Gujarat High Court
State Of Gujarat vs Gadhavi Maheshsinh Bhupendrasinh on 13 October, 2020
Equivalent citations: AIRONLINE 2020 GUJ 2010
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/9773/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9773 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
GADHAVI MAHESHSINH BHUPENDRASINH
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Appearance:
MR MITESH AMIN PUBLIC PROSECUTOR for the Applicant No. 1
MR ZUBIN BHARDA ADVOCATE WITH MR.KISHAN PRAJAPATI(7074)
for the Respondent No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/10/2020
ORAL JUDGMENT
1. This application has been preferred by the State under Section 439(2) and 482 of the Cr.P.C. for quashing and setting aside the order dated 24.06.2020 passed by the Additional Sessions Judge, Gandhinagar in Criminal Misc.
Page 1 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020R/CR.MA/9773/2020 JUDGMENT Application No.560/2020, whereby the learned Additional
Sessions Judge has granted anticipatory bail to the respondent in connection with Prohibition C.R.No.11216012200135 of 2020. The State has sought permission for the investigating agency to take the respondent in custody.
2. Necessary facts, as could be culled out from the memo petition, order impugned and the papers annexed with the petition, can be succinctly laid down as under:
2.1 An information came to be received by the police while on patrolling, that a Swift car is piloting some vehicles transporting prohibited liquor. The police, while on patrolling, stopped Swift car and Tavera car, two from Swift car were apprehended but driver of Tavera car managed to escape, while the passenger seating next to the driver was apprehended. On searching the Tavera car the police saw, Indian made foreign liquors (IMFL) between the middle seat and in the dickey. In the meantime, one of the person of the Swift car intimidate the raiding police by providing the mobile number to talk with one Gadhvi Sahab, who is respondent - police constable working with Parole and Purlough Squad of Aravali District.
2.2 During the search of the Tavera car, in all 648 beer tins and 84 bottles of Indian made foreign liquor worth Rs.1,06,000/-were found, which was to be transported to Nadiad. The drivers of the vehicle were informed to use the codeword 'Komal' for safe passage. The mobile number 6354974029 was provided to the raiding officer to speak to Gadhiv Sahab of Modasa.Page 2 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020
R/CR.MA/9773/2020 JUDGMENT 2.3 Thereafter, a complaint being Prohibition
C.R.No.11216012200135 of 2020 came to be registered on 29.05.2020 before the Rakhiyal Police Station under sections 65(a) (e), 81, 83, 98(2) and 116-B of the Prohibition Act, wherein the respondent was arraigned as accused no.8. On apprehending his arrest, the respondent approached the Sessions Court for anticipatory bail, by preferring Criminal Misc. Application No.560/2020, which was granted by the learned Additional Sessions Judge, Gandhinagar, vide order dated 24.06.2020.
3. Aggrieved and dissatisfied by the order dated 24.06.2020, the State is before this Court to quash and set aside the anticipatory bail order.
3.1 Mr. Mitesh Amin, learned Public Prosecutor submitted that the learned Sessions Judge has passed the impugned order without considering the material of investigation produced by the investigating officer. Mr. Amin, submitted that there are all chances of hampering the investigation, as the respondent herein is a police constable working with Parole and Furlough Squad of Aravali District. Mr. Amin submitted that the transcript of conversation recorded in the Mobile Phone of accused Dashrathsinh Vijaysinh Jadeja with the respondent discloses that a syndicate of police officials is involved in the illegal activity and to burst the syndicate the custodial interrogation of the respondent is needed for free and fair investigation. He further submitted that there are material in the form of CCTV footage, telephonic conversation, WhatsApp messages, which have been ignored by the learned Sessions Judge. The statement of the co-accused can be looked into, to Page 3 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020 R/CR.MA/9773/2020 JUDGMENT give lead to the investigation. Mr. Amin submitted that the learned Judge has failed to appreciate that if the respondent accused is granted anticipatory bail, then it would be difficult to secure his presence and being constable in the police department in all probability would interfere in the investigation, tampering with the evidence and influencing the witnesses.
3.2. Mr. Mitesh Amin, learned Public Prosecutor, further submitted that the learned court below has not appreciated the fact that the investigation was at a very crucial stage and granting of anticipatory bail to the respondent would be detrimental to the entire case of the prosecution. Mr. Amin submitted that the learned court below ought to have considered that the accused persons were in contact with the respondent on his mobile phone. The transcript of telephonic conversation recorded in the mobile phone of co-accused Dashrathsinh Vijaysing Jadeja, suggests that lot of money is transferring hands every month, by way of giving safe passage to these vehicles transporting contraband liquor. Instead of cooperating with the investigation, the respondent gave sick report without any medical certification or any other proof to the authority, evading the investigation. He submitted that being a police constable, the respondent has aided in such offence, which is required to be viewed seriously, as police authorities are required to control and restrain any offence under the Prohibition Act.
