Gujarat High Court
Sayna Sahezadbhai Bisorawala vs State Of Gujarat on 24 September, 2020
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/10762/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10762 of 2020
In
R/CRIMINAL MISC.APPLICATION NO. 5773 of 2020
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SAYNA SAHEZADBHAI BISORAWALA
Versus
STATE OF GUJARAT
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Appearance:
RUCHIR A PATEL(7954) for the Applicant(s) No. 1
ANURAG R RATHOR(9315) for the Respondent(s) No. 2
MR JUNAID Y SHAIKH(10922) for the Respondent(s) No. 2
MR H K PATEL, APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 24/09/2020
ORAL ORDER
1. This application is filed under Section 439(2) of the Code of Criminal Procedure for cancellation of bail granted to the respondent no.2 vide order dated 12.05.2020 passed in Criminal Misc.Application No.5773 of 2020 and further direct to arrest the respondent no.2 in connection with FIR being Part A 11191012200208 of 2020 registered with Danilimbda Police Station, Ahmedabad for the offence under Sections 376(2) (n), 323, 500 and 506(2) of the Indian Penal Code.
2. Learned advocate for the applicant submitted that the Court has failed to examine that the offence was of continuing in nature and the rape was committed on the applicant, and thereafter, she was blackmailed for not filing complaint against the respondent no.2 and lastly, when the offence was rape committed on 05.02.2020 at Sarovar Hotel, the applicant being frustrated filed a complaint on 13.02.2020 and the FIR came to be registered on 28.02.2020.
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3. Learned advocate for the applicant submitted that the respondent no.2 was enlarged on bail by placing reliance upon Nikahnama showing that the respondent no.2 and the applicant had entered into matrimonial relation. It is submitted that such Nikahnama was performed without consent of the applicant. She was forced to sign Nikahnama and thereby Nikahnama was performed.
4. Learned advocate for the applicant has, thereafter, taken the Court through the pleadings more particularly at Paragraph Nos.4.2 to 4.5 to narrate as to how the applicant had cheated in the relationship, and thereafter, blackmailed her.
5. Learned advocate for the applicant submitted that the Sessions Court while rejecting the bail application of respondent no.2 had taken into consideration all relevant facts and circumstances, and thereafter, rejected the application and while doing, it has also observed that the respondent no.2 had not only committed offence of rape and blackmailing the applicant, but also extorted money from her.
6. Learned advocate for the applicant has forwarded the list of 9 judgments calling upon the Court to deal with the same. However, from the judgment referred to, learned advocate for the applicant is unable to point out paragraphs which are relevant and would be applicable to the question which is raised for consideration of this Court.
7. Learned advocate for the applicant firstly relied upon judgments reported in 2011(1) SCC 694, 2005 (8) SCC 21, 2004 (2) SCC 362, 2008 (13) SCC 584, 2006 (II) OLR 581, Criminal Petition No.12683 of 2017, SLP(Cri) No.10480 of 2018 and 2017 (4) GLR 2844 and Criminal Misc.Application No.2538 of 2019.
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8. At the time of hearing, learned advocate for the applicant has referred to the judgment of Andhra Pradesh High Court passed in the case of C.Hindumathi Vs. State of Andhra Pradesh & Ors. in Criminal Petition No.12683 of 2017 and judgment of this High Court passed in the case of Abhijit Prabhakar Konduskar Vs. Sate of Gujarat & Ors reported in (2017) 4 GLR 2844.
9. As against this, learned advocate for the respondent no.2 submitted that considering the relevant facts and circumstances of the case, the respondent no.2 was considered for bail. It is submitted that the present application is filed only with a view to settle the matter in favour of the applicant, as after the respondent no.2 was released on bail, the applicant had gone to the house of the respondent no.2 and threatened for dire consequences to settle the matter in connection which the respondent no.2 himself registered the complaint with the police authority.
10. Having heard learned advocates for the respondent parties, the main issue for consideration is whether the Court can review its own order of bail particularly in view of bar of Section 362 of the Code of Criminal Procedure.
12. Learned advocate though put to notice with regard to the question of law has submitted that he does not propose to seek cancellation of bail on the ground of any subsequent development leading to breach of any condition of bail, but challenges the same on the ground that the discretion exercised in favour of the respondent no.2 was unwarranted in view of the submissions made with regards to Nikahnama and also on the merits that the offence of such nature in the case of the applicant does not deserve any consideration.
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13. From the list of the judgments cited by the learned advocate for the applicant, the learned advocate for the applicant has failed to point out how the cited judgments would be relevant, as the same are with regards to the principles of grant of bail and not cancellation of bail. The faint attempt is made by relying upon the judgment in case of Narendra K. Amin Vs. State of Gujarat reported in (2008) 13 SCC 584, more relying upon three lines of Paragraph No.6. This Court is of the view that the principles discussed are with regards to the cancellation of bail in light of supervening circumstances. The Apex Court was in consideration of bail, which was granted by the Trial Court was subject matter of challenge before the High Court and the High Court had cancelled the bail which was subject matter of challenge before the Apex Court and it is in this regards that in Paragraph No.6, the Court has observed as under:-
"6. As is evident from the rival stands one thing is clear that the parameters for grant of bail and cancellation of bail are different. There is no dispute to this position. But the question is if the trial Court while granting bails acts on irrelevant materials or takes into account irrelevant materials whether bail can be cancelled. Though it was urged by learned Counsel for the appellant that the aspects to be dealt with while considering the application for cancellation of bail and on appeal against the grant of bail, it was fairly accep[ted that there is no scope of filing an appeal against the order of grant of bail Under Scheme of the Code the application for cancellation of bail can be filed before the Court granting the bail, if it is a Court of Sessions, or the High Court."
14. In the opinion of the Court, this judgment does not laid down the ratio that the particular order can be examined once again on merits by the same Court. Learned advocate for the applicant has relied upon another judgment in case of Abhijit Prabhakar Konduskar Vs. State of Gujarat & Ors. reported in (2017) 4 GLR 2844. The relevant Paragraph 7 & 9 of the said judgment reads as under:-
"7. Before dealing with the issue raised in the Reference, we would Page 4 of 11 Downloaded on : Wed Feb 24 11:25:20 IST 2021 R/CR.MA/10762/2020 ORDER like to reproduce the Circular dated August 25, 2004 issued by the High Court, which deals with a successive bail application filed under section 439 of the Code, anticipatory bail application filed under section 438 of the Code as well as an application filed for cancellation of bail under section 437(5) and 439(2) of the Code. As is self evident, the Circular was issued pursuant to the judgement of the Larger Bench in case of Babubhai Bachubhai Bhabhor (supra) and reads as under:
"CIRCULAR While hearing of the Criminal Misc. Application No.4817 of 2004, the Larger Bench comprising Hon'ble M/s. Justices R.K. Abichandani, C.K. Buch & D.H. Waghela has been pleased to observe that the practice adopted by the Circular dated 8th April,2004 on the basis of the decisions of the Apex Court in the case of Shahzad Hasan Khan v. Ishtiag Hasan Khan, reported in AIR 1987 SC 1613 and State of Maharashtra v. Captain Buddhikota Subha Rao, reported in 1989(2) R.C.R. (Criminal) 612 : AIR 1989 SC 2292 are required to be followed and accordingly, the subsequent bail applications under Section 439 of the Code are required to be listed before the same Judge who decided the earlier bail applications. It is observed that in view of the decision in case of Mehboob Dawood Shaikh v. State of Maharashtra, reported in 2004 AIR SCW 527, subsequent bail applications for cancellation of bail under section 437(5) and 439(2), of the Code and for temporary bail need not to be placed before the same Judge and such subsequent bail applications under Section 437(5) and 439(2) of the Code are required to be placed before the appropriate Court as per the roster. However, it is clarified that where the earlier application for anticipatory bail filed under Section 438 of the Code is rejected; the similar repeated application under Section 438 of the Code will have to be placed before the same Judge.
Therefore, in compliance of the latest decision of the Large Bench of our own High Court, henceforth, all the concerned are directed to list the subsequent bail applications as per the observations made by the Larger Bench as above, without fail.
