Yuvrajsinh Himmatsinh Zala vs State Of Gujarat

Nikhil S. Kariel, J

Heard learned Advocate Mr. Vikas V. Nair on behalf of the applicant and learned APP Mr. L. B. Dabhi on behalf of the respondent-State.

Issue Rule returnable forthwith. Learned APP Mr. Dabhi would waive service of rule on behalf of 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 the FIR being C. R. No. 11211015220124 of 2022 registered with the Dhangadhra Police Station, Dist. Surendranagar on 07.05.2022 for the offences punishable under Sections-128, 129, 212, 225(A) of the Indian Penal Code.

The applicant having initially approached the learned Sessions Court, praying for the very selfsame relief of being released on anticipatory bail, having not succeeded before the learned Sessions Court, has approached this Court.

Learned Advocate Mr. Nair on behalf of the applicant would submit that the applicant at the relevant point of time and even as of now was the Additional Jailer of the Dhangadhra Jail and whereas the allegation against the applicant is that he did not comply with the order of the learned Sessions Court, has confirmed by the this Court of taking solvent surety of Rs. 60,000/- from the prisoner, who was released on temporary bail and whereas he did not report back in time. Learned Advocate Mr. Nair would submit that as such the prisoner in question had surrendered after two days and whereas there is nothing on record to show that such such an act on part of the present applicant or an officer subordinate to the present applicant, was in connivance or to facilitate the prisoner concerned. Having regard to the same, learned Advocate Mr. Nair would request that this Court may protect the present applicant.

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 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 is vehemently objected to by the learned APP Mr. Dabhi who would submit that a prisoner, facing trial for offence punishable under Section 302 of the Indian Penal Code amongst others, had been released by the present applicant in complete violation of an order of the learned Sessions Court as confirmed by the High Court and whereas the prisoner concerned was though directed to be released upon furnishing solvency for Rs. 60,000/- had been released without the solvency certificate being provided by the prisoner in question. Having regard to the same, learned APP Mr. Nair would submit that this Court may not entertain this application.

Having heard the learned Advocates for the respective parties and appreciated the record, this Court has considered the following aspects:

[1] There is no material when prima facie, as coming out from the FIR or from the affidavit of the Investigating Officer before the learned Sessions Court or in the order of the learned Sessions Court that the release of the prisoner in question, without taking solvency certificate for Rs. 60,000/-, was in any manner in connivance with the prisoner concerned.

[2] There is no allegation that the present applicant was beneficiary of any undue gain on account of the same.

[3] The prisoner in question though late by two days had ultimately surrendered.

[4] There being no averments/ allegations in the FIR for supporting offences punishable under Section 128, 129, 212, 215(A) of the Indian Penal Code.

This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported in [2011] 1 SCC 694, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported in (1980) 2 SCC 565. This Court has also taken into consideration the recent decision of the Apex Court in the case of Sushila Aggarwal and others Vs. State (NCT of Delhi) and another reported in (2020) 5 SCC 01.

In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to the FIR No. 11211015220124 of 2022 registered with the Dhangadhra Police Station, Dist. Surendranagar , the applicant shall be released on bail on furnishing a personal bond of Rs. 10,000/- (Rupees Ten 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 26.07.2022 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.