Gujarat High Court
Nagarji Badarji Thakor vs State Of Gujarat on 11 April, 2025
NEUTRAL CITATION
R/CR.MA/2988/2025 ORDER DATED: 11/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 2988
of 2025
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NAGARJI BADARJI THAKOR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
KUMAR H TRIVEDI(9364) for the Applicant(s) No. 1
MR. ASHOK L. CHAUHAN(14049) for the Respondent(s) No. 2
MR. NILAY THAKOR(14166) for the Respondent(s) No. 2
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 11/04/2025
ORAL ORDER
(1) RULE. Learned APP waives service of notice of rule on
behalf of the respondent-State.
(2) By way of the present application under Section 438 of the
Code of Criminal Procedure, 1973, the applicant accused
has prayed to release him on anticipatory bail in the event
of his arrest in connection with the FIR being CR No.
11217020241013 of 2024 with ‘B’ Division Patan City
Police Station, Patan, for the offences punishable under
Sections 75(1), 79, 296(B), 54 and 351(3) of the BNS and
Section 7 and 8 of the POCSO Act and Section 135 of the
GP Act.
(3) Learned advocate for the applicant has submitted that the
present applicant is senior citizen and 85 years old. It is
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submitted that complaint is filed belatedly and delay of 56
days has been caused. The present applicant is falsely
implicated in the offence keeping the grudge of the
previously enmity between the complainant and other
accused, he is falsely implicated. It is submitted that
applicant and victim are residing at the same vicinity and
police has not tried to arrest and applicant has evade his
arrest. Besides, the applicant is available during the course
of investigation and will not flee from justice. He is ready
and willing to join the investigation. In view of the above,
the applicant may be granted anticipatory bail.
(4) Learned Additional Public Prosecutor appearing on behalf
of the respondent – State and learned advocate for the
original complainant have opposed grant of anticipatory
bail looking to the nature and gravity of the offence. It is
stated that offence is against woman and considering the
severity of the offence and allegations levelled against the
applicant as offence is serious in nature, custodial
interrogation is required. It is submitted that applicant is
involved in the serious offence as the victim is 13 years old
minor and he has taken undue advantage not only that he
has tried to molest her but also he misbehaved with her
aunt also. It is submitted that his age is also not correct. In
the pretext of offering the prasad, the alleged act is
committed by the applicant and the alleged incident took
place during the time of the Navratri. The other co-accused
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is arrested and released on regular bail, but the present
applicant is an anticipatory bail application. Therefore, he is
not entitled for parity. Hence, he has requested to dismiss
the present application as investigation is at primary stage
and custodial interrogation is also required.
(5) Having heard the learned advocates for the respective
parties and having gone through the evidence on record,
the present applicant is named in the FIR. The allegations
against the present applicant is that in the pretext of
offering the Prasad, he called the minor in the house and
thereafter he tried to molest her. It is alleged that the
present applicant has grabbed her chest and closed the
door . In this regard statement under Section 183 of BNSS
came to be recorded. Perusing the said statement, it
appears that there is no delay and even otherwise, in such
offences, delay is only not a criteria to throw the case at
the threshold as complainant and accused persons both are
residing in the same vicinity. It appears that age is not a
criteria to hide the said act, considering the mentality and
whatever allegations levelled against the present applicant
and during the investigation, whatever material is
collected, which clearly reveals there is involvement of the
present applicant. Hence, merely applicant is a senior
citizen or 85 years old aged is not a ground to consider the
bail application. It appears that applicant is on run. In view
of above, custodial interrogation is required.
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(6) Considering the statement and object, the reason of
enactment of POCSO Act is that several child has
inalienable human right to live with dignity, grow-up and
develop in an atmosphere conducive to mental and physical
health, to be treated with equality and not to be
discriminated. The right to protection of privacy also
includes the child right. It is a constitutional guarantee and
basic human right to live with dignity. Even, the directive
policy of the State policy castes an obligation on the State
to ensure that children are given an opportunity and facility
to develop in healthy manner and in a condition of frame
and dignity. Considering the aforesaid fact, to provide free
fair, secure and conducive atmosphere for development of
child and to protect the children from sexual exploitation
with special purpose Act being produced. Once it is
admitted and undisputed fact that the petitioner is major
though by taking undue advantage of tender age of victim,
who is minor aged 13 years, she is exploited by the present
petitioner. Considering the aforesaid fact, as the petitioner
was able to exploit the victim by influencing on her and
taking undue advantage of her tender age, now he cannot
claim that he is innocent. In case of minor, it is needless to
say that consent has nothing to do and consent is
insignificant.
