Aghera Kishorbhai Motibhai vs State Of Gujarat

Nikhil S. Kariel, J

Heard learned Advocate Mr. Dipen K. Dave for the applicants and learned Additional Public Prosecutor Mr. J.K.Shah on behalf of the respondent-State.

Rule. Learned APP Mr. Shah waives service of rule on behalf of the respondent-State.

By way of this application under Section 438 of the Code of Criminal Procedure, 1973, the applicants prays for being released them on anticipatory bail in connection with FIR being C.R. No. 336 of 2021 registered with GUVNL Police Station Rajkot, District Rajkot on 26.02.2021 for offence punishable under Section 135 of the Electricity Act, 2003.

Learned Advocate Mr. Dave for the applicants would submit that the FIR inter alia alleges commission of offence punishable under Section 135 of the Electricity Act, 2003. Learned Advocate would submit that the allegation being that the meter which was placed at the factory where the present applicants were partners, was found damaged and tampered with. Learned Advocate would submit that as a matter of fact, one of the partners of the factory is the father of the applicant No.1 herein and whereas the electricity connection was in the name of the said person and furthermore father of the applicant No.1 herein had preferred a writ petition before this Court being Special Civil Application No.7687 of 2021 and whereas in the said petition, vide an order dated 15.03.2022, learned Co-ordinate Bench of this Court had issued Rule and also noted the fact that the writ applicant therein had deposited 50% of the bill amount and whereas the writ applicant was ready and willing to deposit the remaining 50% of the bill amount in 12 monthly equal installments. Learned Advocate would submit that having regard to the fact that the person in whose name the meter was registered, had undertaken to deposit the entire bill amount and whereas the present applicants being arraigned as accused only on account of the fact that they were partners of the company, without any specific role being attributed to them, this Court may consider the present application and release the present applicants on anticipatory bail.

Learned Advocate Mr. Dave for the applicants on instructions states that the applicants are 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 their remand. Learned Advocate would further submit that upon filing of such application by the Investigating Agency, the right of applicants-accused to oppose such application on merits may be kept open.

This application is vehemently opposed by learned Additional Public Prosecutor Mr. Shah appearing on behalf of the respondent-State, who would submit that the applicants as partners were responsible for maintenance of the meter of the first informant-company and whereas merely on account of the fact that the electricity connection, had been granted in the name of one of the partners, the same would not absolve the other partners of their liability. Learned APP would submit that under such circumstances the applicants may not be released on anticipatory bail by this Court.

Having heard the learned Advocates for the parties and perused the record, it appears that the electricity connection was in the name of one Motibhai Parsottambhai Aghera, who happens to be father of the applicant No.1 herein. It also appears that as far as the bill amount is concerned, the said Motibhai, had deposited 50% of the bill amount as upfront in the month of March, 2022 and had undertaken before this Court to deposit the remaining 50% within 12 monthly equal installments. Furthermore, it appears that there is no allegation of the present applicants being involved in the offence, more particularly there being no allegation against the present applicants of having tampered with the meter in any manner whatsoever. Insofar as the aspect of liability is concerned, the fact of the electricity connection being in the name of an individual, who was otherwise partner of the company, and the said partner having undertaken to pay the bill amount, is an also aspect which requires to be taken into consideration.

Having regard to the same 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.

In the result, the present application is allowed by directing that in the event of applicants herein being arrested pursuant to the FIR being C.R. No. 336 of 2021 registered with GUVNL Police Station Rajkot, District Rajkot, the applicants shall be released on bail on furnishing a personal bond of Rs.25,000/- (Rupees Twenty Five Thousand only) each with one surety of like amount, on the following conditions:

(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;

(b) shall remain present at the concerned Police Station on 28.06.2022 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 their 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.

Despite this order, it would be open for the Investigating Agency to file an application for police remand of the applicants to the competent Magistrate, if he thinks it just and proper and learned Magistrate would decide it on merits. The applicants 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 applicants, 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.

At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicants on bail. Rule is made absolute to the aforesaid extent.

Direct service is permitted.