Galabhai Ravtabhai Parmar vs State Of Gujarat
2023 Latest Caselaw 7836 Guj

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      R/CR.MA/5824/2022                                      ORDER DATED: 23/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 5824
                          of 2022

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                          GALABHAI RAVTABHAI PARMAR
                                    Versus
                              STATE OF GUJARAT
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Appearance:
APURVA K JANI(7057) for the Applicant(s) No. 1,2
MR.KISHORE PRAJAPATI(6305) 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 : 23/10/2023

                                      ORAL ORDER

1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicants - accused have prayed for anticipatory bail in connection with the FIR bearing No.11195030220007 of 2022 registered with Mavsari Police Station, Dist. Banaskantha, for the offences punishable under Sections 376, 323, 324, 427, 294(b) and 114 of IPC.

2. Learned advocate for the applicants submits that the applicants have falsely been enroped in the offence. There is delay of 25 hours in registering the FIR and no any explanation qua such delay is offered on the part of the complainant. He further submitted that husband of the complainant is in habit of filing false complaints and about 15 complaints have been filed against him and is habitual and acquainted with the proceedings. Even after the incident, applicant No.1 was beaten by the complainant and due to grievous injuries, he was admitted in the hospital and remained in coma for 2 days. The impugned complaint has been filed with a view to pressurize to

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close the complaint filed against the husband of the complainant and to extort money from the applicants. Applicant No.2 has no past antecedent. So far applicant No.2 is concerned, no any allegation is levelled against him and it is a clear case of false implication. Even the allegations levelled in the FIR are accepted as it is, then also no offence under Section 376 of IPC is made out. He further submitted that the present complaint is filed only with a view to tarnish the image of the applicants. Even coordinate Bench of this Court has taken note of the said facts and considering the case of the applicants, protected them by way of passing interim relief order dated 27.032022 and since then, the applicants are protected and cooperating with the investigation. In such circumstances, there is no possibility to flee away from justice and therefore, custodial interrogation is not necessary. In view of the above, the applicants may be granted anticipatory bail.

Learned advocate for the applicants, on instructions, states that the applicants are 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 applicants accused to oppose such application on merits may be kept open.

3. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail contending that considering the severity of punishment and offence against woman, offence u/s. 376 of IPC is made out. Offence took place in two parts i.e. at first instance, offence under Section 376 is committed and then, after a period of one month, second incident

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took place and for that, video recording is there and vehicles got damaged. Therefore, in such circumstances, custodial interrogation of the applicants is required and he requested to dismiss the present application.

4. Mr. Kishor Prajapati, learned counsel appearing for the complainant adopted the arguments made by learned APP and contended that, the applicants are involved in serious offence and merely nothing is required to be recovered is not a ground to allow the present application. To buttress his arguments, he has relied upon the judgment rendered in Sumitha Pradeep Vs. Arun Kumar C.K. and as the offence against woman, he has also relied upon another judgment rendered in case of Ms. X Vs. State of Maharashtra & Anr. and argued that while considering bail application, the Court has to consider nature of offence, role of the accused, likelihood to influence the investigation and tempering with the evidence. In such circumstances, the applicants may not be enlarged on anticipatory bail.

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) character, behaviour, means, position and standing of the accused; (vi)

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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)There is delay of 25 hours in filing the complaint.

(2) So far allegation under section 376 of IPC is concerned, there is no iota of evidence, which suggests/supports that the offence is committed;

(3) This Court has taken note of having cultivating habits of filing of complaints of the husband of the complainant and having criminal antecedents. However, so far conduct is concerned, it should be considered that after the alleged incident, husband of the complainant has made an assault to applicant No.1, who was hospitalized and went in coma for 2 days. Also, he has pressurized the applicants to settle the complaint, which is filed under Sections 307, 323, 324, 506(2) of IPC.

(4)The applicants are protected by the coordinate Bench of this Court, wherein, the coordinate Bench has prima facie observed that applicant No.2 is concerned, he is falsely implicated in the offence with an oblique motive and frivolity of complaint also noticed.

(5) Considering the investigation papers, there is no any scientific evidence against the applicant No.1 about the commission of rape.

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(6) From the investigation papers, it appears that doctor of PHC has not opined about commission of rape. The opinion of Gynecology is required and has to refer the victim to higher center, but the prosecutrix is not referred to higher center. The doctor has not opined about any symptoms of alleged rape under Section 375 of IPC.

(7) So far as past antecedents of applicant No.1 is concerned, two offences registered against him in the year 2002-03 under Sections 323, 504 and 506(2) of Indian Penal Code, 1860 were registered, in which, he had been already acquitted and applicant No.2 has no past antecedent.

(8) The authorities relied upon by learned counsel for the complainant would not applicable to the case of the applicant. However, it is to be noted that while deciding the bail application, the Court should not blindly rely upon the precedent as held by the Apex Court in the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav, reported in (2004 (7) SCC 528, as each case should be decided on its own merits and the Court has to consider the facts of each case.

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

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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 applicants herein being arrested in connection with the FIR bearing No.11195030220007 of 2022 registered with Mavsari Police Station, Dist. Banaskantha, the applicants shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) each with one surety of like amount on the following conditions that they:

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

(b) shall remain present at the concerned Police Station on 01.11.2023 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 applicants;

(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 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

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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 applicants. The applicants 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. 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 applicants on bail.

10. Rule is made absolute to the aforesaid extent. Application is disposed of accordingly. Direct service is permitted.

(HASMUKH D. SUTHAR,J)

SUCHIT