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Gujarat High Court · body

2022 DIGILAW 612 (GUJ)

Patel Jayantibhai Ambalal v. State Of Gujarat

2022-04-29

A.S.SUPEHIA

body2022
ORDER : Rule. Learned APP waives service of notice of rule for and on behalf of the respondent-State. 1. Heard the learned advocates for the respective parties. 2. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for bail in connection with the FIR being C.R.No.I-60 of 2008 registered with Langhanaj Police Station, District Mehsana for the offences under Sections 420, 465, 468, 471 and 114 of the Indian Penal Code, 1860 (IPC) and under Sections 12(1) of the Passport Act, 1967. 3. Learned advocate for the applicant has submitted that the applicant is innocent and wrongly roped in the alleged offence. It is submitted that the applicant had applied for American visa through an agent and agent had arranged everything to send him to America. It is submitted that firstly, the applicant went to Nairobi and then he reached America on 31.08.20021 and since then, he was in America and his agent had taken away his original passport and other documents. It is submitted that the applicant was not in India between 2001 to 2022 and, therefore, he was not aware about any passport, which was produced by his wife before the authority as that was also given by the agent, who had taken away original passport of the applicant. It is submitted that the applicant is 61 years of age and having no antecedents. It is submitted that the wife of the petitioner has cooperated and she has been acquitted in Criminal Case No.11114 of 2008 by the judgement and order dated 20.04.2022 passed by the Court of 7th Additional Senior Civil Judge and 7th Additional Chief Judicial Magistrate, Mehsana. 3.1 Learned advocate for the applicant submitted that the nature of allegations are such for which custodial interrogation of the applicant at this stage is not necessary. He further submitted that the applicant will keep himself available during the course of investigation, as well as trial also and will not flee from justice. 3.2 Learned advocate for the applicant, on instructions, submitted 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. 3.2 Learned advocate for the applicant, on instructions, submitted 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. He further submitted that upon filing of such application by the investigating agency, the right of the applicant accused to oppose such application on merits may be kept open. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted bail. 4. Learned APP has tendered a report, which is ordered to be taken on record. He has opposed grant of bail looking to the nature and gravity of the offence. 5. Having heard 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 offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant bail to the applicant. 6. This Court has considered following aspects; (a) The F.I.R. is of the year 2008 and chargesheet was filed in the name of the co-accused i.e. wife of the applicant; (b) There are no antecedents of the applicant; (c) The co-accused i.e. wife of the applicant is acquitted in Criminal Case No.11114 of 2008 by the judgement and order dated 20.04.2022 passed by the Court of 7th Additional Senior Civil Judge and 7th Additional Chief Judicial Magistrate, Mehsana; (d) Since 2001, the applicant was not available in India and his original passport was with his agent in India; (e) Pursuant to the order dated 20.04.2022, the applicant has remained present before the Investigating Officer and cooperated with the investigation; (f) Prima facie considering the facts of the case, the custodial interrogation of the applicant is not necessary at this stage; 7. Looking to the over all facts and circumstances of the present case, I am inclined to consider the case of the applicant. 8. This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (Nct of Delhi) , AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 312 . 9. In the result, the present application is allowed. 8. This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (Nct of Delhi) , AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 312 . 9. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with FIR being C.R.No.I-60 of 2008 registered with Langhanaj Police Station, District Mehsana on his executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that he : (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at the concerned Police Station on 05.05.2022 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. 10. Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicant, if he considers it proper and just and the Magistrate would decide if on merits. The applicant shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the application of the prosecution for police remand. The applicant shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the 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 concerned 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 bail order. 11. At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order. 12. The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Registry is directed to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode. 13. Learned advocate for the applicant is also permitted to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.