ORDER : 1. By way of this application under Section 438 of the Code of Criminal Procedure, 1973, the applicant - accused has prayed for anticipatory bail in connection with the FIR being C. R. No. 11191036211243 of 2021, registered with Navrangpura Police Station, District: Ahmedabad City for the offences punishable under Sections 498A, 323, 294(b) and 377 of the Indian Penal Code, 1860 (IPC) and Sections 3 and 7 of the Dowry Prohibition Act. 2. Whereas, the Criminal Misc. Application No. 1 of 2021 has been filed by the original complainant with following prayers: “(A) This Hon’ble Court be pleased to allow the present application; (B) This Hon’ble Court be pleased to direct the respondent No. 1 – org. applicant in Criminal Misc. Application No. 19503 of 2021 to produce the entire conversation of the so-called chats which is put on record by him in his affidavit-in-rejoinder from page nos. - 112 to 117 and Affidavit-in-sur-rejoinder from page nos. 158 to page nos. 166; (C) This Hon’ble Court be pleased direct the Respondent no. 1 – org. applicant to state on oath that the chats which are placed on record by him in his affidavit-in-rejoinder from page nos. - 112 to 117 and Affidavit-in-sur-surrejoinder from page nos. 158 to page nos. 158 to page nos. 166 are complete, not tampered, altered or edited and further produce necessary evidence to prove the same; (D) This Hon’ble Court be pleased to direct the Respondent No. 1 – org. applicant to offer and/or produce his phone, laptop (Macbook) and all his hard-drives to the investigating agency forthwith to find the correctness, truthfulness, genuineness of the so called chats which are produced by him on record; (E) That this Hon’ble Court be pleased to initiate the prosecution against respondent no. 1 – org. applicant U/s. 191, 192 & 193 of Indian Penal Code, 1860 for the alleged act of fabricating false evidence and producing the false evidence before this Hon’ble Court; (F) Any such other and further relief as though fit in the interest of justice.” 3. Heard learned senior advocate Mr. I. H. Syed with learned advocate Mr. Nirav C. Thakkar for the applicant, learned senior advocate Mr. Jal S. Unwalla with learned advocate Mr. Bomi H. Sethna for the original complainant and learned APP Ms. M. H. Bhatt for the respondent – State. 4. Heard learned senior advocate Mr. I. H. Syed with learned advocate Mr. Nirav C. Thakkar for the applicant, learned senior advocate Mr. Jal S. Unwalla with learned advocate Mr. Bomi H. Sethna for the original complainant and learned APP Ms. M. H. Bhatt for the respondent – State. 4. The learned senior advocate for the applicant has submitted that the applicant is apprehending arrest in connection with the aforesaid FIR. It is submitted that the learned Sessions Judge has rejected the application filed by the present applicant for grant of anticipatory bail. The learned advocate for the applicant further submitted that the applicant is charged with the aforesaid offences, however, the ingredients of the said offences are not satisfied. It is further submitted that the applicant and the original complainant are the husband and wife having a long marriage span of about 17 years and in progeny, also having boy child aged about 14 years. It is submitted that the applicant is an Architect by profession, who is belonging to a very well educated family and it is only after this much period of 17 years, the original complainant has come with the aforesaid complaint, which itself is suggestive of the ill motive of the complainant. 4.1 The learned senior advocate for the applicant further submitted that, without any reasons, the original complainant left her matrimonial home in November 2020 and present FIR is filed belatedly in October 2021, and accordingly, on this ground only, the present application requires favourable consideration. 4.2 It is submitted that present FIR is nothing but a preemptive strike by the original complainant as the applicant had come to know and confronted the original complainant with some factual aspect, unbecoming of a legally wedded wife. It is with vehemence submitted that only with a view to depart with the applicant and pursue her affair, the present complaint has been filed against the applicant sans any material. 4.3 It is further submitted that the applicant is doing well in life and applicant and his family also supported the original complainant in developing her career, she being well educated, and she was also doing good and accordingly, there is no question of demanding money/dowry from the original complainant that too, after a long span of 17 years. 4.3 It is further submitted that the applicant is doing well in life and applicant and his family also supported the original complainant in developing her career, she being well educated, and she was also doing good and accordingly, there is no question of demanding money/dowry from the original complainant that too, after a long span of 17 years. 4.4 It is also submitted that till the original complainant left her matrimonial home and even thereafter, until the impugned complaint is filed, there was not a single complain from the original complainant side so far as the allegation for the offence punishable under Section 377 IPC is concerned. 4.5 It is further submitted that the applicant tried his best for survival of their marriage, however, all went in vain and the complainant left the home of the applicant on her own volition. The learned senior advocate for the applicant submitted that the applicant has no antecedents. Accordingly, in the facts and circumstances of the case, it is urged that present application may kindly be allowed and the applicant may be granted anticipatory bail. 4.6 The learned advocate for the applicant has also produce on record the extract of the Chats with original complainant and some photographs as well as medical papers and documents in support of his case. 4.7 The learned advocate for the applicant has further submitted that the applicant will keep himself available during the course of investigation as well as during trial and will not flee from justice. 