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CR.MA/11580/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 11580 of 2010
=========================================
MRUGESH
HASMUKHBHAI PATEL (RANPARIA) - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance
:
MR TEJAS M
BAROT for
Applicant(s) : 1,
Mr. MG NANAVATI, ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
MR SV RAJU, SR. ADVOCATE, with MS HETVI H
SANCHETI for Complainant(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 07/10/2010
ORAL
ORDER
1. The present
application has been filed for grant of anticipatory bail under sec.
438 of the Code of Criminal Procedure in connection with C.R. No.
I-519/2010 registered with Naroda Police Station, for the alleged
offences under sec. 381 of IPC.
2. Learned advocate Mr.
Barot submitted that as it is evident from the complaint, the offence
is alleged to have been committed 1½ years before filing of
the complaint. He referred to the FIR as well as other papers and
submitted that he is a suspect about the alleged offence that the
applicant who was an employee of the complainant was passing on
photographs and other details to the competitor for which the offence
has been registered. It was submitted that the mobile phone was
taken from him which has been returned to the applicant. Learned
advocate Mr. Barot also submitted that he will co-operate in the
investigation and the present application may therefore be allowed
subject to any condition.
3. Learned APP Mr.
Nanavaty resisted the application and submitted that for the offence
committed custodial interrogation may be required for recovery of the
material which is alleged to have been stolen. He submitted that if
the mobile phone is recovered, it would give further clue for the
investigation.
4. Learned Sr. Counsel
Mr. SV Raju appearing for the complainant has submitted referring to
the FIR and other papers that earlier also a complaint was filed on
18.8.2008. He also submitted that from the mobile phone the
photographs which have been taken by the applicant were downloaded
and the print of phone calls from the mobile is also taken. He
therefore submitted that the present application may not be
entertained.
5. In view of rival
submissions, it is required to be considered whether the present
application can be considered or not.
6. It is well accepted
that the discretion under sec. 438 of CrPC is required to be
exercised with care and circumspection. At the same time, the
observations made by the Hon’ble Apex Court in a judgment in the case
of Shri
Gurbaksh Singh Sibia and ors. V. State of Punjab reported
in (1980) 2
SCC 565 with regard to exercise of discretion under sec. 438 are
required to be appreciated.
7. The complaint is
filed in respect of the incident which is alleged to have taken place
1½ years back. Learned Sr. Counsel Mr. Raju has stated that
earlier also a complaint has been filed, meaning thereby that even
after the complaint, his services continued. Further, the
photographs from the mobile phone were downloaded with print of the
mobile phone call numbers and it has been returned.
8. Therefore, without
any further elaboration, considering the guidelines for exercise of
desertion under sec. 438, it is a fit case to exercise such
discretion considering the rival submissions including the business
rivalry and the present application deserves to be allowed.
9. The application is
accordingly allowed. The applicant is ordered to be released on bail
in the event of his arrest in connection with C.R. No. I-519/2010
registered with Naroda Police Station in respect of the offence
alleged against him on his executing a personal bond of Rs. 25,000/-
(Rupees Twenty Five Thousand only) each with one solvent surety for
the like amount and on further 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 12.10.2010 between 11.00 am and 2.00
pm.
(c ) make himself
available for interrogation by the police officer whenever and
wherever required.
(d) not directly or
indirectly make any inducement, threat or promise to any person
acquainted with the facts 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
executing the bond, furnish his address to the I.O. and the courts
concerned, and shall not change his residence till the final disposal
of the case or till further orders;
(g) not to leave India
without the permission of the court and if having a passport, shall
deposit the same before the trial court within a week;
10. It is also directed
that at the time of reporting, he will hand over the mobile phone
which is alleged to have been used for the purpose of committing the
alleged offence and it will be open for the I.O. whether to seize it
or not.
11. It would be open to
the I.O. to file an application for remand if he considers it proper
and just and the learned Magistrate would decide it on merits.
12. This order will hold
good if the applicant is arrested at any time within 90 days from
today. The order for release on bail will remain operative only for
a period of 10 days from the date of his arrest during which it will
be open to the applicant to make a 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 act that anticipatory bail
was granted.
Rule is made absolute.
D.S. permitted.
(Rajesh H. Shukla, J.)
(hn)
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