Gujarat High Court
Jigneshkumar Motibhai Desai vs State Of Gujarat on 12 May, 2023
Bench: M. R. Mengdey
R/CR.MA/7512/2023 ORDER DATED: 12/05/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7512 of 2023
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JIGNESHKUMAR MOTIBHAI DESAI
Versus
STATE OF GUJARAT
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Appearance:
MR KISHAN R CHAKWAWALA(9846) for the Applicant(s) No. 1
MR RM CHAKWAWALA(1519) for the Applicant(s) No. 1
MR. UTKARSH SHARMA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 12/05/2023
ORAL ORDER
1. Heard learned Advocate Mr. Pratik Y. Jasani for the Applicant.
2. By way of the present application under Section 438 of the Code of
Criminal Procedure, 1973, the applicant-accused has prayed for enlarging him
on anticipatory bail in connection with the FIR being C .R. No.
1 1 1 9 1 0 0 8 2 3 0 1 3 3 / 2 0 2 3 registered with Chandkheda Police Station,
Ahmedabad for the offenses punishable under Sections 384, 294(B), 506(2)
of the Indian Penal Code and Section 40, 42(A) and 42(D) of the Gujarat
Money Lenders Act.
3. 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. It is submitted that the present
Application is an of suit of the matrimonial dispute between the first informant
and the sister of the present Applicant. The Applicant had financially helped
the first informant he being the husband of his sister. He therefore submitted
that the present FIR being an afterthought. He, therefore, submitted that the
R/CR.MA/7512/2023 ORDER DATED: 12/05/2023
present application may be allowed.
4. 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.
5. 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 therefore submitted that the present
Application may be dismissed.
6. 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, it appears that the first informant happens to be
the brother-in-law (banevi) and there were some matrimonial disputes going on
between the sister of the present Applicant and the first informant. It also
appears from the record that the first informant has lodged FIR against all the
persons from whom he had borrowed money. Considering the same, the present
Application deserves to be allowed.
7. 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;
R/CR.MA/7512/2023 ORDER DATED: 12/05/2023
(i) prima facie case
(ii) requirement of accused for custodial interrogation.
Therefore, in the facts and circumstances of the present case, this
court is inclined to consider the case of the applicant.
8. This Court has also taken into consideration the law laid down
by the Hon'ble Apex Court 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. Further, this Court has also taken into
consideration the ratio laid down in the case of Sushila Aggarwal and Ors. v.
State (NCT of Delhi) and Anr. in Special Leave Petition No. 7281-
7282/2017 dated 29.01.2020.
8.1 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.
9. In the result, the present application is allowed. The applicant is
ordered to be released on anticipatory bail in the event of his arrest in
connection with a F I R 11191008230133/2023 registered wit h
Chandkheda Police Station, Ahmedabadfor the offe nce puni sha bl e unde r
S ec tions 384, 294(B), 506(2) of the I ndi a n Pe na l Code a n d S e c t i o n
R/CR.MA/7512/2023 ORDER DATED: 12/05/2023
4 0 , 4 2 ( A ) a n d 4 2 ( D ) o f t h e G u j a r a t M o n e y L e n d e r s A c t on
executing a personal bond of Rs.10,000/- (Rupees Ten 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 19.5.2023
between 12.00 Noon and 2.00 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 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;
R/CR.MA/7512/2023 ORDER DATED: 12/05/2023
10. 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.
11. At the trial, the concerned trial court shall not be influenced by the
prima facie observations made by this Court in the present order.
12. Rule is made absolute to the aforesaid extent. Direct service is
permitted.
(M. R. MENGDEY,J)
J.N.W / 48
