STATE OF GUJARAT v. NITABEN ABHAYBHAI MEHTA — 1993 DIGILAW 156 (GUJ)

SHETHNA, J. ( 1 ) ). The petitioner-State has challenged in this Revision application the order passed by the learned Magistrate, Rajkot on 25-11-1992 rejecting the application for remand of the respondents-accused. Few relevant facts : ( 2 ) ). On the night of 22/23-5-1992 murder of very well-known Gynaecologist dr. Madhuben of Rajkot was committed in the bed room of her own Housecum- nursing Home at Revakunj, Bhaktinagar Society between 0-30 to 0-45 a. m. On that night at about 1-25 a. m. the Control Room received the telephonic message from some unknown person that the deceased Madhuben was assaulted by knife in her Nursing Home and, thereafter, it was disconnected. The Control room informed "chitta Gadi", i. e. . Police Jeep to go the place of the incident and immediately within three minutes, i. e. , at 1-28 a. m. they reached the place of the incident. When the police reached the scene of offence the respondent no. 1-accused Nitaben, who is also a. Doctor and younger sister of the deceased madhuben, and respondent No. 2-accused Mahendra Vora, who is the brotherin- law of the deceased Madhuben (husband of another younger sister of the deceased Madhuben), other staff of the Nursing Home, deceased Madhubens neighbour Dilip Patel with his father and other persons were present there. Neither accused No. 1-Dr. Nitaben nor accused No. 2-Mahendra Vora was willing to lodge the F. I. R. (After about one and half hours of the arrival of police they made Aya-Shantaben to be the complainant and accordingly at 3-00 a. m. Shantaben lodged F. I. R. ). . . . . . . . . . . . . . . ( 3 ) ). On 12-6-1992 police requested the learned Magistrate to issue the arrest warrant against both the accused. On 15-6-1992 the learned Magistrate signed the arrest warrant, but the same could not be executed. On 17-6-1992 both the respondents-accused by separate applications applied for anticipatory bail under Sec. 438 Cr. P. C. before the Sessions Court, Rajkot. The Sessions Court rejected the applications for anticipatory bail on 23-6-1992. It is stated at the Bar that on 24-6-1992. both the respondents-accused preferred separate applications before this Court for anticipatory bail, wherein no interim order against their arrest was passed by this Court. P. C. before the Sessions Court, Rajkot. The Sessions Court rejected the applications for anticipatory bail on 23-6-1992. It is stated at the Bar that on 24-6-1992. both the respondents-accused preferred separate applications before this Court for anticipatory bail, wherein no interim order against their arrest was passed by this Court. This Court (Coram : S. D. Dave, j.) allowed both the applications with certain conditions by a speaking order on 10-7-1992, which is now reported in 1992 (2) GLR 1607 (Dr. (Mrs.) Nitaben a. Mehta v. State of Gujarat ). Both the accused were granted anticipatory bail on certain conditions. Conditions Nos. 4 and 9 are as under (at page no. 1621 of GLR) :"4. It would be open to the Investigating Officer to file the application for remand if he considers it proper and if the same is so filed, the concerned learned Magistrate shall decide the application for remand on merits and according to law. 9. All the above conditions shall be treated as conditions on which bail is granted. These orders will hold good if the petitioners are 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 their arrest. Thereafter, it will be open to the petitioners to make fresh application for being enlarged on bail which when it comes before the competent Court will be disposed of in accordance with law, having regard to all the attendant circumstances and the material available at the relevant time uninfluenced by the fact that the anticipatory bail was granted. ". . . . . . . . . . . . . . . ( 4 ) ). Mr. D. K. Trivedi, learned P. P. vehemently submitted that the learned magistrate while deciding the remand application had been very much influenced by the grant of anticipatory bail and mainly of that he rejected the remand application. He further submitted that considering the facts and circumstances of the case and the manner in which the investigation had taken the turn in this matter and the other circumstances pointed out in the remand application itself, it is necessary to grant the remand application. He further submitted that considering the facts and circumstances of the case and the manner in which the investigation had taken the turn in this matter and the other circumstances pointed out in the remand application itself, it is necessary to grant the remand application. He further submitted that merely because the accused are interrogated for 28 to 32 days, it cannot be said that there is no sufficient ground for granting remand application. Because the said Interrogation could not be anything but more or less casual, as during the course of investigation it clearly emerged from the conduct of the accused that they were and are not prepared to co-operate in the investigation. They are deliberately suppressing material facts which can be revealed only if remand of the accused, as prayed for, is granted by the Court. He submitted that if the remand is not granted then the mystery behind the crime will not possibly be solved. He submitted that the order passed by the learned Magistrate is not only improper but also illegal. Therefore, this Court must interfere with the impugned order passed by the learned Magistrate in its revisional jurisdiction and grant remand for 14 days of the accused. As against that the learned Counsel Mr. Kotwal and Mr. Chitnis appearing for the respondent-accused respectively have vehemently submitted that this Court should reject this Application, which is not maintainable in law and not required to be entertained on merits also. Mr. Kotwal, the learned Counsel, who argued this matter for days together on law as well as on merits, raised some preliminary objections regarding the maintainability of this Revision Application. Therefore, I would first dispose of the preliminary objections raised by Mr. Kotwal. ( 5 ) ). Firstly, Mr. Kotwal submitted that once this Court granted the anticipatory bail in favour of the accused, then it was not proper for this Court to impose conditions Nos. 4 and 9 referred to above, as the said conditions are not only unjust and improper but also illegal. He submitted that such conditions are redundant and non-est in law and, therefore, the same are illegal. He further submitted that once the accused are granted anticipatory bail, the police cannot ask for remand of the accused. 4 and 9 referred to above, as the said conditions are not only unjust and improper but also illegal. He submitted that such conditions are redundant and non-est in law and, therefore, the same are illegal. He further submitted that once the accused are granted anticipatory bail, the police cannot ask for remand of the accused. If the police wants to ask for the remand of the accused, then the police has to first apply before this Court or before the supreme Court for cancellation of the anticipatory bail order and only after the anticipatory bail order is cancelled, the police can ask for remand. He further submits that it is true that both the accused have applied within ten days before the learned Sessions Judge for regular bail as per condition No. 9. But it was not necessary for the accused to do so, as once anticipatory bail is granted the accused continues to enjoy the bail till the trial is over or it is cancelled by the competent Court. In support of his contentions he has relied upon the judgment of the Supreme Court in the case of Gurubaksh Singh Sibba v. State of Punjab, reported in 1980 (2) SCC 565 : AIR 1980 SC 1632 , and another judgment of the Supreme Court in the case of Aslam Babalal desai v. State of Maharashtra, reported in 1992 0 Crlj 3712 . He also relied upon five other judgments of different High Courts. I have not reproduced the same because none of them has got any bearing in this case. ( 6 ) ). This Court cannot go into the question whether this Court earlier committed an error in imposing the aforesaid conditions Nos. 4 and 9 in its order while granting anticipatory bail to the accused or the said conditions are redundant and non-est in eye of law. It would amount to sitting in judgment as an appellate Court over the decision of this Court. In the case of Dhian singh v. Union of India, reported in AIR 1992 SC 474 the Supreme Court has strongly criticised the action of the High Court Judge cancelling the bail granted in favour of the accused by the other Judge of the High Court on the same material and same circumstances in which the order was earlier passed in favour of the accused. The Supreme Court in para 3 of its judgment has held that, "no Bench can comment on the functioning of a co-ordinate Bench of the same Court, much less sit in judgment as an appellate Court over its decision". (Emphasis supplied ). It is further held that besides, it was not consistent with the judicial discipline which must be maintained by Courts both in the interest of the administration of justice by assuring the binding nature of an order which becomes final, and the faith of the people in the judiciary. Therefore, the aforesaid contention of Mr. Kotwal cannot be entertained. If the accused felt that the aforesaid conditions are redundant and nonest in the eye of law and ought not and should not have been imposed by the learned single Judge of this Court, then they could have approached the learned Judge of this Court, who granted the anticipatory bail and made a prayer to him to delete the conditions, but they have not done so. It is equally possible that if they had prayed for deletion of the conditions, then perhaps this Court might have cancelled the bail order and, therefore, they might not have approached this Court for deleting the aforesaid conditions. In fact in Gurubaksh Singhs case (supra), the Supreme Court has in clear terms stated that the High Court or Sessions Court may, if thinks fit, release the accused on anticipatory bail with conditions. In fact Sec. 438 Cr. P. C. itself clearly provides for imposing conditions by the High court or by the Sessions Court while granting anticipatory bail to the accused. If according to the accused there was no need for them to move regular bail applications before the Sessions Court, as once they are given anticipatory bail order in their favour it continues till the trial is over or the same is cancelled by the competent Court, it was left to them not to move for bail. If after the expiry of the period of 10 days, the accused had not applied for bail and if the police had arrested them, the accused could have challenged the action of the police before the competent court by urging that once the anticipatory bail is granted, they cannot be arrested and they can be arrested only after their bail is cancelled by the competent Court. But certainly after obtaining the order of anticipatory bail from this Court on the aforesaid conditions, it is not open to the accused to urge that the conditions Nos. 4 and 9 are unjust, improper, illegal, redundant and non-set in the eye of law and this Court could and should not have imposed such conditions. It may also be possible that if at the time of passing anticipatory bail order if the accused had objected to the imposition of the aforesaid conditions then perhaps this Court might not have granted bail to the accused and as a result thereof they could have been arrested long back. ( 7 ) ). Mr. Kotwal in support of his contention also relied upon the judgment of this Court in the case of Solanki Ravibhai v. State, reported in 1992 (1) glr 631 and submitted that while granting anticipatory bail to the accused this Court had imposed six other conditions, but no such conditions like conditions Nos. 4 and 9, referred to earlier in paragraph 4 of this judgment, were imposed. That shows that condition Nos. 4 and 9 imposed by this Court in this case should not have been imposed by this Court. Thus, the same are not only redundant but also non-esfineye of law. In a given case the Court may not impose the conditions of remand and of directing the accused to apply for regular bail. Merely because in one case no such conditions were imposed that does not mean that in no other case the Court can impose suitable conditions like of remand and application for regular bail. It all depends upon the facts and circumstances of each case. It cannot become a binding precedent in other cases. In