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2022 DIGILAW 1096 (GUJ)

Dipak Shravan Sharma v. State of Gujarat

2022-09-28

NIKHIL S.KARIEL

body2022
ORDER : 1. Heard learned Advocate Mr.Vishal Anandjiwala appearing on behalf of the applicant, learned Additional Public Prosecutor Mr.Ronak Raval on behalf of the respondent-State and learned Advocate Mr.Hriday Buch appearing with learned Advocates Mr.Aditya Pandya and Mr.Nishit Acharya for the First Informant. 2. By way of this application under Section 438 of the Code of Criminal Procedure, 1973, the applicant – original accused prays for being released on anticipatory bail in connection with FIR No.11191014220237 of 2022 registered with Ellisbrdige Police Station, District Ahmedabad (City) on 12.8.2022 for offences punishable under Sections 376(2)(b), 376(2)(n), 307, 323, 504, 506, and 507 of IPC. 3. Learned Advocate Mr.Anadjiwala for the applicant would submit that the nature of allegations are such for which custodial interrogation of the applicant at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. Learned Advocate would submit that the present applicant has been falsely implicated and he has not committed any offence as alleged in the FIR. Learned Advocate Mr.Anandjiwala would, therefore, request that in view of the above, the applicant may be granted anticipatory bail. 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 his remand. Learned Advocate would further submit 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. 4. This application has been vehemently opposed by learned Additional Public Prosecutor Mr.Raval appearing on behalf of the respondent-State, who would submit that looking to the nature and gravity of the offence the applicant may not be released on anticipatory bail by this Court. 5. This application has been vehemently opposed by learned Advocate Mr.Hriday Buch on behalf of the First Informant, who would submit that the applicant has been continuously harassing the First Informant by going to her residence and calling her repeatedly to the extent of calling her multiple times everyday and whereas upon calls not being received, even abusive messages have been sent by the present applicant. Learned Advocate Mr.Buch would, therefore, submit that considering the serious nature of the offence, the present applicant may not be granted bail by this Court. 6. Learned Advocate Mr.Buch would, therefore, submit that considering the serious nature of the offence, the present applicant may not be granted bail by this Court. 6. Having heard the learned Advocates for the parties and having perused the investigation papers, following aspects are taken into consideration by this Court: 1. It appears that the FIR has been lodged by the First Informant on 12.8.2022 inter alia alleging commission of offence between 5.11.2017 to 6.7.2020. The allegation being that the present applicant had allured the first informant to enter into a relationship with the present applicant, more particularly by giving false promise of marriage; 2. It appears that even from the FIR it is apparent that the marital status of the present applicant was known to the First Informant somewhere after the applicant and First Informant had met in the year 2017. It also appears that even after coming to know about the marital status of the present applicant, the present applicant and First Informant had continued their relationship. 3. It appears that the present applicant had submitted an application/complaint to the Commissioner of Police on 2.11.2020 inter alia with the self-same allegations and whereas it appears that at the relevant point of time, the ACP, Mahila Cell, Vastrapur, Ahmedabad City had been entrusted with the inquiry upon the application/complaint and whereas it appears that in spite of the repeated calls by the Officer concerned, the present First Informant had not responded and thus, the said application/complaint filed by the applicant had been closed by the concerned Officer on 11.3.2021. 4. It appears that the present FIR is filed approximately one year and five months after the closure of the earlier application and whereas the FIR does not make out any proximate cause for its filing; 7. As regards the submissions of learned Advocate Mr.Hriday Buch, in the considered opinion of this Court, while it is true that the FIR is not required to be an encyclopedia of all facts, but at the same time, even skeletal mention of the requisite facts has to be made out from a plain reading of the FIR itself. In the instant case, the FIR proceeds on the footing as regards an offence committed between 5.11.2017 and 6.7.2020 whereas the instances referred to by learned Advocate Mr.Buch for the First Informant are not referred to in the FIR. In the instant case, the FIR proceeds on the footing as regards an offence committed between 5.11.2017 and 6.7.2020 whereas the instances referred to by learned Advocate Mr.Buch for the First Informant are not referred to in the FIR. The FIR proceeds on a footing as if the First Informant had been allured into a relationship and whereas the relationship had continued for a considerable long period of time and whereas the grievance now being made by the applicant is about harassment by the present applicant recently. As it is, in such a case, since harassment had occurred at the residence of the present First Informant at Mumbai, it was always open for the First Informant to have approached the concerned Police Station for taking appropriation action. 8. Prima facie it appears to this Court that the parties were in a relationship and later on the relationship has gone sour and whereas later on the present applicant appears to be insisting for continuing the relationship, and whereas the same has resulted in the FIR but at the same time, it also requires to be mentioned that the latter part of the prima facie observation of this Court is not coming out from the FIR itself. It also requires to be mentioned that such prima facie observation finds support in an E-mail between the parties more particularly in an E-mail where the First Informant has clearly stated to the present applicant that while she is ready to talk about the genuine dues of the present applicant, the applicant was “more interested in other things”. While it may be true that the applicant may be harassing the present First Informant, but in the considered opinion of this Court, such harassment could not automatically translate into an FIR inter alia alleging serious offences as punishable under Section 376, 307 etc. 9. Having regard to the circumstances noted above, and considering the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011)1 SCC 694 , this Court is inclined to consider this application. 10. 9. Having regard to the circumstances noted above, and considering the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011)1 SCC 694 , this Court is inclined to consider this application. 10. In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to FIR No.11191014220237 of 2022 registered with Ellisbrdige Police Station, District Ahmedabad (City), the applicant shall be released on anticipatory bail on furnishing a personal bond of Rs.1,00,000/- (Rupees One lac only) with one surety of like amount, on the following conditions that the applicant: (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at the concerned Police Station on 5.10.2022 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 or till further orders; (f) shall not leave India without the permission of the Court and, if having passport shall surrender the same before the Trial Court within a week; (g) shall mark his presence once in every month for a period of next six months at the concerned Police Station; (h) shall not try and contact, or in any manner, try to influence the First Informant and in case of any violation, it would be open for the First Informant to approach the learned Sessions Court, which shall pass an appropriate order on merits, including an order of cancellation of bail. 11. Despite this order, it would be open for the Investigating Agency to file an application for police remand of the applicant to the competent Magistrate, if he thinks it just and proper and learned Magistrate would decide it on merits. 11. Despite this order, it would be open for the Investigating Agency to file an application for police remand of the applicant to the competent Magistrate, if he thinks it just and proper and learned Magistrate would decide it on merits. 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. 12. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted.