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2009 DIGILAW 187 (GUJ)

Manishbhai Jayantilal Soni v. State Of Gujarat

2009-03-20

ABHILASHA KUMARI

body2009
ORDER : Abhilasha Kumari, J. Rule. Mr.L.B.Dabhi, learned Addl.Public Prosecutor waives service of notice of rule for the respondent-State of Gujarat. In the facts and circumstances of the case, this application is being heard and decided today. 2. This application, under Section 438 of the Code of Criminal Procedure, 1973, has been filed by the applicant for grant of anticipatory bail in connection with FIR, being CR.No.I-1 of 2009, registered at Kapadvanj Town Police Station, for offences punishable under Sections 323, 354, 504, 506(2) and 114, of the Indian Penal Code. 3. The FIR came to be lodged on the basis of a complaint filed by one Jaishreeben Janakrai Joshi. It is stated in the FIR that the daughter of the complainant i.e. one Ms.Komalben, eloped with accused No.4 and when the complainant and her husband went to look for her, while they were passing by the house of the accused No.1, he and applicant, who is accused No.2, got agitated and came out of the house, and both of them started beating the husband of the complainant with sticks. The accused Nos.3 and 4 also joined the applicant and accused No.1 in beating the complainant and her husband, who sustained injury on his head. It is further stated that the accused No.1 and accused No.2 also misbehaved with the complainant, put their hands inside her blouse, caught hold of her breasts and tore her blouse. It is further stated that the accused Nos.3 and 4 shouted that the complainant should be dragged into the house and raped. The accused persons also threatened the complainant that acid would be poured upon her. 4. Mr.Hardik A.Dave, learned counsel for the applicant has submitted that : (i) the applicant has been falsely implicated and is innocent. The accused No.1 is, at present, President of the Kapadvanj Nagar Seva Sedan and the applicant is his real brother. The applicant No.4 was an employee of the accused No.1 and the daughter of the complainant has married the accused No.4 and the married couple had come to the house of the applicant to seek his blessings, on the day of the incident. (ii)That except for the offence punishable under Section 506(2) of the Indian Penal Code, which is made non-bailable in the State of Gujarat, all other offences alleged against the applicant are bailable ones. (ii)That except for the offence punishable under Section 506(2) of the Indian Penal Code, which is made non-bailable in the State of Gujarat, all other offences alleged against the applicant are bailable ones. That the Sessions Court has wrongly rejected the application for anticipatory bail preferred by the applicant on the ground that the complainant has produced a chart, which reflected the pendency of several criminal cases against accused No.1 and applicant, before various courts. The Certificate of the Police Sub-Inspector, Kapadvanj Town Police Station dated 6-3-2009 shows that no warrants, summons or notices are pending for service as far as the applicant is concerned. The cases which are pending against the applicant pertain to matters under Section 138 of the Negotiable Instruments Act and for non-payment of market fees, and as such it cannot be said that the applicant has any criminal antecedents. (iii) That as all the offences alleged against the applicant, except under Section 506(2) of the Indian Penal Code, are bailable offences, the so-called antecedents of the applicant would not matter and, in any case the offence under Section 506(2) is attributed to the accused Nos.3 and 4 who are not before this court and, therefore, the application for anticipatory bail may be considered. 5. On the other hand, Mr.L.B.Dabhi, learned Addl.Public Prosecutor has strongly opposed the grant of anticipatory bail to the applicant and has submitted that the narration in the FIR clearly indicates that a prima facie case is made out against the applicant. It is submitted that the applicant is named as accused No.2 in the FIR and it cannot be said, from a reading thereof, that he is not involved in the commission of the above-mentioned offences and, therefore, the application may be dismissed. 6. Mr.N.D.Nanavati, learned senior advocate appearing for the original complainant has also strongly opposed the grant of anticipatory bail to the applicant and has submitted that : (i)The accused No.1 is a powerful and influential person in the area, as he is holding the post of President, in Kapadvanj Nagar Seva Sedan. The applicant is also a head-strong person, and this fact is evident from a bare reading of the FIR, which clearly reveals his direct involvement in the commission of the offences mentioned therein. The applicant is also a head-strong person, and this fact is evident from a bare reading of the FIR, which clearly reveals his direct involvement in the commission of the offences mentioned therein. That the accused No.1 and applicant have not only beaten, and threatened the complainant and her husband, but have misbehaved with the complainant in the worst possible manner by molesting her and this is clearly borne out from the description in the FIR, and a panchanama regarding the torn blouse of the complainant, is also on record. (ii)That the application for anticipatory bail preferred by the applicant was rightly rejected by order dated 12-1-2009 of the Sessions Court, however, the applicant was not arrested immediately thereafter by the