my opinion the aforesaid conditions Nos. 4 and 9 are neither redundant nor non-est in the eye of law, but in fact they are just, proper and legal. I am of the opinion that such conditions must be imposed invariably by the Courts while granting the anticipatory bail in favour of the accused. Right of remand of the accused by the police is a statutory right under the law. I am of the opinion that such conditions must be imposed invariably by the Courts while granting the anticipatory bail in favour of the accused. Right of remand of the accused by the police is a statutory right under the law. By way of remand the police would try to find out the important information from the accused, by which the police would come to know that how the offence was committed, what was the motive behind the offence and who were the other persons involved in the offence, which would lead the police to the correct direction of investigation. Grant of anticipatory bail, even without any such conditions of remand by the police, would circumvent the right of the police to ask for remand. There is nothing in Sec. 438 to indicate that the provision was included to override the legitimate procedure of investigation into serious crime, which has been prescribed in Chapter XII of the Code. In the event of conflict, the discretionary grant of anticipatory bail must not come in the way of the police to exercise their statutory rights and duties under Sec. 167 (2 ). Therefore, even if the condition No. 4 of remand were not imposed by this Court, the police could have applied before the learned Magistrate for the remand of the accused and in such a situation the learned Magistrate was bound to decide the same on merits and in accordance with law. ( 8 ) ). Mr. Kotwal raised the second objection that once the accused are released on bail, pursuant to the order passed by this Court by the police after their arrest they cannot be remanded to police custody. He submitted that under Sec. 167 Cr. P. C. police can ask for remand of the accused who is actually detained in custody after his arrest, if the accused after his arrest is released on bail then remand of such accused cannot be asked for. In support of his submission, he has relied upon the judgment of the Supreme court in case of Jagannatha Satyanarayana v. State of Andhra Pradesh, reported in 1986 (3) SCC 141 . In my opinion, its ratio has no application in the present case. The point involved in that case is altogether different from the point involved in this case. Therefore, I have not discussed the same here. In my opinion, its ratio has no application in the present case. The point involved in that case is altogether different from the point involved in this case. Therefore, I have not discussed the same here. The words used in Sec. 167 (1) are "is arrested and detained in custody". In this case, after arresting the accused on 20-11-1992, both the accused were enlarged on bail by the police as per the anticipatory bail order passed by this Court. The signatures of both the accused on the detention order were obtained by the police on that very day /. e. , on 20-11-1992 and, therefore, they were produced before the Court of the learned Magistrate on the same day. In fact, the accused on that very day applied for releasing them on bail before the learned Magistrate, as directed by this Court, as per the condition No. 9 since the term of the anticipatory bail was only for ten days after their arrest. In fact, Sec. 167 (2) (b) clearly provided that no Magistrate shall authorise the detention in any custody under this section unless the accused is produced before him (Emphasis supplied ). As stated earlier, after the accused were produced by the police before the learned Magistrate, they had applied for bail. Thus, the accused were arrested and detained in custody but under the umbrella of this Courts order they were temporarily enlarged on bail for a period of 10 days as per condition No. 9. In Gurubaksh Singhs case (supra), the Supreme Court has observed that"even if the F. I. R, is not filed but on reasonable apprehension of being arrested the accused can move the Court for anticipatory bail and in certain exceptional cases, the Court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after filing of the F. I. R, in respect of the matters covered by the order. There is nothing wrong with such order. Because, these orders, on the whole, have worked satisfactorily causing least inconvenience to the individuals concerned and least interference with the invastigational rights of the police. "that means after the expiry of the period of the anticipatory bail order, the accused had to apply for regular bail. There is nothing wrong with such order. Because, these orders, on the whole, have worked satisfactorily causing least inconvenience to the individuals concerned and least interference with the invastigational rights of the police. "that means after the expiry of the period of the anticipatory bail order, the accused had to apply for regular bail. In the instant case also this court has limited the period of anticipatory bail for only ten days. Therefore, if the accused failed to get regular bail from the competent Court, they must be taken in custody. On arrest, the accused were detained in custody but they could remain free for a period of 10 days in this case as per the order of the anticipatory bail. Nowhere it is stated under Sec. 167 cr. P. C. that the accused should be in actual custody at the time of remand application. It only provides that accused should be detained in custody after his arrest. It may be that the accused could be detained even for a while, due to anticipatory bail order. Because, to comply with the order the formal arrest, of the accused has to be made by the police. Section 167 (1) Cr. P. C. nowhere provides that the accused should be in actual custody at the time of remand application. It provides that the accused should be detained in custody on his arrest. Once the accused is arrested he is automatically detained in custody. Detention in custody is the result of arrest. It may be a different thing that in view of the order of the anticipatory bail the police cannot keep the accused in its custody any more and police has to enlarge him on bail. But, at