Sagpariya Gokul Babubhai vs State Of Gujarat
2023 Latest Caselaw 462 Guj

   R/CR.MA/19921/2022                                     ORDER DATED: 16/01/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 19921 of 2022
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                          SAGPARIYA GOKUL BABUBHAI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
SENIOR ADVOCATE MR. N. D. NANAVATY with MR ASHISH M
DAGLI(2203) for the Applicant(s) No. 1
MR.PARTH CONTRACTOR(7150) for the Respondent(s) No. 1
MR J. K. SHAH, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                 Date : 16/01/2023
                                  ORAL ORDER

1. By way of this application under Section 438 of

the Code of Criminal Procedure, 1973, the

applicant - original accused, apprehending his

arrest in connection with FIR No.11208035220731

of 2022 registered with Gandhigram Police

Station, District Rajkot for offences

punishable under Sections 419, 465, 467, 468,

471, 191, 193, 199, 200, 203, 34, 120B and 114

of the Indian Penal Code.

2. Learned Senior Advocate Mr. N. D. Nanavati

appearing with learned Advocate Mr. Ashish

Dagli for the applicant submitted that the

R/CR.MA/19921/2022 ORDER DATED: 16/01/2023

present applicant is innocent and has not

committed any offence as alleged in the

complaint. He also submitted that in the

present case for the incident of 09.07.2019,

the FIR came to be filed on 18.08.2022 by

suppressing material facts. The private

complaint is also filed by the very same

complainant before the competent court which

came to be registered as criminal inquiry case

no.901 of 2021 and after preliminary inquiry

evidence was laid, by order dated 16.04.2022

competent court. It is also submitted that

false and frivolous prosecution is made by the

complainant suppressing the material fact,

inasmuch as though for the very grievance she

approached different agencies and ultimately it

has been found that no offence is made out and

that is how old proceeding disposed of. He also

submitted that the complainant has not only

suppressed but deliberately no averment is made

out so as to create prejudice. In fact it come

R/CR.MA/19921/2022 ORDER DATED: 16/01/2023

to the notice of the applicant that the said

Sanjaybhai has also preferred a private

complaint under section 500 of the IPC as

Criminal Inquiry Case No.43 of 2001 before the

learned Additional Sessions Judge, Rajkot. It

is submitted that in fact affidavit indicates

about application made by said Deenaben and

application which was received by the police

Commissioner, where receipt of application by

the office of police commissioner on

08.07.2019. He also submitted that statement of

the applicant was also recorded by more than

one police agency and in the statement the

applicant has stated that he received the

application by post at his address which was

sent by one Bhagvanjibhai who identified

himself as well-wisher of the applicant and

applicant has also stated that he is not

inquired about Deena or about husband of

Deenaben or even Bhagvanjibhai who signed the

application. Mr. Nanavati, learned senior

R/CR.MA/19921/2022 ORDER DATED: 16/01/2023

advocate for the applicant prayed that present

applicant may be released on anticipatory bail.

3. Learned APP Mr. J. K. Shah appearing for the

Respondent-State has strongly objected the

present anticipatory bail application. He

submitted that the applicant's name is already

disclosed in the FIR. He played pro vital role

in commission of the offence. He therefore

submitted that looking to the gravity of the

offence, the applicant may not be enlarged on

anticipatory bail.

4. In case of XXX v/s Arun Kumar C.K & Anr.

Reported in 2022 Live Law (SC) 870 (Criminal

Appeal No. 1834/2022) @ Petition for Special

Leave to Appeal (Crl.) No.7188/2022), the

Hon'ble Apex Court has held that:

"Be that as it may, even assuming it a case where

Respondent No.1 is not required for custodial

interrogation, we are satisfied that the High Court ought

not to have granted discretionary relief of anticipatory bail.