3.3. Mr. Mitesh Amin, learned Public Prosecutor, stated that while granting anticipatory bail to the respondent accused, the learned court below ought to have considered the details of FIR, disclosing the WhatsApp Chat with the accused, who was Page 4 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020 R/CR.MA/9773/2020 JUDGMENT caught red-handed in transporting the illicit liquor. The learned court below has also not considered the affidavit produced by the investigating officer, wherein it is averred that there are also technical evidence. The respondent as a constable in the police department, has defamed the department. He submitted that learned Court below failed to appreciate that abetment, in an offence does not need the presence of an individual on the spot of crime. There is enough technical evidence to show that the respondent actively guided to safely pass the vehicle through Aravali District. He submitted that in such a case custodial interrogation of respondent is necessary to arrive at the logical conclusion of investigation.
3.4. Mr. Amin, learned Public Prosecutor relied upon the judgment passed by this Court in case of Kailash Govindram Rathi & Ors. Vs. The State of Gujarat, reported in (2008) 1 GLR 750, to submit that investigation of the offence is at the initial stage and till the investigation is completed, it cannot be said that no evidence/material could be found against the respondent.
3.5 Mr. Amin, learned Public Prosecutor further relied upon the judgment in case of Muraleedharan Vs. State of Kerala, reported in AIR 2001 SC 1699, to submit that the custodial interrogation of the accused is indispensably necessary for qualitative investigation to unearth all the links to prove the complicity of the accused in the crime, so to reveal the mastermind.
3.6 Therefore, Mr. Amin, learned Public Prosecutor, Page 5 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020 R/CR.MA/9773/2020 JUDGMENT
submitted that the order passed by the learned Additional Sessions Judge, Gandhinagar dated 24.06.2020 in Criminal Misc. Application No.560/2020 granting anticipatory bail to the respondent, is on irrelevant consideration overlooking relevant materials placed before the learned Judge by way of investigation paper, technical evidence and affidavit. While, the learned Judge has erred in equating the role of the police officer with the bootlegger, thus submitted that the order is unjust, perverse, against the established principles of law, hence prayed to quash and set aside the order and to further grant the investigating agency to take the respondent in custody.
4. Learned advocate Mr. Zubin Bharda with learned advocate Mr. Kishan Prajapati, relying on the Affidavit-in-Reply filed on behalf of the respondent submitted that, the respondent has been falsely implicated in the said offence by the complainant and he has not committed any offence as alleged in the complaint. Mr. Bharda, stated that the respondent has no connection with the alleged liquor which were found from the vehicle. Only from the statement of the co-accused, the respondent has been roped in the complaint alleging that he is helping the other accused in commission of the crime.
4.1. Mr. Bharda, learned advocate, submitted that the respondent is in service of police as ULRD in parole and furlough department of Aravalli district. He has good service record and in past never any such allegations were made against him. Mr. Bharda, stated that co-accused was known to the respondent, as he was a police informer and therefore the accused has the mobile phone number of the respondent. He further stated that Page 6 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020 R/CR.MA/9773/2020 JUDGMENT without making any preliminary inquiry, the police have implicated the respondent in the alleged offence. Mr. Bharda, learned advocate, therefore, submitted that the order impugned passed by the learned Additional Sessions Judge, Gandhinagar is just and proper and this Court may not exercise discretion by entertaining the application of the State and the same be rejected.
4.2 Mr. Bharda, learned advocate for the respondent submitted that no attempt should be made to reappreciate the facts, when the order of the learned Judge is well reasoned one. He stated that the anticipatory bail order is subject to liberty granted to the police for remand. There is no infirmity in the order. He submitted that one of the co-accused has been granted anticipatory bail and on parity the present respondent is enlarged on anticipatory bail. The findings of the learned Sessions Judge cannot be substituted. Mr. Bharda, submitted that the respondent has been suspended from his service, hence, there would not be any question to interfere with the investigation. Mr. Bharda, therefore, submitted that the order of the learned Sessions Judge being just and proper does not require any interference.
