27.10.2019 while traveling
to Dubai, UAE along with her husband annexed at
Annexure C. Lastly, he has further submitted that after
present FIR, there are six more offenses came to be
registered against the applicant and his family members
with regard to business transactions pertaining to land
with respect to the offenses, which allegedly took place
before 27 or 48 years with respect of which, various legal
proceedings are filed by the applicant challenging such FIR
u/s 482 of the Code and he is also enlarged on bail in
some of the offenses.
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14. While vehemently opposing the bail application,
learned PP would submit that the present case is not a
matrimonial dispute, but there is a criminality involved to
exercise the threat and pressure upon the first informant
and by using money power and under coercion, she was
compelled to sign certain papers including consent
affidavit and that too after kidnapping/abducting her
mother and daughter through the witness, namely, Mr.
Jankitbhai Prajapati. According to said witness Mr.
Jankitbhai Prajapati, when the family members were
negotiating with each other for settlement the co-accused
Dashrathbhai entrusted to act him as a mediator to settle
the dispute and at his instance, he went at the house of
the first informant's mother and he took with him the
mother of the first informant and daughter Arya and
subsequently, the first informant followed the car and
reached at the office of Mr. Jankitbhai where she was
pressurized to sign the documents under threat and
compulsion, and thereafter, she was allowed to go along
with her mother and daughter. Learned PP has further
submitted that the applicant while in judicial custody,
threatened the first informant on telephone to encash the
demand draft and accordingly, she was compelled to
encash the demand draft in the month of November,
2020. In support of the submission, learned PP has
produced communication dated 18.12.2020 and telephone
booth register maintained at jail to show that the applicant
made two calls on 21.10.2020 and 29.10.2020 to the first
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informant and at that time, the first informant was
pressurized to encash the demand draft and as the first
informant was threatened that she has to face dire
consequences and her daughter will forcibly be taken
away by the applicant and his family members. So, the
first informant wrote a letter dated 23.10.2020 intimating
the Joint Commissioner, Ahmadabad that in view of such
position, as an abundant caution, she is depositing
demand draft, which is alleged as a part of settlement
amount. Learned PP in view of such position would submit
that the applicant being a head strong person and while in
judicial custody, the first informant is pressurized and
threatened to deposit demand draft, no discretionary
powers in favour of the present applicant be exercised.
15. Learned PP Mr. Amin further submitted that as the
applicant and other accused persons came to know that
first informant has registered FIR on 16.8.2020, the co-
accused Dashrathbhai to save the skin of the accused
persons including himself, he filed the complaint u/s 384,
385, 387, 389, 120-B and 34 of the IPC against the first
informant and her mother before Vastrapur Police Station
annexed at Annexure H inter alia alleging that the first
informant threatened to pay Rs.100 crore, else the
accused family would face serious criminal cases. After
referring the said complaint and conversation attached
with the said complaint, learned PP submits that the said
complaint is closed at the instance of the co-accused
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Dashrathbhai and therefore, no any value should be
attached to such complaint and conversation annexed
with the complaint. Lastly, it is submitted by learned PP
that the applicant is also involved in six other offences and
in view of his criminal background, the presnt bail
application may not be entertained, as state is ready and
willing to complete the trial as expeditiously as possible.
16. Learned advocate Mr. MT Pathak appearing for the
first informant, while adopting submissions of learned PP,
submits that this is a classic case of criminality meted out
to the first informant and her mother. The applicant being
influential and strong person instigated the husband of the
first informant who slapped her and thrown out of the
house on the day of birthday party. He further submits
that the first informant could get help only after she
approached media. Now as the first informant has
withdrawn her consent affidavits placed and filed in the
judicial proceedings initiated u/s 438 and 482 of the Code,
the present application may not be entertained as the first
informant is ready to cooperate with the trial if it is
expedited. In nutshell, it is submitted that the first
informant was forcibly paid the money and then,
threatened and forced to sign documents pertaining to
consent affidavits and other documents pertaining to
consent divorce deed, relinquishment deed for future right
of first informant and daughter Arya against that,
particular amount was forcibly paid and therefore, on such
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situation, the first informant signed all the documents
provided by the family members of the applicant, so that
she can live peacefully.
