SANTOKBEN SHARMANBHAI JADEJA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Shri RC Kodekar. learned APP waives service of Rule on behalf of the respondent. By way of this petition under Articles 226/227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, 1973 the petitioner original-accused No.1 has prayed for an appropriate order quashing and setting aside the order dated 13th June 2007 passed by the learned JMFC, II Court, Junagadh below application, Mark-17 preferred by the petitioner for releasing her on bail by which the learned JMFC has passed an order of deferring the hearing of bail application till Narco Test is performed on the petitioner as per its order dared 13.6.2007.

(2.) A criminal complaint being C.R. No. I-168/2007 is filed against the petitioner and 3 unknown persons on 8.6.2007 at Junagadh 'B' Division Police Station for the offences punishable under Sections 212, 506(2) and 114 of the Indian Penal Code. It is required to be noted that, so far as State of Gujarat is concerned the offence punishable under Section 506(2) is non-bailable and triable by Magistrate. In the complaint it is alleged that one FIR being C.R. No. I-69 of 2007 is given by Jyotiben Dilipbhai Pipariya at Jiunagadh Taluka police station on 1.3.5.2007 againsl Mohan Amir Gohil and Mahesh alias Bhaddo Mulji Chauhan for the offences punishable under Sections 302. 394, 376 etc., of IPC. In the FIR, being C.R. No. I-168 of 2007 filed is against the petitioner and other 3 unknown persons allegedly on the basis of the statement given by sister of the accused Mohan Amir namely Savitaben. that it has come to the knowledge of the complainant Shri S.G. Raval, Police Inspector, Crime Branch, Junagadh that the petitioner has committed offences of harbouring and concealing accused named in C.R. No. 69 of 2007 as well as of criminal intimidation and abetment. The petitioner came to be arrested in connection with the complaint being C.R. No. 168 of 2007 and after the arrest by an application remand was sought by the Investigating Officer. The learned Magistrate by order dated 10th June 2007 accepted the application of taking the petitioner on police remand and the petitioner was taken on police remand upto 11.00 a.m. of 13th June 2007. It appears that after completion of the period of remand the Investigating Officer submitted an application for seeking further remand which came to be rejected by the learned Magistrate. That after the petitioner was taken on police remand on 11.6.2007 the prosecuting agency gave an application to the Court of learned Magistrate vide Mark- 8 praying therein for taking the petitioner for performing Brain Mapping Test as well as Narco Test on petitioner. That the same was objected to by the petitioner. However the learned Magistrate after hearing the learned advocates appearing on behalf of respective parties granted the application of the Prosecution by order dated 13th June 2007 for taking the petitioner for Narco Test as well as Brain Mapping Test. It appears that being aggrieved by the said order the petitioner gave an application for staying the operation of the order granting application of the Prosecution for taking the petitioner for Narco Test as well as Brain Mapping Test and the learned Judge has stayed the operation of the order upto 26.6.2007. It appears that the petitioner has preferred Revision Application before the learned Sessions Judge against the order passed by the learned Magistrate granting the application of the Prosecution for taking the petitioner for Narco Test as well as for Brain Mapping Test and it is reported that the said Revision Application is already heard and is kept for order on 30th June 2007. 2.1. That in the meantime the petitioner has submitted an application at Mark-17 before the learned JMFC, II Court, Junagadh, for releasing her on bail and the said application was filed under Section 437 of Criminal Procedure Code. That the said application was submitted on 13th June 2007. As the application of the Prosecution for taking the petitioner for Narco Test as well as Brain Mapping Test was allowed by the learned JMFC vide order dated 13th June 2007, the learned JMFC vide the said order dated 13th June 2007 postponed hearing of the application for bail till Narco Test as well as Brain Mapiping Test on the petitioner are performed. The learned JMFC has also directed the Prosecution to complete the tests as early as possible so that the application for bail can be heard. Being aggrieved and dissatisfied with the order passed by the learned JMFC, Junagadh, dated 13th June 2007 in postponing hearing of the bail application submitted by the petitioner, the petitioner has approached this Court by way of present application praying for the aforesaid relief.

(3.) Shri N. D. Nanavati, learned Senior Advocate appearing on behalf of the applicant has submitted that the learned Trial Court has committed an error in postponing hearing of the bail application till the Narco Analysis Test and Brain Mapping Test are performed. He has submitted that conducting/performing of Narco Analysis Test is part of the investigation and even if the applicant is released on bail she can be again taken into custody for the purpose of Narco Analysis Test and Brain Mapping Test. He has submitted that the Trial Court may on merits decide either to grant bail or refuse to grant bail however the Trial Court is not justified in even considering the application for bail on merits. It is submitted by him that when the application is submitted for bail the same cannot be deferred as done by the learned trial Court. He has further submitted that as such Bail Applications are required to be decided as early as possible. Therefore it is requested by Shri Nanavati, learned Senior Advocate for the applicant to direct the learned Trial Court to hear and decide the application submitted by the applicant on merits.