Patel Bhupeshkumar Prahladbhai vs State Of Gujarat

A.S. Supehia, J

[1] Heard the learned advocates for the respective parties by video conferencing.

[2] RULE. Learned Additional Public Prosecutor waives service of notice of rule for and on behalf of respondent â€" State.

[3] By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for bail in

connection with the FIR being C.R. No.11217030210301 of 2021 registered with Sidhpur Police Station, District Patan for the offences under Sections

193, 199, 420, 465, 466, 467, 468, 471, 474, 494, 120B of the Indian Penal Code, 1860 as well as Section 12 of the Passport Act, 1957.

[4] Learned advocate for the applicant submits that the complainant has alleged in the F.I.R. that one Nirmalkumar Harishbhai Pandya, who is the

relative of the complainant had married to Dharmishtaben Ketankumar Sakarchand Patel on 07.05.2014 in an illegal manner and only with a view to

move to USA the marriage had been registered. It is further alleged in the FIR that the said Nirmalkumar Harishbhai Pandya as well as

Dharmishtaben Ketankumar Sakarchand were already married before 07.05.2014 thereby it is alleged in the FIR that the marriage between

Nirmalkumar Harishbhai Pandya and Dharmishtaben Ketankumar Sakarchand were wrongfully done on the basis of a false affidavit / notary on

which two witnesses had applied their signatures and a marriage certificate was obtained. It is further alleged in the said FIR that the said

Nirmalkumar Harishbhai Pandya had brain-washed the wife of the complainant and had thereby compelled her to divorce the complainant. Even the

wife of the complainant has preferred a divorce petition before the Family Court being Family Suit No.102 of 2018.

[4.1] In light of the aforesaid facts, the complainant has lodged the F.I.R. against the concerned accused persons. He has further submitted that

pursuant to the said F.I.R., one Pandya Udaybhai Indravadhan, who is a priest (pujari) by profession, came to be arrested and had preferred a regular

bail application being Criminal Misc. Application No.253 of 2021 before the Sessions Court at Patan, which came to be granted order dated

19.04.2021. Similarly, Jayswal Dhavalbhai Narendrabhai Champaklal came to be arrested, who has preferred regular bail being Criminal Misc.

Application No.295 of 2021 before the Sessions Court, Patan, which was granted on 23.04.2021.

[5] 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 submits that

upon filing of such application by the investigating agency, the right of the applicant accused to oppose such application on merits may be kept open.

Learned advocate, therefore, submits that considering the above facts, the applicant may be granted bail.

[6] On the other hand, the learned Additional Public Prosecutor appearing on behalf of the respondentâ€" State has opposed grant of bail looking to

the nature and gravity of the offence. He further submitted that the main accused and the present applicant were residing in the same apartment and

present applicant was already aware the offence being committed.

[7] Having heard 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

bail to the applicant.

[8] This Court has considered following aspects:

(a) Prima facie no antecedents have been pointed out against the applicant;

(b) The applicant is not even named in the FIR;

(c) No injury of any nature is caused to the complainant with the actions of the concerned accused persons named in the FIR;

(c) The wife of the complainant has preferred Family Suit No.102 of 2018 for divorce with the complainant and it apepars that the FIR is nothing but a

counterblast to Family Suit No.102 of 2018 pending before the Family Court at Mehsana;

(d) There is a delay of 7 years in preferring the FIR. The alleged incident had taken place in the year 2014 and the FIR is preferred on 11.04.2021 .

[9] This Court has also taken into consideration the law laid down by the Apex Court in the case of Sushila Aggarwal vs. State (Nct of Delhi), AIR

2020 SC 831.

[10] 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 FIR

being C.R. No.11217030210301 of 2021 registered with Sidhpur Police Station, District Patan on his executing a personal bond of Rs.10,000/- (Rupees

Ten Thousand Only) with one surety of like amount on the following conditions that he :

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

(b) shall remain present at the concerned Police Station on 14.06.2021 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; and

[11] Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicant, if he

considers it proper and just and the Magistrate would decide it on merits. The applicant shall remain present before the concerned Magistrate on the

first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to

treat the accused in the judicial custody for the purpose of entertaining the 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 concerned 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 bail order.

[12] At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.

[13] The application is allowed in the aforesaid terms. RULE is made absolute to the aforesaid extent. Registry is directed to send a copy of this order

to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.

[14] Learned advocate for the applicant is also permitted to send a copy of this order to the concerned jail authority and the concerned Sessions Court

through Fax message, email and/or any other suitable electronic mode.