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Gujarat High Court · body

2016 DIGILAW 1927 (GUJ)

Subhash Arjanbhai Maru v. State of Gujarat

2016-09-02

PARESH UPADHYAY

body2016
ORDER : PARESH UPADHYAY, J. This is an application for anticipatory bail. 2. The applicant has prayed for anticipatory bail in the event of his arrest in connection with C.R-I No. 37 of 2016 registered with the Kapadwanj Police Station, District: Kheda, for the offence punishable under Section 302 of the Indian Penal Code, 1860. 3. Learned advocate for the applicant has invited the attention of this Court to the complaint and the nature of the allegation against the applicant. Attention of this Court is also invited to the contents of C.R-I No. 36 of 2016 registered with the Kapadwanj Police Station, District: Kheda, wherein the applicant himself is the complainant and the deceased is the first accused. He has submitted that, considering the totality the applicant be granted anticipatory bail. 4. On the other hand, learned Additional Public Prosecutor has contested this application. It is submitted that the offence is punishable under Section 302 of the Indian Penal Code and considering the seriousness of the matter, this application be dismissed. 5. It is noted that considering the seriousness of the matter, notice was issued to the complainant as well, he is served, he has chosen not to appear. 6.1 Having heard learned advocate for the applicant and learned Additional Public Prosecutor for the State and having gone through the material on record, and which is made available to the Court by learned Additional Public Prosecutor, this Court finds that, this is the fit case to grant anticipatory bail to the applicant in exercise of powers under Section 438 of the Code of Criminal Procedure, 1973 This Court is conscious of the fact that the offence in question is punishable under Section 302 of the Indian Penal Code. The factors which have weighed with this Court, are as under. 6.2 The offence in question is registered as C.R-I No. 37 of 2016. This has to be seen along with C.R-I No. 36 of 2016 registered with the very same Police Station, wherein the applicant himself is the complainant and the deceased is the first accused. The said FIR was registered on 04.07.2016 at 01.00 hours i.e. the night between the 3rd and 4th of July, 2016. The details of one person having been injured and circumstances leading thereto are informed to the police by the present applicant himself. The said FIR was registered on 04.07.2016 at 01.00 hours i.e. the night between the 3rd and 4th of July, 2016. The details of one person having been injured and circumstances leading thereto are informed to the police by the present applicant himself. The said accused - injured died subsequently, and consequently C.R-I No. 37 of 2016 is registered, wherein this applicant - who is the first informant of C.R-I No. 36 of 2016, is named as an accused. On conjoint consideration of the contents of both the FIRs, and the role attributed to both the sides, this Court finds that, the applicant needs to be protected. 6.3 It is noted that, before arriving at this conclusion, it was thought prudent to consider the say of the family members of the victim as well (i.e. the complainant of this FIR). For this purpose, this Court had issued notice to the complainant on 10.08.2016 The complainant refused to accept the notice. Notice was issued again, which is served to the complainant through the concerned police station. Hearing was adjourned more than once, so that the complainant can appear before this Court. Even then, the complainant has chosen not to appear. 6.4 On merits it is noted that, pursuant to the order of this Court dated 10.08.2016, learned Additional Public Prosecutor has made available to this Court, the statements of the material witnesses of the offence in question. On conjoint consideration of this material, criminality on the part of the deceased, and the present applicant acting within his right to self defence, both are writ large. Further, the complainant of this FIR not availing opportunity to put his case before this Court, further fortifies that aspect. On overall consideration, this Court finds that, the applicant has strong case on merits and refusal to exercise discretion in his favour, in the facts of the case, would result in the miscarriage of justice. This application therefore needs to be allowed. 7. In view of above, the following order is passed. 7.1 This application is allowed. 7.2 It is directed that, in the event of arrest of the applicant in connection with C.R-I No. 37 of 2016 registered with the Kapadwanj Police Station, District: Kheda, the applicant shall be released on bail on furnishing personal bond of Rs. 25,000/- (Rupees twenty five thousand only) and one surety of the like amount, on the following conditions. 7.2 It is directed that, in the event of arrest of the applicant in connection with C.R-I No. 37 of 2016 registered with the Kapadwanj Police Station, District: Kheda, the applicant shall be released on bail on furnishing personal bond of Rs. 25,000/- (Rupees twenty five thousand only) and one surety of the like amount, on the following conditions. (a) shall co-operate with the investigation and make himself available for interrogation whenever required; (b) 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; (c) shall not obstruct or hamper the police investigation and shall not play mischief with the evidence collected or yet to be collected by the police. 7.3 At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while recording this order. 7.4 Rule is made absolute. Direct service is permitted.