R/CR.MA/19921/2022 ORDER DATED: 16/01/2023

We are dealing with a matter wherein the original

complainant (appellant herein) has come before this Court

praying that the anticipatory bail granted by the High

Court to the accused should be cancelled. To put it in other

words, the complainant says that the High Court wrongly

exercised its discretion while granting anticipatory bail to

the accused in a very serious crime like POCSO and,

therefore, the order passed by the High Court granting

anticipatory bail to the accused should be quashed and set

aside. In many anticipatory bail matters, we have noticed

one common argument being canvassed that no custodial

interrogation is required and, therefore, anticipatory bail

may be granted. There appears to be a serious

misconception of law that if no case for custodial

interrogation is made out by the prosecution, then that

alone would be a good ground to grant anticipatory bail.

Custodial interrogation can be one of the relevant aspects

to be considered along with other grounds while deciding

an application seeking anticipatory bail. There may be

many cases in which the custodial interrogation of the

accused may not be required, but that does not mean that

R/CR.MA/19921/2022 ORDER DATED: 16/01/2023

the prima facie case against the accused should be ignored

or overlooked and he should be granted anticipatory bail.

The first and foremost thing that the court hearing an

anticipatory bail application should consider is the prima

facie case put up against the accused. Thereafter, the nature

of the offence should be looked into along with the severity

of the punishment."

5. Having heard the learned advocate for the

parties and perusing the investigating papers

and as well as taking into consideration the

facts of the case, nature of allegations,

gravity of offences, role attributed to the

accused and considering the law which has been

laid down by the apex court and considering the

averments made in the complaint filed by the

original complainant and after considering the

observations made by the learned sessions judge

concerned, it transpires that applicant with

conspiracy with other co-accused, concocted an

application in the name of Dinaben Nareshbhai

Solanki that complainant is having illicit

R/CR.MA/19921/2022 ORDER DATED: 16/01/2023

relationship with husband of the applicant and

made false signature under the said application

to take advantage of the application in

quashing petition filed by the present

applicant/ accused in the High Court. The

appears from the statement of witness Manojbhai

that he is an employee in the office of

Advocate Sanjay Pandit and there is

acquaintance of present applicant with the

husband of Dinaben and he is a priest of

Mamadev temple. The role of the present

applicant is revealed from the statement of

Dinaben. The investigation is still pending and

specimen of signature is yet to be taken. As

per the opinion of the handwriting expert, the

signature under the application is not of

Dinaben. Thus, prima facie it revels from the

record that present applicant in collusion with

other accused has made conspiracy and tried to

take advantage of the so called application of

Dinaben in quashing petition. It also appears

R/CR.MA/19921/2022 ORDER DATED: 16/01/2023

that the present applicant with other co-

accused has tried to mislead the Hon'ble High

Court. Thus, prima facie involvement of the

present applicant accused is very well

established. Therefore, this court is of the

considered view that custodial interrogation

can be one of the grounds to decline

anticipatory bail. However, even if custodial

interrogation is not required or necessitated,

by itself, cannot be a ground to grant

anticipatory bail and this is not the case

where the discretion should be exercised in

favour of the applicant for anticipatory bail.

Therefore, this application is required to be

rejected.

6. Before parting with this judgment, it is hereby

clarified that the aforesaid observations made

in this order have been made for the purpose of

considering the present application for

anticipatory bail. Therefore, same shall not

come in the way of the trial court for

R/CR.MA/19921/2022 ORDER DATED: 16/01/2023

considering the application that may be filed

by the applicant for regular bail or at the

time of trial and the trial court concerned

shall not be influenced by the observations

made hereinabove.

7. In the result, this application is rejected.

Interim relief, if any, stands vacated. Rule

stands discharged. The interim relief, granted

earlier, is extended for a period of two weeks

from today.

8. The concerned District Superintendent of

Police, Rajkot is directed to look into the

matter looking to the seriousness of the

offence.

(SAMIR J. DAVE,J) MEHUL B. TUVAR