the same time Under Sec. 167 (2) (b) the police has to produce the accused before Magistrate. Accordingly in this case also after arresting and detaining the accused in custody, eventhough it may be for a while, the police produced the accused before the learned magistrate under Sec. 167 (2) (b) Cr. P. C. and in fact the accused on that day, i. e. , on 20-11-1992 also made an application for releasing them on bail and also opposed the remand application. Therefore, there is no substance in the contention raised by Mr. P. C. and in fact the accused on that day, i. e. , on 20-11-1992 also made an application for releasing them on bail and also opposed the remand application. Therefore, there is no substance in the contention raised by Mr. Kotwal that the remand application was not maintainable before the learned Magistrate because the accused ware not detained in custody when the remand application was moved. ( 9 ) ). The third objection raised by Mr. Kotwal is that the offence is alleged to have been committed on 23-5-1992 and by now a period of more than 10 months has passed and, therefore, without going into the legality and validity of the order passed by the learned Magistrate, only on the ground of gross delay of 10 months this Court should reject the Revision Application. It is true that by now a period of more than 10 months has passed after the commission of the offence. But, in this case the police continuously investigated the case and recorded the statements of witnesses on the 23rd and the 26/05/1992 and on the 12/06/1992 and even, thereafter. Initially, on previous two occasions, the witnesses have not involved both the accused for the commission of the crime. However, for the first time, i. e. , on 12/06/1992 some material witnesses have involved both the accused with the commission of the crime. Immediately on 12-6-1992 the police applied before the learned Magistrate for issue of arrest warrant of the accused and it was issued on 15-6-1992 by the learned Magistrate. But the same could not be executed against the accused. If on the 15/06/1992 or immediately thereafter the accused were arrested, there would not have been this much delay. The accused having come to know that the police was going to arrest them, applied for anticipatory bail before the Sessions court, Rajkot. But, finding the prima facie case against the accused, the sessions Court rejected their applications for anticipatory bail. Therefore, both the accused filed applications for anticipatory bail before this Court and on 10-7-1992 my learned brother S. D. Dave, J. granted anticipatory bail to the accused subject to conditions. Before 90 days period was over, the accused again applied bifore this Court for anticipatory bail which was granted on 29-10-1992 by my learned brother A. N. Divecha, J. on the same terms and conditions. Before 90 days period was over, the accused again applied bifore this Court for anticipatory bail which was granted on 29-10-1992 by my learned brother A. N. Divecha, J. on the same terms and conditions. Thay were finally arrested on 20-11-1992 and enlarged on bail as per the order of this Court. On that very day the police applied for namead of 14 days Which was strongly resisted by the accused. The learned Magistrate rejected the remand application by his order dated 25- 11-1992. The said order is challenged in this Revision Application by the state. On 27-11-1992, this Revision Application was admitted and ordered to be heard on 2-12-1992. Firstly, at the request of the accused to enable them to engage the Advocates time was granted and, thereafter, the matter was heard piecemeal on different dates to accommodate both the learned Counsel coming from Bombay. The matter was finally heard on 26-3-1993 and thus, the hearing concluded only on 26-3-1993. Therefore, if there is any delay in passing the order whether remand should be granted or not, the accused cannot be given benefit thereof. The accused are involved in a serious offence like Sec. 302 I. P. C. of committing the murder of Dr. Madhuben. Though interrogated on a number of occasions the accused have not co-operated in the investigation and the said interrogation could not serve any purpose. In this case only the accused can reveal the information (discovery or so) which can lead the police to investigate the case in right direction. Statements of some of the witnesses do reveal that there are some close relations, if not illicit relations, between the accused. The deceased was none else but the sister of the accused No. 1-Dr. Nitaben and the sister-in-law of accused No. 2-Mahendra Vora. Both the accused persons were present at the scene of offence when the police reached there, but neither of them was prepared to become the complainant. Though the police reached the place of offence at 1-28 a. m. they could take the F. I. R, of Aya-Shantaben at 3-00 a. m. only. Both the accused persons were present at the scene of offence when the police reached there, but neither of them was prepared to become the complainant. Though the police reached the place of offence at 1-28 a. m. they could take the F. I. R, of Aya-Shantaben at 3-00 a. m. only. In the case of Siyaram Gupta v. State of Gujarat, reported in 1990 (1) GLH 21 : ( 1990 (2) GLR 905 ) this Court has granted remand of the accused, after a period of nine months, who were released on bail by observing "it is always a difficult task to discover the truth when scheming minds are at work, almost cross purposes. To an extent, in such matters there is battle of wits and to the extent that scheming minds are successful in their design, greater will be the time that would be required during the investigation. " in this case accused No. 1 is a very leading lady doctor and accused No. 2 is a big businessman. Both were interrogated on several occasions by the police but they refused to divulge any material and important information. Even the lie detector test of the accused did not yield any result. Therefore, if this Court comes to the conclusion that in this case the remand must be given, then merely because there is delay of 10 months in passing the order, it can never be a ground for rejecting this Revision Application. I am also told at the Bar by Mr. D. K. Trivedi, learned P. P. that the above judgment