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CR.MA/10952/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10952 of 2010
=======================================================
DHIRUBHAI
CHHAGANBHAI PATEL - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=======================================================
Appearance :
MR
HARDIK A DAVE for Applicant(s) : 1,
MR MINI NAIR APP for
Respondent(s) :
1,
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 08/10/2010
ORAL
ORDER
The
present application has been filed under Section 438 of the Code of
Criminal Procedure, 1973 for the grant of anticipatory bail in
connection with I-C.R.No.110/2009 registered with Katargam Police
Station, Surat for the offences punishable under Sections 114, 120,
120(B), 141, 143, 149, 166, 167, 193, 199, 203, 204, 209, 255, 258,
259, 260, 261, 262, 263, 263(a), 406, 417, 420, 423, 426, 447, 451,
452, 465, 466, 467, 468, 469, 470, 471, 472, 473, 474, 475 and 476
of the Indian Penal Code.
Learned
counsel, Mr.H.A. Dave for the applicant-accused submitted that the
applicant is the Mamlatdar, who is alleged to have passed an order
in connivance with other co-accused on the basis of the record
produced in the tenancy case. Learned counsel, Dave submitted that
the documents are produced by the Advocate for the concerned party
i.e. other co-accused and on the basis thereof, the order has been
passed by the applicant. Learned counsel, Mr.Dave submitted that the
applicant has retired with effect from 30.09.2010 as a Deputy
Collector, Valsad and the documents are already with the
Investigating Agency. He, therefore, submitted that the present
application may be allowed. He further submitted that the lawyer,
who had presented the documents in the tenancy case, is also granted
anticipatory bail and, therefore, the present application may be
allowed.
Learned
A.P.P., Ms.Nair for the respondent-State submitted that the Power of
Attorney, which has been forged, was produced and that was also
produced at later stage and without any such verification, the
proceedings were conducted, which has resulted into the alleged
offence. Therefore, the present application may not be entertained.
Learned A.P.P. submitted that exercise of discretion under Section
438 of the Criminal Procedure Code is required to be used with care
and circumspection and, therefore, considering the gravity of the
offence as well as prima-facie case, the Court may not exercise the
discretion.
In
view of the rival submissions, it is required to be considered
whether the present application can be entertained or not.
Having
perused the material and evidence and also considering the nature of
offence, manner in which it is alleged to have been committed, role
attributed and having considered the guidelines with regard to
exercise of discretion under Section 438 of the Criminal
Procedure Code as
observed by the Hon’ble Apex Court (1980)2
SCC 565
in case of Shri Gurbaksh
Singh Sibbia & Ors. V/s State of Punjab
as well as the judgment of this Court reported in 1992(1)
GLR 631
in case of Solanki Ravibhai
Dipubhai & Ors. V/s State of Gujarat & Anr.,
the present application deserves to be allowed.
Accordingly,
the present application is allowed. The applicant is ordered to be
released on bail in the event of his arrest in connection with
I-C.R.No.110/2009 registered with Katargam Police Station, Surat in
respect of the offence 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 12.10.2010 between 11.00 a.m. and 2.00 p.m;
c) make himself available for interrogation by Police Officer, whenever and wherever required;
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 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 ten days from the date of his arrest,
during which it will be open to the applicant 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.
(RAJESH
H.SHUKLA, J.)
/patil
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