17. The Court heard the learned Senior Counsel Mr. IH
Syed appearing with learned advocate Mr. Aniq Kadri for
the applicant, learned PP Mr. Mitesh Amin for the State
and learned advocate Mr. Maunish Pathak for the first
informant. The State and the first informant were
permitted to file affidavits to oppose present bail
application. I have minutely examined the oral statement
of the prosecution witnesses and the documentary
evidence placed along with the charge sheet papers and
the papers filed by the applicant other than charge sheet
papers which learned PP will make the part of the charge
sheet papers as stated at bar. I have also called for R & P
of Cr.MA No.12624 of 2020 filed u/s 482 of the CrPC on
account of issue raised as to numbering of criminal
proceedings at page No.81 and so also, R & P of CrMA
No.12309 of 2020 filed u/s 438 of the CrPC
18. The incident dated 1.8.2020 which occurred at the
eve of birthday party of daughter of the first informant
resulted into present charge sheet against the applicant
and other co-accused persons. For the injury and abuse
suffered by the first informant at the hands of in-laws and
her husband as alleged in the FIR, the first informant
disclosed to the police the occurrence of the incident at
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3:30 a.m. on 2.8.2020 when she was admitted in hospital
on 3.8.2020 at 11:20 a.m, whereupon inquiry, mother of
the first informant stated that her son-in-law has beaten
the first informant and accordingly, said entry is made in
the station diary, which is annexed at Annexure H. Except
husband, no one is blamed or any allegation is made
against any family members. Similarly, the first informant
in her medical history blamed only her husband. The said
medical history is annexed at page No.17/w. Thereafter, it
appears that the settlement talk started amongst co-
accused Dashrathbhai, first informant and her mother
Jankiben on 4.8.2020. Upon reading of the conversation
which is recorded by Dashrathbhai and provided to the
concerned police station runs on page No.42 to 68 and
upon reading of the whole conversation that took place
amongst them, it appears that the party negotiated in
terms of money and arrangement of resident for the first
informant and her daughter and discussion was made as
to how property is to be purchased and entry of family
members to be regulated. In the said conversation, the
discussion with regard to the payment was made and the
matter was also discussed with regard to divorce. One
more important fact which surfaces in the conversation
placed at page 52-53 to the application and now made
part of the charge sheet papers, is such that the first
informant acknowledged and informed to co-accused
Dashrathbhai that she is receiving so many calls from
media and persons from political background to support
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her. Further, in the said conversation, she did not utter a
word against the applicant, but repeatedly made a point
to pay her in two digit i.e. any amount ranging from Rs.10
to 99 crore. Ultimately, nothing was finalized and
conversation was concluded. It appears that nothing was
happened up to 14.8.2020. Thereafter, the first informant
filed her complaint on 16.8.2020 for the incident occurred
on 1.8.2020.
19. Subsequently, on 17.8.2020, the first informant
gave further statement when she made a statement
before the police that before one and half years, at about
8:30 pm, when her in-laws were consuming alcohol and at
about 11:00 pm, she was taunted and as the first
informant requested not to utter such words, the applicant
and his son were angry and the applicant caught her neck
and her husband caught hold her hair and further her
husband pressed her with the pillar. Despite such
occurrence of the incident, it appears that the first
informant and her husband traveled abroad and the same
is visible from the photographs uploaded by the first
informant on 27.10.2019. In married life, even if such
incident would have occurred, the lady may not knock the
door of the police station at first opportunity after the
occurrence of the incident but when first informant
approached the police station on 16.8.2020, she did not
utter a word of the incident occurred prior to one and half
years of the lodgment of the FIR, which one could never
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
forget, if at all happened. In her statement recorded on
16.8.2020, the first informant alleged an act of attempt to
commit murder against both her husband and father-in-
law i.e. present applicant. It is a matter of fact that that
her husband is enlarged on regular bail by the coordinate
Bench as per order dated 13.1.2021 passed in Cr.MA
No.18943 of 2020.
20. Now, coming to the incident dated 24.8.2020 that
took place in the office of prosecution witness Mr.
