Vishnukumar Rathi and Another vs State of Gujarat and Another

Anant S. Dave, J.—Heard Learned Counsel Mr. S.V. Raju with learned Advocate Mr. Chetan K. Pandya and Mr. A.J. Desai learned APP for the Respondent - State.

Additional affidavit dated 04.04.2011 is filed by one of the applicants and is taken on record. It is submitted that as per the above affidavit, records pertaining to residence of applicants at Gandhi nagar is produced on record which contain ration card, sale deed of the residence, telephone and electricity bills, Gas Connection receipts and other certificate about registration of proprietary concern "Techno shop" (under the Shops and Establishment Act) and therefore, it is submitted that the applicants are permanent residents in the State of Gujarat.

Mr. S.V. Raju learned Counsel for the applicants would submit that as per the decision of this Court in the case of Neela J. Shah V. State of Gujarat 1998 1 G.L.H. 594 (Coram: Hon'ble Mr. Justice N.N. Mathur as his Lordship then was), Full Bench decision of the Madhya Pradesh High Court in the case of Nirbhay Singh and Another Vs. The State of Madhya Pradesh, decision of the Bombay High Court in the case of Akhalaq Ahmed F. Patel Vs. State of Maharashtra, and the decision of the Hon'ble Supreme Court in the case of Sohan Singh and Another Vs.

State of Bihar, where it is held that powers u/s 438 with regard to grant of anticipatory bail can be exercised after either summons or warrant is issued by the Magistrate and even in a successive anticipatory bail. In view of the above decisions, it is submitted that the applicants would take appropriate course of action in accordance with law before the competent Court but meanwhile, their freedom and liberty as enshrined under Articles 19 and 21 of the Constitution of India is sought to be taken away by the impugned order dated 28.03.2011 passed by the learned Judicial Magistrate First Class, Court No. 31, Jaipur City, Jaipur and till then they may be protected. It is further submitted that the applicants are ready and willing to co-operate with the investigation and at this stage, this Court would only consider the case of the applicants for transitory bail.

However, discussion on merit of the impugned order is not be gone into.

Considering the above decisions and law laid therein and by imposing suitable conditions, I am of the view that till the applicants approach the Court of competent jurisdiction, it is necessary that their freedom and liberty be protected by exercising powers in their favour and accordingly, transitory bail is granted to the applicants for a period of two (2) weeks from today and meanwhile, the applicants shall approach the competent Court having jurisdiction for further remedy in accordance with law.

This application is allowed to the aforesaid extent with a condition that the applicants shall approach the Court of competent jurisdiction within fifteen (15) days from today and till then the applicants shall not be arrested qua the impugned order dated 28.03.2011 passed by the learned Judicial Magistrate First Class, Court No. 31, Jaipur City, Jaipur and applicants are accordingly, granted temporary transitory bail. It is made clear that if the applicants fail to comply with the above conditions and do not approach the Court of competent jurisdiction, the order impugned dated 28.03.2011 shall operate. Direct Service is permitted.