of this Court in Siyarams case (supra) has been confirmed by the Honble supreme Court in S. L. P. as the same was dismissed summarily by the Honble supreme Court. Suffice it to say that I am bound by the judgment of this court. Therefore, even in the facts and circumstances of this case, the contention regarding the delay raised by Mr. Kotwal is rejected. ( 10 ) ). The fourth objection raised by Mr. Kotwal is that the accused preferred regular bail applications before the Sessions Court and until they are decided this Court cannot decide this Revision Application. Because, if the Sessions Court release the accused on bail then, the remand of the accused is not permissible. The contention of Mr. Kotwal is devoid of merits. The fourth objection raised by Mr. Kotwal is that the accused preferred regular bail applications before the Sessions Court and until they are decided this Court cannot decide this Revision Application. Because, if the Sessions Court release the accused on bail then, the remand of the accused is not permissible. The contention of Mr. Kotwal is devoid of merits. There is no provision under any law which provides that first the bail application should be decided and if the Sessions Court grants bail then, the remand of the accused cannot be given. In Siyarams case (supra) the accused were already released on bail and, thereafter, the police prayed for remand and the remand was granted after about 9 months. Therefore, this contention of mr. Kotwal also fails and is rejected. ( 11 ) ). Mr. Kotwal made serious allegations about the police with reference to the papers of the investigation and the material which is sought to be relied upon against the accused being shown to the Court by the learned P. P. and submitted that this Court cannot use that against the accused without giving a proper opportunity to the accused. He submitted that the Rule 16 (vi) of the Gujarat Police Manual also provides that the accused should be heard before deciding the remand application. Therefore, the opportunity of hearing should not be an empty formality. He submitted that either material which is shown to the Court should also be made available to them or at least the P. P. should be asked to put it on affidavit whatever material against the accused upon which they want to rely so that they can adequately meet with the same. He has further submitted that during the course of hearing of this application, the accused have submitted Misc. Criminal Application in this revision application calling upon the petitioner-State to disclose that material to the respondents which it wants to rely upon against them. It may be stated that the same application has been only filed but not properly moved. Mr. Trivedi, learned P. P. has objected to that application being placed for order because, it is not filed on oath which is required under the High Court Appellate Side Rules and also on the ground that the same is filed at a belated stage when the arguments almost came to an end. Mr. Trivedi, learned P. P. has objected to that application being placed for order because, it is not filed on oath which is required under the High Court Appellate Side Rules and also on the ground that the same is filed at a belated stage when the arguments almost came to an end. In my opinion, such application is filed at such a belated stage by the accused only with a view to delay the decision in this case. This point can very well be orally argued and in fact it is argued by the learned Counsel. At this stage, I may also point out that in the midst of the hearing of this case, when this matter was part heard before me on behalf of the respondents-accused Special Criminal Application came to be filed before this Court challenging the legality and validity of the remand application submitted before the learned Magistrate, which in fact is decided in their favour on merits. I was told by the learned P. P. that the said petition was directly mentioned before the Division Bench of this court by the learned Counsel Mr. Chitnis for the accused with a request to take up that matter and the prayer was to stay further proceedings arising out of that remand application. That means an indirect attempt was made to stay further proceedings pending before me in this part heard Revision Application. But the learned Judges have directed the Counsel to move that petition through the office of this Court and accordingly the matter was mentioned before me when this matter was called out for further hearing. I have permitted the papers of that matter to be circulated before me and after arguing that matter for some time the learned counsel Mr. Chitnis sought the permission to withdraw that application and accordingly it was disposed of as withdrawn. It may also be stated that when my learned brother S. D. Dave, J. heard and decided the anticipatory bail applications of the accused by his reasoned order dated 10-7-1992 in favour of the accused at that time also the police papers of the investigation before that date- alongwith case diary were shown to the learned Judge and no such objection was raised at that time. It can be seen from that order that my learned brother S. D. Dave, J. did consider the relevant material and police papers of the investigation and after considering the same granted anticipatory bail to the accused. Mr. Trivedi, learned P. P. , has shown me the entire record consisting of all police papers of the investigation and the case diary including the material upto 10-7-1992, which was shown to my learned brother S. D. Dave, J. It is true that when my learned brother S. D. Dave, J. passed the order on 10-7-1992 on the material which was present before him at that relevant time, he found a good prima facie case in favour of the accused and, therefore, granted anticipatory bail. But, on a careful consideration of the material, which is collected by the police thereafter and considering the said material alongwith the material collected by the police prior to 10-7-1992, it can be said that there is a strong prima facie case against the accused. It may also be stated that as the remand application is yet not decided, the police is not able to find out cogent material evidence against the accused, which can be collected only if the remand is