Jankitbhai Prajapati. He is the witness, who went to the
house of Jankiben to bring first informant and her mother
at his office for settlement. Accordingly, said witness went
to the house of Fizuben and took with him first informant's
mother and daughter and according to him, first informant
was called later on. Whereas, first informant had
contradicted her own version of the incident that took
place on 24.8.2020, wherein in the written complaint, she
alleged that when said witness Mr. Jankitbhai Prajapati
came to her house, she was not at home, but in her
complaint dated 28.8.2020, she stated that when
Jankitbhai came to her mother's house and took her and
her daughter, she followed them in her own car. No any
investigation as to who called Fizuben and what was
reason for her to contradict her own version of the
incident. At this stage, it is very relevant to note that
neither present applicant nor his son Maunag was present
at the office of Jankitbhai on 24.8.2020, but said witness
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
states that the first informant was pressurized and forced
to sign the documents. It is stated by the said witness
that both the first informant and Jankiben were threatened
that if she does not sign the papers, her daughter would
be snatched away from her. At that stage, prosecution
witness Alapbhai objected such conduct of Dashrathbhai.
Both said prosecution witness Jankitbhai and Alapbhai told
Dashrathbhai that it was not reasonable and proper to get
signature under threat. Thereafter, both the prosecution
witnesses voluntarily stated that Dashrathbhai did all this
act under the instruction of applicant and Mr. Maunag.
21. I have carefully examined both the statements of the
said witnesses recorded on 24.9.2020, wherein no role is
attributed to the present applicant or Mr. Maunag for the
alleged acts of Dashrathbhai. Keeping in mind such
conduct on the part of the first informant and the
statement of two witnesses, the occurrence of the
subsequent events are relevant to be noted. As it appears
on record, nothing was paid or any discussion was made
with regard to payment of any money at the office of
Jankitbhai on 24.8.2020. Thereafter, all first informant and
Jankiben and Arya were freed as per further statement of
first informant recorded on 28.8.2020.
22. Now, it needs to be noted that during the course of
investigation, the investigating agency visited house of
one Neemaben Shah who is sister of Jankiben on
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27.8.2020 and informed the panchas that sum of Rs.250
lakh cash amount without any document is lying at her
home and accordingly, raid was carried out and Indian
currency worth Rs.254 lakh was seized from the house of
Neemaben i.e. sister of Jankiben. The said prosecution
witness Neemaben gave her statement with regard to the
seizure of the cash amount in two bags on 27.8.2020,
therein she has disclosed that before two days of her
statement i.e. on 25.8.2020, her sister has entrusted the
said money at her for custody and security and she further
stated that Jankiben informed her that she has been paid
said amount as an inducement not to produce evidence in
the complaint lodged by the first informant i.e. her
daughter. Interestingly, the sister of Jankiben namely Ms.
Neemaben moved an application u/s 451 of Cr.P.C. before
the competent Court for return of muddamal namely
Rs.254 lakh cash and therein, she has stated that the said
money belongs to her and thus, claimed right over it. In
support of said application preferred u/s 451, the first
informant also filed no claim pursis on 9.10.2020 annexed
at page No.94 to the application. Bearing in mind the
receipt of the cash amount by the mother of the first
informant as an inducement to her not to produce
evidence in the complaint lodged by the first informant
against her in-laws. It is significant to note here that the
mother of the first informant acknowledged the receipt of
two demand draft of Rs.2 crore and Rs.50 lakh dated
25.8.2020 and 26.8.2020 respectively and said drafts
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
drawn in favour of the first informant received by her on
28.8.2020 and it appears that the first informant gave
further statement on 28.8.2020 in respect to the alleged
incident took place on 24.8.2020 without uttering a word
with regard to cash/demand draft received by them.
Surprisingly and shockingly, there is no whisper made by
Ms. Jankiben in her police statement recorded on
28.8.2020 as to entrustment of cash money of Rs.254 lakh
to her sister. Either both the statements of sisters are
misleading and made with a view to twist the facts to suit
or make incident of 24.8.2020 as natural as possible
and/or to win the sympathy or to suppress the true events
leading to payment aspect. In the same way, first
informant did not utter a word with regard to cash and
demand draft aspect. It is a matter of fact that no any
alleged payment was made on 24.08.2020, but it is
received by the first informant both in cash and in demand
draft subsequent to allegedly obtaining signature on
certain kind of documents from both first informant and
her mother. How one can digest the allegation that any
person will make payment of money, if he is capable to
kidnap/abduct the person and has chance to take away
custody of minor child on 24-08-2020 yet not doing so and
paying money to mother of the first informant towards
inducement not to place evidence in the present FIR that
too after obtaining signature under pressure on
24.08.2020. If this is correct than the mother of the first
informant would have placed on record all the evidence
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
which she possesses during the course of investigation.