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(7) Even, the prime consideration under the POCSO Act is
victim is minor and is protected under the law of land. The
object of the POCSO Act was not merely in furtherance of
this country’s commitment to international instruments,
but its resolve to and attempt at creating a world as secure
and as free from fear, for the most innocent and vulnerable
section of its citizens, i.e., children and young adults.
Behaviour – physical, verbal, and non-verbal, ranging from
what discomfits a child to as horrifying as rape and physical
sexual abuse have been criminalized. Special mechanisms
to provide access to the justice delivery system, and ensure
speedy justice, have been devised. Yet, a society’s
commitment to such a cause does not cease by mere
enactment of any law, but its willingness, and those
governing and administering it, to create and ensure
effective overall frameworks which support and strengthen
its institutions. This Court is of the considered view that if
the applicant is released on bail, then possibility cannot be
ruled out to tamper with the evidence. It is appears that
there is a possibility to make influence to the witnesses.
(8) It appears that applicant is evading arrest and he is on run.
Hence, in view of the law laid down by the Hon’ble Apex
Court in case of State of Haryana vs. Dharamraj reported
in 2023 INSC 784; Lavesh vs. (NCT of Delhi) reported in
(2012) 8 SCC 730; Abhishek vs. State of Maharastra
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reported in 2022 (8) SCC 282 and Prem Shankar Prasad vs.
State of Bihar reported in 2021 SCC OnLine SC 955 and
Srikant Upadhyay and Others vs. State of Bihar and
Another reported in 2024 SCC OnLine SC 282 and Serious
Fraud Investigation Office vs. Aditya Sarda reported in
2025 INSC 477, i am of the considered view that this is not
a fit case to exercise the jurisdiction in favour of the
applicant.
(9) In so far as, argument canvassed by the learned advocate
for the applicant, to extend the benefit of parity is
concerned, in the present case, it appears that the co-
accused has no role in the alleged molestation or in the
commission of the offence. The specific role attributed
pertains solely to the present applicant. Hence, argument
canvassed by the learned advocate for the applicant does
not deserve consideration. At the time of deciding the bail
application, the Court should refrain from appreciating the
evidence. However, considering the submissions made by
the learned advocates for the respective parties and the
fact and specific stand taken by the applicant to extend the
benefit of parity as the co-accused are released on regular
bail. Hence, this Court has considered the material collect
during the course of investigation with a view to examine
the applicability of parity. The reference is required to be
made in a cases of Tarun Kumar Vs. Asst. Director,
Directorate of Enforcement, 2023 INSC 1006 and Ramesh
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Bhavan Rathod vs. Vishanbhai Hirabhai Makwana,
reported in AIR 2021 SC 221, wherein, the Hon’ble Apex
Court held that when deciding a bail application and
extending the benefit of parity, the Court has to examine
the exact role attributed to the accused. If the accused
played a similar role, then the Court should extend the
benefit of parity. Merely some words or any observation
made in the order are not enough, such approach is
erroneous and inappropriate for considering the benefit of
parity. As co-accused are released on regular bail, the
applicant is not entitled to claim parity in anticipatory bail.
Since the co-accused have been released on regular bail and
the role of the present applicant is distinct and more
serious, the applicant is not entitled to claim parity in
seeking anticipatory bail.
(10) In the case of Siddharam Satlingappa Mhetre vs State Of
Maharashtra, reported in (2011) 1 SCC 694, the Hon’ble
Court held that life and personal liberty are the most prized
possessions of an individual but not at the cost of larger
interest of society and public. This is not a case, wherein
accused is falsely enroped in the offence with a view to
tarnish his image. Considering the aforesaid fact, custodial
interrogation is required.
(11) In the case of Jai Prakash Singh V/s State of Bihar and
another, reported in (2012) 4 SCC 379, the Hon’ble
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Supreme Court was pleased to hold:
“Parameters for grant of anticipatory bail in a serious
offenceare required to be satisfied and further while
granting such relief, the court must record the reasons
therefore. Anticipatory bail can be granted only in
exceptional circumstances where the court is prima
facie of the view that the applicant has falsely been
enroped in the crime and would not misuse his liberty.”
