K. J. VAIDYA, J. ( 1 ) RULE. Mr. S. R. Divetia learned Addl. P. P. appearing for the opponent. State waives service of the Rule. Heard Mr. M. V. Solanki learned Advocate for the applicant- accused and Mr. Divetia learned Addl. P. P. for the State ( 2 ) BRIEFLY speaking it was a prosecution case that on 27/04/1989 Smt. Manjulaben Chandulal Ahya lodged a complaint at Jamnagar City Police Station B Division against one Mahipatsinh Panchaji Jadeja - the applicant-accused herein alleging that her daughter Rajeshvari Chandulal Ahya was missing since 21/04/1989 and that she had a suspicion of being adbucted by the present applicant-accused. On the basis of this fact the police registered the complaint against the accused. the same being FIR No. 1 of 1989 for the offence punishable under Secs. 363 and 366 of I. P. C. Thereafter after a long time the accused came to be arrested on 7/12/1989 by the police and on 8/12/1989 he submitted a bail application before the learned Sessions Judge same being M. C. A. No. 472 of 1989 which ultimately dismissed by an order dated 15/12/1989 ( 3 ) EARLIER when this matter came up for admission before this Court (Coram: J. U. Mehta J. on 5 990 the learned Advocate for the applicant-accused Mr. M. V. Solanki had tendered two sworn affidavit that of (i) Smt. Manjulaben Chandulal Ahya (complainant) (ii) Rajeshvari daughter of the complainant which were ordered to be kept on the record. The matter was thereafter stand-over today i. e. 8/01/1990 ( 4 ) TODAY on matter being called out Mr. Solanki has made following two submissions; (1) That the aforesaid two affidavits not only completely white- wash the allegation of the abduction of Rajeshvari by the accused Mahipatsinh but the same also cut at the very root of the prosecution case giving thereby the clean-bill of innocence to the accused 50 as to entitle him to be released on bail. (2) That the aforesaid two affidavit are needed to be accepted by this Court as the deponents of the said two affidavit were present before the Court to lead added assurance and strength to the voluntary truthful and genuine nature of the same. As per this submissions according to Mr. Solanki the accused deserves to be released on bail. (2) That the aforesaid two affidavit are needed to be accepted by this Court as the deponents of the said two affidavit were present before the Court to lead added assurance and strength to the voluntary truthful and genuine nature of the same. As per this submissions according to Mr. Solanki the accused deserves to be released on bail. ( 5 ) I have carefully perused the aforesaid two affidavits a bare reading of which prima facie does give an impression that the deponents of the said affidavit two are important prosecution witnesses) do not appear to be any more in any mood either to prosecute try and/or to get convicted and punished the accused for alleged offences. But at the same time it is also too difficult to conclusively hold that whatever stated in the said two affidavit is gospel truth. Under such circumstances the question of importance that arises for the consideration is whether it would be just legal and proper to straightway accept and rely upon unverified affidavit of two prosecution witnesses at its face value which have been further sought to be supported by keeping two deponents of the said affidavits present before the Court short-circuiting the ordinarily procedure by keeping the investigating agency out of the picture to have any say in the matter ? ( 6 ) NOW regarding the question raised hereinabove at the very outset it can safely be held without slightest hesitation that merely because the accused has tendered duly sworned affidavits of the prosecution witnesses by keeping the deponents of the same present before the Court that by themselves cannot be presumed or permitted to have any direct and binding effect to the prejudice of the prosecution till the time the investigating agency bad a fair and reasonable opportunity to verify and inquire into the genuineness truthfulness and the voluntary character of the same and submit its report for the consideration of the Court taking up the matter. It is very clear that neither this Court nor any Court can ever be expected to assume and/or usurp the role and jurisdiction of the investigating agency which has an independent established statutory right and role to play in investigating cases. It is very clear that neither this Court nor any Court can ever be expected to assume and/or usurp the role and jurisdiction of the investigating agency which has an independent established statutory right and role to play in investigating cases. As a matter of fact it hardly requires to be emphasized that the alleged turn coat affidavits cannot be lightly entertained and as the same can be a matter of serious concern calling for indepth searching inquiry by the police. It is indeed too difficult to appreciate and understand as to under what circumstances and in what manner the aforesaid two affidavits came to be sworned by the concerned deponents ? Whether same are made voluntarily or made under some unwarranted pressure or coercion flowing directly or indirectly from the accused ? Whether the said affidavits are genuinely sworn before the Executive Magistrate Jamnagar or are not just a fabricated pieces ? Whether the dependents who solemnly affirmed their affidavits before the Executive Magistrate were in fact identified on the concerned learned Advocates ? Ordinarily once the criminal complaint is filed against any person no complainant ever volunteers any initiative either of herself or himself (as the case may be) to go back from the alleged prosecution case unless 60 persuaded pressurise or terrorised by someone directly or indirectly. Mostly and ordinarily the possibility of such affidavits being procured by any means under some potential threats (emanating either from an accused or his agents and associates outside the jail premises) to the life liberty and property and/or some promise or inducement held out to the prosecution witness and/or for that purpose other citizens whose affidavits are needed most to be procured cannot be ruled out. ( 7 ) UNDER such state of affairs how hazardous it can be to straight-away accept and rely upon unverified affidavits