Gujarat High Court
Narendrasinh S/O Vikramsinh Sarvaiya vs State Of Gujarat on 26 August, 2025
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R/CR.A/1777/2025 CAV JUDGMENT DATED: 26/08/2025
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Reserved On : 21/08/2025
Pronounced On : 26/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (FOR ANTICIPATORY BAIL) NO. 1777 of
2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
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Approved for Reporting Yes No
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NARENDRASINH S/O VIKRAMSINH SARVAIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR ZUBIN BHARDA WITH MR VIJAY U GOSWAMI(7927) for the
Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s)
No. 2
MRS REKHA H KAPADIA(2246) for the
Opponent(s)/Respondent(s) No. 2
MR HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. Rule. Learned APP Mr. Hardik Soni and learned
advocate Mrs. Rekha Kapadia waive service of
notice of rule for respondent No.1 - State and
respondent No.2, respectively.
2. By way of the present appeal under Section 14A
of the Scheduled Castes and Scheduled Tribes
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(Prevention of Atrocities) Act, 1989, the
appellant has prayed for anticipatory bail in
the event of arrest in connection with the FIR
being C.R.No.11191018250485 of 2025 registered
with the Gomtipur Police Station, Ahmedabad City
for the alleged offences as mentioned in the
FIR.
3. Heard learned advocate Mr. Zubin Bharda assisted
by learned advocate Mr. Vijay Goswami for the
appellant, learned APP Mr. Hardik Soni for
respondent No.1 - State and learned advocate
Mrs. Rekha Kapadia for respondent No.2 -
original complainant.
4. Learned advocate Mr. Zubin Bharda submits that
as per the case of the prosecution, the so-
called incident is occurred during the period
between 01.04.2021 to 21.04.2025 and FIR is
registered on 01.05.2025. He has read the FIR
and submitted that the sum and substance of the
allegations levelled against the appellant is
that the appellant is working in the police
department as a driver and he came into contact
with the complainant, which ultimately
culminated into love affairs and thereafter they
started residing together under one roof as
husband and wife after solemnizing marriage and
on one fine day, complainant came to know that
in fact appellant is married and during the
subsistence of his marriage span, he had
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developed relationship with the complainant by
solemnizing marriage with her and by doing so,
he has kept her in dark so far as his marital
status is concerned and entered into physical
relationship with the complainant. Therefore,
FIR is registered against the appellant. Learned
advocate Mr. Bharda further submits that it is
the specific case of the complainant that as
soon as the said fact has come on surface,
immediately disputes have been cropped up and
appellant had left the house and at that
relevant point of time appellant herein had
abused her by using casteist slurs. In short,
for the purpose of invoking the provisions of
the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, such kind of
allegations were levelled. However, in fact the
the said incident is alleged to have occurred in
the house of the complainant and nobody has
witnessed the said incident and therefore as per
the law laid down by the Hon'ble Apex Court in
the case of Shajan Skaria Vs. The State of
Kerala & Anr, reported in 2024 INCS 625,
appellant may be enlarged on anticipatory bail
by imposing suitable terms and conditions. He
further submits that in fact complainant was
well aware about the fact that appellant is
married and he belongs to a particular caste, in
spite of that, she has developed relationship
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with the appellant by solemnizing marriage with
him. Learned advocate Mr. Bharda further submits
that in fact after the registration of the FIR
and during the pendency of the present
proceedings, complainant has preferred a
petition before the Family Court for restitution
of conjugal rights. He, therefore, submits that
a quite contrary stand is taken by the
complainant before two authorities; on one hand
she has registered FIR alleging the offence of
rape against the appellant and on the other
hand, she has filed a petition for restitution
of conjugal rights. Thus, considering the
aforesaid totality of the facts, appellant may
be enlarged on anticipatory bail by imposing
suitable terms and conditions.
5. On the other hand, learned APP has opposed this
appeal with vehemence and acrimoniously
submitted that appellant is the Government
employee and working in the police department
and therefore he is well aware about the
provisions of the law. Not only that, it is an
admitted position of fact that appellant herein
is married and his marriage is solemnized in
presence of all the family members and said
marriage is also registered. Thereafter, the
appellant fell in love with the complainant,
which ultimately culminated into their marriage.
