1. This application is filed under Section 438 of Code of Criminal Procedure seeking anticipatory bail in connection with Dhanera Rural Police Station, District : Banaskantha CR No. I - 124/2011 regarding offences punishable under sections 302, 307, 354, 498(A) read with section 114 of the Indian Penal Code.
2. Mr.
P.M.Thakkar, learned Senior advocate with Mr. T.M.Chaudhary, learned counsel for the applicants-lady accused, at the out set, drew my attention to the relevant part of the FIR and submitted that so far as killing of minor child of the complainant is concerned, as well as throwing the complainant in the well is concerned, the role is attributed to the original accused no.1- Amarabhai Mulabhai Patel. My attention was also drawn to copy of affidavit of investigating police officer, which was filed before the Sessions Court and it is submitted that in the affidavit, no role is attributed to the applicants - lady accused, who happened to be mother-in-law and sister-in-law of the complainant lady.
3. Heard Mr. M.G.Nanavati, learned APP for the respondent-state and Mr. Dipen Desai, learned counsel for the original complainant. They both opposed this application and submitted that considering the averments made in the FIR as well as considering the fact that cremation of the child was done without informing the parents of the complainant and that in the FIR itself, it is added that even the mother-in-law and sister-in-law used to harass the complainant, the application may be rejected.
4. Having heard learned counsel for the parties, so also considering the FIR, it transpires that so far as the main incident of murder of minor son of the complainant and pushing the complainant in well, are concerned, no role is attributed to the present two applicants - lady accused. I have also considered the affidavit of the investigating police officer, which came to be filed before the Sessions Court and even considering the said affidavit, for the main incident of murder and attempt to commit murder, the role is attributed to original accused no.1. In this view of the matter, without going deep into the evidence collected by the prosecution, I am inclined to grant anticipatory bail to the applicants. 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.
5. Learned counsel for the parties do not press for further reasoned order.
6. In the result, the application is allowed by directing that in the event of the applicants herein being arrested pursuant to FIR being CR No.I-124 of 2011 with Dhanera Rural Police Station, District: Banaskantha, the applicants shall be released on bail on furnishing a bond of Rs.15,000/- (Rupees Fifteen Thousand only) each with one surety of like amount on following conditions :-
[a] shall cooperate with the investigation and make themselves available for interrogation whenever required.
[b] shall remain present at concerned Police Station on 06.07.2012 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 applicants. The applicants 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 applicants, 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.
7. For modification and/or deletion of any of the conditions herein above, the applicant/s 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.
8. 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.
9. Rule made absolute. Application is disposed of accordingly.
10. Direct service is permitted.
[J.C.UPADHYAY, J.] cmj/ Top