Gujarat High Court
Kanubhai Sagarbhai Rabari (Desai) vs State Of Gujarat on 18 June, 2024
NEUTRAL CITATION
R/CR.MA/10761/2024 ORDER DATED: 18/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 10761
of 2024
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KANUBHAI SAGARBHAI RABARI (DESAI) & ORS.
Versus
STATE OF GUJARAT
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Applicant(s) No. 1,2,3,4
MS C M SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 18/06/2024
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 enlarging them on anticipatory bail in connection with the FIR
being C .R.- I No.11206002240286 of 2024 registered with the
Visnagar Taluka Police Station, District Mehsana for the offences
punishable under Sections 307, 323, 504, 506(2), 114 of the Indian Penal
Code, 1860 and section 135 of the Gujarat Police Act.
2. Heard learned Advocate Mr. Yogendra Thakore for the Applicants
and learned APP, Ms. C. M. Shah for the Respondent - State.
3. Learned Advocate for the Applicants has submitted that the
Applicants are apprehending their arrest in connection with the aforesaid
FIR and in this connection the earlier application filed by the Applicants
before the learned Sessions Court came to be dis-allowed.
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3.1 Learned Advocate for the applicant seeks permission to withdraw
the present application for the applicant nos.1 & 2 submitting that the
remaining applicants i.e. applicants nos. 3 & 4 had not been named by the
victim in the history given by him before the Civil Hospital and
Community Health Center, Uddalpur. Moreover, in the history given
before the Doctor by the victim at the aforesaid hospital, it has been
stated that he was assaulted by a stick whereas in the FIR it was stated
that he was assaulted by an iron pipe. He therefore submitted that there is
material contradiction in the history given by the victim before the
different authorities. Learned Advocate therefore does not press the
present Application qua applicants nos. 3 and 4.
4. Learned Additional Public Prosecutor appearing on
behalf of the respondent - State has opposed grant of anticipatory bail
contending that the applicants have played an active role in the
commission of the offence in question and have assaulted the victim with
iron pipes. The victims had suffered severe injuries in the alleged
incident. He therefore submitted to dismiss the present application.
5. Learned advocate for the complainant, Mr.Tatvadeep Jani for
learned advocate Mr. Viral K. Shah states that he has received
instructions to appear on behalf of the original complainant. He shall file
his Vakalatnama in the Registry. The Registry shall accept the same.
6. Learned advocate appearing for the original complainant has
also opposed the present application contending that the history given of
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R/CR.MA/10761/2024 ORDER DATED: 18/06/2024
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all the accused persons in the statement given by him before the C. D.
General Hospital, Visnagar, the applicants had assaulted the victim with
an iron pipe. He therefore submitted to dismiss the present application.
7. Having heard the arguments advanced by the learned
advocates for the parties and perusing the material placed on record, it
appears that after the incident, the victim was initially taken to Civil
Hospital and Community Health Center, Uddalpur. He had given the
statement before the Doctor stating that he was assaulted by a stick by
Rabari Kanubhai Sagarbhai and Rabari Ramubhai Sagarbhai. The victim
does not name the applicants nos.3 and 4 in the statement given before
the Doctor. Moreover, there is a contradiction as regards the weapon of
assault also. Having regard to the same, the application deserves
consideration.
8. 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;
(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 applicants.
9. 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
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[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.
9.1 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.
10. In the result, the present application is allowed. The applicants
are ordered to be released on anticipatory bail in the event of their arrest
in connection with the FIR be i ng C . R. No . I
No . 1 1 2 0 6 0 0 2 2 4 0 2 8 6 o f 2 0 2 4 registered wit h the Visnagar
Taluka Police Station, District Mehsana on executing a personal
bond of Rs.10,000/- (Rupees Ten Thousand Only) each 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 mark his presence before the concerned Police Station
on 25 .0 6. 20 24 between 11.00 AM and 2.00 PM;
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(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) shall not enter the Village Dharusana, Taluka Visnagar,
District Mehsana till conclusion of the trial.
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)
MAYA