4.3 In support of his submissions, Mr. Bharda, learned advocate, relied upon the following authorities:
(i) In case of Dolat Ram Vs. State of Haryana, reported in 1995 SCC(1) 349;
(ii) In case of Myakala Dharmarajam And Others Vs. State of Telangana And Another, reported in (2020) 2 Supreme Page 7 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020 R/CR.MA/9773/2020 JUDGMENT Court Cases 743;
(iii) In case of Ramcharan Vs. State of M.P., reported in (2004) 13 Supreme Court Cases 617;
(iv) In case of Bhagirath Singh S/o. Mahipat Singh Judeja Vs. State of Gujarat; reported in AIR 1984 SC 372.
(v) In case of Anandbhai Shaktidan Gadhvi Vs. State of Gujarat, decided by this Court on 25.08.2020 in Criminal Misc.
Application No.23632 of 2019 with Criminal Misc. Application No.20687 of 2019.
5. Having heard learned Public Prosecutor for the State and learned advocate for the respondent accused and perusing the material produced on record. The short question falls for consideration and decision is whether in exercise of superior Court jurisdiction would it be justifiable in the instant case, to direct the accused to be arrested and committed to custody?
6. The respondent, who is serving in the police department as a police constable enjoying the anticipatory bail granted by the learned Sessions Judge, has been implicated on the statement of co-accused and the mobile chatting between the accused and the respondent, in respect of illicit liquor, which has been transported in the State of Gujarat, wherein the same is prohibited. The learned Sessions Judge while granting bail considered the facts, that illicit liquor has not been recovered from the respondent accused, the respondent accused has not been found at the place of occurrence, on the statement of the co-accused the respondent has been implicated in the complaint, some of the co-accused has been granted regular bail/anticipatory bail, thus invoked the principle of parity.
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7. It is required to be noted that the investigation by the investigating officer was at preliminary stage and the investigating officer has produced affidavit in this regard before the learned Sessions Judge, wherein it has been categorically stated that the respondent has not been only implicated in the complaint by the statement of co-accused, but there are certain technical evidence, as submitted, in form of transcript of conversation recorded in the Mobile Phone of accused Dashrathsinh Vijaysinh Jadeja to suggest that the respondent played the major role for the safe passage of transporting the illicit liquors.
7.1 The apprehension of the State is that respondent is in police department, whence police proposes to unearth the larger scam, fears that there may be chance of influencing the witnesses and tampering with the evidence. It is contended that the investigation is at the preliminary stage and the same is to be proceeded further on the basis of the evidence, statements of the co-accused and the allegations made in the complaint and for the same the custodial interrogation is required of the respondent.
8. The scope of the power of High Court under section 439(2) has been considered by the Hon'ble Supreme Court in case of Gurcharan singh & Ors. Vs. State (Delhi Administration), reported in 1978 AIR 179, held that under Section 498(2) of the old Code, it was provided that a person, who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a Page 9 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020 R/CR.MA/9773/2020 JUDGMENT person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail by any court including the Court of Session, if it thinks appropriate to do so. Relevant paragraph of the judgment is reproduced herein:
"16. Section 439 of the new Code on the other hand confers special powers on the High Court or the Court of Session regarding bail. This was also the position under Section 498 Cr.P.C. of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under sub-section (1) to be arrested and may commit him to custody. In other words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed, to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session Page 10 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020 R/CR.MA/9773/2020 JUDGMENT cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-à-vis the High Court."
9. The Hon'ble Supreme Court in case of Abdul Basit Alias Raju And Ors. Vs. Mohd. Abdul Kadir Chaudhary And Another, reported in (2014) 10 Supreme Court Cases 754, held that although the court granting bail can cancel the bail on ground of accused's misconduct or new adverse facts having surfaced after the grant of bail, however, in view of express bar contained in Section 362 Cr.P.C., it cannot review its order as to grant of bail on ground of it being unjustified, illegal or perverse. Such challenge to bail order on ground of it being illegal or contrary to law can be determined only by the court superior to the court which granted bail. The cancellation of bail rides on the satisfaction and discretion of the court under Section 439(2) of the Cr.P.C., it does not vest the power of review in the court which granted bail.
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10. Dolat Ram Vs. State of Haryana (supra), relied upon by the learned advocate for the respondent, is a case where anticipatory bail was sought to be cancelled wherein, the Hon'ble Supreme Court held as under:
"Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted."
