Gujarat High Court
Dhanabhai Bhimsibhai Naghera vs State Of Gujarat & on 18 September, 2017
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/28119/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
28119 of 2016
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DHANABHAI BHIMSIBHAI NAGHERA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR HRIDAY BUCH, ADVOCATE for the Applicant(s) No. 1
MR RD DAVE, ADVOCATE for the Respondent(s) No. 2
MR.H.K.PATEL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 18/09/2017
ORAL ORDER
[1] Rule. Learned Additional Public Prosecutor Mr.H.K.Patel waives service of notice of Rule on behalf of the respondent-State.
[2] This application is filed for quashing and setting aside the order dated 05.10.2016 passed by the learned Sessions Judge, Junagadh in Criminal Misc. Application No.713 of 2016. By the impugned order, the respondent No.2 was ordered to be enlarged on temporary bail upto 01.03.2017 in connection with an FIR being C.R.No.I-125 of 2015 registered with Keshod Police Station for the offences punishable under Sections 302 and 114 of the Indian Penal Code.
[3] The FIR was lodged with the allegation that Maldevbhai Arjanbhai husband of one Madhuben (accused) hatched a conspiracy with the respondent No.2 herein, her brother and father to do away and claim huge amount out of personal accident Page 1 of 8 HC-NIC Page 1 of 8 Created On Sun Sep 24 13:29:15 IST 2017 R/CR.MA/28119/2016 ORDER insurance. In furtherance of the conspiracy, the co-accused- Ramsibhai and his son called the deceased at a petrol-pump and travelled together. Thereafter, at the place of incident injuries were inflicted with sharp edge weapons and therefore, brought the dead body on the road and it was run over by the motor bike to appear as if an accident has taken place. Upon due investigation, the charge-sheet came to be filed on 01.12.2015. Thereafter, co- accused-Madhuben filed a regular bail application being Criminal Misc. Application No.719 of 2015 before the Additional Sessions Court, Junagadh, which came to be rejected. Thereupon, she preferred an application for bail before this Court being Criminal Misc. Application 2724 of 2016, which also came to be withdrawn on 10.03.2016. The case was committed to the Sessions Court and numbered as Sessions Case No.86 of 2015 and is pending before the Sessions Court, Junagadh. Respondent No.2 and co- accused-Madhuben filed an application for successive regular bail before the Sessions Court, which came to be rejected on 11.05.2016.
[4] The respondent No.2 and co-accused-Madhuben preferred an application for discharge under Section 227 of the Code, which came to be allowed by an order dated 02.08.2016. The order of discharge was challenged by way of revision before this Court being Criminal Revision Application No.556 of 2016, which came to be allowed by a CAV Judgment dated 09.09.2016 whereby this Court set aside the order of discharge and directed the respondent No.2 and co-accused-Madhuben to surrender. Pursuant to order dated 25.09.2016, both the accused surrendered. Thereafter, on 26.09.2016, a regular bail application was filed by the respondent No.2 and co-accused-Madhuben. This application came to be decided by the impugned order dated Page 2 of 8 HC-NIC Page 2 of 8 Created On Sun Sep 24 13:29:15 IST 2017 R/CR.MA/28119/2016 ORDER 05.10.2016, by which, the application qua Madhuben came to be rejected whereas qua the respondent No.2, the alternative submissions of learned advocate for the respondent No.2 accused for temporary bail was accepted on the ground of pregnancy and delivery of her another daughter (non accused).
