Gujarat High Court
Vikram Anil Gautam vs State Of Gujarat on 8 September, 2017
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.MA/22437/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 22437 of 2017
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VIKRAM ANIL GAUTAM....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR EKANT G AHUJA, ADVOCATE for the Applicant(s) No. 1
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 08/09/2017
ORAL ORDER
1. Rule. Learned APP waives service.
2. This application is filed seeking bail under Section 439 of the Code of Criminal Procedure, 1973 in respect of the offences punishable under Sections 452, 395, 397, 307, 365, 342, 435, 436, 427, 504, 506 (2), 120 (B) of the Indian Penal Code and under Section 135 of the Gujarat Police Act for which FIR came to be registered at C.R. No.I-34 of 2017 with Langhnaj Police Station.
3. Learned APP seeks adjournment to call for the investigation papers. The request is being opposed by the learned advocate for the applicant with a statement that amongst 13 accused, as many as 8 accused similarly situated have been admitted to either anticipatory bail or regular bail by the different orders from the different benches of this Court and the said fact was brought to the notice of the trial Court, which, however, declined to exercise Page 1 of 8 HC-NIC Page 1 of 8 Created On Sat Sep 16 11:21:22 IST 2017 R/CR.MA/22437/2017 ORDER the powers under Section 439 of the Cr.P.C. only on the ground that the charge-sheet against the applicant herein has not been filed. Learned advocate for the petitioner submits that except the said distinguishing feature, the learned judge has not pointed out anywhere in his order that the role of the applicant herein and others who have been admitted to bail is different. Relying upon the case of Rameshbhai Batubhai Dabhi Vs. State of Gujarat 2011 (0) GLHEL - HC 225071, it was contended that the trial Court was under an obligation to examine the parity of the case on the basis of predominant facts involved in the case and could not have rejected the petitioner's case as regards parity, merely on the ground of non-filing of the report under Section 173 of the Criminal Procedure Code.
4. The learned advocate, in support of the above submissions, has taken this Court to the reasons assigned by the trial Court while dismissing the applicant's bail application. It was submitted that the role of the accused was also addressed by the trial Court and in absence of distinguishing feature amongst those who have been admitted to bail under Sections 438 & 439 of the Criminal Procedure Code, the petitioners are entitled to bail.
5. Having perused the order passed by the trial Court, it cannot be disputed that when the parity was claimed, the case of the applicant was distinguished only on the ground that the charge-sheet is not filed. It also appears from the said order that the trial Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Sep 16 11:21:22 IST 2017 R/CR.MA/22437/2017 ORDER Court was conscious about the role played by the applicant in the offence in question and it was not able to distinguish the role of the different accused admitted to anticipatory bail. In this context, a reference may be made to the decision of this Court in Rameshbhai Batubhai Dabhi (supra), wherein this Court pointed out the binding nature of the orders made by the High Court under Sections 438 - 439 of the Criminal Procedure Code; in para nos.9, it was held thus:
"9. All the above aspects along with order passed by the coordinate Bench in the case of two co-accused having similar role like the applicant, on 5.8.2010 and 13.8.2010 in Criminal Misc. Application Nos.8237 of 2010 and 9316 of 2010 were brought to the notice of the learned Sessions Judge by which the co- accused were granted anticipatory and regular bail. Inspite of the above factual scenario, learned Sessions Judge has refused to exercise the powers under Section 439 of the Code on the ground that the applicant was not traceable, while nothing is brought on the record that under what circumstances the applicant was not available or any effort was made by the investigating agency to trace him out. Though, two orders granting bail to co-accused passed by the High Court were brought to the notice of the learned Sessions Judge, it is held that ground of parity can be claimed by co-accused only before the High Court. The above approach of the learned Judge is not only illegal but contrary to settle practice of considering the order of superior Court in proper perspective. That, in the set of facts and circumstances almost similar or identical, Page 3 of 8 HC-NIC Page 3 of 8 Created On Sat Sep 16 11:21:22 IST 2017 R/CR.MA/22437/2017 ORDER when superior courts exercise the powers either under Sections 438 or 439 of the Code, the subordinate Courts are duty bound to consider the same and apply if the same sets of facts are in existences and unless there being any extra ordinary circumstances or striking dissimilarities exist to deviate from the law of parity, the Courts below should consider the same in accordance with law.