10.1 In Dolat Ram Vs. State of Haryana (supra) Page 12 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020 R/CR.MA/9773/2020 JUDGMENT supervening circumstances has been considered pivot to curtail accused freedom. Here in this case the challenge to the anticipatory bail order is given on the ground that material facts and relevant materials are ignored and consideration has been given to irrelevant facts, to express it precisely, the State has come-up with the case that the order of the learned Sessions Judge is unjust and perverse.
10.2 It would be quite appropriate to refer to the case of Puran Vs. Rambilas, reported in (2001) 6 SCC 338, where it was held by the Hon'ble Supreme Court, that the concept of setting aside an unjustified, illegal or perverse order is absolutely different from cancelling an order of bail on the ground that the accused has misconducted himself or because of some new facts requiring cancellation.
10.3 Ingeminating the aforesaid principle, the Hon'ble Apex Court in case of Ranjit Singh Vs. State of M.P., reported in (2013) 16 SCC 791, observed in paragraph no.19 as under:
"19. ...There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court."
11. The Hon'ble Supreme Court in case of Narendra Amin Vs. State of Gujarat, reported in 2008 (13) SCC 515, Page 13 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020 R/CR.MA/9773/2020 JUDGMENT noted that the Court dealing with cancellation application is required to find whether irrelevant material of substantial nature was taken into account or relevant material omitted from consideration while granting bail. If so, order granting bail would be perverse, justifying cancellation, in that context, stand of no supervening circumstances has no relevance in such a case.
12. It is required to be noted that perversity can flow from the fact that irrelevant materials have been taken into consideration adding vulnerability to the order granting bail. Cancellation of bail necessarily involves the review of a decision already made, it should always be exercised very sparingly by the Court of law, because it interferes with the liberty of individual, hence must examine whether the irrelevant material relied upon are of substantial nature or trivial.
13. The order of the Additional Sessions Judge reflects that crucial circumstances and material facts are ignored, irrelevant facts have been taken into account and relevant materials in the form of CCTV footage, WhatsApp Chat, transcript of conversation recorded in the Mobile Phone of accused Dashrathsinh Vijaysinh Jadeja with the respondent, have been kept out of consideration. The learned Judge failed to appreciate that the offence alleged against the respondent - police person is of aiding the co-accused for safe passage of the contraband liquor with the allegation that there is a syndicate behind their activities. Therefore, the order granting anticipatory bail to the respondent is certainly vulnerable.
14. The learned Additional Sessions Judge has gone Page 14 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020 R/CR.MA/9773/2020 JUDGMENT through the allegations made in the complaint, wherein it has been averred that co-accused named Vipul Natwarlal Shah, Shailash Kothari, Bhaijan (driver of the Travera car) and Papu Nathabhai Patel were in possession of muddamal, prohibited liquor worth Rs.1,06,800/- which they had brought from Rajasthan for its delivery to co-accused Sachin alias Satla at Nadiad. The present respondent was in contact with those accused to provide them safe passage with the illicit liquor.
15. The learned Judge came to the conclusion that the stock of liquor was not found from the physical possession of the accused. The name of the accused was disclosed in the statement of co-accused. The accused was not found at the place of incidence. The accused from whose possession the liquor was found, have been released on regular bail and co-accused Sachin alias Satla Ambabhai Thakor has been released on anticipatory bail and the allegation against the respondent accused is of abetment. Taking these facts into consideration, the learned Sessions Judge invoked the principle of parity to give benefit to the respondent on the pretext that the co-accused have been granted bail by equivalent court, and even further on the ground that the prosecution has not shown any criminal antecedent of the accused.
15.1 The Court below failed to consider the nature and gravity of the offence, the role attributed to the respondent and the facts of the case, while granting anticipatory bail.
15.2 The Additional Session Judge failed to consider the facts and materials that the co-accused Dasrathsinh Vijaysinh Page 15 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020 R/CR.MA/9773/2020 JUDGMENT Jadeja has given his mobile phone to the raiding officer to talk on mobile number, being 6354974029. The raiding officer along with I.O. saw the WhatsApp messages of respondent as 20 P.officer, 10 p wodks, 5 teen, 1 black dog etc. The FIR reflects that co-accused Dashratsinh Jadeja was in contact with Gadhvi of Modasa to transit the liquor. In the affidavit, the Investigating Officer had referred about the technical evidence against the respondent. Generally, as a practice, the original investigating papers, so far, are handed to Sessions Judge, which deciding the bail application. The transcript of the conversation recorded in the mobile phone of co-accused Dashrathsinh Jadeja, shows the complicity in the offence. They have talked about password, loading vehicle, getting permission for the vehicles, about routes, giving fifty thousand rupees as token amount, two and half lacs for the transit of five vehicles etc. The I.O. has stated of, network in Gujarat State in regard to illegal entry of the vehicles. As per the affidavit, earlier too co-accused have illegally brought liquor in Gujarat and for that cases are registered against them. All these relevant and material facts and substantial material were overlooked by the Additional Sessions Judge, which requires investigation by police to discover.
