Gujarat High Court
Bhanubhai Jodhabhai Bharvad & 6 vs State Of Gujarat on 23 November, 2016
Bench: S.R.Brahmbhatt, A.J. Shastri
R/CR.MA/26285/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE)
NO. 26285 of 2016
In
CRIMINAL APPEAL NO. 837 of 2016
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BHANUBHAI JODHABHAI BHARVAD & 6....Applicants
Versus
STATE OF GUJARAT....Respondent
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Appearance:
MR. HRIDAY BUCH, ADVOCATE with MR. DARSHAN M. VARANDANI, ADVOCATE for
the Applicant Nos. 1 7
MR. L. R. POOJARI, APP for the Respondent
MR. A. A. ANSARI, ADVOCATE with MR. SADIK ANSARI, ADVOCATE for the original
Complainant/Informant
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 23/11/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. Rule. Shri L. R. Poojari, learned APP waives service of notice of rule on behalf of respondent - State. By consent of learned advocate for the parties, rule is fixed forthwith.
2. The applicants, who have been some of the accused and appellants before this Court in Criminal Appeal No.837 of 2016 containing challenge to the judgment and order of conviction dated 11 th April 2016 passed by the learned 3rd Additional Sessions Judge, Nadiad in Sessions Case No.291 of 2003 convicting and passing sentence under Page 1 of 21 HC-NIC Page 1 of 23 Created On Sat Dec 17 00:07:02 IST 2016 1 of 23 R/CR.MA/26285/2016 ORDER Section 364 A read with Section 149 of Indian Penal Code have preferred this application under Section - 389 of the Criminal Procedure Code with following prayers.
(A) YOUR LORDSHIPS may be pleased to allow
present application;
(B) YOUR LORDSHIPS may be pleased to
suspend the substantive sentence as well as order of fine imposed upon the present applicants -
accused by the learned 3rd Additional Sessions Judge, Nadiad in Sessions Case No.291 of 2003 and also be pleased to release the applicants -
accused on bail pending Criminal Appeal No.837 of 2016 on suitable terms and conditions as may be deemed fit, just and proper in the interest of justice ;
(C) YOUR LORDSHIPS may be pleased to dispense with the Affidavit as the applicants are in Jail;
(D) Such other and further relief or relieves as may be deem fit, just and proper in the facts and circumstances of the case.
3. The facts in brief requiring for appreciating the submissions for rival parties deserve to be setout as under :
4. The original complainant lodged complaint which Page 2 of 21 HC-NIC Page 2 of 23 Created On Sat Dec 17 00:07:02 IST 2016 2 of 23 R/CR.MA/26285/2016 ORDER ultimately culminated into Sessions Case No.291 of 2003 for the incident which alleged to have taken place on 8th July 2002 for the offences punishable under Section 364 A read with Section 149, 342, 447 and 506 (2) of Indian Penal Code. The said Sessions Court has rendered its decision and judgment on 11th April 2016 whereunder the following effective order is passed, which the applicants have depicted in tabular form, which may be reproduced hereunder for ready reference.
Offences Punishment
(i) Section 364 A r/w Section : Imprisonment for Life and pay fine
149 of Indian Penal Code, of Rs.1 lakh each or to undergo 2
1860. years R.I. in default.
(ii) Sections 342, 447 and : No separate punishment.
506 (2) of Indian Penal
Code, 1860.
(iii) Original Accused nos.1 & : 6 months and fine of Rs.10,000/
2 for the offence under each or to undergo 1 month R.I. in
Section 120 B of Indian default.
Penal Code, 1860.
5. The judgment and order is assailed by all the accused, who were surviving, as original accused no.6 and accused no.13 have died during the pendency of trial. Thus, all the surviving accused have preferred the appeal being Criminal Appeal No.387 of 2016, which came to be admitted by this Court on 14th June 2016. In the Criminal Misc. Application (for suspension of sentence) No.13552 of 2016 in Criminal Appeal No.837 of 2016, the present applicants along with other applicants, who have been named as appellants in the criminal appeal had preferred application for suspension of sentence under Section 389 of Cr.P.C. in which on 14th June 2016, the Court had issued rule, which was made returnable on 29th June 2016 and ultimately on 29th June Page 3 of 21 HC-NIC Page 3 of 23 Created On Sat Dec 17 00:07:02 IST 2016 3 of 23 R/CR.MA/26285/2016 ORDER 2016 the Court passed the following order.