(12) Insofar as the submission on behalf of the learned
advocate for the applicant that in the present case, no
custodial interrogation is required is concerned, it is worthy
to mention that herein, prima facie case is made out against
the present applicant and there are serious allegations of
POCSO Act against the applicant. Thus, in order to reach to
a logical conclusion of the investigation, the Investigating
Officer deserves a free hand. There is no rule that if
custodial interrogation is not required then anticipatory
bail is required to be granted. The custodial interrogation is
one of the good grounds to reject the anticipatory bail
application, but merely because custodial interrogation is
not required, itself is not a ground to allow the anticipatory
bail application. In this regard, reference is required to be
made to the decision of the Hon’ble Apex Court in the case
of Sumitha Pradeep Vs. Arun Kumar C.K. reported in
2022 SCC OnLine (SC) 1529, wherein it is observed and
held as follows:
“In many anticipatory bail matters, we have
noticed one common argument being
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required and, therefore, anticipatory bail may
be granted. There appears to be a serious
misconception of law that if no case for
custodial interrogation is made out by the
prosecution, then that alone would be a good
ground to grant anticipatory bail. Custodial
interrogation can be one of the relevant
aspects to be considered along with other
grounds while deciding an application seeking
anticipatory bail. There may be many cases in
which the custodial interrogation of the
accused may not be required, but that does not
mean that the prima facie case against the
accused should be ignored or overlooked and
he should be granted anticipatory bail.”
(13) In view of the above decision and in view of the facts
and circumstances of this case, custodial interrogation is
not only required but the ground to allow application all
other aspect is required to be investigated, therefore
imperative to unearth the truth. Hence, this is a not a fit
case to exercise the jurisdiction in favour of the applicant.
The applicant is having two similar allegations against the
aunt of the victim he has done same thing and he is having
similar nature of proclivity. Hence, merely he is senior
citizen and 85 years old is not a criteria to allow the
anticipatory bail application as the present applicant is
having desire to satisfy his lust at the cost of societal
interest.
(14) It would be apposite to refer the decision of the Hon’ble
Apex Court in the case of Pratibha Manchanda vs. State of
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Haryana reported in AIR 2023 SC 3307, wherein, para 19
read as under :
“19. The relief of Anticipatory Bail is aimed at
safeguarding individual rights. While it serves as a
crucial tool to prevent the misuse of the power of
arrest and protects innocent individuals from
harassment, it also presents challenges in
maintaining a delicate balance between
individual rights and the interests of justice.
The tight rope we must walk lies in striking a
balance between safeguarding individual rights
and protecting public interest. While the right to
liberty and presumption of innocence are vital, the
court must also consider the gravity of the
offence, the impact on society, and the need for a
fair and free investigation. The court’s discretion
in weighing these interests in the facts and
circumstances of each individual case becomes
crucial to ensure a just outcome.”
(15) It would be apposite to refer the decision of the Hon’ble
Apex Court in case of Vijay Madanlal Choudhary vs. Union
Of India reported in 2022 11 SCC 705. Only quantum of
punishment is not a criteria to grant bail application and
accused cannot claim anticipatory bail as of right.
Merely the quantum of punishment is not a sufficient
ground; the Court must also consider the impact on
society.
(16) This Court is of the considered view that if the present
accused is equipped with protective order, it would
obviously adversely affect the case of the prosecution and
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the qualitative investigation as applicant is having trained
legal mind and he will tamper with evidence and witnesses
of prosecution and here two accused are still out of reach,
who are directly connected with the present accused and
other co-accused, in connection with to hush up the issue,
they have played active role in commission of offence.
(17) In the above facts and circumstances and considering the
observations on the legal aspect of the matter, this Court
has absolutely no doubt that if applicant is equipped with
such an order before he is interrogated by the Police, it
would greatly harm the investigation and would impede
the prospects of unearthing all the ramifications involved in
the conspiracy. Having considered nature and seriousness
of the charge, prima facie involvement of accused and
possibility of tempering with evidences, it does not appear
to be just and proper to exercise the discretion in favour of
the applicant and accordingly, the application for
anticipatory bail is dismissed.
(18) However, if no any other offence is made out and offence
is punishable upto 7 years, reveals during the investigating.
Then it is kept open for the Investigating Officer to follow
the the principles laid down by the Hon’ble Supreme Court
in the following cases: Arnesh Kumar v. State of Bihar
reported in (2014) 8 SCC 273, Satender Kumar Antil v.
Central Bureau of Investigation & Anr. reported in (2022)
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10 SCC 51, and Md. Asfak Alam v. State of Jharkhand and
Another reported in 2023 SCC OnLine SC 892.
Additionally, the Investigating Officer must adhere to the
mandate of Section 35 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (BNSS).
However, it is needless to say that, the observations made
in this order are tentative in nature.
(HASMUKH D. SUTHAR,J)
KUMAR ALOK
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