SATISH JAGDISHCHANDRA MISTRY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Mr. Saiyed submitted that in this case, F.I.R. was lodged after two days of the alleged incident of kidnapping and abducting minor child 'Rocky', but no explanation is forthcoming from the complainant for such an inordinate delay. Therefore, the petitioners should be released on bail. It is true that the F.I.R. is lodged after more than 48 hours of the incident and no explanation is given in the complaint for lodging it late by Rekhaben the mother of minor child Rocky. But, that itself would not be a ground for releasing the present petitioners on bail at this stage. The explanation for lodging F.I.R. late could be given by the complainant only at the time of recording her evidence during trial. In this case, the fact remained that a minor son of the complainant was kidnapped on 23rd. One can imagine the state of mind of the parents whose minor son is kidnapped, they will be under trauma. Before rushing to the Police, such persons would try to find out the child by any other way. They may have that apprehension in their mind that if they will approach Police, the life of their child would be in danger. Therefore, they may avoid to approach Police immediately. But when they failed in their all attempts and no alternative left with them then only they will approach the Police. In this case, also father of minor Rocky is a Doctor and naturally he would not like to take risk of approaching Police when his son is kidnapped by unknown person, under apprehension that if he will approach the Police, life of his son may be in danger. Therefore, he may not be ready to take that risk of approaching Police immediately. However the mother is mother. She cannot wait for long time without her child and therefore in this case mother has approached the Police after two days of the incident. Therefore, delay of even 48 hours in lodging F.I.R. in this case would not be a ground to release the petitioners on bail.

(2.) Mr. Saiyed also submitted that no test identification parade is held in this case and therefore identity of the petitioners is not proved, therefore, no Court is going to convict them and the trial is going to result into acquittal of the petitioners. Therefore, he has submitted that this Court should release the petitioners on bail during the trial. But, that would not be a ground for acquitting the petitioners by the Court, if otherwise, the case is proved against them by the prosecution. On the contrary, the learned Additional Sessions Judge after considering entire material on record and the statements of the witnesses, has come to the conclusion that there is a prima facie case against the petitioners for the offence punishable under Sees. 363 and 364 of I.P.C. Therefore, the petitioners cannot be released on bail by this Court, particularly when they are involved in such a serious offence of kidnapping a minor child of 10 years old only.

(3.) Mr. Saiyed next contended that Police has merely labelled Secs. 363 and 364 of I.P.Code against the petitioners, so that the petitioners may not get bail. According to him, at the most offences, if any, as per F.I.R. itself would be under Secs. 347 and 384 of I.P.C. which are punishable under to three years only. Therefore, the petitioners should be released on bail.