All the concerned are directed to follow the above instructions scrupulously failing which it would be viewed seriously.
High Court of Gujarat, Ahmedabad-380060.
Date : August 25, 2004.
By order (P.R. Patel) I/c. Joint Registrar"Page 5 of 11 Downloaded on : Wed Feb 24 11:25:20 IST 2021
R/CR.MA/10762/2020 ORDER Keeping in view the above circular and having examined the exigencies which have arisen in the case, we would like to deal with the same.
9. If the prayers are perused, the applicant had requested the Court to release him on interim bail i.e. till the successive bail application is heard and finally decided. In our views, there is a difference between interim bail and temporary bail. Therefore, when an applicant makes a prayer to release him for interim bail i.e. till the successive bail application is decided, the concerned Judge has to deal with the case on merits. Essentially it is in the nature of interim relief pending consideration of prayer for regular bail. If an application is filed for interim bail, which would not be for a specific period, the same would require detailed scrutiny of evidence, therefore, in our views, it should be heard by the Judge, who is in-charge of the successive bail application. Even procedurally, such application for interim bail would be filed 'In' the main application for regular bail and therefore will always tag along with such proceedings."
15. The Court does not find any relevance of these judgments in the facts of the present case more particularly, the question that came up for consideration by this Court.
16. Yet learned advocate for the applicant relied upon another judgment in case of J. Vs. State of NCT of Delhi passed in Criminal Misc.Application No.2538 of 2019, wherein the bail came to be cancelled, however, before the Delhi High Court, the facts were to the effect that after the release of the accused, the complainant had given another complaint against the accused where the accused along with his friends threatening the complainant to withdraw the cases and in support of the complaint, the complainant had produced the whats' up messages on record.
17. Learned advocate for the applicant ought to have taken care before citing the list of judgments that whether such judgments are relating to the point and issue before this court. In case of Abdul Basit Vs. Abdul Kadir Choudhary, the Apex Court has examined Chapter 33 of Section 439 and 439(2) of the Code of Criminal Procedure. The Page 6 of 11 Downloaded on : Wed Feb 24 11:25:20 IST 2021 R/CR.MA/10762/2020 ORDER relevant paragraphs of the said judgment reads as under:-
"18. Under Chapter XXXIII, Section 439(1) empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Section 439(2) empowers the High Court to direct any person who has been released on bail under Chapter XXXIII of the Code be arrested and committed to custody, i.e., the power to cancel the bail granted to an accused person. Generally the grounds for cancellation of bail, broadly, are, (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation , (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. Where bail has been granted under the proviso to Section 167(2) for the default of the 9 prosecution in not completing the investigation in sixty days after the defect is cured by the filing of a chargesheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. However, in the last mentioned case, one would expect very strong grounds indeed. (Raghubir Singh and Ors. etc. v. State of Bihar, 1987 CriLJ 157)
19. The scope of this power to the High Court under Section 439(2) has been considered by this Court in Gurcharan Singh and Ors. v. State (Delhi Administration), (1978) 1 SCC 118.
20. In Gurcharan Singh case (supra) this Court has succinctly explained the provision regarding cancellation of bail under the Code, culled out the differences from the Code of Criminal Procedure, 1898 (for short, "old Code") and elucidated the position of law vis-à-vis powers of the Courts granting and cancelling the bail. This Court observed as under:
"16. Section 439 of the new Code confers special powers on High Court or 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 10 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 hi 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 Page 7 of 11 Downloaded on : Wed Feb 24 11:25:20 IST 2021 R/CR.MA/10762/2020 ORDER 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 489(2).Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIIL 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 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 11 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-a-vis the High Court."