15.3 In regard to the prayer in the affidavit of custodial interrogation by the investigating officer, the learned Sessions Judge observed that the accused has disclosed on oath that he would give complete co-operation in the investigation laying the default provision of absolute right for remand of accused.
15.4 The concept of custodial interrogation has been explained in case of State Through Central Bureau of Page 16 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020 R/CR.MA/9773/2020 JUDGMENT Investigation Vs. Anil Sharma, reported in 1997 (7) SCC 187. Paragraph 6 of the said judgment reads as under:
6. "....that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favorable order under Section 438 if the code. In a case like this effective interrogation of suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible Police Officers would conduct themselves in task of disinterring offences would not conduct themselves as offenders."
15.5 The Hon'ble Supreme Court in case of State of A.P. Vs. Bimal Krishna Kundu, reported in (1997) 8 SCC 104, has observed as follows:
"...We have absolutely no doubt that if the respondents are equipped with such an order before they are interrogated by the police it would greatly harm the investigation and would impede the prospects of unearthing all the ramifications involved in the conspiracy. Public interest would suffer as a consequence...."Page 17 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020
R/CR.MA/9773/2020 JUDGMENT
16. Quashing of anticipatory bail is prayed under section 439(2) and section 482 of the Cr.P.C. The expression 'Administration of justice' is wider than simple internal procedures. The conferment of jurisdiction is to clothe the courts with the power to do justice and it is only then that the courts can truly administer justice. No legislative enactment dealing with the procedure can provide for all cases that can possibly arise and it is established principle that the courts should have inherent powers, apart from the express provision of law which are necessary to their existence and for the proper discharge of the duties empowered upon them by law. Recently, the Hon'ble Supreme Court in the case of Sushila Aggarwal And Others Vs. State (NCT of Delhi) And Others, reported in (2020) 5 Supreme Court Cases 1, has clarified, that power of arrest of Court under section 439(2) Cr.PC applies to a person who has been granted anticipatory bail. It has been considered in judgment at Para 92.11, as under:
"Para 92.11:- The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the State or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. This does not amount to "cancellation" in terms of Section 439(2) Cr.PC."
16.1 Thus, it is laid down that when the State or the investigating agency comes up with the case that the court granting bail did not consider material facts or crucial circumstances, the appellate court or superior court while adjudicating the correctness of that order, can set aside the order on that ground and that would not amount to "cancellation" in terms of section 439(2) Cr.PC.
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17. The approach made by learned Sessions Court in granting anticipatory bail to the respondent leaves much to be desired. The apprehension of the State that respondent being a police official and being on anticipatory bail, is in a position to influence, induce or coerce witnesses to desist from furnishing relevant information to the investigating agency, cannot be considered to be imaginary. Even required to be considered the need put forward by the State for custodial interrogation of the respondent for finding out the syndicate of police officials involved in the illegal activity and to expose them in the larger interest of society. It is only when the accused is in police custody put under custodial interrogation, without any protection of anticipatory bail the truth can be discerned for free, fair and full investigation.
18. In view of the above observations, the application is allowed. The order dated 24.06.2020 passed by the Additional Sessions Judge, Gandhinagar in Criminal Misc. Application No.560 of 2020, granting anticipatory bail to the respondent, is quashed and set aside. In view of the extinction of the order granting bail, the investigating agency is at liberty to arrest the respondent and to take him in custody. Rule is made absolute.
Direct service is permitted.
(GITA GOPI, J.) Further order After the judgment was pronounced, Mr.Zubin Bharda, learned advocate along with Mr. Kishan Prajapati, learned Page 19 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020 R/CR.MA/9773/2020 JUDGMENT advocate for the respondent, has prayed for staying the operation and implementation of this order for a period of eight weeks, as the applicant is desirous to approach the higher forum to challenge the present order.
Considering the fact that the order granting anticipatory bail to the applicant has been quashed and set aside by way of the present order, this Court finds it appropriate to stay the implementation of the order for a period of five weeks from today. Orders accordingly.
(GITA GOPI, J.) Pallavi/Pankaj Page 20 of 20 Downloaded on : Wed Oct 14 00:39:27 IST 2020