Nothing is done till date. It is not case of the prosecution
that the accused persons hatched criminal conspiracy to
pay less or obtained signatures without payment to the
first informant. Had it been so, the matter would have
different outcome.
23. One more event took place on 2.9.2020 needs to be
noted. The first informant collected and received her
personal belongings, electronic goods and also passport
and she acknowledged that she received all her
belongings in presence of her mother and one Mr.
Prathameshbhai and she received all the belongings and
her passport as per the agreement. No any investigation
with respect to such agreement. The said receipt is
annexed at page No.89.
24. On 8.9.2020, the first informant withdrew her
consent affidavit filed in the proceedings initiated u/s 438
of the Cr.P.C. by the accused side. It is a matter of fact
that the first informant vide email dated 3.9.2020
informed and instructed her advocate that first informant
does not want to press affidavit filed by her and withdraw
the same and further instructed to the learned advocate
that the first informant does not wish to proceed further in
any manner pending before this Court in connection with
present FIR. No doubt, the learned PP made a statement
at bar that now a days', fake/false emails are
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
made/possible. No doubt, it is possible and had it be so,
the first informant would have disclosed in her affidavit
filed through her advocate Mr. Pathak. The email is sent
by the first informant to her advocate and no further
debate/discussion is required in view of such loose
statement of learned PP made at bar.
25. On 29.8.2020, the present applicant and
Virendrabhai Patel i.e. father of the first informant
surrendered to the police and accordingly, they came to
be arrested. The applicant was taken on police remand,
but no any recovery/discovery is effected more
particularly of any document.
26. Learned PP submitted that the applicant has placed
on record photocopy of affidavit of the first informant
dated 24.8.2020 submitted in unnumbered Cr.MA of 2020.
According to him, the applicant ought to have stated in
which numbered proceedings, this unnumbered affidavit is
submitted. When the Court examined page 81, it is
noticed by the Court that there was a number mentioned
as 10438 i.e. number of present application. In the course
of hearing, the Court permitted learned advocate for the
applicant to delete the said number and therefore, now,
nothing survives on this aspect or issue needs to carry any
further or has having any significance because, it is an
undisputed fact that the first informant through her
advocate Mr. MT Pathak filed the consent affidavit in the
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
proceedings u/s 438 and u/s 482 of the CrPC, but for the
reasons best known to the first informant, she withdrew
her consent affidavit as per her advocate's communication
dated 8.9.2020 addressed to the Registry of the High
Court as per her email dated 3.9.2020 annexed at page
No.86 to the application. As per email/communication
dated 3.9.2020, she admits and acknowledges that she
filed consent affidavit, but subsequently expressed her
desire not to proceed further in the matter pending before
the High Court in connection to her criminal complaint.
Since there was a confusion with regard to the number of
the criminal proceedings in which consent affidavit is filed
by the first informant, the Court called for the R & P of
Cr.MA No.12624 of 2020 filed by the applicant and his son
and wife u/s 482 of the CrPC. Learned advocate Mr.
Pathak stated before the Court that first informant filed
consent affidavits in the proceeding initiated u/s 438 and
482 of the CrPC before this Court. So, it is matter of fact
that the first informant filed consent affidavits but
withdrew subsequently before the court passes any order.
It is a matter of fact that the applicant moved proceedings
u/s 438 and 482 of the CrPC. Since the applicant
surrendered to the jail authority, he did not press
anticipatory application on 31.8.2020 and as consent was
withdrawn by the first informant, the applicant and other
co-accused withdrew the proceeding u/s 482 on
25.9.2020. The chain of events right from 24.8.2020 to till
date of filing of consent affidavit by the first informant
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
which she alleges to have been procured under pressure
and threat comes to an end on 3.9.2020. Had it been so,
the first informant has no reason or ground to file such
consent affidavits obtained from her under pressure and
threat in the proceedings initiated u/s 438 and 482 of the
CrPC by the accused side. All this drama concluded on
3.9.2020 when she communicated her decision to
withdraw consent affidavit.