[5] Learned advocate for the applicant submits that though the period for which the temporary bail which was granted upto 01.03.2017 has expired yet certain observations while passing the order impugned are unwarranted, and hence, the present application is pressed to the extent of removal of such objectionable observations. Learned advocate for the applicant submits that despite the fact that the respondent No.2 and co- accused-Madhuben's application for regular bail have been rejected till High Court by resorting to the application for temporary bail on one ground or the other the order of rejection of regular bail is rendered in effective or nullified. It is submitted that in November 2016 both Kariben and Madhuben filed bail application being Criminal Misc. Application No.27129 of 2016 before this Court and by an order dated 09.01.2017, the application was rejected by this Court. So far as the respondent No.2 is concerned, her application was not entertained, as she was already on temporary bail and so far as the co-accused-Madhuben is concerned, her application for regular bail is rejected. Immediately, on 12.01.2017, the co-accused-Madhuben applied for temporary bail which came to be allowed for a period of four months on medical ground till 16.05.2017. Thereafter, respondent No.2 filed an application on 01.03.2017 for extension of temporary bail granted by the impugned order on the ground of taking care of Madhuben for her ill-health and by order dated 04.03.2017, the extension was granted till 05.07.2017. On 09.05.2017, the Page 3 of 8 HC-NIC Page 3 of 8 Created On Sun Sep 24 13:29:15 IST 2017 R/CR.MA/28119/2016 ORDER application for extension of temporary bail on the medical ground was filed by Madhuben and same came to be granted by extending the temporary bail till 16.09.2017. On the basis of this, respondent No.2 filed another application for extension of temporary bail on the ground of taking care of Madhuben and the same came to be allowed by order dated 05.07.2017 whereby the temporary bail was extended till 06.11.2017.
[6] Learned advocate strongly objected to this type of tactics and submitted that when Madhuben who was having medical problem, though not admitted, was granted extension of bail till 16.09.2017 then the respondent No.2 whose temporary bail was considered only for the purpose of taking care of Madhuben, her extension till 06.11.2017 is illegal, was not warranted and completely exposed the strategy of the respondent No.2 to over come an order of rejection of regular bail by this Court. It is submitted that the subsequent order of bail are subject matter of separate proceedings, however, in the facts of this case, the observations which are made are thoroughly irrelevant to the merits of the case based on extraneous consideration and depriving the victim side of their legitimate right to be represented.
[7] As against this, learned advocate for the respondent No.2 submits that Section 301 of the Cr.P.C. restricts the role of the advocate engaged on behalf of the complainant side as to conducting of the trial and it is the sole responsibility of the State represented by the Public Prosecutor. It is submitted that though he may not strongly object against the removal of certain observations affecting the right of the victim to be represented but submits that the role of a private complainant is now well defined Page 4 of 8 HC-NIC Page 4 of 8 Created On Sun Sep 24 13:29:15 IST 2017 R/CR.MA/28119/2016 ORDER by the provisions of law and by the judgment of the Hon'ble Apex Court as well as this High Court. He referred to and relied upon the following citations, namely, Shiv Kumar versus Hukam Chand and another reported in (1999) 7 SCC 467, Dhariwal Industries Limited versus Kishore Wadhwani and others reported in (2016) 10 SCC 378 and Manharlal I.Shah versus Yogeshkumar Kanaiyalal Saraia reported in 1987 (2) G.L.H. 24 to contend that the right of the complainant to be represented in a trial through a private advocate is circumscribed by the provisions of law, more particularly, Section 301 of the Cr.P.C., and therefore, with the support of the provisions of law the Sessions Court was entitled to make the observations found in para 16 of the impugned order.
[8] I have considered the rival submissions and the documents on record of this case. The chronology of event is a clear indication of the fact that the respondent No.2 who appears to have failed in an attempt to secure regular bail even before this Court on merits has bypassed successfully to get temporary bail on the ground of attending her pregnant daughter, and thereafter, successfully one after other on one ground or the other got the bail extended till 16.09.2017 from 05.10.2016 as the period prescribed under the impugned order for temporary bail has lapsed and no useful purpose will be served in dealing with the same in detailed. However, with regards to para 16 of the impugned order, this Court by an order dated 21.10.2016 had stayed the operation. The observations which goes on to hold that the Court would cancel the vakalatnama produced in this bail application as well as in the sessions case for the complainant would amount to restricting the right which otherwise is recognized and available to the complainant not only during the course of the trial but also at the stage of the appeal. The judgment of Manharlal I.Shah (supra), Page 5 of 8 HC-NIC Page 5 of 8 Created On Sun Sep 24 13:29:15 IST 2017 R/CR.MA/28119/2016 ORDER the Court in para 14 observed as under:
"14 For the reasons stated above, we do not find any substance in any of the contentions raised on behalf of the petitioner. We hold that on true interpretation of Section 301(2), a lawyer instructed by a private person to assist the Public Prosecutor has no right of audience except to the extent permitted by that Section. If he feels that the trial is not conducted fairly it will be open to him to draw attention of the Court in that behalf. If the Court feels that some assistance is necessary on a point arising before it, it may appoint such lawyer or any other lawyer as amicus curiae. Subject to that the lawyer instructed by a private person to assist the Public Prosecutor has no right of audience in a trial before the Sessions Court."
