Jagdish @ Bakabhai Prahladbhai Patel vs State Of Gujarat

Nikhil S. Kariel, J

Heard learned Advocate Mr. Rafik Lokhandwala for the applicant and learned Additional Public Prosecutor Mr. L.B. Dabhi for the respondent-State.

By way of this application under Section 438 of the Code of Criminal Procedure, 1973, the applicant prays for being released on anticipatory bail in connection with FIR No. 11206073201134 of 2020 registered with Vadnagar Police Station, District Mahesana on 24.10.2020 for offences punishable under Sections 302, 394, 325, 201, 120-B and 34 of the Indian Penal Code, Sections 135 of the Gujarat Police Act and Section 25 (1B)(a) of the Arms Act.

Learned Advocate Mr. Lokhandwala for the applicant would submit that undoubtedly the FIR, alleges commission of a very serious offence punishable under Section 302 of the IPC, but at the same time, from an overall appreciation of the facts, it would be appear that the applicant did not have any role whatsoever to paly in the offence concerned. Learned Advocate would submit that the FIR had been preferred, alleging commission of offence against unknown persons and whereas later on, the Investigating Officer, had arrested three persons in connection with the said offence. Learned Advocate would submit that at the time of arrest of the three persons, the Investigating Officer had recovered three country made pistols, one each, from each of the accused and whereas it is submitted that upon inquiry from the said accused, the said accused had revealed the name of the present applicant as being the person, who had supplied the country made pistol to the accused persons. It would also be pertinent to note here that the present applicant was a distant relative of one of the persons who had been arrested in connection with the present FIR. Learned Advocate Mr. Lokhandwala would submit that as such, in connection with recovery of country made pistols, a separate FIR had been lodged against the three persons, who had allegedly committed the offence of murder and against the present applicant, more particularly under the provisions of Arms Act. Learned Advocate would submit that the present applicant had been arrested in connection with the said offence and wheres the present appliant was released on regular bail by the Judicial Magistrate First Class. Learned Advocate would further submit that the present applicant is sought to be arrested in connection with the present FIR, more particularly only on the allegation that the other accused, had caused death of the deceased, by assaulting the deceased with various weapons including the country made pistols which were allegedly supplied by the present applicant. Learned Advocate would submit that apart from such an allegation, there not being any other role being attributed to the present applicant, the present applicant could not have, in any manner, stated to be involved in the principal offence punishable under Section 302 of the IPC and whereas it is requested that this Court may release the present applicant on anticipatory bail.

Learned Advocate Mr. Lokhandwala 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. Learned Advocate would further submit 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.

This application has been vehemently opposed by learned Additional Public Prosecutor Mr. Dabhi appearing on behalf of the respondent-State. Learned APP Mr. Dabhi would draw the attention of this Court to the affidavit filed by the Investigating Officer before the learned Sessions Court, Visnagar, when the learned Sessions Court was considering the application preferred by the present applicant for being released on anticipatory bail. Learned APP would submit that the role attributed to the present applicant is not merely of having provided country made pistols, with which the principal accused had assaulted the deceased, rather the role attributed to the present applicant being that accused of the present FIR one Sandipkumar Patel, who happens to be distant relative of the present applicant, had requested the applicant to provide for some weapons, since they had to recover some money from somebody and whereas it is alleged that the present applicant knowing the purpose for which the weapons were being taken, had provided the said dangerous weapons to the main accused. Learned APP Mr. Dabhi would submit that under such circumstances the present applicant could be treated to have abetted the principal accused in committing the crime in question and whereas under such circumstances, the present applicant may not be released on anticipatory bail by this Court.

Having heard the submissions made by learned Advocates for the parties, it appears that while undoubtedly the present applicant had supplied the country made pistols to the accused of the present FIR, at the same time it is also required to be noted that insofar as the supplying of the said weapons is concerned, a separate FIR had been lodged, and whereas the present applicant was also arrested in connection with the said FIR and later on, released on regular bail. Insofar as the present FIR is concerned, there is nothing on record, even prima facie, to show that the present applicant had knowingly supplied the weapons in question or that he was involved in any conspiracy along with accused Sandipkumar Patel, for recovery of the amount from the deceased. While the weapons supplied by the present applicant, was undoubtedly a dangerous weapon, but that by itself would not aggravate the role played by the present applicant. Even from the affidavit of the Investigating Officer it is clear that the present applicant had given the a weapon to the other accused, upon the accused asking the present applicant for the same, for the purpose of recovering of a loan. It does not appear that the applicant was either part of the conspiracy or the applicant had any inkling that the weapons would be used to commit a heinous crime.

Having regard to the circumstances observed hereinabove, more particularly the circumstance that there is nothing on record to show that the applicant was aware that the weapon would be used by the other accused to do away with the deceased 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 the FIR No. 11206073201134 of 2020 registered with Vadnagar Police Station, District Mahesana, the applicant shall be released on bail on furnishing 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 himself available for interrogation whenever required;

(b) shall remain present at the concerned Police Station on 20.06.2022 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 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.

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.