Anand Bhaskar Das vs State Of Gujarat
2023 Latest Caselaw 7779 Guj

                                                                                           NEUTRAL CITATION




     R/CR.MA/3088/2023                                     ORDER DATED: 20/10/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 3088
                          of 2023

                               With
     CRIMINAL MISC.APPLICATION (FOR DIRECTION) NO. 1 of 2023
          In R/CRIMINAL MISC.APPLICATION NO. 3088 of 2023
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                              ANAND BHASKAR DAS
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR GAURANG K CHAUHAN(9858) for the Applicant(s) No. 1
MS MEGHA R CHITALIA(2467) for the Respondent(s) No. 1
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                    Date : 20/10/2023
                                     ORAL ORDER

1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.11191030220060 of 2022 with Mahila Police Station, Ahmedabad for the offences punishable under Sections 498(a), 377, 406 and 114 of the Indian Penal Code, 1860 and under Section 4 of the Dowry Prohibition Act, 1961.

2. Learned advocate for the applicant submits that the applicant has nothing to do with the offence and he is falsely implicated in the offence. The applicant and the complainant happen to be husband and wife, and any

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allegations made against the applicant stem from matrimonial disputes. The applicant received an amount of one crore rupees from the complainant, but subsequently transferred the same back into the complainant's account. 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. In view of the above, the applicant may be granted anticipatory bail.

3. 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 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.

4. 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 and submitted that from the document produced on record t appears that the present applicant has persistently subjected the complainant to mental harassment, leading the latter to seek psychiatric

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treatment. Furthermore, it is alleged from the compliant that the applicant physically assaulted the complainant, engaged in unnatural sexual acts, and also committed acts of cheating against her. Moreover, the father-in-law and mother-in-law of the complainant, in collusion with one another, were purportedly involved in mentally and physically harassing her. The complainant had also provided money to her husband, which has not been returned, thereby leading to allegations of cheating. Additionally, the accused allegedly demanded dowry from the complainant. In support of her submission learned APP has also relied upon the judgment passed by the Hon'ble Apex Court in the case of Naresh Kumar Mangla vs Anita Agarwal, reported in AIR 2021 SC 2007 and submitted that the application be dismissed.

5. 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)

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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 have considered the following aspects.

(1) It is an undisputed and accepted fact that both the applicant and the complainant are husband and wife and amount transferred between them is within the scope of their marital relationship, and the issue under consideration is a matrimonial dispute. (2) It appears that one complaint filed by the applicant's mother-in-law and another by the complainant.

(3) The allegations leveled against the applicant under Sections 498-A and 406 of the IPC are punishable for up to seven years. So far, the allegation about unnatural sex under Section 377 of the IPC is concerned, there is no medical evidence or material to support the accusations against the applicant. However, the mentioned fact may be subject to further investigation, and for this purpose, the right to seek remand and conduct further investigation is also being kept open. (4) No criminal antecedent against the present applicant. (5) Bail of the accused No.2 and 3 both has been

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considered by the learned Sessions Court. (6) Regarding the fact of the demand of dowry under Section 4 of the Dowry Prohibition Act is concerned, the evidence supporting this claim is crucial. While deciding the application, the appreciation of evidence is not permissible, and it is essential to note that the objective of bail is preventive, not punitive.

6. Considering the aforesaid aspects and the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. reported in (2011) 1 SCC 6941, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. reported in (1980) 2 SCC 665 and also the decision in the case of Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1, I am inclined to allow the present application.

7. In the result, the present application is allowed by directing that in the event of applicant herein being arrested in connection with the FIR being C.R. No.11191030220060 of 2022 with Mahila Police Station, Ahmedabad, the applicant 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 he:

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

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required;

(b) shall remain present at the concerned Police Station on 27/10/2023 between 11.00 a.m. and 2.00 p.m. and the IO shall ensure that no unnecessary harassment or inconvenience is caused to the applicant;

(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 Court and if having passport shall deposit the same before the 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 it on merits;

8. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. 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

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judicial custody for the purpose of entertaining application of the prosecution for police remand. 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.

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

10. Rule is made absolute to the aforesaid extent.

Application is disposed of accordingly. Direct service is permitted.

11. Since, the main application is disposed of, the application for direction does not survive. Hence the same is disposed of accordingly.

(HASMUKH D. SUTHAR,J) ALI