"Learned advocate for the applicants, seeks permission to withdraw this application.
Permission as sought for, is granted at this stage, with a liberty to prefer bail application after a period of three (3) months."
6. This application is filed after the said period and in terms of the liberty reserved in the applicants. However, it is required to be noted that this application is preferred by the original accused no.2, 4, 5, 8, 9, 11 and 12.
7. Shri A. A. Ansari, learned advocate for the original complainant along with the Shri L. R. Poojari, learned APP for the State, were permitted to make extensive submissions against the prayers made in this application.
8. Shri A. A. Ansari, learned advocate for the complainant invited Court's attention to the part of the order and judgment impugned in this appeal to indicate that what was the charge levelled against the accused and from the charge dated 12th July 2004 indicating that it was a charge against all the accused that the original complainant and his partner in the Natraj Cold Storage, account whereof was maintained by the original complainant and from whom the said partner was to receive Rs.65 lakhs, that partner's managers engaged accused no.1 for recovering the said amount from the complainant and for that purpose accused nos.1 to 14 formed unlawful assembly and armed with weapons, went to the field of complainant and witness in Tata Sumo Page 4 of 21 HC-NIC Page 4 of 23 Created On Sat Dec 17 00:07:02 IST 2016 4 of 23 R/CR.MA/26285/2016 ORDER bearing registration No.GJ7 R9639 and Tempo Trax bearing registration No.GJ7 H6851 and demanded that money and after beating the complainant and witness, abducted them and administered threat of killing them for bringing that money by unlawfully confining them and administering threat of killing them committed offences punishable under Sections 147, 148, 364 A, 120 B, 506 (2), 342, 447 read with Section 149 of Indian Penal Code.
9. Shri A. A. Ansari, learned advocate for the complainant invited Court's attention to the narration of facts as it emerged from the evidence, which in his submission clearly indicated that the entire incident alleged to have happened, involves no other premises then the premises of the complainant himself, as it is said that the complainant was when sitting with his nephew in his own field was visited by the accused who were armed with weapons like one "Dhariya" and sticks and they were using filthy language and abusing and intimidating the witness and the complainant for compelling him to arrange for Rs.65 Lakhs, which as per their say, complainant owed to the person, whose managers have alleged to have engaged them. From there in the vehicle, the complainant and the witness were taken to the very cold storage, where also the threats were administered and the accused no.1 demanded that payment should be made. On the way from the field of the complainant to that of the cold storage, they had to stop for fillingin diesel and there are evidences to suggest that the vehicle had to pass through the thickly populated areas, which have been placed on record.
10. Against this factual backdrop, it was urged on behalf of the complainant that the ingredients of Section 364 A of Indian Penal Code were not fulfilled and the attending circumstances in which it has come on record that the complaint was registered in presence of an advocate Page 5 of 21 HC-NIC Page 5 of 23 Created On Sat Dec 17 00:07:02 IST 2016 5 of 23 R/CR.MA/26285/2016 ORDER and the fact that the dispute, qua complainant owing an amount of Rs.65 lakhs to his partner, whose managers have said to have engaged the accused nos.1 to 12, would at the best if examined, would indicate that Section 348 of I.P.C. could have been said to be ignored for invoking and infusing more stringent consequences and hence, same ought to have weigh with the learned trial Court.
11. Shri Hriday Buch, learned advocate for the applicants invited Court's attention to both the provisions of Section 348 and Section 364 A of I.P.C. and submitted that the essential ingredient of communicating the demand of ransom being conspicuously absent so as to bring the mischief within the fold of Section 364 A may be concealed with this Court considering the fact that all, along with the present applicants, were enlarged on bail and they had to surrender only when the judgment of conviction was rendered on 11th April 2016.
