Gafarbhai Ismailbhai Sodha Vs. State of Gujarat - Court Judgment

Excerpt:

Judgment:

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL

MISC.APPLICATION No. 13177 of 2011

======================================

GAFARBHAI

ISMAILBHAI SODHA - Applicant(s)

Versus

STATE

OF GUJARAT - Respondent(s)

======================================

Appearance

:
MR

HRIDAY BUCH for Applicant(s) : 1,
MS CM SHAH ADDITIONAL PUBLIC

PROSECUTOR for Respondent(s) :

1,
======================================

Date

: 03/10/2011

ORAL

ORDER

In

the facts and circumstances of the case and by consent of both the

sides, this matter is taken up for hearing today.

2. This

is an application for anticipatory bail under Section 438 of the Code

of Criminal Procedure in connection with the FIR bearing C.R. I No.81

of 2011 registered with Vanthali Police Station, for the offences

punishable under Sections 306, 323, 504 and 114 of the Indian Penal

Code and Section 135 of the Bombay Police Act.

3. Learned

advocate Mr. Buch for the applicant submitted that the applicant is

an innocent person and he has been wrongly arraigned in the case of

the prosecution. From the bare reading of the FIR, it is prima facie

established that the dispute in question is pertaining to property

and the ingredients of Sections for the offences alleged against the

applicant, are not established. Even the ingredients of instigation,

provocation and abetment are not attracted to the case of the

applicant. The applicant is very poor person. Therefore, the

applicant may kindly be granted anticipatory bail by imposing

suitable conditions.

4. Ms.

Shah, learned Additional Public Prosecutor representing the State

submitted that from the bare reading of the complaint, prima facie,

it appears that the role is attributed on the part of the applicant.

Considering the nature of offences in which the applicant is involved

as well as the manner in which the offences are committed by the

applicant, the application deserves to be rejected.

5. Perused

the application along with papers and considered the submissions

advanced by the learned advocate of respective parties. From the

papers, prima facie, it appears that there is no direct evidence

links the applicant in the commission of the offence. I have perused

dying declaration of the deceased and prima facie, the ingredients of

the offence alleged are not proved. At this stage of anticipatory

bail, this Court is not entering into merit of the case.

6. In

view of the above facts and circumstances of the case, I am inclined

to exercise discretion in favour of the applicant.

7. The

application is stands allowed. The applicant is granted anticipatory

bail in the event of his arrest in connection with CR No. I 81 of

2011 registered with Vanthali Police Station, for the offences as

alleged in FIR on his executing bond of Rs.10,000/- [Rupees Ten

thousand only] with one surety of the like amount on the following

conditions that he shall:

[a] co-operate

with the investigation and make himself available for interrogation

whenever and wherever he required.

[b] shall

remain present at the concerned Police Station on 5.10.2011

at 11.00 AM

[c] shall

not hamper the investigation in any manner nor shall directly or

indirectly make any inducement, threat or promise to any person

acquainted with the facts of the case so as to dissuade him from

disclosing such facts to the Court or to any police officer;

[d] at

the time of execution of bond, furnish him residential address to the

investigating officer and the Court concerned and shall not change

the residence till the final disposal of the case or till further

orders;

[e] not

leave India without the permission of the Court and, if holding a

passport, he shall surrender the same before the Trial Court within a

week;

[f] not

obstruct or hamper the police investigation and not play mischief

with the evidence collected or yet to be collected by the police;

8. It

would be open to the Investigating Officer to file an application for

remand if he considers it proper and just; and the competent Court

would decide it on merits.

9. 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 on such application and on all subsequent occasion, 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 rights 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.

10. At

the trial, the Trial Court shall not be influenced by the

observations of preliminary nature, qua the evidence at this stage,

made by this Court while enlarging the applicant on bail.

11. The

applicant is permitted to obtain regular bail as per the established

provision of law, within suitable time.

Rule

made absolute. Direct service is permitted.

(Z.K.SAIYED,J.)

ynvyas