Kalubhai Kaherbhai Kanotara vs State Of Gujarat

Nikhil S. Kariel, J

Heard learned Advocate Mr.L. R. Pathan appearing for learned Advocate Mr.Z. L. Khan on behalf of the applicant, learned Additional Public Prosecutor Mr.Dabhi on behalf of the respondent-State, and learned Advocate Mr.Laxmansinh Zala for the First Informant.

Rule returnable forthwith. Learned APP waives service of rule on behalf of the respondent-State and learned Advocate Mr.Zala for the First Informant.

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.11211010220029 of 2022 registered with Chuda Police Station, Surendranagar on 24.3.2022 for offences punishable under Sections 307, 323, 324, 326, 504, 147, 148, 149, 427 read with Section 120(B) of IPC and Section 25(1-B) of Arms Act and Section 135 of Gujarat Police Act.

Learned Advocate Mr.Pathan for the applicant would would submit that the applicant has been falsely implicated in the present case and the applicant has not been named in the present FIR. Learned Advocate Mr.Pathan would further submit that the the present applicant was not present at the place of incident and no role has been attributed to him. Learned Advocate Mr.Pathan would submit that the applicant is ready and willing to abide by any conditions that may be imposed by this Hon’ble Court and requests this Court to protect the present applicant by granting him anticipatory bail.

Learned Additional Public Prosecutor appearing on behalf of the respondent-State has vehemently opposed grant of anticipatory bail looking to the nature and gravity of the offence. Learned APP would submit that having regard to the gravity of offence, releasing the present applicant on anticipatory bail may not be in the interest of the investigation and request this Court not to grant anticipatory bail to the present applicant.

Considering the submissions of the learned Advocate Mr.Pathan for the applicant, learned APP Mr.Dabhi for the respondent State and learned Advocate Mr.Zala for the First Informant, following relevant aspects are noted by this Court:

That the incident in question appears to have happened when the First Informant and his employer along with one other person had gone to the house of one of the co-accused at around 5.30 a.m. It prima facie appears to this Court that the employer of the present applicant as well as one of the co-accused had a fire arm with them and whereas since the employer of the applicant and the applicant and the other co-accused had gone with the intention of assaulting one of the co-accused, it is in retaliation that the alleged incident in question had happened;

That the applicant is stated to be having an iron pipe and injured the employer of the First Informant with the pipe in question, but as noted herein above, since it was the employer of the First Informant and the First Informant and another employee, who were the aggressors and who had gone to the house of one of the co-accused with an intention of assaulting, more particularly there appearing to be some dispute with regard to election between the parties, though the retaliation appears to be on the higher side, considering the weapon used by the present applicant, benefit is pre-arrest bail required to be granted to the applicant.

Insofar as the warrant issued against the applicant under Section 70 of Cr.P.C., it appears that the same has been issued without looking at the facts in totality. That the FIR had been filed on 24.3.2022, where the present applicant was not named as an accused and whereas it appears that the present applicant upon coming to know of the applicant being named as accused within 6 days of the FIR on 1.4.2022 approached the learned Sessions Court and whereas the learned Sessions Court vide order dated 8.4.2022 has rejected the application. The applicant has thereafter approached this Court on 18.4.2022 and whereas the matter has remained pending in the interregnum till notice was issued by this Court on 11.7.2022. The fact of this Court being on vacation for a period of four weeks in the interregnum also requires to be factored for.

Having regard to the same, in the considered opinion of this Court, the present applicant was exhausting legal remedies available to him and at that time the learned Magistrate having issued warrant under Section 70 Cr.P.C., may not have been justified, but since this Court is only exercising jurisdiction under Section 438 of Cr.P.C., at this stage this Court restrains from observing anything further.

Having regard to the circumstances noted above, 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 applicant herein being arrested pursuant to FIR No.11211010220029 of 2022 registered with Chuda Police Station, Surendranagar on 24.3.2022, the applicant shall be released on anticipatory bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of like amount, on the following conditions that the applicant:

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

(b) shall remain present at the concerned Police Station on 22.07.2022 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 present 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;

(g) not enter in the limits of Chuda Taluka for three months from the date of release;

[h] shall also furnish the address of residence outside Chuda Taluka, where he would be residing during the three months, to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior intimation to the Investigating Officer concerned;

[i] mark his presence once in every fortnight for a period of next three months at the nearest Police Station of his place of stay, when he would be staying out of Chuda Taluka, the nearest police station to be decided by the learned Trial Court;

[i] once he enters Chuda Taluka, he shall mark his presence once in a month for next six months or till the trial is over, whichever is earlier.

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.

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. Direct service is permitted.