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CR.MA/5527/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 5527 of 2010
======================================
HASMUKHBHAI
BHIKHABHAI PATEL & 3 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
======================================
Appearance
:
MS. KRUTI M SHAH for
Applicant(s) : 1 - 4.
MR MENGDEY APP for Respondent(s) : 1,
MR
HARDIK A DAVE for Respondent(s) :
1,
======================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH
H.SHUKLA
Date
: 22/09/2010
ORAL ORDER
The present application has been
filed by the applicants for grant of anticipatory bail under section
438 of the Code of Criminal Procedure, 1973, in connection with
I-C.R.No.65 of 2010 registered with Olpad Police Station, Surat for
the alleged offences under sections 306 and 114 of Indian Penal
Code.
Learned advocate Ms.Kruti Shah for
the applicants referred to the First Information Report and
submitted that considering the nature of offence, it is evident that
in fact, the deceased, as Mahant of the temple of Trust, was holding
the land and was sought to be dispossessed. On the other hand, the
possession is still with the son of deceased, and the allegations
are made with regard to threat, and, therefore, present application
may be allowed. .
Learned APP Mr. Mengdey resisted
the application and submitted that there is a prima facie case
inasmuch as the letter and the hand-writing which have been
recovered are confirmed as that of the deceased, and, therefore,
present application may not be entertained.
Learned
advocate Mr.Hardik Dave appearing for the original complainant
referred to the affidavit-in-reply and the entry made in the revenue
record to submit that though originally land belonging to the trust
as now has been made in the name of deceased’s father, and,
therefore, when he was sought to be dispossessed, threats were given
resulting into incident, and, therefore present application may not
be entertained.
Having
heard learned advocate Ms.Shah for the applicant, learned APP
Mr.Mengdey and learned advocate Mr.Dave for the complainant and
considering the nature of offence, role attributed to the applicants
and also the fact that still when the possession is with the
complainant, the present application deserves to be allowed and
discretion under section 438 of Cr.P.C. requires to be exercised in
favour of the applicants.
Accordingly,
the present application is allowed. The applicants are ordered to be
released on bail in the event of their arrest in connection with
I-C.R.No.65 of 2010
registered with Olpad Police Station, Surat in
respect of the offence alleged against them on their executing bond
of Rs.5,000/- (Rupees Five thousand only) each with one solvent
surety each of the like amount, by them, by the concerned Police
Officer and on conditions that they 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 27.09.2009 between 11.00
a.m. and 4.00 p.m;
c) make themselves 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 their address to the Investigating Officer and the Courts concerned, and shall not change their 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 her 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.]
Amit
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