27. As such, the Court is not required to dwell into the
reasons behind all this action on the part of the first
informant, but the fact remains that the affidavit which is
alleged to have been procured by the accused side under
pressure on 24.8.2020, she filed it in the legal proceedings
through an advocate Mr. Pathak and for that, there is no
whisper or any allegation or reference is made in her
affidavit filed before this Court while opposing bail
application as to why she filed consent affidavit procured
under pressure and threat.
28. If entire occurrence of the incidents are closely
examined right from the incident dated 1-8-2020 and
24.8.2020, statement of two prosecution witnesses as
noted above, seizure of cash amount from the house of
aunt of the first informant and contradictory version of the
said witness Neemaben, receipt of the two demand drafts,
drawn in favour of the first informant, by the mother of
the first informant on 28.8.2020 followed by receipt of
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
personal belongings by the first informant on 2.9.2020 and
thereafter, taking U turn by the first informant and
instruction issued to her advocate on 3.9.2020 to
withdraw the consent affidavit as stated herein above
speaks much about her conduct. The Court is not
approving the events occurred on 1.8.2020 at her in-law's
place for a minute, but it appears that the first informant
exaggerated/improved her version out of proportion that
stands established on the basis of her own conduct and
other events recorded herein above.
29. Now, Court would like to deal with the aspect of
encashment of demand drafts by the first informant in the
month of November, 2020 under pressure and threat
extended by the applicant and his son when both were in
jail in the month of October 2020. It was one of the
contentions of the State that the first informant encashed
the demand drafts of Rs.250 lakh under threat extended
upon/exercised upon her by the applicant and her
husband from jail. Learned PP took me through the
statement of the first informant dated 10.12.2020 and
documents gathered pursuant to her communication
dated 23.11.2020 addressed to Commissioner,
Ahmadabad. In her said communication, she first time
disclosed that as part of the alleged settlement, she was
given two demand drafts and she made further reference
of pressure exercised by her husband and the applicant
while in jail that if she shall not deposit two demand
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
drafts, then they will forcibly take away her daughter and
she also disclosed that same was intimated to her by her
relatives and through social circle as well. Thus,
according to her communication, as a abundant caution,
she deposited demand drafts, so that she and her
daughter have not to face any dire consequences in
future. So, thereafter, she encashed the demand draft.
With reference to said communication dated 23.11.2020,
whatever investigation is done by the concerned
investigation officer is placed on record along with the
affidavit of the investigating officer.
30. I have minutely examined the same. The material
gathered and placed on record indicates that there was
not a single phone call made by the husband Maunag
Patel on the date specifically mentioned by her in her
statement and more particularly in the month of October,
2020. No doubt, it appears that the applicant made two
phone calls on 21.10.2020 and 29.10.2020, where the
applicant has shown name of relative as Preyash - son. So
according to learned PP, though applicant made phone call
to the first informant, he furnished wrong information to
the jail authority and thus, he made a call to first
informant to pressurize her to encash the demand drafts.
As recorded herein above, though daughter Arya went to
the office of the witness Jankitbhai and if there had been
any intention to snatch the daughter, it would have been
done much earlier. No any allegation as to ever any
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
attempt is made by any of the accused persons to snatch
the daughter. No any phone call is made by her husband
Maunag Patel to the first informant during the period he
was in custody. Still however, she makes an allegation
that her husband pressurized her to encash the demand
drafts while in jail. I failed to understand how to believe
the first informant when she did not disclose at any point
of time with regard to receipt of the cash money and
demand drafts to the investigating agency received by
her under presuure except first time after charge sheet,
she gave her statement on 10.12.2020.
31. Similarly, mother of the first informant Jankiben
maintained complete silence with regard to receipt of the
cash amount and demand drafts though it surfaces on
record that she is recipient of both cash amount and
demand draft amount and kept absolute silent while
giving her statement before the police on 18.8.2020 and
20.8.2020. So suppression of receipt of cash amount and
demand draft by both mother and daughter and to keep
silent all throughout the period of investigation to till
charge sheet and when the validity period of demand draft
was to expire, she came out with a story of exercise of
pressure by her husband and applicant from the jail. In
view of such inconsistent version , suppression of vital and
important facts before the investigating agency by the
first informant and her mother and considering the
statement of Ms. Neemaben and her claim over the money
made in an application u/s 451 of the Code, the Court is
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
not inclined to jump to the conclusion that phone call
made by the applicant to the first informant is made to
pressurize her to encash the demand drafts and that too
such call made by providing false information to the jail
authority. If both the first informant and her mother would
have disclosed under what circumstances and for what
reasons they received cash amount and demand draft,
then one can probe in the reason and to provide him
allegedly false information in call register at Jail. In view of
above finding, prima facie, the Court cannot readily accept
such statement as to making of call so as to create
pressure upon first informant to encash demand draft.
