Omkarsing Vasudevsing Rajput vs State Of Gujarat

Dr. Ashokkumar C. Joshi, J

By way of the present application under section 438 of the Code of Criminal Procedure, 1973, the applicant - accused has prayed for anticipatory bail in connection with the FIR being I-C.R. No. 84 of 2014, registered with Sachin Police Station, District: Surat for the offences punishable under Sections 325, 143, 147, 148, 149, 385, 387 and 120-B of the Indian Penal Code, 1860 (IPC).

Heard learned advocate Mr. H. A. Dave for the applicant and learned APP Ms. Monali Bhatt for the respondent - State.

The learned advocate for the applicant has submitted that the applicant is apprehending arrest in connection with the aforesaid FIR. It is submitted that the incident is of 2014 and the applicant is protected till date by the Court and is cooperating with the investigation. Further, it is submitted that the applicant was not named in the FIR at the first instance and was later arraigned. Besides, the co-accused have been released by the Court on bail. It is submitted that the ingredients of the offence alleged against the applicant are not satisfied. Accordingly, in the facts and circumstances of the case, it is urged that present application may kindly be allowed and the applicant may be granted anticipatory bail.

3.1 The learned advocate for the applicant has further submitted that the applicant will keep himself available during the course of investigation as well as during trial and will not flee from justice.

3.2 The 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 remand. It is 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. The learned advocate, therefore, submitted that considering the above facts, the applicant may be granted anticipatory bail.

Per contra, the learned APP appearing on behalf of the respondent - State has opposed the grant of anticipatory bail looking to the nature and gravity of the offence. It is submitted that the applicant has several antecedents and is a headstrong person. Further, the applicant is the main conspirator and main accused and was absconding for which, warrant of arrest was also issued against the applicant. Further, he is not the local resident. So far as the co-accused are concerned, it is submitted that they are released on regular bail and hence, the applicant cannot pray for parity. Accordingly, it is urged that present application may not be entertained and the investigation be continued.

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 offence, role attributed to the applicant - accused, more particularly, the fact as emanating from the record that the incident is of 2014 and till date the applicant was protected in a quashing petition and that the applicant stated to have cooperated in the investigation, without discussing the evidence in detail, at this stage, the Court is inclined exercise discretion in favour of the applicant. As per catena of decisions of the Hon'ble Apex 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.

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

5.2 The 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 Ors. (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, (1980) 2 SCC 565. Further, the Court has also taken into consideration the ratio laid down in the case of Sushila Aggarwal and Ors. Vs. State (NCT of Delhi) and Anr., MANU/SC/0100/2020 (passed in Special Leave Petition No. 7281-7282/2017 on 29.01.2020).

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 above-referred FIR on executing a personal bond of Rs.25,000/- (Rupees Twenty Five Thousand only) 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 15.12.2021 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 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;

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.

7.1 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 accordingly. Direct service is permitted.