investigating authority as he is an influential person. The accused No.4, filed an application for quashing of the FIR in the High Court and by order dated 15-1-2009 rendered in Criminal Misc. Application No.335 of 2009, the court was pleased to stay further investigation and proceedings in the present FIR as well as another FIR lodged by the daughter of the complainant against the complainant. The complainant had to approach the court by filing an application, requesting the court to vacate the stay so far as accused No.1 and accused Nos.2 and 3 are concerned, as they were not petitioners before the court. Accordingly, by order dated 18-3-2009 passed in Criminal Misc. Application No.1172 of 2009 in Criminal Misc. Application No.335 of 2009, the court has clarified that the order dated 15-1-2009, would operate only in respect of accused No.4 and it would be open to the investigating authority to investigate the present FIR against the applicant and accused Nos.1 and 3, as well as the FIR registered at the behest of the daughter of the complainant. (iii) That the applicant, being an influential person, being the brother of accused No.1,who is the President of Kapadvanj Nagar Seva Sedan, is trying his level best to influence the authorities so that no action is taken again him and there is a reasonably strong apprehension that he may tamper with the evidence and threaten the complainant and other witnesses and, therefore, the application may be rejected. 7. I have heard the learned counsel for the respective parties, perused the averments made in the application, contents of the FIR and other documents on record. 7. I have heard the learned counsel for the respective parties, perused the averments made in the application, contents of the FIR and other documents on record. The present application has been filed for grant of anticipatory bail. After going through the material on record, it emerges that the present is not a case in which discretion under Section 438 of the Code of Criminal Procedure can be exercised, considering the following aspects : (a) It is a settled position of law that discretion under Section 438 of the Code of Criminal Procedure should not be exercised in a casual or routine manner, but only in compelling and exceptional circumstances. It is also equally settled that where a prima facie case is made out from the record, the court should be reluctant to exercise jurisdiction under Section 438 of the Code of Criminal Procedure. The grant of anticipatory bail, to some extent, hampers the investigation and comes in the way of the Investigating Agency, as held in Pokar Ram v. State of Rajasthan and others, reported in (1985)2 SCC 597 . No exceptional and compelling circumstances exist for grant of anticipatory bail, in the present case. (b) A bare reading of the FIR as well as other material on record is sufficient to reveal the prima facie involvement of the applicant in the commission of the alleged offences. Only because some of the offences are bailable ones, will not automatically entitle the applicant for grant of anticipatory bail, when the totality of the facts and circumstances of the case, as emerging from the material on record, prima facie, show that the applicant is involved in the commission of the offences, as alleged. (c) The complainant has categorically described the indecent manner in which the applicant has misbehaved with her. The accused No.1, brother of the applicant, is holding the post of President in Kapadvanj Nagar Seva Sedan and is an influential person in the area. The applicant is, therefore, in a position to influence the investigating agency, tamper with the evidence and to intimidate and threaten the complainant and the witnesses. If anticipatory bail is granted to him, there is a likelihood that the applicant may resort to the above-mentioned tactics and, therefore, the court does not think it prudent to exercise discretion in his favour. If anticipatory bail is granted to him, there is a likelihood that the applicant may resort to the above-mentioned tactics and, therefore, the court does not think it prudent to exercise discretion in his favour. (d) While rejecting the application for anticipatory bail filed by the applicant, the Sessions Court, in its judgment dated 12-1-2009 has taken into consideration the fact that several cases are pending against him. The learned counsel for the applicant has produced a certificate dated 6-3-2009 issued by the Police Sub-Inspector, Kapadvanj Town Police Station, to the effect that no summonses, warrants or notices remain to be served upon the applicant. The said certificate, by no stretch of imagination, can be taken to mean that no cases are pending against the applicant or that he has no criminal antecedents. On the contrary, it shows that the applicant is influential enough to procure such a certificate, from the Investigating Agency. (e) The cumulative result of the above-mentioned aspects that have been considered by the court is that the application for anticipatory bail deserves to be rejected. It is, accordingly rejected. 8. No other submission has been advanced on behalf of the respective parties. 9. It is made clear that the court has not gone into the merits of the case and has dealt with the application from the perspective of grant of anticipatory bail. No observation made in this order may be considered as touching upon the merits of the case, and this aspect may be kept in mind by the trial Court. 10. Rule is discharged Application Rejected.