32. Now, this takes me to take note of the facts relating
to the involvement of the applicant in various crime
brought on record by virtue of affidavit filed by the
investigating agency. As per affidavit and FIR annexed
along with it, the following cases are pending against the
applicant, his family members and other persons:-
Sr. Date of Date of Sections
No. FIR offense
1 17/10/20 17/03/87 406, 420, 465, 466, 467,
468, 471, 120-B, 34 of
IPC
CR-I:1191020201493
(Vastrapur P.S.)
II 28/10/20 01/01/10 406,420,468,506 (2),
294(b), 120B of the IPC
CR - I
11191020201509
(Vastrapur P.S.)
III 04/11/20 1991 420, 465, 467, 468, 471,
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
120-B of the IPC.
CR - I
11191045202003
(Sola HC P.S.)
IV 05/12/20 04/04/15 174,175,184,185,195,42
0,465,467,468,471,120B
of the IPC
CR - I
11191045202114
(Sola HC P.S.)
V 21/12/20 01/01/75 420,465,467,468,471,12
0B of the IPC.
CR - I
1191045202201
(Sola HC P.S.)
VI 10/02/21 01/01/17 406,420,596(2), 114 of
the IPC
CR - I
11191020210089
(Vastrapur P.S.)
33. The issue of past antecedents always becomes
important and relevant aspect when the citizens are
unable to live peaceful life and therefore, proper analysis
of criminal antecedents are always necessary. No doubt,
the Court gives more preference to societal concern rather
than individual liberty and on the other hand, the Court
needs to look into the period of custody simultaneously.
The applicant is in custody since one year and he is aged
65 years suffering from various ailments. Now, it is right
time to cursorily look into the allegation made in six FIRs
one by one. The first FIR pertains to the offense allegedly
occurred on 17.3.1987 in respect of land transaction,
wherein it is alleged that the applicant and other co-
accused forged one power of attorney and got registered
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
sale deed dated 30.6.2016. It is stated by learned Senior
Counsel Mr. Syed that all civil and revenue proceedings
with respect to subject matter of that FIR attained finality
and despite such position, the said facts were suppressed
in the FIR lodged on 17.10.2020. Second FIR relates to
one rented property lease to the applicant and his brother
in connection with this FIR, the High Court has stayed the
filing of the charge sheet and not only that the High Court
has stayed the proceedings initiated u/s 145 of the Code
and the applicant is on bail. The third FIR relates to the
alleged offense took place in the year 1991, wherein the
applicant and other co-accused forged the power of
attorney for which civil litigation is pending since 2009 and
the matter was settled in the year 2012 and despite such
position, thereafter, present FIR is filed on 4.11.2020. The
fourth FIR refers to an offense occurred in the year 2015
of non-compliance with liquidation order, wherein the High
Court has passed an order as to no coercive steps against
the society. The fifth FIR refers to the alleged offense
dating back to 1975 of land transaction for which land
owner registered FIR on 21.12.2020. This Court has after
detailed examination of charge sheet papers granted bail
to the applicant. One surprising fact which can be noticed
with regard to the said FIR is such that transaction of 1975
made subject matter of the said FIR without filing any
proceeding under civil law or revenue law. The sixth FIR
registered for the alleged offense occurred on 1.1.2017 for
non-payment of remuneration to one employee for which
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
FIR is filed on 10-02-2021. So, all the six past offense
registered after the registration of the present FIR.
