Gujarat High Court
Nareshkumar Dalabhai Bochiya vs State Of Gujarat on 2 July, 2021
Bench: A.S. Supehia
R/CR.MA/14716/2020 ORDER DATED: 02/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 14716 of 2020
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NARESHKUMAR DALABHAI BOCHIYA
Versus
STATE OF GUJARAT
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Appearance:
MR EE SAIYED(725) for the Applicant(s) No. 1
MR SIKANDER SAIYED(3458) for the Applicant(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 02/07/2021
ORAL ORDER
[1] Heard the learned advocates for the respective parties
through video conferencing.
[2] RULE. Learned Additional Public Prosecutor waives service
of notice of rule for and on behalf of respondent - State.
[3] By way of the present application filed under Section 438 of
the Code of Criminal Procedure, 1973, the applicant-accused has
prayed for bail in connection with the FIR being
C.R.No.11217026200549 of 2020 registered with Patan Taluka
Police Station, District Patan for the offences under Sections
376(2)(b), 366, 344, 328, 323 and 114 of the Indian Penal Code,
1860 (for short "the IPC").
[4] Brief facts of the case are as under:-
[4.1] It is the case of the prosecution that on 05.05.2020 at around
4:00 p.m., when the prosecutrix was at home, the present
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applicant called her on the mobile phone and informed that her
nursing passing certificate is ready and he would be waiting with
the certificate at Sankhari Village Bus Stand from where she could
collect it.
[4.2] It is further case of the complainant that after reaching the
said place, the applicant was waiting in a car and the complainant
was given water and after drinking the same, she become
unconscious and after regaining consciousness, she found herself
at an unknown place in Rajasthan.
[4.3] It is further narrated in the complainant that during this
journey she stayed at different places for around 5 days and
thereafter, she accompanied the applicant at his home at
Ambikanagar. During the stay at the home at Ambikanagar, the
applicant has committed the offence as alleged against her wish.
[4.4] It is further case of the complainant that she stayed for 8
days with the applicant at his home and thereafter, she
accompanied to Village Ghoda located at the interior of Viramgam
where she stayed for 1 month and she categorically stated that the
applicant has not touched her even once.
[4.5] It is further alleged in the complaint that thereafter, she
accompanied to the applicant's house located at Palanpur and
stayed for 15 days where the applicant had intercourse with her
against her will. Thereafter, it is alleged that the complainant was
taken to a dental hospital where her friend Jayaben was working
and the complainant was asked to convince her friend Jayaben for
R/CR.MA/14716/2020 ORDER DATED: 02/07/2021
withdrawing case filed against the applicant. During this journey of
meeting Jayaben she asked her to inform her parents regarding
what has happened with her and she returned back to the present
applicant and stayed further for 15 days wherein the applicant had
intercourse with her against her will and the applicant's previsou
wife Manjulaben (accused no.2), who has been granted
anticipatory bail by the Sessions Court, was also present, who had
beaten the complainant during her stay. Thereafter, the
complainant was taken to a flat in Shraddha Residency owned by
the applicant at Dhundhiyawadi where she stayed for 8 days,
accompanied the applicant at his office and the applicant did not
had any intercourse with her. Thereafter, Jayaben informed the
parents of the complainant and on 01.08.2020 she was taken by
her parents and subsequently on 12.08.2020 the impugned FIR
was lodged.
[5] Learned advocate for the applicant submits that the nature of
allegations are such for which custodial interrogation of the
applicant at this stage is not necessary. He further submits that the
applicant will keep himself available during the course of
investigation, as well as in the trial also and will not flee from
justice.
[6] Learned advocate for the applicant, on instructions, states
that the applicant is 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 his remand. He further submits that upon filing of such
application by the investigating agency, the right of the applicant
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accused to oppose such application on merits may be kept open.
Learned advocate, therefore, submits that considering the above
facts, the applicant may be granted bail.
[7] Pursuant to the order dated 08.10.2020 passed by this
Court, the Investigating Officer has verified about the marriage of
the prosecutrix with the present applicant, which was solemnized
on 10.12.2019 and it is reported that the marriage has taken place
and the marriage certificate, which is produced along with the
present application is genuine.
[8] Learned advocate Mr.Sikander Saiyed appearing for the
applicant has invited the attention of this Court to the application
made by the prosecutrix on 11.06.2020 before the Police
Inspector, Mahila Police Station, Palanpur, District Banaskantha,
and has submitted that in fact the prosecutrix has stated that she
has an apprehension that her parents would harass her and they
are headstrong persons since she had married the present
applicant without their consent and also the marriage is
solemnized inter caste. He has submitted that pursuant to the
aforesaid application, the statements of the parents were recorded.
[9] Learned advocate Mr.Sikander Saiyed for the applicant has
invited the attention of this Court to the statement of the father of
the prosecutrix, which was recorded on 17.06.2020, wherein he
has specifically stated that her daughter i.e. the prosecutrix has
married the applicant without their consent outside their caste and
it is stated that she is staying with the present applicant happily
and as her parents, we are also happy on know that their daughter
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is living without there being any difficulty on her part along with the
applicant.
[9.1] Similarly, learned advocate Mr.Sikander Saiyed for the
applicant has further invited the attention of this Court to the
statement of the mother of the prosecutrix recorded on 17.06.2020
and it is specifically narrated by her that her daughter wishes to
stay with her husband i.e. the present applicant and we do not
have any objection for such relationship. He submits that
accordingly various statements of the other family members were
recorded and none of them have stated anything against the
present applicant.
