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2022 DIGILAW 789 (GUJ)

CHELABHAI BHIMABHAI JOGRANA v. STATE OF GUJARAT

2022-06-20

NIKHIL S.KARIEL

body2022
ORDER : 1. Heard learned Advocate Mr. K.S. Chandrani on behalf of the applicant and learned Additional Public Prosecutor Mr. L.B. Dabhi on behalf of the respondent-State. Learned Advocate Mr. Dushyant Bhatt on behalf of the first informant is permitted to file his vakalatnama. 2. Rule. Learned APP waives service of rule on behalf of the respondent-State. 3. 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. 11211031220012 of 2022 registered with Limbdi Police Station, District: Surendranagar on 16.01.2022 for offences punishable under Sections 307, 326, 323, 504, 506(2), 427, 143, 147, 148 and 149 of the Indian Penal Code and Section 135 of the Gujarat Police Act. 4. Learned Advocate Mr. Chandrani for the applicant would submit that the allegations against the applicant was of having administered a threat, a day prior to the date of the principal incident of assault upon the first informant and whereas learned Advocate Mr. Chandrani would emphasize that the present applicant was neither present at the place of incident and whereas in the FIR as well as charge-sheet filed against other accused, the Investigating Officer has not included offence punishable under Section 120B of the Indian Penal Code. Learned Advocate would therefore submit that merely on account of the fact that on a day before the incident, the present applicant had allegedly administered a threat and whereas on that date the first informant not having filed any complaint or even an application against the present applicant, the present applicant merely on account of the long standing feud between both the families, may not be required to undergo the rigours of custodial interrogation. 5. Learned Advocate would submit that the nature of allegations are such for which custodial interrogation at this stage may not be necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. 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. 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. He 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. 6. This application is strongly opposed by learned APP Mr. Dabhi who would submit that the first informant was brutally assaulted by the other accused and whereas the present applicant having threatened the first informant on a day prior to the incident in question and whereas the incident happening on the next day would show that there was a preplanned conspiracy. 7. To a pointed query by this Court, learned APP would submit that in the charge-sheet filed against the other co-accused, offence punishable under Section 120B of the Indian Penal Code has not been alleged. 8. This petition is also vehemently opposed by learned Advocate Mr. Dushyant Bhatt on behalf of the first informant, who has also tendered an affidavit-in-reply objecting to grant of anticipatory bail. Affidavit-in-reply on behalf of the first informant is taken on record. 8.1 Learned Advocate Mr. Bhatt would submit that on account of the brutal assault, where the other accused, had inflicted injuries with the help of very serious weapons like swords, iron pipes and sticks, the first informant, had received number of fractures on both his hands and legs and whereas permanent damage also has been caused to five fingers of leg of the first informant. Learned Advocate would submit that the applicant, having threatened the first informant on the day prior to the incident and whereas there being antecedents against the present applicant of being involved in such offences, this Court may not release the present applicant on anticipatory bail. 9. Having considered the submissions made by learned Advocate for the parties and considering the fact situation from the view point of the law laid down by the Hon’ble Apex Court in case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others, (2011) 1 SCC 694 , more particularly paragraph no. 9. Having considered the submissions made by learned Advocate for the parties and considering the fact situation from the view point of the law laid down by the Hon’ble Apex Court in case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others, (2011) 1 SCC 694 , more particularly paragraph no. 112 thereof, in the considered opinion of this Court, it is apparent that the present applicant was not present or had not taken part as in the assault upon the first informant which had taken place on 13.01.2022 and whereas the allegation against the applicant in the FIR was only of having administered a threat to the first informant on 12.01.2022, outside the Court premises. That the first informant on that day i.e. on 12.01.2022 had neither registered an FIR with regard to such a threat nor did the first informant, atleast give an application as regards the said threatening. It also appears that there is a long standing feud between two families with regard to business rivalry and whereas number of FIRs have been filed against the applicant as well as other accused. 10. Having considered the fact that the applicant was not present at the site of the incident and also considering the fact that the present applicant is stated to have threatened the first informant a day prior to the incident, inspite of the fact that the affidavit-in-reply, shows about there being antecedents against the present applicant, and since the antecedent also appeared to be with regard to Sections 504, 506(2) of Indian Penal Code and also in one case for offence punishable under Section 323 of Indian Penal Code, in the considered opinion of this Court, the present application deserves consideration. 11. In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to FIR No. 11211031220012 of 2022 registered with Limbdi Police Station, District Surendranagar the applicant shall be released on bail on furnishing a personal bond of Rs. 10,000/- (Rupees Ten Thousand only) with one surety of like amount, on the following conditions: (a) shall cooperate with the investigation and make himself available for interrogation whenever required. 10,000/- (Rupees Ten Thousand only) with one surety of like amount, on the following conditions: (a) shall cooperate with the investigation and make himself available for interrogation whenever required. (b) shall remain present at the concerned Police Station on 23.06.2022 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 passports shall surrender the same before the Trial Court within a week. 12. 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. 13. 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. 14. Direct service is permitted.