34. Now, if the findings of the present offense as
examined herein above are perused, the Court has noticed
that there is an over-implication and suppression of vital
facts with regard to receipt of cash and demand draft, no
any iota of evidence as to any role played by the applicant
and his son with regard to the incident dated 24.8.2020
except statement of two witnesses, namely, Jankitbhai and
Alapbhai. For the sake of repetition, said two witnesses
made only one line statement that Dashrathbhai did
everything at the instance of the applicant and his son
Maunag which is not even disclosed by Dasharthbhai,
therefore, it is too premature to jump to any conclusion
that husband of the first informant was made tool by the
present applicant and so also, payment of cash and
demand draft received by the first informant and her
mother is an amount paid to influence the witnesses by
giving threats. No doubt, the prosecution case is like this,
but there is no iota of evidence even remotely to come to
such conclusion, more particularly, the conduct of the first
informant and her mother and also aunt Ms. Neemaben,
who suppressed the aspect of receipt of cash and demand
draft all throughout the investigation and after taking U
turn by the first informant and that too after filing consent
affidavit in the judicial proceedings before the High Court,
she withdrew her consent on 3.9.2020 as per her own
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
email placed on record and which is made part of
additional charge sheet papers as stated by learned PP at
bar. So, when Court considered the allegations made in
the six FIRs, the Court has noticed that all the FIRs relate
to the land transaction which occurred prior to 30 years
and in respect of some land transactions, matters were
settled, in one FIR, no civil or revenue proceedings filed by
the first informant of the said FIR and in some matters,
civil litigation was filed and the same is either pending or
disposed of. In view of such nature of past antecedents,
the Court finds that the contention so raised by learned PP
not to exercise discretionary power in favour of the
applicant on account of past offences cannot be accepted
when more so, the Court has found that the conduct of the
first informant and her mother if looks in its entirety right
from beginning to filing of the charge sheet and thereafter
and without appreciating the material and if we read as it
is, then it appears to the Court that there is an over-
implication of the present applicant in the offense alleged
against him and more particularly, without any iota of
evidence with regard to occurrence of the alleged offense
by hatching criminal conspiracy u/s 120-B of the IPC and
so, offence u/s 307 alleged after delay of 18-months
without explanation does not inspire any confidence in the
mind of the court.
35. In view of fact situation emerging on record, it is right
time to made reference of one decision rendered by
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
Honorable Apex Court in case of Ash Mohammad Vs. Shiv
Raj Singh @ Lalla Babu and Anr. rendered in Criminal
Appeal No.1456 of 2012. Para 10, 11, 24, 25, 26 are
relevant to consider along with the case law cited at bar
by learned advocate Mr. Pathak and therefore, they are
reproduced here under:
"10. In Ram Govind Upadhyay v. Sudarshan Singh and
Others1 , it has been opined that the grant of bail though
involves exercise of discretionary power of the Court, such
exercise of discretion has to be made in a judicious manner
and not as a matter of course. Heinous nature of the crime
warrants more caution and there is greater chance of
rejection of bail, though, however dependent on the factual
matrix of the matter. In the said case the learned Judges
referred to the decision in Prahlad Singh Bhati v. NCT, Delhi
and Another2 and stated as follows:-
"(a) While granting bail the Court has to keep in
mind not only the nature of the accusations, but the
severity of the punishment, if the accusation entails
a conviction and the nature of evidence in support
of the accusations.
(b) Reasonable apprehensions of the witnesses
being tampered with or the apprehension of there
being a threat for the complainant should also
weigh with the Court in the matter of grant of bail.
(c) While it is not expected to have the entire
evidence establishing the guilt of the accused
beyond reasonable doubt but there ought always to
be a prima facie satisfaction of the Court in support
of the charge.
(d) Frivolity in prosecution should always be
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
considered and it is only the element of
genuineness that shall have to be considered
in the matter of grant of bail, and in the event
of there being some doubt as to the
genuineness of the prosecution, in the normal
course of events, the accused is entitled to an
order of bail."
11. In Chaman Lal v. State of U. P. and Another3 this
Court while dealing with an application for bail has stated
that certain factors are to be considered for grant of bail,
they are;
(i) the nature of accusation and the severity of
punishment in case of conviction and the
nature of supporting evidence;
(ii) reasonable apprehension of tampering
with the witness or apprehension of threat to
the complainant; and
(iii) prima facie satisfaction of the Court in
support of the charge.
24. As grant of bail as a legal phenomenon arises
when a crime is committed it is profitable to refer to
certain authorities as to how this Court has understood the
concept of crime in the context of society. In P.S.R.
Sadhanantham v. Arunachalam and another12 , R.S.
