IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: GURUMI

CRIMINAL MISCELLANEOUS APPLICATION NO. OF 2020

Naimesh Kothila
Aged about 28, Male,
Occupation- Business,
Resident at: - City of Gurumi

Tal. & Dist.: Gurumi.

(Original accused.) …Applicant

Versus

The State of Gujarat

Notice to be served through
The Ld. Public Prosecutor,
High Court of Gujarat, Sola,
Ahmedabad. .... Respondent

Application u/s. 439 of Cr. P. C.

for Regular bail in connection
with FIR/Complaint No. 108/18
registered with Magoi City Police
Station for the offences
punishable Sections 498(A), 406,
323, 34, 504, 506 of the Indian
Penal Code, 1860.

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To,

The Hon’ble the Chief Justice

and Puisne Judges of the

High Court of Gujarat.

Humble petition of the

applicant above named-

Most respectfully sheweth:

1. The applicant is arrested on 04/02/2018 in

connection with FIR/ Complaint vide No. 108/18

registered with Magoi Police Station u/s. Sections

498(A), 406, 323, 34, 504, 506 of the IPC, 1860

against applicant and his parents.

2. After arrest, the applicant was kept in lockup for

15 days remand though, however later was sent

to jail. The applicant awaited and duly

cooperated in investigation procedure. The

chargesheet by I. O was also filed

3. The applicant approached the Court of

Additional Sessions Judge, Gurumi by way of

Criminal Miscellaneous Application for regular

bail. However, the Learned Additional Sessions

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 Judge, Gurumi rejected the said application of

the applicant.

4. The applicant approaches this Hon'ble Court

praying for bail upon following GROUNDS and

CONTENTIONS.

F.I.R.

5. The present FIR/complaint is lodged by Niyati N.

Kothila on 03/02/2018, against her husband and

in-laws alleging that they have tortured her and

made mental and physical harassment.

Contentions & Grounds:

6. Applicant humbly submits that he has not

committed any crime as alleged and that he has

been unnecessarily roped in as accused.

7. It is respectfully submitted by the present

Applicant that no such offences are committed,

but on the contrary the complainant was

harassing the applicant by giving regular threat

to commit suicide. The applicant has tried for all

amicable ways for the settlement disputes and

grievance of the complainant, however all the

efforts were in vein and complainant in order to

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 harass the accused and his family filed a

complaint, the complaint is frivolous and filed

with malafide intension of harassment and

therefore, the applicant are required to be

released on regular bail.

8. It is further submitted that, the applicant is in jail

since February, 2018 and the applicant has co-

operated in the investigation and now the

applicant is not required by the police for the

purpose of investigation since the investigation

has been completed and chargesheet is also

filed.

9. Applicant has relied upon the judgement of

Arenesh Kumar V/s State of Bihar - 2014 (8) SCC

273, wherein the Hon'ble applicant Appex Court

has given directions and stated:

"... Police officer shall not arrest the accused

unnecessarily and magistrate shall not authorise

detention casually and mechanically- failure to

comply with these directions, shall. Apart from

rendering police officer concerned liable for

departmental action, also make them liable to

be punished for contempt of Court..."

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 Herein the present case, investigation procedure

has completed and charge sheet is already filed,

and hence, the incarnation of applicant may not

be required by investigating officer, applicant

may kindly be released on bail by enforcing

stringent conditions upon the applicant.

10. It is respectfully submitted that, it has been nearly

two years of applicant being in jail, which is more

than half of the term of punishment i.e.

imprisonment. Also, till date the applicant is not

proved as guilty of alleged offenses and

therefore, the applicant is liable to be released

on bail.

11. Section 436A was introduced in the Criminal

Procedure Code, 1973 vide an amendment in

2005. It provides for the maximum period for

which an under trial prisoner can be detained. As

per the provision if a person has undergone

detention for a period of almost one half of the

maximum period of imprisonment specified for

the offence for which he is being tried, he shall be

released by the Court on a personal bond with or

without sureties. This detention must be during

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 investigation, inquiry or trial of the case and not

during serving of sentence after conviction. The

Court can also order detention for a longer

period than one half of the said period or release

on bail instead of the personal bond if it deems

this appropriate with reasons after hearing the

Public Prosecutor. A person can however not be

detained even through a court order beyond the

maximum span of imprisonment provided for the

offence during investigation, inquiry or trial even if

release is not permitted. This does not apply to

persons charged of offences involving death

sentence.