He further submits that in spite of subsistence
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of his first marriage, once again the appellant
married with the complainant and thereby
developed extramarital affairs with the
complainant by suppressing the fact of his
marriage. Learned APP Mr. Soni further submits
that at the time of filling up the
form/application of registration of the
marriage, appellant herein has categorically
stated that he is unmarried. Not only that, an
affidavit to that effect is also filed before
the competent authority. He submits that all
those documents are already collected by the
investigating officer and they are forming part
of the investigation papers. The documents
collected by the investigating officer clearly
go on to show that there was bad intention on
the part of the appellant and by suppressing the
fact of his earlier marriage, he entered into
relationship with the complainant and thereby
his involvement in the commission of crime is
clearly found out. He, therefore, submits that
looking to the aforesaid overall facts of the
present case, appellant may not be enlarged on
anticipatory bail. He has drawn attention of
this Court to the copy of the petition filed by
the complainant before the Family Court for
restitution of conjugal rights and submitted
that if the Hon'ble Court would make cursory
glance upon the contents of the said petition,
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in that event, it would have been found out that
the narration of facts mentioned in the FIR are
reiterated in the said petition. He further
submits that complainant is illiterate and prima
facie it seems that somebody has ill-advised her
to institute the said proceedings. He further
submits that appellant cannot run away from the
offence committed by him merely because a
petition for restitution of conjugal rights is
filed by the complainant after registering the
FIR. He, therefore, submits that looking to the
aforesaid overall factual aspects of the matter,
the Hon'ble Court may not have to exercise its
discretionary powers of anticipatory bail in
favour of the appellant.
6. Learned advocate Mrs. Rekha Kapadia appearing on
behalf of respondent No.2 - original complainant
has opposed present appeal with vehemence and
submitted that almost all the arguments have
been canvassed by learned APP and therefore she
is adopting all those arguments. However, in
addition to that, learned advocate Ms. Kapadia
submits that respondent No.2 - complainant is an
illiterate lady and hailing from poor strata of
society and as per the advice given by her
advocate, she has instituted the proceedings for
restitution of conjugal rights before the Family
Court concerned and as soon as she realized that
the appellant has tried to get the benefit of
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the said fact, immediately she has withdrawn the
said proceedings. She further submits that if
the Hon'ble Court would make cursory glance upon
the contents of the FIR and other materials
placed on record, in that event, it would have
been found out that respondent No.2 was a
married woman when she came into contact with
the appellant. She further submits that at that
relevant point of time, certain problems were
developed in her married life and thereafter she
came into contact with the appellant and
ultimately they fell in love with each other. At
that time, appellant informed the complainant to
get separated from her husband so that they can
solemnize marriage and start their life as
husband and wife. Therefore, after getting
divorce from her earlier husband, complainant
married with the appellant. However, after some
time, it has come to the notice of the
complainant that appellant is a married man and
therefore present FIR is registered. She,
therefore, submits that appellant may not be
enlarged on anticipatory bail.
7. Having heard the learned advocates appearing for
the parties and perused 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
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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/appeal for bail
are (i) the nature and gravity of the
accusation; (ii) the antecedents of the
appellant 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
appellant to flee from justice; and (iv) where
the accusation has been made with the object of
injuring or humiliating the appellant by having
him so arrested. 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.
8. It is required to be noted that normal procedure
prescribed for curtailing the right to life &
liberty, is that the investigating officer can
arrest the accused even without warrant. No
doubt this Court has extraordinary power to
protect an innocent person. However, this power
has to be exercised by the Courts with due
circumspection.
9. In case of Pratibha Manchanda and another Vs.
State of Haryana and another reported in (2023)
8 SCC 181, the Hon'ble Apex Court in Paragraph
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No.21, observed as under:-
"21. The relief of anticipatory bail is
aimed at safeguarding individual rights.
While it serves as a crucial tool to prevent
the misuse of the power of arrest and
protects innocent individuals from
harassment, it also presents challenges in
maintaining a delicate balance between
individual rights and the interests of
justice. The tight rope we must walk lies in
striking a balance between safeguarding
individual rights and protecting public
interest. While the right to liberty and
presumption of innocence are vital, the court
must also consider the gravity of the
offence, the impact on society, and the need
for a fair and free investigation. The
court's discretion in weighing these
interests in the facts and circumstances of
each individual case becomes crucial to
ensure a just outcome."