Pathak, J. (as his Lordship then was), speaking for himself
and A.D. Kaushal, J, referred to Mogul Steamship Co. v
McGregor Gow & Co. (1989) 23 QBD 598, 606 and the
definition given by Blackstone and opined thus: -
"A crime, therefore, is an act deemed by law
to be harmful to society in general, even
though its immediate victim is an individual."
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
25. In Mrs. Harpreet Kaur Harvinder Singh Bedi v.
State of Maharashtra and another13 a two-Judge Bench,
though in a different context, has observed: -
"Crime is a revolt against the whole society
and an attack on the civilization of the day.
Order is the basic need of any organized
civilized society and any attempt to disturb
that order affects the society and the
community."
26. In T.K. Gopal alias Gopi v. State of Karnataka14 it
has been held that crime can be defined as an act that
subjects the doer to legal punishment. It may also be
defined as commission of an act specifically forbidden by
law; it may be an offence against morality or social order."
36. If, we examine the charge sheet papers as it is, the
Court is required to keep in mind nature of accusation, the
Court do not find prima facie satisfaction in support of the
charge. The Court has also found various frivolity in
prosecution and less element of genuineness which
makes the applicant entitled to be released on regular
bail pending trial, more particularly, the applicant is aged
65 years suffering from various ailments.
37. It needs to be noted that the role attributed to the
applicant and his son is almost identical and similar except
to the extent that the applicant made two calls to the first
informant by furnishing the false information to the person
he made call. Since the son of the applicant is enlarged on
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
bail, the case of the applicant deserves consideration on
the ground of parity
38. For the sake of repetition, the Court with due respect
to learned PP is in complete disagreement with him that
while considering present bail application, the Court
should accept the findings of fact recorded by the
coordinate Bench in the matter of bail application of co-
accused Dashrathbhai and so also to accept the findings
of release of Maunag Patel on the ground that the
applicant made his son as tool in the present offense. In
fact and at law, all such issues are matter of trial and
Court cannot jump to any conclusion on this aspect or to
accept the case of the prosecution that the payment of
amount of cash and demand draft were made under
pressure and threat since there is a suppression of this
aspect on the part of the prosecution, as aforesaid. The
Court is required to satisfy itself about the prima facie
involvement of the accused in any offense, but certainly
the Court cannot record any conclusion at this juncture
merely on the basis of submissions or allegations by the
State when such submissions or allegations are not
supported by the reasonable and genuine evidence
indicating involvement of the present applicant as alleged
or specific role played in that regard. So, considering the
factors to be borne in mind as indicated and reiterated by
the Hon'ble Apex Court in case of Harjeet Singh (supra),
the Court has not expected from the prosecution to have
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
the entire evidence establishing the guilt of the applicant
beyond reasonable doubt, but at least, to provide
minimum material to be a prima facie satisfaction of the
Court in support of the charge, which lacks in the present
case. Thus, applying the principles settled in the case law
cited at bar, present application deserves consideration.
39. Hence, the application is allowed and the applicant is
ordered to be released on bail in connection with C.R. No.
11191020201399 of 2020 registered with Vastrapur
Police Station, on executing a bond of Rs.10,000/-
(Rupees Ten Thousand only) with one surety of the like
amount to the satisfaction of the trial Court and subject to
the conditions that the applicant shall;
[a] not take undue advantage of liberty or
misuse liberty;
[b] not act in a manner injurious to the interest
of the prosecution;
[c] not leave the territory of India without prior
permission of the Sessions Judge concerned;
[d] appear before the Investigation Officer
concerned, as and when required for
investigation purpose and attend the Court
concerned regularly;
[e] furnish the present address of residence
along with the proof to the I.O. concerned and
also to the Court at the time of execution of the
bond and shall not change the residence without
prior permission of Sessions Court concerned;
R/CR.MA/10438/2021 ORDER DATED: 31/08/2021
40. The competent authority will release the applicant
only if the applicant is 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 take appropriate action in the
matter. Bail bond to be executed before the 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, the
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.
41. Rule made absolute to the aforesaid extent. Direct
service is permitted.
(S.H.VORA, J)
After pronouncement of order, learned PP makes a
request to stay operation of the present order. The
request is declined.
(S.H.VORA, J)
SATISH
