Dipuben Jigneshbhai Rathod vs State Of Gujarat
2023 Latest Caselaw 8435 Guj

Gujarat High Court

Dipuben Jigneshbhai Rathod vs State Of Gujarat on 6 December, 2023

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      R/CR.MA/13097/2023                             ORDER DATED: 06/12/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 13097
                           of 2023
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                           DIPUBEN JIGNESHBHAI RATHOD
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR HARDIK A DAVE(3764) for the Applicant(s) No. 1,2,3
ANAND S TAILOR(9021) for the First Informant
MS CM SHAH, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                 Date : 06/12/2023

                                  ORAL ORDER

Rule. Learned APP waives service for the Respondent-State.

1. Leave to amend is granted

1.1 By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioners have prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No. 11210063230377 of 2023 with Singanpore-Dabholi Police Station, District:

Suarat, under Sections 304-B, 306, 498(A) and 114 of the Indian Penal Code

2. Learned advocate for the petitioners submitted that the husband of the deceased, i.e. original accused No.1, has already been granted regular bail by the Coordinate Bench (Coram: Mr. Divyesh A. Joshi, J.) vide order dated 30.11.2023,

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passed in Criminal Misc. Application No. 21172 of 2023 and therefore, the principle of parity shall apply in the case of the present petitioners, who happened to be sisters-in-law (Nanad) of the deceased.

2.1 It was submitted that all the petitioners are married and they are residing at their respective matrimonial homes along with their spouses and in-laws and therefore, there does not arise any question of abetting the offence of suicide. It was submitted that even if, the allegations made in the FIR are believed to be gospel truth, then also, it is no where stated in the entire FIR, as to how and in what manner the present petitioners harassed or meted out ill-treatment to the deceased, which led her to commit suicide. It was, thus, submitted that the ingredients of Section 306 of the IPC are not made out.

2.2 It was submitted that all the petitioners are female and if, they are arrested, the same would attach stigma to their reputation in the society. It was further submitted, under the instructions, that the petitioners are ready and willing to cooperate with the investigation. Hence, it was prayed that this application be allowed.

Aforesaid arguments are canvassed to grant pre-arrest bail to the petitioners.

3. On the other hand, learned Advocate Mr. Tailor appearing for the first informant strongly opposed this application and

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submitted that petitioner No.2 herein is a practicing advocate and therefore, she is well conversant with the intricacies of the allegations leveled against them in the FIR.

3.1 It was further submitted that from a bare reading of the FIR, it is revealed that the deceased had made a video call from her cell phone, which consumed about 113.6 MB data, and this would go to show that the deceased was tortured to the extent that she was forced to take the extreme step.

3.2 It was submitted that the first informant has already filed an application under Section 173(8) of the Code before the concerned trial Court, which is pending hearing, on the ground that the concerned IO has conducted stereo-type investigation in the matter, as he even failed to collect the CCTV footage of the place, where, the death of the bride took place within the short span of marriage of one and a half year.

3.3 It was further submitted that the PM report of the deceased, more particularly, Column No. 17 thereof indicates an abrasion of size 3 X 2 cms. And 2 X 2 cms. on the front of left and right knee, which would establish that the deceased was subjected to physical cruelty, which led her to take the extreme steps. It was, therefore, submitted that the present petitioners cannot be granted the extraordinary relief of pre- arrest bail.

3.4 In support of his submissions, learned Advocate Mr. Tailor pressed into service a decision of the Punjab & Haryana High

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Court, rendered in the case of 'Simarjit Kaur Vs. State of Punjab', 2016 (3) RCR (Criminal) 781, and submitted that in similar circumstances, the Punjab & Haryana High Court refused to grant pre-arrest bail to the concerned accused persons, therein.

3.5 Learned Advocate Mr. Tailor next placed reliance on the decision of the Apex Court in the case of 'Aminuddin Vs. State of Uttar Pradesh & Another', rendered in SLP (Criminal) No. 5029 of 2021 and relied on the observations made more particularly in Paragraph-14 thereof.

By making the above submissions, it was prayed that this application be rejected.

4. Learned Additional Public Prosecutor appearing on behalf of the respondent-State adopted the arguments advanced by learned Advocate Mr Tailor and prayed not to grant anticipatory bail to the looking to the nature and gravity of the offence.

4.1 Heard the learned Advocates for the respective parties and perused the papers.

5. Having heard the learned advocate for the parties and having perusing the material on record, at the outset, it is required to be noted that the husband of the deceased, i.e. original accused No.1, has already been granted regular bail by the Coordinate Bench of this Court (Coram: Mr. Divyesh A.

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Joshi, J.) vide order dated 30.11.2023, wherein, at Paragraph-5 it is observed as under;

"5. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. It is found out that the present application is preferred after submission of the chargesheet and the applicant is in jail since 28.06.2023. It is also submitted that other co-accused have been enlarged on bail by the Coordinate Bench of this Court and three lady accused have been granted protection by the Coordinate Bench of this Court. Thus considering the above factual aspects of the matter and on the ground of parity, the present application deserves to be allowed."