10. Thus, the powers of anticipatory bail are to be
exercised to protect innocent individuals from
harassment and at the time of exercising the
powers of anticipatory bail, the Court has to
strike the balance between the individual's
right and the interest of justice. It is the
specific case of the complainant that during the
subsistence of marriage span of the appellant,
he developed relationship with the complainant
by solemnizing marriage with her and by doing
so, the appellant has kept the complainant in
dark so far as marital status of the appellant
is concerned and thereby entered into physical
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relationship with the complainant, whereas, it
is the case of the appellant that complainant
was well aware about the fact of his marriage
and his caste, despite the said fact, she has
developed intimacy with the appellant and
thereafter registered the instant FIR. Be that
as it may, the fact remains that appellant is
married and without obtaining divorce from his
first wife, he once again married with the
complainant and at the time of his marriage with
the complainant he has disclosed his marital
status as 'unmarried'. It is also pertinent to
note that at the time of filling up the
form/memorandum of marriage, appellant has
identified himself as unmarried and an affidavit
to that effect is also filed. Thus, from the
contents of the FIR as well as other materials
placed on record, in the opinion of this Court,
prima facie involvement of the appellant in the
commission of crime is spelt out. It is also
pertinent to note that appellant is serving as a
driver in Police Department and therefore this
kind of act is not expected from a public
servant. I have also gone through the contents
of the FIR as well as other materials relied on
and referred by the learned APP as well as
learned advocate Mrs. Kapadia for the original
complainant during the course of hearing of this
appeal which prima facie suggest involvement of
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the appellant in the commission of crime.
Therefore, considering the facts of the present
case as also the fact that investigation is
still going on, the present appeal deserves to
be rejected.
11. The Hon'ble Supreme Court in the case of Sumitha
Pradeep Vs. Arun Kumar C.K. & Anr., reported in
2022 SCC OnLine SC 1529 held that merely because
custodial interrogation is not required, by
itself, could not be a ground to grant
anticipatory bail. The first and the foremost
thing the Court, while hearing the anticipatory
bail application/appeal, has to consider is the
prima facie case against the accused. The
relevant extract of the judgment is reproduced
hereinbelow:-
"It may be true, as pointed out by learned
counsel appearing for Respondent No.1, that
charge-sheet has already been filed. It will
be unfair to presume on our part that the
Investigating Officer does not require
Respondent No.1 for custodial interrogation
for the purpose of further investigation. Be
that as it may, even assuming it a case where
Respondent No.1 is not required for custodial
interrogation, we are satisfied that the High
Court ought not to have granted discretionary
relief of anticipatory bail. We are dealing
with a matter wherein the original
complainant (appellant herein) has come
before this Court praying that the
anticipatory bail granted by the High Court
to the accused should be cancelled. To put it
in other words, the complainant says that the
High Court wrongly exercised its discretion
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while granting anticipatory bail to the
accused in a very serious crime like POCSO
and, therefore, the order passed by the High
Court granting anticipatory bail to the
accused should be quashed and set aside. In
many anticipatory bail matters, we have
noticed one common argument being canvassed
that no custodial interrogation is required
and, therefore, anticipatory bail may be
granted. There appears to be a serious
misconception of law that if no case for
custodial interrogation is made out by the
prosecution, then that alone would be a good
ground to grant anticipatory bail. Custodial
interrogation can be one of the relevant
aspects to be considered along with other
grounds while deciding an application seeking
anticipatory bail. There may be many cases in
which the custodial interrogation of the
accused may not be required, but that does
not mean that the prima facie case against
the accused should be ignored or overlooked
and he should be granted anticipatory bail.
The first and foremost thing that the court
hearing an anticipatory bail application
should consider is the prima facie case put
up against the accused. Thereafter, the
nature of the offence should be looked into
along with the severity of the punishment.
Custodial interrogation can be one of the
grounds to decline custodial interrogation.
However, even if custodial interrogation is
not required or necessitated, by itself,
cannot be a ground to grant anticipatory
bail."
12. For the foregoing reasons, the present appeal
seeking anticipatory bail, being devoid of
merit, is hereby dismissed. Rule is discharged.
13. Needless to say that the observations and
findings made hereinabove are limited to the
decision of this pre-arrest bail appeal, and
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shall not influence in any other proceedings
arising out of the impugned FIR.
(DIVYESH A. JOSHI,J)
LAVKUMAR J JANI
