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CR.MA/2516/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2516 of 2011
=========================================================
SIDDIKBHAI
ISMAIL SHAIKH & 3 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
PRAKASH M.THAKKAR for M/S THAKKAR ASSOC.
for
Applicant(s) : 1 - 4.
MR RC KODEKAR, APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 12/05/2011
ORAL
ORDER
Rule.
Mr R.C.Kodekar, learned APP waives service of notice of Rule on
behalf of the State.
At
the outset, learned counsel Mr.Thakkar submits that the application
so far as accused nos.3 and 4 is concerned, is rendered infructuous
because they have already been arrested. Rule stands discharged so
far as accused applicant nos.3 and 4 is concerned.
This
Application has been preferred under Section 438 of the Code of
Criminal Procedure, praying for anticipatory bail, in connection with
CR I-31/2010 registered with Nasvadi Police Station, District
Vadodara for the offences punishable under Sections 452, 376(4) read
with Section 114 of the Indian Penal Code.
Heard
learned counsel Mr.Thakkar appearing for the applicant-accused and
learned APP Mr.Kodekar for the State.
At
the request of the learned counsels, reasoned order is not pressed.
In
the facts and circumstances of the case, I am persuaded to exercise
my discretion in favour of the applicant – accused, taking into
consideration the following aspects:-
(a)
There is a gross delay of about one and a half years in lodging the
F.I.R. by the prosecutrix.
(b)
There is no explanation worth the name for the said delay.
(c)
It is brought to my notice that the accused applicants are witnesses
in a case filed by one Rajeshbhai Laxmanbhai Panchal against the
three accused persons. One of them is the paramour of the
prosecutrix. It deserves to be noted that the first information
report is lodged by Rajeshbhai Laxmanbhai Panchal, who happens to be
the brother of the brother-in-law of the missing husband of the
prosecutrix.
(d) Even
otherwise, having regard to the nature of the allegations levelled in
the F.I.R. and the entire case put-forth, the conduct of
the prosecutrix does not inspire confidence.
(e) Each
of the accused applicants are permanent residents of village
Nasvadi, District Vadodara. They have their own individual family.
Applicant no.1 is a Member of Sardar Sahakari Mandli, Amroli and a
Director of APMC, Taluka Nasvadi. He is also the President of Khedut
Majdur Sangh, Taluka Nasvadi and is in active public life and is
enjoying various posts in the Cooperative Societies since many years.
In the same manner, applicant no.2 is also a businessman, having a
shop and is a Trustee of Mahendaviya Community. No apprehension has
been expressed as regards flee from trial or tampering with the
evidence and hampering the witnesses.
Taking
into consideration the relevant aspects referred to above and further
taking into consideration the law laid down by the Apex Court in the
case of Siddharam Satlingappa Mhetre v. State of Maharashtra &
Ors., reported
in (2011) 1 SCC 694, wherein the Hon’ble Supreme Court
reiterated the law laid down by the constitutional Bench in the case
of Shri Gurubaksh Singh Sibbia & Ors. (1980) 2 SCC 565,
the accused – applicant nos.1 and 2, namely, Siddikbhai
Ismail Shaikh and Nurubhai Abdulbhai Velanwala are ordered to be
enlarged on anticipatory bail in the event of their arrest in
connection with the offence registered with Nasvadi Police Station,
District Vadodara vide I-CR No.31/2010, on furnishing bond of
Rs.15,000/- (Rupees Fifteen Thousand Only) each with one surety of
like amount to the satisfaction of the trial Court, on the following
conditions that :-
[A] they
shall cooperate with the investigation and make themselves available
for interrogation whenever required.
[B] they
shall remain present at the concerned Police Station on 18th
May 2011 between 10 a.m. and 2 p.m. and mark their presence before
the concerned Police Station twice in a month on every 2nd
and 4th Saturday till the filing of the charge-sheet;
[C] they
shall not hamper the investigation in any manner nor they shall
directly or indirectly make any inducement, threat or promise to any
witness so as to dissuade them from disclosing such facts to the
Court or to any Police Officer;
[D] they
shall, at the time of execution of bond, furnish their address to the
Investigating Officer and the Court concerned and shall not change
their residence till the final disposal of the case or till further
orders;
[E]
they will not leave India without the permission of the Court and,
if they hold a Passport, they shall surrender the same before the
trial Court within a week;
[F] It
would be open to the Investigating Officer to file an application for
remand, if he considers it just and proper and the concerned
Magistrate would decide it on merits.
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. This
is, however, without prejudice to the right of the accused to seek
stay against an order of remand, if ultimately granted, and the power
of the learned Magistrate to consider such a request in accordance
with law. It is clarified that the applicants, 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.
With
these directions, the Application is allowed. Rule is made absolute.
Direct Service is permitted.
(J.B.Pardiwala,
J.)
/moin
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