Ilesh J. Vora, J
1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicants - accused have prayed for anticipatory
bail in connection with the FIR No.11217029200569 of 2020 registered with Sami Police Station, District : Patan, for the offenses punishable under
Sections 363, 366, 376 and 114 of the Indian Penal Code and Sections 4, 5(L), 6, 8 and 18 of the POCSO Act.
2. Learned advocate for the applicants submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary.
He further submits that the original accused No.1 and victim girl were in love affair and the victim on her own wish fled away with the original
accused No.1 and the present applicants are only the friends of original accused No.1, who have not committed the offence as alleged against them.
Further, the applicants will keep themselves available during the course of investigation, trial also and will not flee from justice.
3. Learned advocate for the applicants on instructions states that the applicants are 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 their remand. He further submit that
upon filing of such application by the Investigating Agency, the right of applicants accused to oppose such application on merits may be kept open.
Learned advocate, therefore, submitted that considering the above facts, the applicants may be granted anticipatory bail.
4. Learned Addl. Public Prosecutor appearing on behalf of the respondent â€" State has opposed grant of anticipatory bail looking to the nature and
gravity of the offence.
5. Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case,
nature of allegations, gravity of offences, role attributed to the applicants - accused, without discussing the evidence in detail, at this stage, I am
inclined to grant anticipatory bail to the applicants.
6. Looking to the overall facts and circumstances of the present case and looking to the role attributed to the applicants and have also considered the
law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported at [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 at (1980) 2 SCC 565, the application deserves consideration.
7. In the result, the present application is allowed. The applicants are ordered to be released on anticipatory bail in the event of their arrest in
connection with FIR No.11217029200569 of 2020 registered with Sami Police Station, District : Patan on their executing personal bond of Rs.10,000/
(Rupees Ten Thousand Only) each with one surety of like amount on the 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 10.11.2020 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 them
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 till further orders;
(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial
court within a week; and
(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would
decide it on merits.
8. 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. Rule is made absolute to the aforesaid extent.
