Rule.
Learned APP Mr. HL Jani waives service of rule for the respondent-State.
2. The present application has been filed by the petitioner original accused No. 1 for grant of anticipatory bail under sec. 438 of the Code of Criminal Procedure in connection with the FIR being C.R. No. II-115/2009 registered with 'A' Division Police Station, Bhavnagar, Dist. Bhavnagar for the alleged offences under sec. 498A, 406, 420 and 114 of the Indian Penal Code.
3. Heard learned Sr. Counsel Mr. Nanavati with learned advocate Ms. V.D. Nanavati for the applicant. Learned Sr. Counsel Mr. Nanavati submitted that previously the applicant-accused had filed Criminal Misc. Application No. 6059 of 2009 which came to be rejected vide order dated 3.7.2009 and the Hon'ble Apex Court had also dismissed the SLP (Cri.) No. 4950/2009 vide order dated 21.8.2009. However, thereafter, there was a settlement arrived at between the parties which have been reduced to writing, produced at Annexure-D.
4. Learned Sr. Counsel Mr. Nanavati referred to the said settlement and submitted that it has been agreed that both the parties would withdraw the criminal cases filed against each other and they have agreed to bring to an end their matrimonial ties. Therefore, learned Sr. Counsel Mr. Nanavati submitted that since the parties have amicably settled the dispute and considering the guidelines and the observations of the Hon'ble Apex Court in a judgment in the case of B.S. Joshi and ors. v. State of Haryana and anr., reported in (2003) 4 SCC 675, the present application for anticipatory bail may be granted. He referred to the observations made in paras 13, 14 of the said judgment to emphasise about the matrimonial disputes leading to such criminal complaints and the effect thereof on the entire family. Learned Sr. Counsel Mr. Nanavati also referred to the judgment of this Court in the case of Asim Niranjan Chakraborty v. State of Gujarat, reported in 2012 (1) GCD 328, and submitted that in that case this Court (Coram: J.B. Pardiwala, J.) has observed that even though there may be a prima facie case, the bail could be granted and therefore he submitted that the present application may be allowed.
5. Learned APP Mr. Jani, however, resisted the application and submitted that the conduct is required to be considered. For that purpose, he pointedly referred to the order of the Sessions Court in Criminal Misc. Application No. 208/2012 below Exh. 1 and submitted that even after arriving at the settlement/compromise, the same has not been followed in true spirit which has been recorded by the court below. He has further submitted that the amount which was required to be paid and settled has not been fulfilled and the said application for anticipatory bail before the Sessions Court was therefore objected by the complainant by filing an objection, Exh.8. Therefore, he submitted that it may be considered. It was submitted that the proceedings under sec. 482 of CrPC for quashing have been filed which was withdrawn and thereafter such application has been filed which has been noted. He, therefore, submitted that the present application may not be entertained.
6. In view of rival submissions, it is required to be considered whether the present application can be entertained or not.
7. It is well accepted that such discretionary power is required to be exercised in light of the guidelines laid down by the Hon'ble Apex Court in various judgments. This court is not required to appreciate and scrutinize the evidence. It is a successive bail application and therefore change of circumstances which have been shown are required to be considered that the parties have arrived at the settlement, though there is some dispute with regard to such settlement having been given proper effect or not. At the same time, there is no dispute that the parties have agreed for the settlement which has been reduced to writing and therefore considering the nature of offence as well as the fact that the amount of Rs. 30 lakhs have also been deposited and also considering the observations made by the Hon'ble Apex Court in the judgment in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and ors., reported (2011) 1 SCC 694, the present application deserves to be allowed.
8. The application is accordingly allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with FIR being C.R. No. II-115/2009 registered with 'A' Division Police Station, Bhavnagar, Dist. Bhavnagar, in respect of the offence alleged against him on his executing a personal bond of Rs. 10,000/- (Rupees Ten Thousand only) with one solvent surety for the like amount and on further conditions that he shall :
(a) remain present before the trial court regularly as and when directed on the dates fixed;
(b) remain present at the concerned Police Station on any date between 6th to 9th August, 2012 between 11 a.m and 2 p.m. (c ) make himself available for interrogation by the police officer whenever and wherever required.
(d) not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
(e) not to obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;
(f) at the time of executing the bond, furnish his address to the I.O. and the courts concerned, and shall not change his residence till the final disposal of the case or till further orders;
(g) not to leave India without the permission of the court and if having a passport, shall deposit the same before the trial court within a week;
9. It would be open to the I.O. to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits.
Rule is made absolute. D.S. permitted.
(Rajesh H.
Shukla, J.) (hn) Top