Kalpeshbhai Laljibhai Gajera vs State Of Gujarat
2023 Latest Caselaw 8503 Guj

Gujarat High Court

Kalpeshbhai Laljibhai Gajera vs State Of Gujarat on 7 December, 2023

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     R/CR.MA/21702/2023                              ORDER DATED: 07/12/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 21702
                           of 2023

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                          KALPESHBHAI LALJIBHAI GAJERA
                                     Versus
                               STATE OF GUJARAT
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Appearance:
HARSH V GAJJAR(7828) for the Applicant(s) No. 1,2
MR TIRTHRAJ PANDYA APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                 Date : 07/12/2023

                                  ORAL ORDER

1. By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No. 11191015230737 of 2023 registered with Nikol Police Station.

2. Learned advocate Mr. Gajjar would submit that the present petitioners have not instigated the victim to commit suicide. He would submit that the petitioners have just demanded the money back for which he was legally entitled. He would further submit that basic ingredients of section 107 of IPC is lacking in the present case. He further submits that the similarly situated accused persons have already been enlarged on anticipatory bail by the learned Sessions Court in Criminal Misc. Application No.9577 of 2023. He would further submits that the petitioners are ready and willing to join the investigation and shall remain readily available for trial. He would further submit that there is no flight risk as the

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petitioner is doing business since more than 10 years. He would further submit that only allegation is that to recover the amount, the petitioners had tried to sell the embroidery machines, barring these aspects there is nothing more coming up on record. He would place reliance upon the judgment of Hon'ble Apex Court in the case of Mohit Singhal and anr Vs. State of Uttrakhand and ors reported in 2023 SCC Online 1598. Therefore, learned advocate for the petitioner submits that considering the nature of allegations and the role attributed to the petitioner, the petitioner may be enlarged on anticipatory bail by imposing suitable conditions. The submissions is canvassed to get the relief of anticipatory bail.

3. On the other hand, 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. He vehemently inter alia argued on the argument that suicide note is found on the very same spot where the victim had hangged himself. A bare reading of the suicide note clearly indicates that the allegations are levelled against the present petitioner that they have demanded money from the deceased and which has instigated the deceased to commit suicide, therefore, there is prima facie case against the petitioner. He would further submit that the petitioner had legal remedies to recover the amount which is outstanding with the deceased but by no means they can resort to the act they have done to recover the amount. Therefore, he requested to dismiss the application and the petitioner may not be enlarged on anticipatory bail.

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

5. At the outset, the findings of the Hon'ble Apex Court in

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Mohit Singhal(Supra) in paragraph no.10 which reads thus:

"10. In the present case, taking the complaint of the third respondent and the contents of the suicide note as correct, it is impossible to conclude that the appellants instigated the deceased to commit suicide by demanding the payment of the amount borrowed by the third respondent from her husband by using abusive language and by assaulting him by a belt for that purpose. The said incident allegedly happened more than two weeks before the date of suicide. There is no allegation that nay act was done by the appellants in the close proximity to the date of suicide. By no stretch of the imagination, the alleged acts of the appellants can amount to instigation to commit suicide. The deceased has blamed the third respondent for landing in trouble due to her bad habits."

6. Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon'ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (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, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I

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have considered the following aspects.

(1) the allegations levelled against the petitioner is that for some business transactions the deceased owes the amount to be paid to the present petitioner and the petitioner were asking the deceased to pay back the said amount, and at that time, the deceased could not re-pay the amount and committed suicide, as the deceased had suffered some loss and could not pay the money to the petitioner. (2) In view of such statement and even if the suicide note is taken as truth and proved statement, prima facie, it appears that the ingredients of Section 107 of IPC is not satisfied and it is essential to constitute Section 306 of IPC.

(3) Similarly situated accused persons were already been enlarged on anticipatory bail by the sessions Court.

7. Having heard the learned counsel for the parties and perusing the record of the case and taking into consideration the facts of the case, nature of allegations, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to exercise discretion in favour of the petitioner.

8. This Court while exercising discretion in favour of the petitioner has taken into consideration law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. [2011] 1 SCC 694, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitutional Bench in the the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab (1980) 2 SCC 665. This Court has also taken into consideration law laid down in the case of Sushila Agarwal v/ s. State (NCT of Delhi [(2020) 5 SCC 1].

8. In the result, the present petition is allowed by directing that

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in the event of applicant herein being arrested pursuant to FIR registered as C.R.No. 11191015230737 of 2023 registered with Nikol Police Station, the petitioner 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;

(b) shall remain present at concerned Police Station on 13.12.2023 and 14.12.2023 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;

9. 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 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

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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.

10. 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 trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the petitioner on bail.

11. Rule is made absolute. Direct service is permitted.

(J. C. DOSHI,J) Radhika