Gopalbhai Khimabhai Kaliya vs State Of Gujarat

A.Y. Kogje, J

Learned Advocate for the applicants does not press this application as withdrawn qua applicant No.1­GOPALBHAI KHIMABHAI KALIYA and the applicant No.4­KANUBHAI KHENGARBHAI KALIYA. The application stands disposed of as not pressed qua the aforesaid applicant Nos.1 and 4. Rule is discharged. The Court has not entered into the merits of the case.

This application is filed by the applicants under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail in the event of their arrest in connection with FIR registered at C.R. No.I­11215029200344 of 2020 before Tarapur Police Station, Anand, for the offence punishable under Sections 447, 448, 354, 395, 427 and 120B of the Indian Penal Code and Section 135 of the Gujarat Police Act..

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

On the other hand, the learned Additional Public Prosecutor appearing for the respondent­State has opposed this application and granting anticipatory bail to the applicants looking to the nature and gravity of the offence.

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 applicants­ accused. Without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicants. 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) The F.I.R. is registered on 24.11.2020 for the offence which is alleged to have taken place on 24.11.2020;

(II) Learned Advocate for the applicants submitted that the investigation pertains to demolition activities carried out at behest of the accused No.1 who is Police Inspector, though there is no authority to do so.

(III) Learned Advocate for the applicants submitted that the applicants were only present as a part of the mob. Even otherwise, as per the case of the prosecution, the applicants were merely present at the place of incident with stick. However, they have not used the said stick.

(IV) Learned Advocate for the applicants submitted that Co­accused, identically situated, have been enlarged on anticipatory bail by Coordinate Bench of this Court vide order dated 24.02.2021 in Criminal Misc.Application Nos.20143 of 2020, vide order dated 04.05.2021 in Criminal Misc.Application Nos.5306 of 2021, vide order dated 07.06.2021 in Criminal Misc.Application Nos.6504 of 2021.

(V) Learned Advocate for the applicants submitted that considering the fact that the applicants are protected vide order dated 22­07­2021.

(VI) Learned Additional Public Prosecutor under the instructions of the Investigating Officer is unable to bring on record any special circumstances against the applicant.

Learned Advocate 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 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 applicants­accused 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 No.2­VITHALBHAI BHIKHABHAI BHARVAD and applicant No.3­MERUBHAI GOVINDBHAI CHAWDA herein in connection with FIR registered as C.R. No.I­11215029200344 of 2020 before Tarapur Police Station, Anand, the applicants shall be released on bail on their furnishing a personal bond of Rs.10,000/­ (Rupees ten thousands only) EACH with one surety of the like amount on the following conditions that they:

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

(b) shall remain present at the concerned Police Station on 28­09­2021 between 11.00 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 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 their residence till the final disposal of the case till further orders without the permission of Trial Court;

(f) To mark presence once in month before the concerned Police Station till filing of the charge­sheet

(g) shall not leave India without the permission of the Trial Court and if having passport, shall deposit the same before the Trial Court within a week; and

(h) not to enter Taluka­Tarapur for the period of three months except for marking presence and attending the trial;

(i) 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 applicants. 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.

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

Direct service is permitted.