granted. Therefore, at this stage, it may not be proper for this Court to disclose the material to the accused which is against them. The accused know that on what grounds remand is asked for and they are given adequate opportunity of hearing. Therefore, the contention raised by the learned Counsel Mr. Kotwal that this Court cannot consider the material against the accused without it being shown or disclosed to the accused has to be rejected. ( 12 ) ). Mr. Kotwal then submitted that the police has suppressed the material fact before the learned Magistrate in this remand application that this Court found no case against the accused and, therefore, granted anticipatory bail to the accused, and in fact, it has tried to mislead the learned Magistrate by stating that the learned Sessions Judge has found the prima facie case against the accused. In my view, there is no suppression of material fact nor learned Magistrate was misled. In fact, the order of this Court granting anticipatory bail was very much before the learned Magistrate. At the most, it can be said to be not good drafting, nothing more than that can be said. In my view, there is no suppression of material fact nor learned Magistrate was misled. In fact, the order of this Court granting anticipatory bail was very much before the learned Magistrate. At the most, it can be said to be not good drafting, nothing more than that can be said. Therefore, this contention is rejected. ( 13 ) ). Mr. Kotwal then submitted that the entire investigation is full of mala fide and in fact, my learned brother S. D. Dave, J. in his order dated 10-7-1992 also held against the police. It is true that my learned brother s. D. Dave, J. has observed in his order "the second phase of investigation from 12-6-1992 is surrounded by the allegations of duress and coercion and the institution of various proceedings for search warrants and Habeas Corpus writ coupled with the fact that though the concerned persons were ordered to be produced before the Court forthwith, they could be produced quite late and in one case only after a lapse of 35 hours. " The allegations of duress and coercion are mere allegations, same are not proved. Delay of 35 hours in production in one case is also satisfactorily explained before me. It may also be stated that most of the important witnesses, who have given their subsequent statements against both the accused, have made no grievance of duress or coercion. Ordinarily, it is the accused, who makes the grievance about, duress and coercion but not the witnesses. The question would arise as to why the police would go to such an extent and do the mala fide investigation against the accused. It may be noted that when on the 23/05/1992 1. 0. P. I. Raval recorded the statements of important witnesses they had not involved the accused in their statements and on the 26/05/1992 when 1. 0. P. I. Raghuvansi recorded their further statements therein also they had not involved the accused. But, when again the investigation was handed over to 1. 0. Raval, on the 12/06/1992 for the first time they involved the accused in their statements. If the investigation is mala fide, then the police would have involved and arrested the accused on the day of incident, i. e. , on 23-5-1992. But they have not done so. They wanted better material and as soon as they got the same, they tried to arrest the accused. If the investigation is mala fide, then the police would have involved and arrested the accused on the day of incident, i. e. , on 23-5-1992. But they have not done so. They wanted better material and as soon as they got the same, they tried to arrest the accused. There is no guarantee that the witnesses might not have stated against the accused in their earlier two statements recorded on the 23rd and the 26/05/1992 because of the relations of master and servant or being neighbours of the deceased and they might have been persuaded by the accused not to speak against them. It might be that because of the persistent persuation by the police, finally, witnesses might have disclosed the true version before the police. That does not mean that the police investigation is dishonest or mala fide. Therefore the contention raised by Mr. Kotwal that the police investigation is mala fide is also without any substance and is rejected. ( 14 ) ). Mr. Trivedi, learned P. P. has rightly submitted that the learned magistrate has committed a grave error in rejecting the remand application and in refusing remand of the accused as prayed for by the police. The learned Magistrate in para 4 of his order has observed that in the quashing proceedings filed before the High Court, driver Babu was present with his mother before the High Court. In fact going through the affidavit and the record of that case, when it was pointed out to the learned counsel Mr. Chitnis, he conceded that Babu was not present before this court and through oversight it has been observed in the judgment of this Court by my learned brother M. S. Parikh, J. that Babu was present. That changes the entire complex of the matter. Babu after his first statement was recorded, is not available for interrogation. In fact, Babu was working as a driver of the accused No. 2, who is staying at Rajkot. After June 1992, the police is not yet able to trace him out and know about his whereabouts. It is to be noted that for Babu even anticipatory bail application was filed in Bombay High Court in connection with this very offence and he was granted anticipatory bail. Babu could have filed the anticipatory bail application either before the Sessions Court at Rajkot or before this Court. It is to be noted that for Babu even anticipatory bail application was filed in Bombay High Court in connection with this very offence and he was granted anticipatory bail. Babu could have filed the anticipatory bail application either before the Sessions Court at Rajkot or before this Court. He, however, preferred to obtain anticipatory bail order from the Bombay high Court, which speaks volumes. Thereafter, in a petition filed for quashing the complaint filed by the mother of Babu before the learned Magistrate, affidavits of Babu and his mother were produced before this Court. The fact remains that Babu has never been seen in Gujarat since June, 1992. In the