Krishna Gopal Rajgadiya vs State Of Gujarat

Dr. Ashokkumar C. Joshi, J

Heard learned advocate Mr.Dharmesh R. Patel for the applicant and learned APP Ms. Moxa Thakkar for the Respondent - State.

By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused viz. Krishna Gopal Rajgadiya has prayed for anticipatory bail in connection with the FIR being C.R. No. I - 11208053202783 of 2020 registered with Rajkot Taluka Police Station, Rajkot Town, punishable under Sections 406 and 420 of the Indian Penal Code.

2.2. The factual matrix of the case are as under :

(a) The case of the prosecution is that the applicant alleged to have committed the offence of cheating under Sections 406 and 420 of the I.P.C.

(b) The applicant had filed an for anticipatory bail before the Sessions Court, Rajkot being Criminal Misc. Application No.114 of 2021 and the same has been rejected vide order dated 05.03.2021. Hence, the present applicant is before the court.

Learned advocate for the applicant has submitted that the applicant is apprehending his arrest in connection the aforesaid FIR and in this connection the earlier application filed by the applicant before the learned Sessions Court came to be dis-allowed. Learned advocate for the applicant has submitted that just to give criminal colour, a false and frivolous complaint is created to pressurize the present applicant. He also submitted that the applicant has returned the goods and there is no prima facie case is made out against the applicant under Sections 406 and 420 of the I.P.C. He further submitted that the applicant has already appeared before the Investigating Officer and therefore, the present application may kindly be allowed.

Learned advocate for the applicant has further argued that the applicant will keep himself available during the course of investigation and 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 submitted 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 APP Ms. Moxa Thakkar appearing on behalf of the respondent - State has opposed grant of anticipatory bail and she has stated that the applicant is a purchaser but in fact, as such, there is an offence of cheating and therefore, offence under Sections 406 and 420 is registered against the applicant and the value of the goods is Rs. 32,79,310/-, looking to the nature and gravity of the offence, the discretion may not be exercised in favour of the applicant.

Having heard the arguments advanced by 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 offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant.

This Court has considered following aspects,

(a) as per catena of decisions of Hon'ble Supreme Court there are mainly two factors which are required to be considered by this court;

(i) prima facie case

(ii) requirement of accused for custodial interrogation.

(b) This Court has not entered into detailed evidence.

(c) The case pertains to stolen goods.

(d) The offence is registered under Sections 406 and 420 of the I.P.C. and the learned APP through Investigating Officer has not made any special circumstances, which is against the applicant.

(e) As per the Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. as reported at [2011] 1 SCC 6941, bail is a rule and jail is exception.

It appears that custodial interrogation is not required. However if the same is required, the powers of calling remand by the Investigating Officer is open.

Therefore, in the facts and circumstances of the present case, this court is inclined to consider the case of the applicant.

This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sushila Aggarwal & Ors. Vs. State (NCT of Delhi)- Anr. reported in 2020 SCC Online SC 98 and in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported at [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 & Ors. Vs. State of Punjab, reported at (1980) 2 SCC 565.

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 the aforesaid FIR on executing a personal bond of Rs. 25,000/- with one surety of like amount on the following conditions:

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

(b) shall remain present at concerned Police Station on 20.12.2021 . between 12.00 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 his residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned 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 remand application without being influenced of the observations made by this Court;

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 concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.

Rule is made absolute. Direct service is permitted.