21. In this context, it is profitable to render reliance upon the decision of this Court in Puran v. Rambilas and Anr., (2001) 6 SCC 318. In the said case, this Court held that the concept of setting aside an unjustified, illegal or perverse order is absolutely different from the cancelling an order of bail on the ground that the accused has misconducted himself or because of some supervening circumstances warranting such cancellation. In Dr. Narendra K. Amin v. State of Gujarat and Anr., (2008) 13 SCC 584, the three-Judge Bench of this Court has reiterated the aforesaid principle and further drawn the distinction between the two in respect of relief available in review or appeal. In this case, the High Court had cancelled the bail granted to the appellant in exercise of power under Section 439(2) of the Code. In appeal, it was contended before this Court that the High Court had erred by not appreciating the distinction between the parameters for grant of bail and cancellation of bail. The Bench while affirming the principle laid down in Puran case (supra) has observed that when irrelevant materials have been taken into consideration by the Court granting order of bail, the same makes the said order 12 vulnerable and subject to scrutiny by the appellate Court and that no review would lie under Section 362 of the Code. In Page 8 of 11 Downloaded on : Wed Feb 24 11:25:20 IST 2021 R/CR.MA/10762/2020 ORDER essence, this Court has opined that if the order of grant of bail is perverse, the same can be set at naught only by the superior court and has left no room for a review by the same Court.
22. Reverberating the aforesaid principle, this Court in the recent decision in Ranjit Singh v. State of M.P. and Ors., 2013 (12) SCALE 190 has observed that:-
"20....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."
23. Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the ground of accused's misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the Court superior to the Court which granted the bail and not by the same Court.
26. In Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1 SCC 169 a criminal miscellaneous petition was filed by the petitioner therein in a Writ Petition disposed of by the High Court. The High Court had not only entertained the said petition but also issued directions. In appeal, this Court annulled the judgment and order passed by the High Court on grounds that practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the court as no review of a final order passed by the High Court is contemplated under the Code. This Court has observed as under:
"9. There is no provision in the Code of Criminal Procedure authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.
10. Section 362 of the Code mandates that no court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error. The section is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and Page 9 of 11 Downloaded on : Wed Feb 24 11:25:20 IST 2021 R/CR.MA/10762/2020 ORDER disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a 15 court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error. The reliance of the respondent on Talab Haji Hussain case is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under Section 561-A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7-1-1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment.
11. The impugned orders of the High Court dated 30-4-1999 and 21-7-1999 which are not referable to any statutory provisions, having been passed apparently in a review petition in a criminal case are without jurisdiction and liable to be quashed."
27. This Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303 has extended the bar under Section 362 as a necessary check on inherent powers of the High Court under Section 482. This Court has opined that the inherent power of the Court is not contemplated by the saving provision contained in Section 362 and, therefore, the attempt to invoke that power can be of no avail. This Court has observed as under:
"5. Section 362 of the Code expressly provides that no court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error save as otherwise provided by the Code. Section 482 enables the High Court to make such 16 order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The inherent powers, however, as much are controlled by principle and precedent as are its express powers by statute. If a matter is covered by an express letter of law, the court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction."
28. This Court in paragraph 30 of its decision in Central Bureau of Investigation v. V. Vijay Sai Reddy, (2013) 7 SCC 452 has cautioned Page 10 of 11 Downloaded on : Wed Feb 24 11:25:20 IST 2021 R/CR.MA/10762/2020 ORDER that cancellation of bail necessarily involves the review of a decision already made, it should always be exercised very sparingly by the court of law.
29. It is a well settled proposition of law what cannot be done directly, cannot be done indirectly. While exercising a statutory power a Court is bound to act within the four corners of the Statute. The statutory exercise of the power stands on a different pedestal than the power of judicial review vested in a Court. The same has been upheld by this Court in Bay Berry Apartments (P) Ltd. and Anr. v. Shobha and Ors., (2006) 13 SCC 737, U.P. State Brassware Corporation Ltd. and Anr. v. Uday Narain Pandey, (2006) 1 SCC 479 and Rashmi Rekha Thatoi and Anr. v. State of Orissa and Ors., (2012) 5 SCC 690. It is the duty of the superior courts to follow the command of the statutory provisions and be guided by the precedents and issue directions which are permissible in law. "
18. In view of the foregoing discussion and provisions of Section 362 of the Code of Criminal Procedure, no case is made out for entertaining this application and hence, deserves to be rejected and is hereby rejected.
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