12. Also, it is further submitted that the pre-trial

detention is merely to help the investigation and

not to punish the accused whereas here the

applicant has no much to do in the process of

helping the investigating officer and still he is

languishing in the jail.

13. The Applicant relies upon the judgment in the

case of Mohansingh Vs. Union Territory reported in

AIR 1978 SC 1095 and judgment of Hon’ble High

Court of Gujarat in Vishal Kanailal Punjabi Vs. The

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 State of Gujarat - R/CR.MA/19322/2016 wherein

the it has been reiterated that "bail may be

granted without entering into the merits of the

case. " Therefore, at this stage not looking into the

merits of the case the applicant should be

released on bail.

14. The present applicant also relies upon the

Judgment of Hon'ble Appex Court in Dataram

Singh V/s State of Uttar Pradesh & Anr. - 2018 SCC

OnLine (SC) 88, wherein the Court reiterated

that:

"…. granting bail is the general rule and

putting a person in incarnation or behind

the bars is an exception, which is also an

important facet of our criminal

jurisprudence…."

Also, in para 5th of the very judgement it was

stated by the court that:

" grant or refusal of bail is entirely within the

discretion of the judge hearing the matter

and it should be exercised judiciously in a

humane manner. Also, the conditions for the

grant of bail ought not to be so strict as tobe

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 incapable of compliance, thereby making

the grant of bail illusory."

15. It is also humbly submitted that there is no

apprehension of tempering any of the evidence.

Therefore, the applicant may kindly be released

on bail".

16. It is also further submitted that the present

applicant has no criminal antecedents. The

applicant is peace-loving citizen. The applicant is

the local resident of the address shown in the

cause title. The applicant is not likely to jump the

bail, if granted by this Hon’ble Court. Therefore, if

this Hon’ble Court exercises its discretion in favour

of the applicant, the process of law will not be

abused.

17. It is respectfully submitted that each applicant

also undertakes to remain present when required

by the investigating officer. The applicant is ready

and willing to abide by any stringent condition

that may be imposed upon him while releasing

the applicant on bail. Therefore, also, the

applicant deserves to be released on bail.

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18. The applicant declares that they have not filed

any appeal or any other proceedings in this Court

or in the Supreme Court of India in respect of the

subject matter of this application.

19. The applicant says that he has no other

alternative remedy to challenge impugned order

except by way of the present petition.

20. The applicant, therefore, prays that:-

(A) YOUR LORDSHIPS be pleased to release the

present applicant on bail on appropriate

terms and conditions in connection with the

F.I.R./Complaint being No. I – 108/2018

registered with Magoi City Police Station,

Gurumi;

(B) YOUR LORDSHIPS be pleased to grant such

other and further relief, as may be deed fit

by this Hon’ble Court, in the interest of

justice;

(C) YOUR LORDSHIPS be pleased to dispense

with the filing of the affidavit, as the

applicant is in jail.

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 AND FOR THIS ACT OF KINDNESS AND JUSTICE, THE

APPLICANT, AS IN DUTY BOUND, SHALL FOR EVER PRAY.

Place: Ahmedabad

Date: 05/06/2017 ____________________

Advocate for the

Applicant.

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Arjunsinh Sejpal -08

 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
DISTRICT: GURUMI

CRIMINAL MISCELLANEOUS APPLICATION NO. OF 2020

Naimesh Kothila …Applicant

Versus.

The State of Gujarat ...Respondent

Summary of the Case

F.I.R. No. 108/18

Police Magoi City Police Station, District: Amreli
Station:
Offences Sections 498(A), 406, 323, 34, 504, 506 of the IPC,
under
1860.
Sections:
Nature of
bail Regular bail
sought:
Arrested in February, 2018
the month:
Detail of Criminal Miscellaneous Application No._____
application
before decided by Learned Additional Sessions Judge,
Court Gurumi
below:

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Arjunsinh Sejpal -08