12. Shri Buch, learned advocate for the applicants invited Court's attention to the testimony of various witnesses including the complainant, the nephew of the complainant and son of complainant, who said to have had a talk during the time when the complainant and his nephew were with the accused as alleged and submitted that the close reading of testimony of this witnesses would indicate that the essential ingredient of either ransom or demanding ransom being not made in the case of the prosecution and conviction under Section 364 A was uncalled for. Learned advocate for the applicants relied upon the following authorities in support of his submission.
(1) In case of Babu Singh and others V/s. State of U. P. reported in 1978 (1) SCC 579 (for successive bail).
Page 6 of 21 HC-NIC Page 6 of 23 Created On Sat Dec 17 00:07:02 IST 2016 6 of 23 R/CR.MA/26285/2016 ORDER (2) In case of Akram Khan V/s. State of W. B. reported in A.I.R. 2012 SC 308 (Section 364 A). (3) In case of Netra Pal V/s. The State (NCT of Delhi), reported in 2001 Criminal Law Journal 1669 (Section 364 A). (4) In case of Farid V/s. State of Madhya Pradesh, reported in 2008 Law Suit (MP) 884 (Section 364 A). (5) In case of Mukeshbhai @ Tino Vadilal Mochi V/s. State of Gujarat in Criminal Appeal No.1611 of 2010 judgment dated 5th May 2014 (Section 364 A). (6) In case of Jetha Bhaya Odedara V/s. Ganga Maldebhai Odedara and another, reported in (2012) 2 Supreme Court Cases 150 (Antecedents). (7) In case of Maulana Mohammed Amir Rashadi V/s. State of Uttar Pradesh and another, reported in (2012) 1 Supreme Court Cases 382 (Antecedents).
13. Learned advocate for the applicants further submitted that assuming for the sake of argument without conceding that there was a demand of Rs.65 lakhs, but that demand is required to be viewed in the context of the evidence, which has come on record indicating that there existed a dispute qua the money and there was a Civil Suit, which came to be later on withdrawn and it has come on record in the testimony of Page 7 of 21 HC-NIC Page 7 of 23 Created On Sat Dec 17 00:07:02 IST 2016 7 of 23 R/CR.MA/26285/2016 ORDER the complainant himself that subsequently the complainant and others along with the managers of the partner, who is alleged to have engaged the present accused for recovering the money, had arrived at a settlement under which the money was parted by the complainant. These factors are required to be viewed coupled with the fact that no substantive injury is caused and the factum of confinement could not have been said to have been proved as it has comeout on record that the entire episode alleged to have been over within a period of 4 to 6 hours and in the entire episode, not for a single moment, the accused have harmed or indicating any grave threat as to bring their conduct within the mischief of Section 364 A. The testimony of the complainant would indicate that even at a given time, the complainant and his nephew were permitted to perform their "Namaz" also and the fact that the prosecution has failed in indicating that as to how and in what manner the ransom was demanded and from whom and when it has come on the record that their existed a disputed, which was required to be settled during the pendency of the trial itself with the original partner of the cold storage, whose managers have alleged to have been engaged the present accused, would indicate that it is a fit case atleast for not permitting the accused to remain in jail as there is a fair chance of succeeding in the appeal.
14. Learned advocate for the applicants also submitted that the factum of applicant no.1 having number of cases against him is required to be viewed in a proper perspective as unfortunately, the trial Court while calling for the information qua the informant of accused no.1 in a criminal case has not correctly indicated or reproduced the same, as the essential information qua the result of the case, which is acquittal of the applicant has not been pointedout by the Court, which leaves much room for appreciating the entire methodology of conducting the trial and Page 8 of 21 HC-NIC Page 8 of 23 Created On Sat Dec 17 00:07:02 IST 2016 8 of 23 R/CR.MA/26285/2016 ORDER the fact that how and in what manner the complainant is pursuing the cause for saying to it that the accused may get bail even though they were actually enlarged on bail during the pendency of trial.
