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CR.MA/12613/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 12613 of 2010
=========================================================
RAMESHBHAI
HIRJIBHAI SAVANI - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
PM THAKKAR, SR.ADVOCATE FOR MR DILIPLKANOJIYA
for
Applicant(s): 1,
MR KL PANDYA, ADDL.PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 21/10/2010
ORAL
ORDER
Rule.
Mr.K.L.Pandya, learned APP
appears and waives service of notice of Rule on behalf of respondent
– State of Gujarat.
The
petitioner preferred this application seeking anticipatory bail
u/s.438 of the Code of Criminal Procedure (‘the Code’, for short) in
connection with Bhavnagar ‘D’ division police station C.R.No. I –
121/2010 in connection with offences punishable under Sections 147,
148, 327, 324, 120-B, 323, 504, 506 r/w.Section 149 of the IPC.
Considering
the facts of the case and with consent of both the sides, the matter
is taken up for final hearing today.
Mr.P.M.Thakkar,
learned senior counsel with Mr.D.L.Kanojiya, learned advocate for
the petitioner submitted that in the instant case, two co-accused
persons have been released on anticipatory bail by this Court and
some of the co-accused have been released by the trial Court. It is
submitted that the bare reading of the FIR would suggest that so far
as the present petitioner is concerned, he was not the owner of the
disputed land, but in the sale-deed, he was mere confirming party.
It is further submitted that in connection with the said land, civil
suit was filed in Civil Court of Bhavnagar and in the FIR it is
alleged that since the Court Commissioner was to come for local
inspection and, therefore, some damage came to be made in the
property, but in fact the date on which the alleged incident
occurred i.e. on 8.8.2010, till then the petitioner was not at all
served with any summons or any notice of said civil suit and,
therefore, he was not knowing about pendency of any suit or that the
Court Commissioner was to come for local inspection. It is further
submitted that considering the FIR, the alleged incident occurred at
about 2.30 a.m. to 3 a.m. On 8.8.2010, and as emerged from the FIR,
soon after the incident, police came at the place and police
escorted the first informant Indrajitsinh
Dilubha Gohil to Vartej police station despite that the FIR came to
be filed at 1.30 p.m., and thus the FIR was belated. The bare
reading of the FIR would suggest that first informant was not beaten
by this petitioner, but on the contrary the FIR suggests that he was
released from the confinement
by the present petitioner. My attention was drawn to the true copies
of the orders passed by this Court granting anticipatory bail to two
co-accused persons. Therefore, it is requested that the application
may be granted.
Per
contra, Mr.K.L.Pandya, learned APP representing the respondent –
State of Gujarat vehemently opposed this application and submitted
that considering the FIR, it is clear that the present petitioner is
main accused person. It is further submitted that the custodial
interrogation of the petitioner is highly required. The petitioner
is interested in the disputed land and that fact emerges from the
sale-deed wherein he is referred as confirming party to the sale
transaction. The co-accused persons, who were granted anticipatory
bail by this Court were attributed minimal role by the complainant
in the FIR. That, therefore, the present petitioner cannot claim any
parity that the benefit given to the co-accused should be enured to
him. Ultimately, it is submitted that the application may be
dismissed.
Having
considered the facts and circumstance of the case, so also the
submissions advanced on behalf of both the sides and considering the
fact that in connection with the disputed land though civil suit was
filed, but as recorded in earlier orders passed by this Court and as
submitted on behalf of the
petitioner, on the date of the incident, no summons or notice came
to be served to the petitioner and further considering the fact that
so far beating aspect is concerned, no direct allegation is levelled
against the petitioner that the complainant was beaten by him, but
on the contrary, in the FIR itself it is stated that the complainant
was released from the confinement by the petitioner and, further the
fact that by imposing necessary condition, the apprehension
ventilated on behalf of the State that if anticipatory bail would be
granted, it would adversely affect the custodial interrogation by
the police, can be conveniently taken care of, this Court is of the
opinion that the petitioner is entitled to anticipatory bail as
provided u/s.438 of the Code.
Accordingly,
the present application is allowed. The petitioner is ordered to be
released on bail in the event of his arrest in connection with
Bhavnagar ‘D’ division police station
C.R.No. I – 121/2010 in respect of the offences alleged
against him on his executing bond of Rs.5,000/- (Rupees Five
thousand only) with one solvent surety of the like amount, by him,
by the concerned Police Officer and on conditions that he shall;
a) remain present before the trial Court regularly as and when directed on the dates fixed;
b) remain present at the concerned Police Station on 25.10.2010 between 11.00 a.m. and 4.00 p.m;
c) make himself available for interrogation by Police Officer between 11:00 a.m. to 05:00 p.m. – before sunset;
d) 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;
e) not to obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;
f) at the time of execution of bond, furnish his address to the Investigating Officer and the Courts concerned, and shall not change his residence till the final disposal of the case or till further orders;
g) not leave India without the permission of the Court and if having Passport, shall deposit the same before the trial Court within a week;
h) It
should 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.
This
order will hold good if the petitioner is arrested at any time
within 90 days from today. The order for release on bail will remain
operative only for a period of ten days from the date of her arrest,
during which it will be open to the petitioner to make fresh
application for being enlarged on bail in usual course which when it
comes before the competent Court, will be disposed of in accordance
with law, having regard to all the attending circumstances and the
materials available at the relevant time, uninfluenced by the fact
that anticipatory bail was granted.
Rule
is made absolute to the aforesaid extent. Direct service is
permitted.
(J.C.UPADHYAYA,
J.)
(binoy)
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