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2019 Supreme(Guj) 531
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIPUL M. PANCHOLI, J.
Kishanbhai Atmarambhai Solanki – Appellant
Versus
State of Gujarat – Respondent
Criminal Misc. Application No. 12302 of 2019
Decided On : 05-07-2019
Advocate Appeared:
For the Appellant : Mr. Anvesh V. Vyas.
For the Respondents: Mr. L.B. Dabhi, Mr. P.A. Suthar.
Headnote:
Code of Criminal Procedure, 1973 -Section 438 -Indian Penal Code, -Sections 376, 363, 323, 504, 506(2) and 114 -Protection of Children from Sexual offences -Sections 6 and 17 Information Technology Amendment Act -Sections 67 and 67B –Applicant submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. He further submits that the applicant will keep himself available during the course of investigation, trial also and will not flee from justice. 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 further submits 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. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted anticipatory bail. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. 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 offence, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant anticipatory bail to the applicant. Court has also considered the following aspects: learned advocates appearing for the applicant and the complainant have jointly submitted that the matter is settled out of the Court and, therefore, the mother of the complainant has filed an affidavit wherein it is stated that matter is settled and, therefore, if the applicant is released on anticipatory bail, the complainant and her mother have no objection. learned advocate for the complainant has identified the complainant and her mother, who are present in the Court. in view of the aforesaid facts and circumstances of the present case, without further going into the merits of the case, this Court is inclined to exercise discretion in favour of the applicant.–Held 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 a FIR being C.R. No. I-60 of 2019 registered with Police Station, on his executing a personal bond of Rs. 10,000/- with one surety of like amount. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. 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. the trial, the Trial Court shall not be influenced by the prima-facie observations made by this Court in the present order. Rule is made absolute to the aforesaid extent. Direct service is permitted –Appeal is Allowed.
1. Rule. Mr. L.B. Dabhi, learned Additional Public Prosecutor, waives service of notice of Rule on behalf of respondent-State.
2. Mr. P.A. Suthar, learned advocate, states that he has received instructions to appear on behalf of the original first informant. He is permitted to file his Vakalatnama in the Registry.
3. By way of the present 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. I-60 of 2019 registered with Bavla Police Station, District Ahmedabad, for the offence punishable under Sections 376, 363, 323, 504, 506(2) and 114 of the Indian Penal Code, Sections 6 and 17 of the Protection of Children from Sexual offences Act and Sections 67 and 67B of the Information Technology Amendment Act.
4. Learned advocate for the applicant submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. He further submits that the applicant will keep himself available during the course of investigation, trial also and will not flee from justice.
5. 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 further submits 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. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted anticipatory bail.
6. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of anticipatory bail looking to the nature and gravity of the offence.
7. 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 offence, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant anticipatory bail to the applicant.
8. This Court has also considered the following aspects:
(a) learned advocates appearing for the applicant and the complainant have jointly submitted that the matter is settled out of the Court and, therefore, the mother of the complainant has filed an affidavit wherein it is stated that matter is settled and, therefore, if the applicant is released on anticipatory bail, the complainant and her mother have no objection.
(b) learned advocate for the complainant has identified the complainant and her mother, who are present in the Court.
(c) in view of the aforesaid facts and circumstances of the present case, without further going into the merits of the case, this Court is inclined to exercise discretion in favour of the applicant.
9. This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others, (2011) 1 SCC 694, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia and Others vs. State of Punjab, (1980) 2 SCC 565.
10. 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 a FIR being C.R. No. I-60 of 2019 registered with Bavla Police Station, District Ahmedabad, on his executing 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.
(b) shall remain present at concerned Police Station on 12.07.2019 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 acquain
