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2003 DIGILAW 664 (GUJ)

JAYESH SON OF GOPAL RAMANI v. STATE

2003-11-19

J.N.PATEL

body2003
JAYANT PATEL, J. ( 1 ) RULE. Mr. K. C. Shah, learned APP waives service of notice of rule on behalf of the respondent State. ( 2 ) I have heard Mr. Oza, learned Counsel appearing with Ms. Ahuja for the petitioners, Mr. Goswami, learned Counsel for the complainant and Mr. K. C. Shah, learned APP for the State. ( 3 ) IT has been contended by Mr. Oza that in connection with the very complaint, the father of petitioner No. 1, Mr. Gopal Ramani was arrested and thereafter as per the order dated 10-11-2003 passed by this Court (Coram: D. P. Buch, J.) in Criminal Misc. Application No. 8917 of 2003 he has been released on regular bail. Mr. Oza submitted that the Original Complainant is indebted heavily and there are a large number of creditors and petitioner No. 1 and his father being Advocates, the complaint is filed against the strong persons with a view to see that no other creditors would go to the complainant for collection and recovery of the amount. Mr. Oza also submitted that the I. O. in the proceedings of habeas corpus has filed the affidavit stating that no substance is found till that date in the complaint and as per the submission of Mr. Oza, the brother of the complainant, who is alleged to have been abducted, is seen by one Jayesh and the I. O. has not taken care to record statement of such person and, therefore, he submitted that it would be a case for granting all the petitioners, the anticipatory bail. Mr. Oza submitted that petitioner No. 1 is an Advocate practising at Baroda, petitioner No. 2 is the wife of Gopal Ramani, who is also an Advocate and father of petitioner No. 1 and so far as petitioner No. 3 is concerned, he is aged 84 years and he is also a patient of paralysis and bed-ridden and, therefore, it has been submitted that the allegations made by the complainant, prima facie, shows that they are with a view to put the pressures upon the other creditors and they do not inspire any confidence. ( 4 ) ON behalf of the respondent State, Mr. K. C. Shah, learned APP submitted, inter alia, that the investigation is going on and up till now, Kanaiyalal, who is alleged to have been abducted is not traced. Mr. ( 4 ) ON behalf of the respondent State, Mr. K. C. Shah, learned APP submitted, inter alia, that the investigation is going on and up till now, Kanaiyalal, who is alleged to have been abducted is not traced. Mr. Shah also submitted that in the statements of Paresh it was reported that one Jayesh had informed Paresh that Kanaiyalal was seen by him in Ahmedabad and, therefore, he submitted that no reliance can be placed at this stage to hamper the investigation more particularly qua the person, who is abducted and, therefore, he submitted that it would not be a case for releasing any of the accused on anticipatory bail. ( 5 ) MR. GOSWAMI, learned Counsel appearing for the complainant, has supported the case of the prosecution. ( 6 ) HAVING considered the above, I am of the view that so far as the considerations for anticipatory bail are concerned, it would be profitable to refer to the recent decision of the Apex Court in the case of "bharat Chaudhary and Another v. State of Bihar and Anr. ", reported in 2003 (8) SCC, 77. The Apex has observed at para 7 as under:"7. . . . The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, in our opinion, prevent the courts concerned from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. " ( 7 ) IF the matter is examined accordingly, at this stage it does transpire that Kanaiyalal, as per the complaint, is abducted by the petitioner No. 1 and is till today Kanaiyalal is not traced by the Police. " ( 7 ) IF the matter is examined accordingly, at this stage it does transpire that Kanaiyalal, as per the complaint, is abducted by the petitioner No. 1 and is till today Kanaiyalal is not traced by the Police. It may be that the Police, during the course of investigation, may require custodial interrogation, considering the seriousness of the offence of abduction of the brother of the complainant; I am of the view that if the anticipatory bail is granted, more particularly qua petitioner No. 1 at this stage, it may hamper the investigation and the investigating machinery will not be in a position to proceed further with the investigation in a convenient manner, more particularly for the purpose of tracing the person who is abducted. ( 8 ) SO far as petitioner No. 2 is concerned, she is the wife of Gopal