15. Learned advocate for the applicants invited Court's attention to the actual report of the police officer, which has been placed on record in the matter, which has a column which indicate that out of 12 cases, in 2 cases he has not been named and from remaining 10 cases in 9 cases he has been acquitted. Therefore, logically speaking the said fact cannot militate against even his prayer for being released on bail during the pendency of appeal and in case if the Court inclined to grant bail, the applicants are ready and willing to abide by any of the conditions which may imposed by this Court.
16. Shri Poojari, learned APP invited Court's attention to the language of Section 364 A and the decision of the Supreme Court in case of Malleshi V/s. State of Karnataka reported in 2004 (8) SCC 95 referred to hereinafter in our other discussion, to support the submission that the abduction for ransom is sufficient to bring home the guilt on the part of the accused. The close perusal of the language would clearly indicate that once the abduction is proved and abduction is proved for demand of ransom, then all the ingredients of Section 364 A are fulfilled and therefore, there cannot be said to be any live linking, benefit whereof made available to the accused. The Court was specifically requested to adjourn the matter for enabling the counsel to place his written submissions on record, which has come in the following form.
"1. This Hon'ble Court has already perused and examined the impugned judgment and also the paper book containing the records of the case provided by Page 9 of 21 HC-NIC Page 9 of 23 Created On Sat Dec 17 00:07:02 IST 2016 9 of 23 R/CR.MA/26285/2016 ORDER the parties and also heard the submissions made at length on behalf of the parties concerned therefore, to avoid the repetition, following brief submissions are made.
2. The trial court after examining the oral as well as documentary evidence produced on the record of the case after enabling the applicants personally to explain any circumstances appearing in the evidence against them taking into consideration the same and over all facts and circumstances of the case as well as legal provisions applicable to the fact of the case convicted some of the present applicants for the offences punishable u/s 364A, 120B, etc., of the Indian Penal Code and ordered them to undergo the sentence of life imprisonment.
3. Challenging aforesaid conviction and the sentence they have filed the present criminal appeal no.837 of 2016 and also they have filed a regular bail application no.13552 of 2016 in the appeal before this Hon'ble Court. Said bail application was not granted by the Hon'ble Court. The present application filed by the applicants is a successive bail application hence, the same may not be granted.
4. The records of the case clearly shows that the applicant no.1 and the original accused no.1 have taken supari to recover Rs.65 lacs from the original complainant. Not only at the time of the present incident even prior thereto in various meetings held for recovery of the money they took active parts. The demand of ransom was also proved. Against the Page 10 of 21 HC-NIC Page 10 of 23 Created On Sat Dec 17 00:07:02 IST 2016 10 of 23 R/CR.MA/26285/2016 ORDER applicant no.1 various offences are registered from the year 2004 to the year 2015. In some of the cases he was acquitted and one case is pending trial against him as per the submissions made on behalf of the applicants. This shows that he is a head strong person and his release is not at all deserves to be granted in larger interest of the society. Public interest is paramount than the interest of a convict prisoner who was sentenced to undergo a life imprisonment. Taking into consideration the role played by the other applicants they have convicted for the offences punishable under section 364 A and 120 B read with other sections and accordingly the trial Court has rightly sentenced them to undergo life imprisonment.
5. Section 364 A of the IPC provides for punishment with the death or imprisonment for life and also fine. Section 120 B provides that whoever is party to criminal conspiracy to commit an offence punishable with the death, imprisonment for life be punished in the same manner as if he had abetted such offence therefore, the prayer of all the applicants deserves not to be granted.
6. Present case is covered by the ratio laid down in the following judgments reported in :
1. AIR 2004 SC 4865 in case of Malleshi V/s.
State of Karnataka :
2. 2007 Cri. J. 696 in case of O.M.Prakash Srivastav V/s. State ;
3. 2001 Cri. J. 1669 in case of Netra Pal V/s.
State ;
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4. 2012 (1) SCC 406 Akram Khan V/s. State of
West Bengal ;
The facts and cirumstances of the present case falls within the provisions of section 364 A, 120 B and other sections under which the present applicants have been convicted and sentenced is very serious in nature.
The Hon'ble Supreme Court in the case of Akram Khan para 32 onwards dealt with the appropriate sentence in case of such offences and held that no leniency be shown in awarding sentence, on the other hand, it must be dealt with in the harshest possible manner and an obligation rests on the court as well.
