Allowed

Virambhai Bhagwanbhai Desai v. State of Gujarat

Gujarat HC7 Dec 2021CR.MA/645/2021

Case brief

AI extract

What is this about?

The High Court of Gujarat granted anticipatory bail to an accused facing FIR charges under IPC and Arms Act. The court exercised discretion allowing bail with personal bond and specific conditions regarding investigation cooperation and residence, while preserving rights to oppose police remand. No parties mentioned names in summary.

What did the court decide?

Application allowed; applicant ordered to execute personal bond of Rs.25,000 with surety upon arrest, subject to specific conditions

Virambhai Bhagwanbhai Desai Vs State of Gujarat — Anticipatory Bail | Gujarat HC (2021)

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R/CR.MA/645/2021 ORDER DATED: 07/12/2021

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CRIMINAL MISC. APPLICATION NO. 645 of 2021

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======================================= VIRAMBHAI BHAGWANBHAI DESAI

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Versus

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STATE OF GUJARAT

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======================================= Appearance:

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MR KISHAN R CHAKWAWALA(9846) for the Applicant(s) No. 1 MR SIDDHARTH J DESAI(10845) for the Applicant(s) No. 1 MS MOXA THAKKAR, APP (2) for the Respondent(s) No. 1

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

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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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Date : 07/12/2021

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ORAL ORDER

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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 C. R. No. 11191024201645 of 2020, registered with Ramol Police Station, District: Ahmedabad City for the offences punishable under Sections 406, 420, 397, and 120-B of the Indian Penal Code, 1860 (IPC) and Sections 25(1-b)(a) of the Arms Act.

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Heard learned advocate Mr. Kishan Chakwawala for the applicant and learned APP Ms. Moxa Thakkar for the respondent – State.

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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 learned Sessions Judge has rejected the application filed by the present applicant for grant of

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R/CR.MA/645/2021 ORDER DATED: 07/12/2021

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anticipatory bail. The learned advocate for the applicant further submitted that the applicant is charged with the aforesaid offences, however, the ingredients of the said offences are not satisfied, more particularly, the offence punishable under Section 397 of the IPC and the offence under the Arms Act. It is submitted that no direct role has been played by the applicant in the alleged offence. 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.

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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.

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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.

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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. The learned APP further submitted that the applicant is charged with the serious offences and is also having one antecedent and accordingly, it is

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R/CR.MA/645/2021 ORDER DATED: 07/12/2021

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urged that the present application may not be entertained and it is requested to be rejected.

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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 prima facie emanating from the record and as contended by the learned advocate for the applicant that the ingredients of the offence punishable under Section 397 IPC and under the Arms Act appear to be not satisfied qua the present applicant, without discussing the evidence in detail, at this stage, the Court is inclined to exercise discretion in favour of the applicant. As per catena of decisions of the Apex Court there are mainly two factors which are required to be considered by this Court;

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i) prima facie case;

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ii) requirement of accused for custodial interrogation.

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

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5.2 The Court has also taken into consideration the law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors. (2011) 1 SCC 694 , wherein the 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

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R/CR.MA/645/2021 ORDER DATED: 07/12/2021

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Petition No. 7281–7282/2017 on 29.01.2020 ).

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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:

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

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b) shall remain present at concerned Police Station on 05.01.2022 between 11.00 a.m. and 2.00 p.m.;

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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;

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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;

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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;

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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;

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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.

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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

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R/CR.MA/645/2021 ORDER DATED: 07/12/2021

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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.

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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.

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Rule is made absolute accordingly. Direct service is permitted.

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[ A. C. Joshi, J. ]

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hiren /30

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Virambhai Bhagwanbhai Desai v. State of Gujarat

Case brief

What is this about?

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Virambhai Bhagwanbhai Desai v. State of Gujarat

Case brief

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