submitted by the accused. Thus a wisdom warrants that unless the clouds of suspicion and mystery that always surrounds such affidavits are cleared the same should not be riven any credence. ( 7 ) UNDER such state of affairs how hazardous it can be to straight-away accept and rely upon unverified affidavits submitted by the accused. Thus a wisdom warrants that unless the clouds of suspicion and mystery that always surrounds such affidavits are cleared the same should not be riven any credence. As against this if such allegedly procured affidavits are lightly accepted and relied upon without same being duly verified and inquired into it will create and load to such g situation wherein hardened criminals living on life of crimes will have a free handle to pressurise and terrorise the prosecution witnesses and for that purpose any other citizen so as to yield to their illegal demands of swearing any affidavits they liked which can defuse not only the prosecution interest but can as well make defunct the investigating agency and the administration of justice. Such a situation ultimately is bound to substitute the rule of law by rule of lawlessness. As a matter of fact on a careful perusal of the said two affidavits as well as the impugned judgment and order rejecting the bail application of the accused the following circumstances surface which would and should prima facie put any Court on the guard before placing implicit reliance upon them till of course the same is green-signalled on verification by the prosecuting agency: (I) That it appeals that both deponents of the said two affidavit are ladies. (ii) It appears that both the affidavits are sworned on a stamp paper of 10/- each of them purchased on 27-12-1989. This means both of them came into existence only after the impugned judgment and order dated 15-12-1989 rejection the bail application of the appellant-accused came to be passed. (iii) That the aforesaid stamp papers of Rs. 10. 00 each appear to have been purchased on 27-12-1989 and apart this date there is no separate date mentioned in the said affidavits as to show exactly on what date and time the said affidavit were solemnly affirmed before the Executive Magistrate. (iv) That neither the learned Advocate who identified the deponents nor the learned Executive Magistrate before whom the affidavit were sworned have placed any dates below their signatures. (v) That neither the signature of Mr. (iv) That neither the learned Advocate who identified the deponents nor the learned Executive Magistrate before whom the affidavit were sworned have placed any dates below their signatures. (v) That neither the signature of Mr. R. H. Patel Executive Magistrate not that of the learned Advocate who appears to have signed as having identified the deponents before the Executive Magistrate are legible. (vi) So far as the learned Advocate who had identified the deponents is concerned not only his signature is illegible but nothing has been written below in bracket in legible letters so as to indicate as to who in fact was the learned Advocate identifying the deponents. (vii) That the accused has been found to be absconding for a considerable time after the alleged offence and could not be arrested by the police despite its frantic efforts of searching alround. (viii) That the accused did not surrender even after his anticipatory bail applications came to be rejected by the learned Sessions Judge. (ix) That the accused is aged 30 years and a married person ant appears to have legally married long back with Smt Hansaba who is living. (x) That the affidavit of the investigating Officer made before the learned Sessions Judge ex facie reveals that the accused is involved in many theft cases and that the of the same is pending before the concerned trial Courtsthe aforesaid catalogue of circumstances are real hurdles in the way of the accused who on the basis of the two unverified affidavits prays for getting himself to be released on bail ( 8 ) THUS having regard to the facts and circumstances of the case as discussed above it is not possible to accede to the request of the learned Advocate Mr. Solanki to accept two unverified affidavit of deponents Even the presence of two lady deponents of the said affidavits who are kept present in the Court by the accused cannot by themselves be permitted to lend any assurance to accept the same for the simple reason that this Court feels risky enough to accept the same in view of the clouds of suspicion and mystery that surround this two affidavits. ( 9 ) THESE days we do come across cases where at some stage of the criminal proceedings the accused in order to get enlarged on hail - (i) either produces the affidavits like the one submitted in the present case; and/or (ii) produces the medical certificate Now the contents of such affidavit and/or medical certificate may be true and therefore the accused would be just within his right to pray for his bail on the basis of said materials But this right of the accused is always circumscribed by the corresponding right of the investigating agency to have a fair nd reasonable opportunity to verify the voluntary truthful and genuine nature of the pleas advanced by the accused in the said affidavit/ certificate etc. It is always advisable for the Court to wait for the report of the investigating agency in the matter before giving any decision on the point ( 10 ) IN view of the discussion made hereinabove this Court though not inclined to straightway accept and rely upon the aforesaid two affidavit produced by the accused is equally hesitant to respect the same outright being considered for whatever worth it is As a matter of fact the contents of said two affidavits brings forth a fresh circumstance on the record for the first time of which the learned Sessions Judge who rejected the earlier bail application did not have any opportunity to consider the same in this view of the matter the accused deserves to be given one more opportunity to move his bail application before the learned Sessions Judge who will decide the same on merits after giving adequate opportunity to the investigating agency to inquire into the matter and submit its report on the basis of the same [rest of the Judgment is not material for the Reports ] (KMV) matter remanded. .