7. Therefore, it is humbly submitted that the application deserves to be dismissed without suspending the sentence or granting any relief in favour of the applicants."
17. Shri Ansari, learned advocate for the complainant invited Court's attention to the development of the events, which have been narrated by the complainant and submitted that the factum of abduction is established as though the original complainant and his nephew were taken forcibly from their field to the cold storage, the factum of force and wilding of weapons with intimidating language and use of power as is established on the record would indicate that there was abduction and this abduction was with a view to recover ransom of Rs.65 lakhs, which has been proved from the testimony of the complainant as well as the son of the complainant, who had talked over phone with the Page 12 of 21 HC-NIC Page 12 of 23 Created On Sat Dec 17 00:07:02 IST 2016 12 of 23 R/CR.MA/26285/2016 ORDER complainant during their confinement with the accused. The question of dispute of account cannot absolve the criminal liability as the law would not permit anyone including the creditor to take the law in hand for releasing his own amount and hence, Section 364 A ingredients could have been said to have complied with when the testimony of the witness if perused collectively, would indicate that all the ingredients of Section 364 A were fulfilled, as the complainant and his nephew were abducted from the farm and conducted in the confine situation to cold storage and all along, they were threatened that be ready for dare consequences if the amount is not paid. All these factors have been proved on record beyond doubt and in that view of the matter, when the conviction is recorded, the punishment is awarded, the factum of guilt is reinforced and therefore, the Court may not use its discretion in favour of the applicants especially when the trial Court has after recording elaborate evidences, convicted the applicants and imposed sentence. Learned advocate for the complainant has relied upon the following authorities in support of his submissions.
(1) In case of Suman Sood @ Kamal Jeet Kaur
V/s. State of Rajasthan, reported in 2007
(5) SCC 634.
(2) In case of Malleshi V/s. State of Karnataka,
reported in 2004 (8) SCC 95.
(3) In case of Shaukat Hussein Hajibhai Shaikh
V/s. State of Gujarat, reported in G.L.R.
4194.
(4) In case of Vikram Singh @ Vicky V/s. Union of
India, reported in (2015) 9 SCC 502.
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18. Shri Ansari, learned advocate for the complainant relying on the aforesaid authorities submitted that the applicant no.1 in this application has in fact misused his liberty, when he was granted bail, as when he was actually on bail, he had indulged in committing the offence, which rather strengthen the submission of learned advocate for the complainant that he and other accused may not be released on bail as they have shown propensity to commit and repeat the crime of such nature. Therefore, in these facts and circumstances, the Court may not enlarged the applicants on bail.
19. Shri Ansari, learned counsel for the complainant has invited Court's attention to the earlier order passed by this Court and submitted that earlier when the main appeal was admitted, the bail application was filed, it was heard on merits and when the Court was not convinced, it was not pressed and sought to be withdrawn and the liberty reserved cannot be treated to be whittling down the contention of this application being successive bail application nor would it absolve the applicants of their primary obligation to indicate change of circumstances so as to maintain the successive bail application and hence especially when there is no change in circumstances as such, the present bail application would not be entertained and the Court may therefore, reject the same.
20. The Court has heard the learned advocates for the parties. The Court is also mindful of the fact that ordinarily while examining the application for bail and the rival contentions made on behalf of the counsels of the parties including original complainant, the Court needs to be conscious about the scope of examination and the pendency of appeal, so that the prima facie opinion of the Court for or against the plea of bail and suspension of sentence may not have bearing upon the final consideration of the pending appeal. Hence, bearing that limited Page 14 of 21 HC-NIC Page 14 of 23 Created On Sat Dec 17 00:07:02 IST 2016 14 of 23 R/CR.MA/26285/2016 ORDER scope of examination in mind, this Court has to examine the rival contentions of the learned advocates for the parties in the present case.
21. Though the scope of the scrutiny at the stage of Section 389 of Cr. P. C. being limited, but Court is also required to respond to examine and give its prima facie view in respect of the contentions raised at the bar. Hence, for the limited purpose of dealing with those contentions, the Court will have to undertake the required scrutiny that may include prima facie opinion on the evidences, quality thereof and the probative value which of course, may not have any bearing whatsoever upon the final hearing of the appeal being Criminal Appeal No.837 of 2016.
