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Devendrasinh vs State

High Court Of Gujarat|09 July, 2012
1. The instant application is filed seeking anticipatory bail under Section 438 of the Cr.P.C. in connection with Malaviyanagar Police Station, District-Rajkot being C.R. No. I-146/2012 regarding the offences punishable under Sections 465, 467, 468 and r/w Section 114 of the IPC.
2. Mr. Dagli, learned advocate for the applicant drew my attention to the FIR and submitted that the complainant being the original owner of the property executed the power of attorney in favour of one Vyas and the said Vyas executed the power of attorney in favour of original-accused No. 1 Mr. Dave and original-accused No. 1 Mr. Dave executed an agreement for sale without possession of the property. Mr. Dagli, learned Advocate for the applicant submitted that by virtue of the agreement for sale, no title to the property can be said to have been transferred. It is further submitted that on the contrary, the victim is the applicant as he lost his money in this transaction and for that purpose the applicant has sent a complaint to the concerned police authority against said Mr. Vyas and Mr. Dave. It is submitted that the Sessions Court rejected that anticipatory bail application only on the ground that the original agreement was in custody of the applicant. Mr. Dagli submitted that the applicant was called by police and his statement was recorded and he had sent the original agreement to the police which was returned back to him and he is still ready and willing to produce the original agreement for sale before the police.
3. Mr. Nanavati, learned APP for the respondent-State opposed this application.
4. Having considered the submissions advanced on behalf of both the sides, so also considering the facts and circumstances of the case and the fact that the applicant had co-operated the police in investigation and gives assurance that he shall co-operate the investigating agency in future, this Court is of the opinion that the application deserves to be granted.
5. This Court has also taken into consideration the law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. Reported in [2011]1 SCC 694, wherein the Apex Court reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Reported in [1980]2 SCC 565.
6. Learned counsel for the parties do not press for further reasoned order.
7. In the result, this application is allowed by directing that in the event of the applicant herein being arrested pursuant to FIR being C.R.No. I-146/2012, Malaviyanagar Police Station, District-Rajkot, the applicant shall be released on bail on furnishing a bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of like amount on following conditions :-
[a] shall cooperate with the investigation and make himself available for interrogation whenever required.
[b] shall remain present at concerned Police Station on 16.07.2012 between 11:00 am to 2:00 pm:
[c] shall not hamper the investigation in any manner nor shall directly or indirectly make any inducement, threat or promise to any witness so as to dissuade them from disclosing such facts to the Court or to any Police Officer;
[d] shall at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall not change the residence till the final disposal of the case or till further orders;
[e] will not leave India without the permission of the Court and, if is holding a Passport, shall surrender the same before the trial Court immediately.
[f] It would be open to the Investigating Officer to file an application for remand, if he considers it just and proper and the concerned Magistrate would decide it on merits.
[g] despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. 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.
8. For modification and/or deletion of any of the conditions herein above, the applicant will be at liberty to approach the concerned Court and such Court shall decide the application for modification and/or deletion of any of the conditions of this order in accordance with law.
9. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicants on bail.
10. Rule made absolute accordingly. Direct service is permitted.
(J.C.UPADHYAYA, J) Ashish N.
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