At the same time the principle of law laid down by the Apex Court in the case of Gudikanti Narasimbulu (supra) about exercise of powers under Section 439 of the Code namely that 'bail is a rule and jail is an exception' is held to be 'outdated' by learned Sessions Judge. That the above declaration by the learned Judge is contrary to the law laid down by this Court in the case of Bai Jasud wd/o Kantilal alias Fulchand Anopchand & Ors. v. Railal Anopchand Shah & Ors. [1997(2) GLH 493]. In the above decision learned Single Judge has deprecated the approach of the sub-ordinate Court in misconstruing and misinterpreting the decision of law by the higher Court and, therefore, in the facts of this case, a casual and cursory remark on the part of the learned Sessions Judge about declaration of principle of law of bail in the case of Gudikanti Narasimbulu (supra) is nothing but an attempt to transgress all basic canons of judicial discipline and it was not open to a subordinate Court to misconstrue and misread a judgment of the Supreme Court and terming a principle of 'bail is a rule and jail is an exception' as an outdated, when no decision either of the Supreme Court or this Court has stated so.Page 4 of 8
HC-NIC Page 4 of 8 Created On Sat Sep 16 11:21:22 IST 2017 R/CR.MA/22437/2017 ORDER
6. Thus, in absence of striking dissimilarity between two cases, if the parity is brought to the notice of the Court pointing out that the High Court has exercised the discretion under Sections 438 - 439 of the Criminal Procedure Code in relation to the identically situated of accused in all aspects including their individual conduct or individual identical facts like their behaviour in the society and their ability and capacity to interfere in the investigation or trial or their ability or capacity to flee from justice or they being threat to the witnesses, it would not be appropriate for the trial Court to distinguish the case considered by the High Court under Sections 438-439 of the Criminal Procedure Code merely on the basis of the factum of the charge- sheet having not been filed. Of course, non-filing of the charge-sheet would be relevant if it is pointed out to the Court the likelihood of collection of material distinguishing the case of the applicant, in the course of pending investigation. Unless the said aspects are pointed to the trial Court on the basis of which two cases can be distinguished, in the opinion of this Court, on the mere ground that the charge- sheet is not filed, identical case cannot be rejected by the trial Court when the High Court has exercised the powers under Sections 438-439 of the Criminal Procedure Code.
7. Although despite there being similarity of role of the accused released on bail and the one seeking bail, the Court would be justified in declining the Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Sep 16 11:21:22 IST 2017 R/CR.MA/22437/2017 ORDER bail to later on the ground of well founded apprehension like accused's likelihood of fleeing from justice; or being threat to the witnesses or being able to obstruct the trial or investigation or being able to tamper with the evidence and the likes; in absence of distinguishing features, it would not be within its rights to revoke the orders passed by High Court under Section - 438 or 439 of the Cr.P.C.
8. It is also required to be observed that whenever it is brought to the notice of the trial Court that in identical case, the High Court has exercised the powers, it would be obligatory upon it to distinguish two cases by concretely pointing out the striking differences between two cases and for that purpose, it may call upon the learned APP to assist.
9. Learned APP submits that in absence of the papers, it would not be possible for her to state as to whether two cases are similarly situated or not. However, having considered the order passed by the trial Court, it is obvious that two cases are similarly situated and therefore, this Court exercises the discretion under Section 439 of the Criminal Procedure Code in favour of the applicant.
10. Hence, this application is allowed and applicant is ordered to be released on bail in connection with the offence registered vide C.R. No.I-34 of 2017 with Langhnaj Police Station on executing a bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat Sep 16 11:21:22 IST 2017 R/CR.MA/22437/2017 ORDER Court and subject to the conditions that he shall;
(a)not take undue advantage of liberty or misuse liberty;
(b)not act in a manner injurious to the interest of the prosecution;
(c)surrender his passport, if any, to the lower court within a week;
(d)not leave the territory of India without prior permission of the Sessions Judge concerned;
(e)mark presence in the concerned police station once in a calendar month.
(f)furnish the present address of residence along with the proof to the Investigating Officer concerned and also to the trial court at the time of execution of the bond and shall indicate change of residential address if any to the trial court.
11. The competent authority will release the applicants only if he is not required in connection with any other offence for the time being. 11.1 If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to take appropriate action in the matter. 11.2 Bail bond to be executed before the lower court having jurisdiction to try the case.
11.3 It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law.
11.4 At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court Page 7 of 8 HC-NIC Page 7 of 8 Created On Sat Sep 16 11:21:22 IST 2017 R/CR.MA/22437/2017 ORDER while enlarging the applicants on bail.
12. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(G.R.UDHWANI, J.) mmshaikh Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Sep 16 11:21:22 IST 2017