4.8 The learned advocate for the applicant, on instructions, states that the applicant is ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for remand. It is further submitted that upon filing of such application by the Investigating Agency, the right of applicant - accused to oppose such application on merits may be kept open. The learned advocate, therefore, submitted that considering the above facts, the applicant may be granted anticipatory bail. 4.9 In support of his case, the learned senior advocate for the applicant has relied upon following decisions: i) Nimeshbhai Bharatbhai Desai v. State of Gujarat, MANU/GJ/0291/2018, whereby, FIR in such offence was quashed and prior to that, vide order of the Coordinate Bench dated 12.10.2017 passed in Criminal Misc. 4.9 In support of his case, the learned senior advocate for the applicant has relied upon following decisions: i) Nimeshbhai Bharatbhai Desai v. State of Gujarat, MANU/GJ/0291/2018, whereby, FIR in such offence was quashed and prior to that, vide order of the Coordinate Bench dated 12.10.2017 passed in Criminal Misc. Application (For Anticipatory Bail) No. 25606 of 2017, anticipatory bail was granted. ii) Arnesh Kumar v. State of Bihar and Another, (2014) 8 SCC 273 ; iii) Siddharam Satlingappa Mhetre v. State of Maharashtra and Others, (2011) 1 SCC 694 ; 4.10 So far as the application filed by the original complainant with aforesaid prayers are concerned, it is submitted that the Court is seized with the anticipatory bail and the tenor of the application filed by the original complainant is something like taking evidence in trial and accordingly, at this stage, the same cannot be entertained and accordingly, it is urged that the application filed by the original complainant being Criminal Misc. Application No. 1 of 2021 for direction may be rejected. 5. Per contra, the learned APP appearing on behalf of the respondent – State has opposed the grant of anticipatory bail looking to the nature and gravity of the offence. She made available for perusal some investigation papers and submitted that from the investigation carried out so far, prima facie case has been made out against the present applicant – accused and accordingly, this being an anticipatory bail, it is urged that the same may not be entertained and the application is requested to be rejected. 6. Learned senior advocate Shri Unwalla with learned advocate Mr. Sethna, heavily assailing the application for anticipatory bail, submitted that only with a view to save her matrimonial life, for the future of their son and to avoid societal stigma, the original complainant bore all these trauma and atrocities for years. He further submitted that a woman in our society generally would prefer to keep mum and bear everything till she could. It is submitted that even the Investigating Officer at the Navrangpura Police Station is hand in glove with the applicant as he has not recorded the version of the original complainant verbatim though she had given the complaint in writing. It is submitted that even the Investigating Officer at the Navrangpura Police Station is hand in glove with the applicant as he has not recorded the version of the original complainant verbatim though she had given the complaint in writing. 6.1 It is submitted that the complainant was forced to watch porn and thereafter, demand from him to act accordingly and on complainant’s refusal to succumb to such demand, the applicant used to get furious and abuse the complainant physically and verbally. 6.2 It is further submitted that prior to the marriage of the complainant with the applicant, twice the engagement of the applicant with two different ladies had broken up respectively in the years 1995 and 1996 and in 1998, the applicant had got married with another woman. The said marriage also did not work up and ended up in divorce in 2004, during which complains regarding cruelty had ill-treatment was also filed against the applicant, as the applicant being dominating and dictator in nature. It is submitted that the applicant secured the sympathies of the complainant being known to each other and got married. However, soon the complainant became the victim of the applicant. It is submitted that the applicant used to threaten the father of the complainant to give money and since the father of the complainant was not rich enough to pay, the complainant had to bear the brunt of the same. 6.3 The learned senior advocate for the original complainant submitted that so far as the so-called chats between the applicant and the complainant upon which the applicant has relied upon, the same are totally fabricated. He submitted that there was no reason for the complainant for doing such chats when they were cohabiting during the said period. Accordingly, the complainant has filed the application to bring the truth out of the said chats. 7. He submitted that there was no reason for the complainant for doing such chats when they were cohabiting during the said period. Accordingly, the complainant has filed the application to bring the truth out of the said chats. 7. Having heard the arguments advanced by the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offence, role attributed to the applicant – accused, more particularly, the following aspects, without discussing the evidence in detail, at this stage, the Court is inclined to exercise discretion in favour of the applicant: i) the marriage span of the applicant and original complainant is almost of 17 years; ii) during such a long span, nothing prima facie surfaced suggestive of any allegations / complain of cruelty, misbehaviour, being intimate unnaturally with the original complainant, against the applicant; iii) FIR in question is filed almost after a year of leaving matrimonial home by the complainant; iv) as per catena of decisions of the Apex Court there are mainly two factors which are required to be considered by this Court: i) prima facie case; ii) requirement of accused for custodial interrogation. 