22. The Court is of the view that the statute has two provisions for dealing with situation which can be noticed from the very language employed therein and the object in reasons for them being there on the statute book or inserted later on. Section 348 and Section 364 A of I.P.C. for ready reference need to be setout as under : "348. Wrongful confinement to extort "364 A. Kidnapping for ransom, confession, or compel restoration of etc.Whoever kidnaps or abducts any property.Whoever wrongfully confines person or keeps a person in detention any person for the purpose of extorting after such kidnapping or abduction and from the person confined or any person threatens to cause death or hurt to interested in the person confined any such person, or by his conduct gives rise confession or any information which may to a reasonable apprehension that such lead to the detection of an offence or person may be put to death or hurt, or misconduct, or for the purpose of causes hurt or death to such person in constraining the person confined or any order to compel the Government or person interested in the person confined [any foreign State or international to restore or to cause the restoration of intergovernmental organisation or any any property or valuable security or to other person] to do or abstain from satisfy any claim or demand, or to give doing any act or to pay a ransom, shall information which may lead to the be punishable with death, or restoration of any property or valuable imprisonment for life, and shall also be security, shall be punished with liable to fine." imprisonment of either description for a term which may extend to three years, and shall also be liable to fine."
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23. The essential ingredient so far as Section 348 is concerned is wrongful confinement for the purpose mentioned thereunder. Whereas, essential ingredient so far as Section 364 A is concerned is kidnapping or abduction or keeping any person in detention after kidnapping or abduction and to administer threat for death or hurt or giving him an impression by conduct that such person is likely to be done to death or injured for compelling the, Government, Foreign State or International Organization or any "other person" to do so or to abstain from doing any act, or to pay ransom. Thus, both these sections indicate initially wrong act and act of offence. So far as Section 348 is concerned, wrongful act emanates from the offence of wrongful confinement, whereas so far Section 364 A is concerned, the offence of kidnapping and/or abduction is triggering on the initial stage of the offence which is further similar ingredient of obtaining a desired result. So far as Section 348 is concerned, the desired results are expected by or rather expected to be done by the person so confined. Whereas taking into consideration, the language employed in Section 364 A, the abduction, kidnapping is to exert pressure and compulsion upon a person, who is not a victim for getting the desired result i.e. also and the ransom is also treated as a part of that ingredient in which the abduction kidnapping for ransom is also an act of offence under Section 364 A. In other words, the plain and simple language of both the sections would abundantly make it clear that so far as Section 348 of I.PC. is concerned, it is an offender's act of taking or compelling the victim of a wrongful confinement to deliver the desired result, goods or property. Whereas, so far as Section 364 A is concerned, the offender's language is to torture the victim or create an imminent danger to victim of abduction or kidnapping so as to compel the third party could it be Government, Foreign Government, Organization "or other person". A question arises therefore, can "or other person" be said to be the victim himself. The Page 16 of 21 HC-NIC Page 16 of 23 Created On Sat Dec 17 00:07:02 IST 2016 16 of 23 R/CR.MA/26285/2016 ORDER prima facie answer could be negatived. Though, unfortunately this issue is not been the subject matter of scrutiny in any matter, authority whereof is cited before us, but this Court is obliged to record its prima facie view so far as Section 364A is concerned, which essentially requires pressure or exertion of pressure or compulsion upon third party by doing wrongful act of kidnapping or abduction of the victim. The victim cannot prima facie be treated as covered under the definition of other person, else the phraseology would have been different. The "other person" if was meant to be the victim, then instead of "other" the phraseology would have been "such person". The absence of that phraseology in the provision of Section 364A prima facie militate against the submission qua treating the victim to be other person so as to bring home guilt on the part of offender. But, this Court need not elaborate on this aspect at all at this stage and we are also hastened to add here that as this aspect has not been dealt with by any Court in any of the decision, this aspect need not weigh in favour of either party at this stage, as this is a view of the Court while examining the bail application based upon the rival contentions. This would not in any manner restrict or impede the course of submission and scope of submission available to the counsel at the time of final hearing in which plausibly it could be argued on behalf of the respondent in the appeal that fine dissection of Section 364A itself coupled with the fact that the observation of the decision of Malleshi (supra) is persuade the Court to hold that abduction, kidnapping simplicitor for ransom to be demanded from victim is sufficient to bring home the guilt and therefore, we need not elaborate this aspect. But, this aspect is required to be treated as an aspect requiring consideration at the time of final hearing and therefore, to that extent, one can easily say that appeal has substantially arguable points.