letter dated 18-8-1992 of Babus Advocate, Mr. M. S. Mohite of bombay High Court, addressed to the Honble the Chief Justice of India at New Delhi, it is stated that his client (Babu) is a witness in Madhubens murder case and his statement was recorded during the investigation in last week of May 1992. Thereafter, he was threatened and pressurised by the police to change his statement and on his refusal he was threatened with direct consequences. Therefore, he obtained anticipatory bail from the Bombay high Court and inspite of that his client fears that the police may use unconstitutional measures to extort a false statement from him. Babu had filed affidavit dated 12-8-1992 which was also annexed with that letter. Now when police is not able to find out whereabouts of Babu, where is the question of his being threatened or pressurised ? Babu belongs to Rajkot and he was staying in Rajkot till June 1992 with his family including his mother, wife and other members of the family. Now, nobody knows his whereabouts. He appeared through Counsel in this Court as well as in the bombay High Court and now his learned Counsel wrote a letter to the Honble the Chief Justice of the Supreme Court. In his affidavit, except stating that he resides at Bombay, his detailed address is not given. What does this suggest ? His affidavit is not made before the Court but it is made before the Notary. Admittedly, he was working as the driver at Rajkot with the accused No. 2 and if he is staying at Bombay then he would now not be in the service of accused No. 2. What does this suggest ? His affidavit is not made before the Court but it is made before the Notary. Admittedly, he was working as the driver at Rajkot with the accused No. 2 and if he is staying at Bombay then he would now not be in the service of accused No. 2. After all, the police wants to record his statement and not to arrest him as the accused. Therefore, there was no reason for the learned Magistrate to refuse remand on this ground. Mr. Kotwal vehemently submitted that the. learned Magistrate was right in refusing the remand on that ground. He has pointed out that the police had earlier recorded the statement of Babu and nothing has come out of it. He has also pointed out that the letter addressed by the Advocate shri Mohite on behalf of Babu to the Registrar of the Honble the Supreme court is treated as a writ petition and the Supreme Court has called for the police report and this Court should take serious note of it. As against that learned P. P. Mr. Trivedi pointed out that the police has already submitted its report on 10-10-1992 to the Supreme Court and no further order is passed by the Supreme Court. Mr. Trivedi has produced before this Court xerox copies of the letter addressed by Advocate Shri Mohite of Babu, the affidavit of Babu, the letter of the Honble the Supreme Court and the report submitted by the police which are ordered to be taken on record. ( 15 ) ). Next ground of remand was regarding the inquiry relating to the injuries received by the accused, the place where the treatment was taken and how the injuries were inflicted on the deceased. The inquiry is also related to the recovery of wearing apparel of accused No. 1. The learned Magistrate simply rejected the same on the ground that remand cannot be granted for such recovery after such a long time. This reason is not at all good in the eye of law for not granting the remand. The learned Magistrate has not at all taken into consideration as to why and under what circumstances delay was caused. The learned Magistrate simply rejected the same on the ground that remand cannot be granted for such recovery after such a long time. This reason is not at all good in the eye of law for not granting the remand. The learned Magistrate has not at all taken into consideration as to why and under what circumstances delay was caused. I have already earlier discussed at length in my judgment about the delay and have already come to the conclusion that even a delay of 10 months is no delay in the facts and circumstances of the case. ( 16 ) ). The learned Magistrate has erred in not granting the remand of the accused for the purpose of meaningful interrogation and investigation. The learned Magistrate has observed that the lawyers were remaining present as per the order of the High Court and, therefore, he cannot make any comment about the same. This is not the correct approach of the learned Magistrate. He has to give his own reasons as to why the remand of the accused cannot be granted for the meaningful interrogation and investigation. This Court in siyarams case (supra) has held "it is always a difficult task to discover the truth when scheming minds are at work, almost at cross purposes. To an extent, in such matters there is a battle of wits and to the extent that scheming minds are successful in their design, greater will be the time that would be required during investigation. " in the instant case, the accused No. 1 is none else but a very leading lady doctor and accused No. 2 is a well-known businessman of Rajkot. Though they were interrogated by the police for about 28 to 32 times they have not disclosed any material information to the police which could lead the police to investigate the case in the right direction. They were protected by the anticipatory bail order of this Court. Even the lie detector test is also of no help to the police. The simpliciter interrogation of the accused, who is armed with the anticipatory bail, did not serve the purpose. The meaningful interrogation under the remand may make a world of difference. Under the aforesaid circumstances, the remand of the accused is most necessary and should have been granted by the learned Magistrate. ( 17 ) ). Mr. The simpliciter interrogation of the accused, who is armed with the anticipatory bail, did not serve the purpose. The meaningful interrogation under the remand may make a world of difference. Under the aforesaid circumstances, the remand of the accused is most necessary and should have been granted by the learned Magistrate. ( 17 ) ). Mr. Kotwal submitted that the scope of the revision application is very narrow and limited and, therefore, considering the reasons assigned by the learned Magistrate in his impugned order this Court