Nikunjbhai Vinubhai Kanani vs State Of Gujarat
2021 Latest Caselaw 17596 Guj

      R/CR.MA/19558/2021                                         ORDER DATED: 23/11/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 19558 of 2021

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                             NIKUNJBHAI VINUBHAI KANANI
                                       Versus
                                 STATE OF GUJARAT
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Appearance:
MR. ARCHIT P JANI(7304) for the Applicant(s) No. 1
MS POONAM M MAHETA(11265) for the Applicant(s) No. 1
MR P P MAJMUDAR(5284) for the Respondent(s) No. 1
MS MH BHATT, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                     Date : 23/11/2021

                                       ORAL ORDER

1. Heard learned Advocate Mr.A.P. Jani for the applicant and learned APP Ms. M.H. Bhatt for the respondent-State.

2. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused viz. Nikunjbhai Vinubhai Kanani has prayed for anticipatory bail in connection with the FIR being C . R . No.11210008212516 of 2021 registered with Sarthana Police Station, District: Surat for the offences punishable under Sections 342, 365, 384, 327, 504, 114, 506(2) of IPC.

3. The factual matrix of the case are as under :

(a) On 14.10.2021, the F.I.R. was registered for the offence punishable under Sections 342, 365, 384, 327, 504, 114, 506(2) of IPC.

(b) It appears that there is almost delay of two years in filing the complaint.

(b) Thereafter, Anticipatory Bail application being Criminal Misc. Application No.6081 of 2021 came to be filed before the learned 15 th

R/CR.MA/19558/2021 ORDER DATED: 23/11/2021

Additional Sessions Judge, Surat and the same has been rejected vide order dated 26.10.2021. Hence the applicant is before this Court.

4. Learned Advocate for the Applicant has submitted that the Applicant is apprehending his arrest in connection the aforesaid FIR and in this connection the earlier application filed by the Applicant before the learned Sessions Court came to be dis-allowed.

5. Learned Advocate for the applicant has further argued that originally they have lent Rs. 1 crores in view of availing more interest with attractive schemes. Thereafter, concerned debtor has not paid the amount but two bunglows were given in lieu of outstanding amount and therefore, two bunglows were in possession of petitioner and therefore all of sudden the complainant attacked on petitioner for which complaint is filed in short there is cross complaint. Therefore, discretion may kindly be exercised. He further submitted that the applicant will keep himself available during the course of investigation and 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 submit that upon filing of such application by the Investigating Agency, the right of applicant accused to oppose such application on merits may be kept open. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted anticipatory bail.

R/CR.MA/19558/2021 ORDER DATED: 23/11/2021

7. Learned APP Ms. Bhatt has heavily opposed the grant of application and drawn the attention of this Court about the transcription (communication) made between the victim and present accused. It appears that it is clear case of extortion and on that ground, custodial interrogation is required.

7.1. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail looking to the nature and gravity of the offence.

8. Having heard the arguments advanced by 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 anticipatory bail to the applicant.

9. This Court has considered following aspects,

(a) as per catena of decisions of Hon'ble Supreme Court there are mainly two factors which are required to be considered by this court;

                  (i)       prima facie case
                  (ii)      requirement of accused for custodial interrogation.


               (b)          Offences are registered under Sections 342, 365, 384, 327, 504,
                            114, 506(2) of IPC.
               (c)          Maximum punishment is 7 years and the offence is triable by the
                            Magistrate.
               (d)          There is a cross case.
               (e)          In the opinion of this Court there is no requirement of custodial
                            interrogation.

Without discussing in detail, this court is inclined to consider the case of the applicant.

R/CR.MA/19558/2021 ORDER DATED: 23/11/2021

10. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sushila Aggarwal & Ors. Vs. State (NCT of Delhi)- Anr. reported in 2020 SCC Online SC 98 in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported at [2011] 1 SCC 694, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at (1980) 2 SCC 565.

11. This court has also considered the judgment in the case of Arnesh Kumar v. State of Bihar reported in (2014) 8 SCC 273, wherein the Hon'ble Apex Court has observe that whenever there is punishment of 7 years, then the court would be liberal to exercise the discretion. Further, by exercising the discretion under Section 438 Cr.P.C, the doors of remand by the Investigating Officer is open and therefore also this court is inclined to exercise powers under Section 438 of Cr.P.C.

12. 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 C . R . N o . 1 1 2 1 0 0 0 8 2 1 2 5 1 6 o f 2 0 2 1 registered wit h Sarthana Po lice Stat io n , District: Surat, on executing a personal bond of Rs. (Rupees twenty five thousand Only) with one surety of like amount on the following conditions:

(a) shall cooperate with the investigation and make available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 20.12.2021 between 11.00 a.m. and 2.00 p.m.;

       R/CR.MA/19558/2021                                   ORDER DATED: 23/11/2021



(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 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; and

(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide the remand application without being influenced of the observations made by this Court;

13. The applicant shall remain present before the learned Magistrate on the first date of hearing of 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.

R/CR.MA/19558/2021 ORDER DATED: 23/11/2021

14. At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.

15. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(A. C. JOSHI,J) KUMAR ALOK