[9.2] Learned advocate Mr.Sikander Saiyed for the applicant has
further submitted that in fact the applicant has filed proceedings
being Family Suit No.33 of 2020 before the Family Court, Palanpur
for Restitution of Conjugal Rights whereas the prosecutrix has filed
an application being Family Suit No.17 of 2021 seeking divorce
under the provisions of Section 13(1)-B of the Hindu Marriage Act,
1955. Thus, he has submitted that all the allegations made in the
present FIR are concocted and in order to take revenge against
the present applicant, who had married the prosecutrix, the FIR
has been registered.
[10] On the other hand, the learned Additional Public Prosecutor
appearing on behalf of the respondent- State has opposed grant
of bail looking to the nature and gravity of the offence. Learned
APP while placing reliance on the report dated 22.06.2021 of the
Investigating Officer has submitted that the Investigating Officer
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has investigated with regard to the marriage certificate, Palanpur
Nagarpalika and it is found that the marriage certificate is genuine.
However, it is submitted that the prosecutrix has narrated about
the offence, which was committed by the present applicant with the
complainant. It is further submitted that the witnesses also
supported the case of the prosecution and it is coming on the
investigating that the prosecutrix was confined by the present
applicant at his home and had developed physical relationship.
[10.1] Learned Additional Public Prosecutor appearing on
behalf of the respondent- State has invited the attention of the
Court to the antecedents of the applicant and has submitted that
the applicant as per the report of the Investigating Officer in
offence under Sections 323, 494, 498A, 504 and 506 of the IPC
was registered against the present applicant an FIR being C.R.
No.35 of 2014 at Diyodar Police Station and second offence at the
same police station being C.R. No.45 of 2014 for the offence under
Sections 376, 366, 344, 405, 506(2), 509 and 114 of the IPC and
the third offence registered at Palanpur Police Station being C.R.
No.114 of 2019 for the offence punishable under Sections 406 and
420 of the IPC. Learned APP while placing reliance on the report
of the Investigating Officer has vehemently submitted that the
applicant is a habitual in committing the offence as similar offence
under Sections 494, 498A of the IPC registered in the year 2014.
[11] In response to the aforesaid submissions, learned advocate
Mr.Saiyed has forwarded the judgment and order dated
20.02.2021 passed by the Sessions Court, Banaskantha, at Diodar
in Sessions Case No.212 of 2015 (old No.188 of 2014), whereby
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the applicant has been acquitted for the offence registered under
Sections 366, 376 and 344 being C.R. No.35 of 2014.
[12] The report of the Investigating Officer further reveals that in
the statement of the prosecutrix she has specifically stated that
she has married the applicant on her own will and her parents
were against their inter-caste marriage and were forcing her to part
with the applicant and accordingly, she had also made an
application before the concerned Police Officer.
[13] Having heard the learned advocates for the parties and
perusing the material placed on record and taking into
consideration the facts of the case, nature of allegations, gravity of
offences, role attributed to the accused, without discussing the
evidence in detail, at this stage, I am inclined to grant bail to the
applicant.
[14] This Court has considered the following aspects;
(a) The prosecutrix is married with the applicant and the said
fact is suppressed by her in the FIR;
(b) The civil proceedings between the parties with regard to their
marriage are pending;
(c) The statement of the parents of the prosecutrix also
confirmed the fact of their marriage;
(d) The complaint given by the prosecutrix before the Mahila
Police Station against her parents;
(e) Prima facie considering the facts of the case, the custodial
interrogation of the applicant is not necessary at this stage;
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Looking to the over all facts and circumstances of the
present case, I am inclined to consider the case of the applicant.
[15] This Court has also taken into consideration the law laid down
by the Apex Court in the cases of Sushila Aggarwal vs. State (Nct
of Delhi), AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs
State of Maharashtra, AIR 2011 SC 312.
[16] In the result, the present application is allowed. The applicant
is ordered to be released on bail in the event of his arrest in
connection with FIR being C.R.No.11217026200549 of 2020
registered with Patan Taluka Police Station, District Patan on
his executing a personal bond of Rs.10,000/- (Rupees Ten
Thousand Only) with one surety of 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
09.07.2021 between 11.00 a.m. and 2.00 p.m.;
(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 him 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
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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 till further orders;
(f) shall not leave India without the permission of the concerned
trial court and if having passport shall deposit the same before the
concerned trial court within a week.
[17] Despite this order, it would be open for the investigating
agency to apply to the competent Magistrate, for police remand of
the applicant, if he considers it proper and just and the Magistrate
would decide if on merits. The applicant shall remain present
before the concerned Magistrate on the first date of hearing of
such application and on all subsequent occasions, as may be
directed by the concerned Magistrate. This would be sufficient to
treat the accused in the judicial custody for the purpose of
entertaining the 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 concerned 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 bail order.
[18] At the trial, the concerned trial court shall not be influenced by
the prima facie observations made by this Court in the present
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order.
[19] The application is allowed in the aforesaid terms. Rule is
made absolute to the aforesaid extent. Registry is directed to send
a copy of this order to the concerned authority/court through Fax
message, email and/or any other suitable electronic mode.
[20] Learned advocate for the applicant is also permitted to send
a copy of this order to the concerned authority/court through Fax
message, email and/or any other suitable electronic mode.
(A. S. SUPEHIA, J)
ABHISHEK
