Gujarat High Court Case Information System
Print
CR.MA/15408/2010 3/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 15408 of 2010
=================================================
PRAKASH
SHIVANA ACHARYA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=================================================
Appearance
:
MR
PRABHAV A MEHTA for Applicant(s) : 1,
MR DC SEJPAL, ADDL. PUBLIC
PROSECUTOR for Respondent(s) :
1,
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 10/02/2011
ORAL
ORDER
1. Rule.
Learned APP Mr. D.C. Sejpal waives service of rule on behalf of
respondent State.
2. The
applicant seeks an order of anticipatory bail in connection FIR
bearing C.R.No.I-501 of 2009 registered with Umra police
station,Surat on 30.12.2009.
3. It
is not in dispute that previously the applicant had approached this
Court by filing Criminal Miscellaneous Application No.9846 of 2010
seeking similar order of anticipatory bail. This application was
allowed by learned Single Judge of this Court by order dated
17.9.2010. In the said order it was provided that the order shall be
valid if the applicant is arrested at any time within 90 days from
the date of the order. Since within period of 90 days of validity of
the anticipatory bail order, the applicant was not arrested, he has
moved the present application for anticipatory bail.
4. It
is not even the case of the respondent that the applicant did not
cooperate with the investigation or was not available for arrest
during the validity of the previous anticipatory bail order. The
State has also not argued that after passing of the said anticipatory
bail order, there is any change in circumstance or that the applicant
has, for certain reasons, made himself dis-entitled to seek fresh
order of anticipatory bail.
5. In
that view of the matter, I am of the opinion that the present
application is required to be allowed. Any other view would amount to
reviewing previous order passed by another learned Single Judge of
this Court. In fact condition limiting life of an anticipatory bail
order in view of the decision of the Apex Court in the case of
Siddharam Satlingappa Mhetre vs. State of Maharashtra and others
reported in (2011) 1 SCC 694, has been rendered illegal. The Apex
Court made following observations in para 123 of the judgment:-
“123.
In view of the clear
declaration of law laid down by the Constitution Bench in Sibbia
case, it would not be proper to limit the life of anticipatory bail.
When the Court observed that the anticipatory bail is for limited
duration and thereafter the accused should apply to the regular court
for bail, that means the life of Section 438 CrPC would come to an
end after that limited duration. This limitation has not been
envisaged by the legislature. The Constitution Bench in Sibbia case
clearly observed that it is not necessary to rewrite Section 438
Cr.PC. Therefore, in view of the clear declaration of the law by the
Constitution Bench, the life of the order under Section 438 CrPC
granting bail cannot be curtailed.”
6. Counsel
for the original complainant, however, submitted that the previous
order of anticipatory bail is challenged by the complainant before
the Apex Court in which notice has also been issued.
7. To
my mind, this should not detain me from granting protection to the
applicant in absence of which he would be exposed to arrest by the
investigating agency which would frustrate present anticipatory bail
application. Particularly, when this is not a fresh application for
anticipatory bail but only successive anticipatory bail application
since within the validity period of previous anticipatory bail order,
the applicant was not arrested, I see no reason to refuse the prayer.
8. In
the result, the applicant is ordered to be released on bail in
the event of his arrest in connection with FIR
bearing C.R.No.I-501 of 2009 registered with Umra police
station,Surat he shall be
released on bail upon his furnishing a bond of Rs. 20,000/-(Rupees
Twenty Thousand) with one surety of like amount to the satisfaction
of the lower Court and subject to the following conditions that he :
[A] shall
cooperate with the investigation and make himself available for
interrogation whenever required.
[B] shall
remain present at Umra
police station, Surat on 14.2.2011 between 11:00 am to
2:00 pm;
[C] shall not
hamper the investigation in any manner nor 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] at the time
of execution of bond, furnish the address to the Investigating
Officer and the Court concerned and shall not change the residence
till the final disposal of the case or till further orders;
[E] will not
leave India without the permission of the Court and, if is holding a
Passport, shall surrender the same before the trial Court immediately
[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.
[G] Within a
period of ten days from the date of arrest, the applicant shall apply
for regular bail which application shall be decided by the competent
Court in accordance with law without being influenced by the fact
that anticipatory bail was granted.
Rule
made absolute. Application is disposed of accordingly.
Direct
service is permitted.
(Akil
Kureshi,J.)
sudhir
Top