Gujarat High Court
Pravinbhai vs State on 29 January, 2010
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
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CR.MA/13486/2009 15/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 13486 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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PRAVINBHAI
KASHIRAM PATEL - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
YN OZA, SR.ADVOCATE WITH MS ROMA I FIDELIS
for
Applicant(s) : 1
MR DEVANG VYAS, ADDL.PUBLIC PROSECUTOR for
Respondent(s) : 1
MR MEHUL S SHAH for Respondent(s) :
2
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CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 29/01/2010
ORAL JUDGMENT
This is an application preferred under Section 439[2] read with Section 482 of the Code of Criminal Procedure, 1973 [ code for short], for cancellation of bail by the original complainant against the judgment and order dated 21st November, 2009 passed by the Additional Sessions Judge, Fast Track Court No.1, Ahmedabad [Rural] Mirzapur in Criminal Misc. Application No. 1169 of 2009 by which the learned Judge granted bail to the opponent no.2.
2. Mr. Y.N. Oza, learned Sr. Advocate appearing with Ms. Roma I. Fidelis for the applicant submitted that on 11.9.2008, a complaint, being CR No. I-213/08 was filed by the present applicant with Sanand police station against opponent no.2 for the offence punishable under Sections 143, 147, 149, 325, 506[1] and 427 of Indian Penal Code [ IPC for short] in connection with an incident which took place on 11.9.2008 on the applicant's land bearing survey no. 166 situated at village Nidhrad, Taluka-Sanand, District-Ahmedabad. Subsequently, charges under Sections 395 and 397 as well as Sec.120B of IPC were added in the FIR against the accused persons by the investigating agency. The incident in question took place on 11.9.2008 when the applicant and his family members were assaulted by a mob of more than 70 people armed with deadly weapons like dhariyas, pipes, sticks and they had beaten the complainant and caused severe injuries to him as well as other persons from the complainant's side. A conspiracy was hatched by Babulal Jamnadas Patel and it was put into implementation first at his instance by opponent no.2 who was leading and provoking the mob and assaulted the complainant and his family members. It is submitted by learned Sr. Advocate that this aspect was overlooked by the learned Additional Sessions Judge, while releasing the opponent no.2 on regular bail. Learned Sr. Advocate further submitted that one Babulal Jamnadas Patel, who is a sitting M.L.A. of ruling Party had tried to grab the land of poor farmers including the applicant and other complainants in respect of which a group of matters were filed and are pending before this Hon'ble Court. It is pertinent to note that with regard to said group of matters, complaints have also been registered vide CR No. 254 of 2008 with Karanj police station and M.Case No. 2 and 3 of 2008 with Sarkhej police station against the said Babulal Jamnadas Patel and others. In view of the above facts and circumstances, Babulal Jamnadas Patel had an apprehension that he would be required to pay amount of Rs. 15.00 to 20.00 crores at the market value of the said plots and he, therefore, with a view to take revenge and develop a sense of fear among the people, hatched a conspiracy to grab the land and harass the complainant and further assaulted the complainant and his family members on 11.9.2008. It is submitted that considering the aforesaid aspect, the learned Judge ought not to have granted bail to opponent no.2. On 11.9.2008, the complainant and his family members were assaulted by a mob of 60 to 70 persons and immediately thereafter, complainant's family members approached Sanand police station to lodge the complaint. As the complaint was not registered, family members of the applicant-complainant immediately approached the Hon'ble High Court on 11.9.2008 with special permission in the evening by way of filing Special Criminal Application No. 1821 of 2008 which was ordered to be kept by the Hon'ble Court for hearing on the next day. It was only after approaching this Hon'ble Court that Police Inspector of Sanand police station registered FIR being CR No. 213 of 2008. As per the interim orders passed by the Hon'ble High Court, a charge-sheet was produced before the Hon'ble Court. However, the said charge-sheet did not include the names of all the accused persons and it was one of the reasons that the Hon'ble Court transferred further investigation of the present complaint to C.I.D. Crime vide order dated 23.1.2009 passed in Special Criminal Application No. 1821 of 2008. It is submitted that prima facie case indicating involvement of opponent no.2 is clear and therefore, the learned Additional Sessions Judge ought not to have granted bail as prayed for by the opponent no.2. In view of the aforesaid facts and circumstances of the case, the order passed by the learned Additional Sessions Judge Fast Track Court NO.1, Ahmedabad [Rural] is bad and illegal in the eyes of law and therefore, the applicant, being aggrieved by the same, has preferred the present application under Sec.439[2] read with Sec.482 of the Code seeking cancellation of bail granted to opponent no.2.
3. Learned Sr. Advocate has placed reliance on the FIR produced at Annexure:A to the application and the role attributed to the opponent no.2 as well as various orders passed by this Court and referred to and relied upon in the compilation itself. Thus, learned Sr. Advocate submitted that the order passed by the learned Additional Sessions Judge is perverse, ex facie illegal and therefore, it would attract provisions of Section 439[2] of the Code and the same deserves to be quashed and set aside as the relevant material was not taken into consideration by the learned Additional Sessions Judge while releasing the opponent no.2 on bail. Learned Sr. Advocate also submitted detailed written submissions in order to indicate involvement of opponent no.2 in the alleged commission of offence and the manner in which the alleged offence is committed by him.
4. It is submitted that the learned Additional Sessions Judge has proceeded on the assumption that the case is based on documentary evidence alone and has completely overlooked the seriousness of injuries inflicted on the person of the applicant and other two of his family members. The learned Additional Sessions Judge has committed egregious error in holding that investigation is at a very delicate stage and final report is yet to be filed before the competent court. It is further submitted that the learned Judge, while considering the bail application held that the accused also requires to be enlarged on bail on the ground of parity overlooking subsequent addition of charges of Sections 120B, 467 and 468 of IPC. Learned Sessions Judge ought to have appreciated that when provision of Sec.120B of IPC is invoked, role of opponent no.2, hardly becomes relevant. Thus, learned Sr. Advocate submitted that on the aforesaid grounds, application for cancellation of bail requires to be allowed and order passed by the learned Additional Sessions Jude be quashed and set aside.
5. Learned Sr. Advocate placed reliance on the following judgments:-
[1] Puran v. Rambilas and another, reported in [2001] 6 Supreme Court Cases 338.
[2] State of UP through CBI v. