Gujarat High Court
Hareshbhai Karshanbhai Thakkar ... vs State Of Gujarat on 8 August, 2023
NEUTRAL CITATION
R/SCR.A/1536/2013 JUDGMENT DATED: 08/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1536 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HARESHBHAI KARSHANBHAI THAKKAR (KANDOI)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MS ARCHANA R ACHARYA(2475) for the Applicant(s) No. 1
MR VK JOSHI(2329) for the Respondent(s) No. 2
MS ASMITA PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 08/08/2023
ORAL JUDGMENT
Rule. Learned APP waives service of notice of rule for the respondent State and learned advocate Mr. VK Joshi waives service of notice of rule for the respondent No.1.
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1. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing.
2. This petition is filed u/s 482 of the Code of Criminal Procedure by the petitioner for quashing and setting aside the impugned order dated 30.4.2013 passed by the learned Addl. Sessions Judge, Patan in Criminal Misc. Application No.213 of 2013 as well as order dated 30.4.2013 passed by the learned JMFC, Patan in M.Case No.3 of 2013 releasing the respondent no.2 on regular bail and further direct arrest of respondent No.2 in connection with M.Case No.3 of 2013 for the newly added charges u/s 120(B) and 467 of the IPC and prosecuted in accordance with law.
3. Facts in nutshell that that the petitioner has filed complaint before the learned JMFC, Radhanpur against the respondent No.2 and other accused alleging offences punishable u/s 420, 468, 506(2) and 114 of the IPC. Learned JMFC, Radhanpur ordered to investigate offence u/s 156(3) of the Code of Criminal Procedure. The case was registered as M.Case No.3 of 2013. Radhanpur Police Station, during the investigation, filed an application seeking addition of offences punishable u/s 120(B) and 467 of the IPC. That application was ordered to keep with the FIR. The respondent No.2 filed Criminal Misc. Application No.213 of 2013 u/s 439 of the Code of Criminal Procedure seeking regular bail in connection with the said offence before the learned Sessions Court, Patan.
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4. According to the petitioner, the learned Sessions Judge, without considering the fact that offence of sections 467, 120(B) of the IPC have also been added in relation to the offence against the accused, released the respondent accused on regular bail in connection with and in consideration of the offences punishable u/s 420, 468, 506(2) of the IPC. The petitioner thereafter, submitted an application to the learned JMFC, Radhanpur pointing out that the Sessions Court has not released the respondent No.2 for the offences punishable u/s 467 and 120(B) of the IPC and hence, he may not be released for the said offence. However, the learned JMFC seeking telephonic instructions from the learned Addl. Sessions Judge, released the respondent No.2 for all the offences with which he was charged without any specific order.
5. Being aggrieved, the petitioner has filed present petition seeking quashment of the impugned order.
6. In line of the pleadings, learned advocate Ms. Archana Acharya appearing for the petitioner - original complainant would submits that in the bail order, the learned Sessions Judge has not passed specific order to release the respondent accused on bail in connection with the offences punishable u/s 467 and 120(B) of the IPC. Even, no consideration of the offence u/s 467 and 120(B) of the IPC was noted yet. Learned JMFC, upon telephonic message, released the respondent No.2 on bail. This kind of approach is totally unheard to the judicial arena. She would rely upon the judgment of the Hon'ble Apex Court in case of Surendra Singh Vs. State of U.P. reported in AIR 1954 SC 194 Page 3 of 8 Downloaded on : Sun Sep 17 00:39:20 IST 2023 NEUTRAL CITATION R/SCR.A/1536/2013 JUDGMENT DATED: 08/08/2023 undefined and more particularly, para 15 thereof to submit that once the judgment is delivered, until it is reviewed specifically, the Court cannot alter the outcome of the judgment. However, in the present case, the learned Addl. Sessions Judge by telephonic message told the learned JMFC to release the respondent accused on bail even for the offences punishable u/s 467 and 120(B) of the IPC, though no specific order was passed in a bail order. She would further submit that such exercise at the hand of the learned Addl. Sessions Judge as well as learned JMFC are unknown to the provisions of law and therefore, such procedure adopted by the learned JMFC as well as learned Addl. Sessions Judge is against the settled principles of law. That since ld. Court below acted contrary to the provisions of law, impugned orders may be scuttled.
7. Upon such submission, she prays to allow this petition by rearresting the respondent for the offences punishable u/s 467 and 120(B) of the IPC.
8. On the other hand, learned advocate Mr. VK Joshi for the respondent No.2 accused would submit that the trial of the offence has already commenced. The complainant/petitioner is not remaining present in the trial. He would further submit that present petition is an attempt on the part of the complainant to pressurize the respondent accused. He would submit that the learned Court below have not committed any error speaks of the error of law.
9. Upon such submission, he prays to dismiss the petition.
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10. Learned APP Ms. Asmita Patel would submit to pass necessary orders in given facts.
11. At the outset, it is required to be noted that the accused has preferred regular bail application before the concerned Addl. Sessions Judge seeking regular bail in connection with the offence punishable u/s 467 of the IPC also besides sections 420, 468, 506 and 114 of the IPC. It is true that in an operative order, the learned Addl. Sessions Judge has missed to note to write section 467 of the IPC while passing the order releasing the respondent accused on regular bail, but it is to be taken note that the learned Addl. Sessions Judge was empowered to release the respondent accused even for the offence punishable u/s 467 of the IPC; he has exercised power u/s 439 of the Code of Criminal Procedure in regards to the offence registered with Radhanpur Police Station being M.Case No.3 of 2013. Since the yadi of the order was forwarded to the learned JMFC, considering the objection raised by the present petitioner, the learned JMFC thought it fit to seek clarification from the learned Addl. Sessions Judge and thereafter, has noted that he has been directed by the concerned learned Addl. Sessions Judge to grant bail to the respondent accused u/s 467 of the IPC as well. Upon receipt of such telephonic message, as indicated in the order at Annexure D that the learned JMFC has released the respondent accused on regular bail.
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12. The facts remain that the respondent No.2 was enlarged on regular bail in the year 2013. It is not alleged by the petitioner that the respondent No.2 has misused his liberty or has tried to temper with the prosecution witnesses. It is equally true that the respondent No.2 is on regular bail since 2013. The petitioner complainant has not filed application for cancellation of bail.
13. Record of the case is called by this Court, which indicates that the complainant did not turn to give evidence in the criminal case, which has prompted the learned JMFC to issue warrant against the petitioner complainant to secure his presence for giving the deposition. This conduct is important to be noted. Record of the case also espy that the complainant has allowed proceeding of the trial without halting it on the ground stated in the petition.
14. In Surendra Singh (supra), in para 15, the Hon'ble Apex Court has observed thus:-
"After the judgment has been delivered provision is made for review. One provision is that it can be freely altered or amended or even changed completely without further formality, except notice to the parties and a rehearing on the point of change should that be necessary, provided it has not been signed. Another is that after signature L/B(D)2SCI-8 a review properly so called would lie in civil cases but none in criminal; but the review, when it lies, is only permitted on very narrow grounds. But in this case the mere fact that a Judge is dead and so cannot review his judgment does not affect the validity of the judgment which has already been delivered and has become effective. For this reason there is a distinction Page 6 of 8 Downloaded on : Sun Sep 17 00:39:20 IST 2023 NEUTRAL CITATION R/SCR.A/1536/2013 JUDGMENT DATED: 08/08/2023 undefined between judgments which have not been delivered and so have not become operative and those which have. In the former case, the alteration is out of court. It is not a judicial act. It is only part of a process of reaching a final conclusion; also there is no formal public declaration of the Judges' mind in open court and consequently there is no "judgment' which can be acted upon. But after delivery the alteration cannot be made without notice to the parties and the proceeding must take place in open court, and if there is no alteration there is something which is final and conclusive and which can at once be acted upon. The difference is this. In the one case, one cannot know, and it would be against public policy to enquire, whether the draft of a judgment is the final conclusion of the Judge or is only a tentative opinion subject to alteration and change. In the second case, the Judge has publicly declared his mind and cannot therefore change it without notice to the parties and without hearing them afresh when that is necessary; and if there is no change the judgment continues in force. By change we mean an alteration of the decision and not merely the addition or subtraction of part of the reasoning."
15. There is no cavil for the expression that the judgment cannot be changed until it is reviewed. Saying so, it is trite that the judgment cannot be altered without being reviewed. However, in the present case, the learned JMFC has categorically stated that by telephonic message, he has been told by the concerned learned Addl. Sessions Judge to release the respondent accused on regular bail in connection with the offences registered with Radhanpur Police Station, which also includes the offence u/s 467 of the IPC. In the facts of the case, the judgment upon which learned advocate Ms. Archana Acharya relied upon does not extend any help.
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16. For the foregoing reasons, present petition sans merit and accordingly, it is dismissed. Notice discharged.
17. Registry is directed to return the R & P to the concerned Court immediately.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 8 of 8 Downloaded on : Sun Sep 17 00:39:20 IST 2023