[9] In the decision of the Hon'ble Apex Court in the judgment of Shiv Kumar (supra) the question before the Hon'ble Apex Court was that the appellant (original complainant) was aggrieved by the order of the High Court not allowing the counsel engaged by him to conduct prosecution despite the consent from the Public Prosecutor concerned. In those facts while examining facts of that case and applying the provisions of the Cr.P.C., the Hon'ble Apex Court paras 13 and 14 observed as under:
"13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a sessions court cannot be conducted by any one other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a sessions court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a Page 6 of 8 HC-NIC Page 6 of 8 Created On Sun Sep 24 13:29:15 IST 2017 R/CR.MA/28119/2016 ORDER bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.
14. It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter."
[10] Similarly in case of Dhariwal Industries Limited (Supra), the Hon'ble Apex Court was examining the role of the lawyer on behalf the complainant at the stage of framing of charge and in those facts, more particularly, applying Section 301 of the Cr.P.C. pitched against Section 302 of the Cr.P.C. and after explaining the distinction between Sections 301 and 302 limited the role of the informant in the prosecution of the sessions case as per Section 301. In all the aforesaid cases, the role of the complainant is recognized, the participation of the informant in the sessions case is recognized, and therefore, in the opinion of this Court cancelling the vakalatnama produced in the bail application as well as in the sessions case would amount to restriction of the right of the informant to be represented in the Court though in whatever manner as provided under the provisions of Cr.P.C., therefore, the observations made in para 16 to this Court do not appear to be tentative in nature but a clear cut restriction and hence, deserves to be deleted from the impugned order.
[11] In view of the aforesaid para 16 in order dated 05.10.2016 in Criminal Misc. Application No.713 of 2016 passed by the learned Sessions Judge, Junagadh is ordered to be deleted.
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R/CR.MA/28119/2016 ORDER
[12] Upon going through the order impugned, it appears
from the record as to what has transpired during the proceedings wherein application on behalf of the complainant was filed which was to be decided and is decided by the Sessions Judge. The application which came to be decided was not held to be a frivolous application, not based on any principle of law or on Right and hence awarding of cost of Rs.1,000/- upon the applicant is unjustified considering the observations made by the Court in para
13. In operative part of the order making it in incumbent upon the advocate to deposit cost of Rs.1,000/- in case of default by the complainant also does not appear to be justified. The perusal of paras 10 to 13 indicates that the Sessions Judge has entered into an avoidable tirade. Rather than restricting to decide the application made by either side, it appears the Sessions Judge has demonstrated his displeasure against Advocate appearing for complainant. This again in the opinion of the Court was an avoidable exercise. In any case, it is informed to the Court that the complainant has deposited the amount of Rs.1,000/- however, the Court deems it fit to delete the portion in the operative part of the order to the extent that it says "in his default, Mr.R.K.Buch, L.A. for the complainant" is ordered to be deleted.
[13] The application is allowed in the aforesaid terms. Rule is made absolute accordingly.
(A.Y. KOGJE, J.) dharmendra Page 8 of 8 HC-NIC Page 8 of 8 Created On Sun Sep 24 13:29:15 IST 2017