24. 7 The proposition of law as canvassed on behalf of original Page 17 of 21 HC-NIC Page 17 of 23 Created On Sat Dec 17 00:07:02 IST 2016 17 of 23 R/CR.MA/26285/2016 ORDER informant as well as learned APP cannot be disputed by anyone. The decision rendered by Supreme Court in case of Malleshi(supra) and other decisions have gone long way to indicate that the demand of ransom from victim by threatening the victim is sufficient, though we hastened to add here that there was nowhere an occasion to consider Sec. 364A in light of Section 348 as may be the essential ingredients on which the offence is said to be based. The difference in both the sections is namely wrongful confinement and abduction and kidnapping for ransom.
25. Shri Buch, learned advocate for the applicants has taken this Court through the testimony of PW23 - the victim, who is not disputed in any manner the fact that during the entire period when the victims were with the accused, they were not lockedup in any room and two places, which have come on record where they have been with the accused, are field of the victim himself and therefrom through public thoroughfare, they were taken to the cold storage, which was under the control and custody of the victim. These factors and the lack of any substantial injury on the person of the victims and the factum of victims be taken to the cold storage by travelling on a public thoroughfare at the time when the thoroughfare were full of traffic and stopping at fuel station for filling diesel and victims were taken near the road, which had a police station or police chowki and no untoward situation could be noticed by anyone and the fact that the victims were not gagged in any manner as it has not come on record. In other words, when the victim - the witness did not deny the suggestion that they were not gagged and they did not shout and called for any help and looking to the nature attributed to the accused for administering threat as one accused is said to have been welding Dhariya and rest of them having sticks, a consideration required to be gone into at the final hearing stage for examining the guilt and conviction recorded by the trial Court.
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26. The fact that all the accused were in fact enlarged on bail during the trial and when in the trial, the aforesaid evidence has come on record, then a question arises as to whether the present applicants, who have not been attributed with the act of communicating with the son of the victim informant, as the telephonic talk by the son was with his father and father informed him that the accused were demanding Rs.65 lakhs or allegedly owed to third party and even, at that time also none of the present applicants figuring as accused before the Court, in this application, would be a factor required to be considered for exercising discretion in favour of the present applicants.
27. The authorities cited at the bar that the antecedent is also an important factor to be taken into consideration while granting the bail, but in the instant case, overall facts and circumstances of the case and the complaint itself and the fact that the applicant no.1 has not been convicted so far, those antecedent of his involvement alone, which has not culminated into a conviction, cannot be held against him for denying him bail when during the entire period of trial, he was on bail.
28. This Court is also not inclined to accept the submission of learned advocate for the original complainant that as this is a successive bail application, the same is required to be rejected. In fact, the fact remains to be noted that the established provision of law does not debar any bail application and in the instant case, the order of the Court dated 29th June 2016 passed in Criminal Misc. Application (For suspension of sentence) No.13552 of 2016 in Criminal Appeal No.837 of 2016 also clearly indicates that the Court while permitting withdrawal, permitted the applicants to move an application after the period mentioned thereunder i.e. 3 months and therefore, the earlier bail application and its withdrawal in our view cannot militate against the consideration of present application.
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29. The Court is mindful of the fact that the elaborate discussion may have its impact on the final disposal and therefore, Court need not elaborately discussed the same. However, the aforesaid discussion was also warranted in view of the fact that the counsels have argued at length and had taken the Court through almost all the evidence and urged the Court for recording reasons. We were constrained to give the aforesaid reasons for exercising discretion in favour of the present accused only.
