Gujarat High Court
Vasava Sanjaybhai Dalpatbhai vs State Of Gujarat on 16 January, 2023
Bench: Samir J. Dave
R/CR.MA/19081/2021 ORDER DATED: 16/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 19081 of 2021
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VASAVA SANJAYBHAI DALPATBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR APURVA R KAPADIA(5012) for the Applicant(s) No. 1
MS. SHIVANGI M RANA(7053) for the Original complainant
MR MANAN MEHTA, 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 the present application under Section 438
of the Code of Criminal Procedure, 1973, the applicant -
original accused has prayed to release him on anticipatory bail
in case of his arrest in connection with the FIR being
C.R.No.11823017210969 of 2021 registered with Rajpipla
Police Station, District Narmada for the offence punishable
under Sections 376(2)(n) and 406 of the Indian Penal Code.
2. Heard learned advocates for the respective parties.
3. It was submitted by learned advocate for the
applicant that whole story put up by the complainant is false.
In fact, the applicant got engaged with the complainant in the
year 2019 and thereafter, relationship was developed and all
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throughout the relationship was consensual and now as an
attempt this complaint is filed with allegations of section 376
of IPC. That, FIR is registered after delay of three months from
the last date of offence and no explanation has been given by
the complainant. That bare reading of the FIR clearly shows
that the FIR is registered only because of the fact that the
complainant is not ready and willing keep daughter of the
applicant with them after marriage and such has triggered into
filing of the complaint. That the applicant is aged about 37
years and is having immovable properties and has a good
reputation in the society.
4. Learned advocate for the applicant submits that the
nature of allegations are such for which custodial
interrogation at this stage is not necessary. Besides, the
applicant is available during the course of investigation and
will not flee from justice. That, 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 would 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.
Ultimately, it was requested by learned advocate for the
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applicant to allow present application.
5. Learned Additional Public Prosecutor appearing on
behalf of the respondent no.1-State and learned advocate for
the original complainant have opposed grant of anticipatory
bail looking to the nature and gravity of the offence. That, the
applicant is involved in the serious offence as alleged and
therefore, no leniency view would be taken in favour of the
applicant while releasing him on anticipatory bail. That, if the
applicant is released on bail there are chances that the
applicant may tamper with evidence and even he may try to
dissuade the complainant victim or prosecution witnesses by
threat or promise. Ultimately, it was submitted by learned APP
for the respondent no.1 -State and learned advocate for the
original complainant to reject present application.
6. I have considered the allegations leveled against the
present applicant in the FIR and perused the papers of
investigation and considered the role played by the applicant.
7. It appears from the record that the allegation
against the applicant is of grievous in nature and while finding
the prima facie case against the present applicant, learned
Sessions Court has not accepted the prayer of the applicant for
releasing him anticipatory bail. It has been observed by learned
Sessions Court in rejecting anticipatory bail application of the
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applicant.
8. Provisions of Section 438 of the Code of Criminal
Procedure speaks that where any person has reason to believe
that he may be arrested on accusation of having committed a
non-bailable offence, he may apply either to the Court of
Session or the High Court for a direction under this section that
in the event of such arrest he shall be released on bail; and that
Court may, after taking into consideration, inter alia, the
factors namely (i) The nature and gravity of the accusation; (ii)
the antecedents of the applicant including the fact as to
whether he has previously undergone imprisonment on
conviction by a Court in respect of any cognizable offence; (iii)
the possibility of the applicant to flee from justice, repeat the
offence and tamper the witnesses; and (iv) where the
accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested; either
reject the application forthwith or issue an order for the grant
of anticipatory bail.
9. While considering the gravity of offence in the
present case, it appears that when the applicant, who has
applied for anticipatory bail, has to satisfy the court that he is
being going to be arrested with malafide intention or abuse of
the process of law, wherein court has not to hesitate to rescue
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innocent person. It is the fact that while considering the
anticipatory bail application, only on the prima facie view of
the case is to be considered but with this object also, purpose of
investigation cannot be forgotten and in such prospect, if
custody of the accused is required then it can be granted in
order to find out the truth.
10. It appears from the observation of the learned
Sessions Court that applicant was absconding and was not
made available for investigation and the custodial
interrogation of the applicant is equally important. It further
appears that the witnesses have supported the case of the
prosecution.
11. It appears from the complaint lodged by the
complaint that due to physical relation between the
complainant and the applicant, the menses of the complainant
was stopped and therefore, the applicant had took the
complainant to the gynec hospital wherein the applicant has
written the name of the complainant as Ashaben
Dharmendrabhai Vasava and the same name is totally false,
which shows the conduct of the applicant.
12. Therefore, 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
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considering the observations made by the learned sessions
judge concerned, as per my view, 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.
13. 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 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.
14. In the result, this application is rejected. Rule stands
discharged.
Interim relief, if any, granted earlier stands vacated.
(SAMIR J. DAVE,J)
K. S. DARJI
