Aliahmed Mohammed Yusuf Shaikh vs State Of Gujarat

J. C. Doshi, J

By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant - accused has prayed for enlarging him on anticipatory bail in connection with the FIR being C .R. No.11196008220370 of 2022 registered with J.P. Road Police Station, Vadodara City, for the offence punishable under Sections 406, 420, 465, 467, 468, 471 and 120 (B)of the Indian Penal Code.

RULE returnable forthwith. Learned APP Ms. Jirga Jhaveri as also learned advocate Mr. Umarfaruk Kharadi, waive service of notice of rule for and on behalf of the respective respondents.

Heard learned advocate for the applicant, learned APP for the respondent – State and learned advocate for the original complainant.

Learned Advocate appearing on behalf of the applicant would submit that considering the nature of offence, the applicant may be enlarged on anticipatory bail by imposing suitable conditions.

On the other hand, the learned Additional Public Prosecutor appearing for the respondent-State has strongly opposed this application and granting anticipatory bail to the applicant looking to the nature and gravity of the offence. Learned advocate for the original complainant has also strongly opposed this application.

I have heard the learned advocates appearing for the respective parties, perused the investigation papers and have also taken into consideration the facts of the case, nature of allegations, role attributed to the applicant- accused. Without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant. 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, reported at [2011] 1 SCC 6941, wherein the Hon'ble Apex Court has reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia and others, reported at (1980) 2 SCC 665.

Following aspects are also considered:-

(I) Investigation is practically over as charge-sheet is filed against two co-accused;

(II)Two other co-accused are enlarged on regular bail, one by the Coordinate Bench of this Court in Criminal Misc. Application No.1445 of 2023, whereas another has been enlarged on regular bail by the learned Sessions Judge in order of Criminal Misc. Application No.2242 of 2022;

(iii) The alleged offence is triable by the Court of Judicial Magistrate First Class;

(iv) The alleged offence is attributed to the documents, which are already in possession of the Investigating Officer;

(v) Upon instructions, learned advocate Mr. Dagli appearing for the applicant, submits that applicant is ready and willing to extend all cooperation with the further investigation of the offence;

(vi) This Court has also taken into consideration the Constitution Bench judgment in the case of Sushilla Aggrawal V/s State (NCT of Delhi) reported in 2020 (0) AIJEL-SC65697;

(VII) Regular Civil Suit No.289 of 2021 is pending between the complainant and the accused as also other parties, whereupon the application below Exhibit -5 seeking interlocutory injunction has been denied by the concerned Civil Court;

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 the 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 the applicant-accused to oppose such application on merits may be kept open.

In the result, the present application is allowed by directing that in the event of arrest of the applicant herein in connection with FIR registered as C .R. No.11196008220370 of 2022 registered with J.P. Road Police Station, Vadodara City, the applicant shall be released on bail on his furnishing a personal bond of Rs.10,000/-(Rupees Ten Thousand Only) with one surety of the 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 25th May, 2023 and 26th May, 2023 between 10.00 AM and 02.00 PM;

(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/them from disclosing such facts to the court or to any police officer;

(d) shall not obstruct or hamper the police investigation and shall 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 Court and if having passport, shall deposit the same before the Trial Court within a week; and

(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide the same on merits

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.

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.

The application is allowed accordingly. Rule is made absolute in the aforesaid terms. Direct service is permitted.