Ramani, who is also one of the accused, but since she is a female different consideration would prevail. So far as petitioner No. 3 is concerned, as has been reported, he is a patient of paralysis and bed-ridden person and, therefore, considering the physical infirmities, different consideration would prevail. It may also be stated that for the alleged abduction, as such there is no direct allegations or involvement as per the complaint qua petitioners No. 2 and 3. In any case, as observed earlier, so far as petitioners No. 2 and 3 are concerned, matter would stand on different footing. However, for the purpose of considering the matter for anticipatory bail for petitioner No. 1 is concerned, I am of the view that if the anticipatory bail is granted at this stage, it would hamper the investigation in a free and fair manner and such investigation may also require custodial interrogation of petitioner No. 1. I would have recorded further reasons for not granting anticipatory bail to petitioner No. 1 by considering other facts and circumstances of the present case however, Mr. Oza, learned Counsel for the petitioners, has prayed for not to record detailed reasons further since, as per submissions of Mr. Oza, any observation further by this Court may prejudice the defence of the petitioners at the trial and, therefore, upon the request of Mr. Oza, I have not further recorded the reasons for declining the prayer for granting anticipatory bail qua petitioner No. 1. Oza, any observation further by this Court may prejudice the defence of the petitioners at the trial and, therefore, upon the request of Mr. Oza, I have not further recorded the reasons for declining the prayer for granting anticipatory bail qua petitioner No. 1. ( 9 ) IN view of the aforesaid, the present application so far as petitioner No. 1 is concerned deserves to be rejected and so far as petitioners No. 2 and 3 are concerned, the same deserves to be allowed on the following conditions:9. IN the event of the arrest of the petitioners No. 2 and 3 in Crime Register No. I-196 of 2003 of Vadodara City Police Station, they shall be released on bail in respect of offences alleged against them in this application on executing a bond of Rs. 10,000/= (Rupees ten thousand only) each with one surety each of the like amount, by the concerned Police Officer and on further conditions that; a. petitioner No. 2 shall remain present before the trial Court regularly as and when directed on dates fixed; b. petitioner No. 2 shall report at Vadodara City Police Station on 21-11-2003 between 9. 00 a. m. and 2. 00 p. m. ; c. the I. O. concerned may verify whether petitioner No. 3 is a paralytic patient and bed-ridden or not and, if yes, the necessary formalities may be undertaken by the I. O. for the formal arrest and release on anticipatory bail at the residence of petitioner No. 3, where he is residing. 00 p. m. ; c. the I. O. concerned may verify whether petitioner No. 3 is a paralytic patient and bed-ridden or not and, if yes, the necessary formalities may be undertaken by the I. O. for the formal arrest and release on anticipatory bail at the residence of petitioner No. 3, where he is residing. d. petitioner No. 2 shall make herself available for interrogation by a Police Officer whenever and wherever required and petitioner No. 3 shall cooperate for the interrogation by a Police Officer whenever required; e. petitioners No. 2 and 3 shall 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; f. petitioners No. 2 and 3 shall not obstruct or hamper the police investigation and not play mischief with the evidence collected or yet to be collected by the police; g. at the time of execution of bond furnish the 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; h. petitioners No. 2 and 3 shall not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week. ( 10 ) IT would be open to the investigation officer to file an application or remand if he considers it proper and the learned Magistrate would decide it on merits. ( 11 ) THIS order will hold good if the petitioners No. 2 and 3 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 No. 2 and 3 to make a 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 attendant circumstances and the materials available at the relevant time uninfluenced by the fact that Anticipatory Bail was granted by this Court to the petitioners No. 2 and 3. ( 12 ) RULE is made absolute qua petitioners No. 2 and 3. ( 12 ) RULE is made absolute qua petitioners No. 2 and 3. Rule discharged qua petitioner No. 1. Direct service is permitted. .