30. At this stage, Shri Ansari, learned advocate for the original complainant, urged the Court that during the pendency of appeal, as all the applicants have been formed guilty and convicted, let them suffer on the same conditions of not entering the Districts of Anand and Kheda. Shri Buch, learned advocate for the applicants objected and submitted that if there is an apprehension qua applicant no.1, let there be a condition that applicant no.1 may not enter the District Anand for some time with a liberty to him to approach the Court after some time, if there is no untoward incident recorded so as to assuage the apprehension on the part of the respondent. But, the rest of the accused are coming from very poor state of society and they had very tremendous difficulty even ekingout for their livelihood, therefore, such condition may not be imposed upon them.
31. Considering the facts and circumstances of the case, the present application for suspension of sentence deserves to be allowed and the same is hereby allowed. The applicants are hereby ordered to be released on bail on their executing a bond of Rs.10,000/ (Rupees Ten Thousand only) each with solvent surety of the like amount to the satisfaction of the lower Court and by observing all other usual conditions, which were imposed upon them when they were enlarged on Page 20 of 21 HC-NIC Page 20 of 23 Created On Sat Dec 17 00:07:02 IST 2016 20 of 23 R/CR.MA/26285/2016 ORDER bail during the pendency of trial along with following conditions that they shall :
(a) not take undue advantage of their liberty or abuse their liberty in any manner;
(b) maintain law and order;
(c) surrender their passport, if any, to the lower Court, within a week and if they
does not possess any passport, then they shall make declaration to that effect before the trial Court;
(d) the applicant no.1 shall not enter the jurisdiction of District Kheda and District Anand and the rest of the applicants are not permitted to enter within the jurisdiction of Chaklasi Police Station, Nadiad, District Kheda initially for a period of six months, later on it would be open for them to approach the Court for relaxation of this condition with the copy to the other side and shall also intimate the address where they reside to the trial Court as well as the concerned police station;
(e) If during the pendency of the criminal appeal any change in their residential address, permanent or temporary, takes place, then they shall intimate the same to the trial Court as well as the concerned Police Station;
(f) Bail before the trial Court having jurisdiction.
32. At this stage, Shri Ansari, learned advocate for the original complainant submitted that informant - complainant is desirous to go to the apex Court to challenge this order, and therefore, this order be stayed for the period of six weeks. This request in our view cannot be accepted, as it would amount to prolonging the judicial custody of accused in whose favour the order of regular bail is passed and hence, the Court is unable to accept this request, as the bail bond is available, it would be sufficient surety against any apprehension of their avoiding the process of Court. Rule made absolute. Direct service permitted.
(S.R.BRAHMBHATT, J.) (A.J. SHASTRI, J.) Rathod...
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R/CR.MA/26285/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
26285 of 2016 In CRIMINAL APPEAL NO. 837 of 2016 [On note for speaking to minutes of order dated 23/11/2016 in R/CR.MA/26285/2016 ] ================================================================ BHANUBHAI JODHABHAI BHARVAD & 6....Applicants Versus STATE OF GUJARAT....Respondent ================================================================ Appearance:
MR HRIDAY BUCH, ADVOCATE for the Applicants No. 1 - 7 MR LR POOJARI APP for the Respondents No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE MR.JUSTICE A.J. SHASTRI Date : 16/12/2016 ORAL ORDER (PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) The following correction in mentioning the name of advocates in respect of submissions need to be corrected.
In the first line of para-8 & 9 of the order, in place of name of Shri A.A. Ansari, learned advocate for the complainant, it should be read and replaced as Shri Hriday Buch, learned advocate for the applicants.Page 1 of 2
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22 of 23 R/CR.MA/26285/2016 ORDER In the second line of para-10 of the order, in place of complainant, it should be read and replaced as applicants.
Spoken to minute is disposed of. The order be read thus.
(S.R.BRAHMBHATT, J.) (A.J. SHASTRI, J.) pallav Page 2 of 2 HC-NIC Page 23 of 23 Created On Sat Dec 17 00:07:02 IST 2016 23 of 23