should not interfere in its revisional jurisdiction. I am quite conscious about the scope of revision and powers of this Court, but as stated above, the learned magistrate has materially erred in rejecting the remand application on totally irrelevant considerations and the reasons assigned by him for rejecting the remand application cannot be said to be good and tenable. In fact, they are not good grounds at all in the eye of law. There cannot be a better case than this case for this Court to exercise its revisional jurisdiction and to interfere with the impugned order passed by the learned Magistrate. If this Court does not exercise its powers, then it will result into failure of justice. ( 18 ) ). Lastly, Mr. Kotwal submitted that both the accused are very well settled in life. They are eminent persons in their respective fields. Accused no. 1 is a very eminent Doctor attached to four hospitals at Bombay and at present she is also a Director in one hospital. Therefore, if the remand is given, then her entire reputation in the society would be ruined. He also submitted that accused No. 2 is also well settled and a big businessman and he is also having his own status in the society. Therefore, if remand is given, then, it will ruin his reputation in the society and also his career. He has further submitted that because of allegations of some illicit relationship between the accused Nos. 1 and 2 both the accused have suffered a lot of humiliation in the society and in their respective families and the order of remand would be the last straw on the camels back. Therefore, this court, considering the status of the accused in life, should reject the application for remand. I am afraid I cannot accept the submission made by Mr. Kotwal. Therefore, this court, considering the status of the accused in life, should reject the application for remand. I am afraid I cannot accept the submission made by Mr. Kotwal. The status in life, affluence or otherwise are hardly relevant considerations while examining the request for remand application. A highly placed citizens cannot contend that a different standard of law should be made applicable to them. While deciding the question of granting anticipatory bail, the Supreme Court, in the case of Pokar Ram v. State of Rajasthan, reported in AIR 1985 SC 969 observed as under :"let it be made distinctly clear that status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail. "i am in respectful agreement with these observations of the Honble supreme Court. Accordingly, this contention of Mr. Kotwal also fails. ( 19 ) ). Before parting with the judgment I must say that the facts of present case are so complex that it cannot be said as to in which direction the investigation in the matter will further proceed. In the facts and circumstances of the case, I am fully satisfied that the Investigating Officer wants to go deep into the matter with a view to get the truth. Therefore, remand of the accused would be the only proper order in this case and accordingly it has to be granted. ( 20 ) ). In the result this application is allowed. The impugned order passed by the learned Magistrate on 25-11-1992 rejecting the remand application of the accused is hereby quashed and set side. The application dated 20-11-1992, made by police before the learned Magistrate seeking remand of the accused, is granted. The respondents-accused are directed to produce themselves before the Investigating Officer at Rajkot on 2-4- 1993 and they will be taken on remand by the I. 0. from 2-4-1993 to 15-4-1993. If the respondents-accused fail to remain present on that day before the police, then the police is at liberty to arrest the accused and take them on remand for 14 days from the day on which they arrest the accused. Rule is made absolute accordingly. At this stage, on behalf of the accused Mr. Anandjiwala, learned Advocate, requested that the accused want to pursue the matter before the proper forum against the present order and, therefore, two months time may be granted to the accused. Rule is made absolute accordingly. At this stage, on behalf of the accused Mr. Anandjiwala, learned Advocate, requested that the accused want to pursue the matter before the proper forum against the present order and, therefore, two months time may be granted to the accused. The aforesaid request for grant of time has been stoutly opposed by Mr. Trivedi, learned P. P. In the peculiar facts and circumstances of the case, he submitted that there is already delay of 10 months and, therefore, no further time should be granted. In any case 15 days time would be more than enough. It is evident that in a matter such as this, two months time can never be granted. All the same, considering the circumstances of the case, it is necessary to grant reasonable time to the respondents when they want to pursue the matter further against the present order. In the circumstances. the operation of the order passed today is ordered to be stayed till 19-4-1993. It is made clear that the time fixed as aforesaid, will not be further extended on any ground by this Court. If the respondents-accused fail to obtain any order of stay from the proper forum on or before 19-4-1993, then the period of remand should be taken to be from 21-4-1993 for 14 days. This stay is granted on the statement being made by learned Advocate Mr. Anandjiwala for the respondents that he shall file a proper undertaking of the respondents-accused before this court on or before 6-4-1993 that in case if the accused fail to obtain the stay order from the proper forum on or before 19-4-1993, then the respondents-accused will surrender before the I. 0. at Rajkot on 21-4-1993. If the aforesaid undertaking is not filed on or before 6-4-1993 then it will be open to the police to arrest the accused. Copy of the aforesaid undertaking be supplied to the learned P. P. Mr. D. K. Trivedi. The slay against the further proceedings in bail applications filed by the respondents-accused before the learned Sessions Judge, Rajkot stand vacated and the respondents-accused shall not be arrested by the police till 20-4-1993, subject to the aforesaid conditions. Certified copy of this judgment should be made available to the respondents-accused immediately, in any case not later than 3-4-1993. .