5.1 In the above background, if the merits of the case of the present petitioners are taken into consideration, then, it appears that all the petitioners happened to be sisters-in-law of the deceased. Out of them, petitioner No.1 was married on 01.02.2013 and she is presently residing at her matrimonial home at Bhavnagar. Further, Petitioner No.2 was married in the year 04.12.2017 and she is residing with her in-laws at Vadodara. Petitioner No.3 was married on 24.01.2022 and she is living with her husband and in-laws at Surat. Thus, none of the petitioners was living with the deceased at the time, when she took the extreme step. It may be noted that no suicide note is recovered, till date. The allegations leveled in the FIR

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are general in nature. Though, it is stated in the FIR that the deceased was meted out physical and mental harassment, not a single incident with date and time is narrated by the first informant in the FIR, which would go to show that the deceased was left with no other option, but to commit suicide. Therefore, from the bare reading of the FIR the ingredients of Section 107 of the IPC are prima facie not made out.

5.2 It is pertinent to note that the husband of the deceased, i.e. original accused No.1, has already been granted regular bail by the Coordinate Bench of this Court and therefore, the principle of parity would squarely apply in the case of the present petitioners. All the petitioners are female and they have children to look after. From the record, prima facie it is not revealed that the present petitioners played any role in meting out physical and mental harassment to the deceased. Further, the charge-sheet has already been filed qua the co- accused and therefore, the investigation is also practically almost over.

5.3 In view of the above, it would be relevant to refer to the decision of the Hon'ble Apex Court in 'Bhadresh Bipinbhai Sheth Vs. State of Gujarat', reported in 2015 (8) JT 125, wherein, at Paragraph-5 it is observed thus;

"The principles which can be culled out, for the purposes of the instant case, can be stated as under:

(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the

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complainant has filed a false or frivolous complaint on earlier GURPREET KAUR 2016.02.09 10:51 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.

(ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.

(iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case.

In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre- GURPREET KAUR 2016.02.09 10:51 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh conviction stage or post-conviction stage.

(iv) There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude of Section 438 must be given its full play. There is no requirement that the accused

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must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.

(v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.

(vi) It is a settled legal position that the court which grants the GURPREET KAUR 2016.02.09 10:51 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.

(vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.

(viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with

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caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.

(ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.

(x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:

(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(c) The possibility of the applicant to flee from justice;

(d) The possibility of the accused's likelihood to repeat similar or other offences;

(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution,

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because overimplication in the cases is a matter of common knowledge and concern;

(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(i) The Court should consider reasonable apprehension of GURPREET KAUR 2016.02.09 10:51 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh tampering of the witness or apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be 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 in entitled to an order of bail."

5.4 Since, the investigation is almost completed and the charge-sheet is also filed qua the co-accused, there is no prejudice going to be caused to the object of free and fair trial. On the contrary, if, the petitioners are arrested, it shall cause unnecessary harassment to them and shall also attach stigma to their social standing.

5.5 In view of the above discussion, the judgments relied on and pressed into service by the learned Advocate Mr. Tailor, the same shall not apply to the facts of the case on hand and therefore, the same shall not help the first informant in opposing the pre-arrest bail application filed by the present petitioners.

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5.6 It is true that in the case of 'Aminuddin' (Supra), the Hon'ble Apex Court has observed that when the bail granted to co-accused person has been disapproved by this Court and such grant of bail to co-accused had been the only reason for which the bail was granted to Respondent No.2, the impugned order is liable to be set aside. However, the aforesaid decision would also render no assistance to the first informant for the reason that the facts of the case before the Hon'ble Apex Court and the facts of the case on hand are totally different.

6. Thus, taking into consideration the material produced on record, the facts of the case, nature of allegations, role attributed to the accused, I am inclined to exercise discretion in favour of the petitioner.

7. In the result, the present petition is allowed by directing that in the event of Petitioners herein being arrested pursuant to FIR registered as C.R.No. 11210063230377 of 2023 with Singanpore-Dabholi Police Station, District: Suarat, the petitioners shall be released on bail on furnishing a personal bond of Rs. 10,000/- (Rupees Ten Thousand only) with one surety of like amount on the following conditions that the petitioner :

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

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(b) shall remain present at concerned Police Station on 12th & 13 December, 2023, between 10.00 a.m. and 4.00 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 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 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;

8. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the petitioner. The petitioner shall remain present before the learned Magistrate on the first date of hearing of

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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 petitioner, 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.

9. If breach of any of the above conditions is committed by the petitioner, the concerned learned Judge will be free to take appropriate action in the matter. 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 time of trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while granting the petitioner on bail. Direct service is permitted.

(J. C. DOSHI,J) UMESH/-