7.1 Therefore, in the facts and circumstances of the present case, the Court is inclined to consider the case of the applicant. 7.2 The Court has also taken into consideration the law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre (supra), wherein the Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, (1980) 2 SCC 565 ., wherein the Court has held that: “Section 438 CrPC is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. A great ignominy, humiliation and disgrace is attached to arrest. Vs. State of Punjab, (1980) 2 SCC 565 ., wherein the Court has held that: “Section 438 CrPC is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. A great ignominy, humiliation and disgrace is attached to arrest. In cases where Court is of the considered view that accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided, and anticipatory bail should be granted, which after hearing Public Prosecutor, should orginarily be continued till end of trial.” 7.3 Further, in the recent decision of the Constitution Bench in Sushila Aggarwal v. State (NCT of Delhi) [MANU/SC/1538/2019 : (2020) 5 SCC 1 ], the considerations which ought to weigh with the Court in deciding an application for the grant of anticipatory bail have been reiterated. The final conclusions of the Court indicate that: ....92.3...While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. 92.4 Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court. 7.4 Further, in the decision in Nimeshbhai Bharatbhai Desai (supra), the Court, while allowing the application for quashing the FIR in similar such offence, has observed as under: “12. Having heard the learned counsel appearing for the parties and having considered the materials on record, the following questions fall for my consideration; (I) Whether a husband can be prosecuted for the offence of rape punishable under section 376 of the IPC at the instance of his wife? (II) Whether a wife can initiate proceedings against her husband for unnatural sex under section 377 of the IPC? (III) Whether there is any concept of marital rape? (II) Whether a wife can initiate proceedings against her husband for unnatural sex under section 377 of the IPC? (III) Whether there is any concept of marital rape? (IV) Whether the acts complained by the wife in her first information report would fall within the ambit of "unnatural offence" within the meaning of section 377 of the IPC?. (V) Whether the acts of sexual assault or sexual perversion as alleged by the wife against her husband would constitute physical and mental cruelty within the meaning of section 498A of the IPC?. (VI) Whether a person can be held guilty of outraging the modesty of his own wife? xxx 50. In the backdrop and setting of the discussions, as above, I am of the view that so far as the case at hand is concerned, the various acts attributed to the accused – husband would not fall within the ambit of section 377 IPC. 51. Thus, in the aforesaid view of the matter, I have reached to the conclusion that no case is made out against the accused – husband so far as the offence punishable under Sections 376 and 377 of the IPC is concerned.” 8. Thus, considering the overall facts and circumstances of the case on hand, this Court is of the considered opinion that this is a fit case to exercise the discretion vested in the Court under Section 438 of the Criminal Procedure Code, 1973 and to grant anticipatory bail to the applicant. 9. In the result, Criminal Misc. Application No. 19503 of 2021 is allowed. 9. In the result, Criminal Misc. Application No. 19503 of 2021 is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with the above-referred FIR on executing a personal bond of Rs.25,000/- (Rupees Twenty Five Thousand only) with one surety of like amount on the following conditions: a) shall cooperate with the investigation and make available for interrogation whenever required; b) shall remain present at concerned Police Station on 15.01.2022 between 11.00 a.m. and 2.00 p.m.; c) 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; d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; e) shall at the time of execution of bond, furnish the address to the investigating officer and the Court concerned and shall not change his residence till the final disposal of the case till further orders; f) shall not leave India without the permission of the concerned trial Court and if having passport shall deposit the same before the concerned trial Court within a week; g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide the remand application without being influenced of the observations made by this Court. 9.1 The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. 9.2 At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order. 9.3 Rule is made absolute accordingly in Criminal Misc. Application No. 19503 of 2021. 10. So far as the Criminal Misc. Application No. 1 of 2021 is concerned, the applicant has sought the above-referred prayers, which in the considered opinion of the Court, is matter of trial and at the stage of anticipatory bail, the Court is not required to go deep into such an aspect of the matter as the Court is required to mainly check the prima facie case against the applicant and requirement of custodial interrogation of the applicant, as per the settled legal position as referred to herein above. Accordingly, in the facts and circumstances of the case on hand, Criminal Misc. Application No. 1 of 2021 requires to be rejected and is accordingly, rejected. 11. Direct service is permitted.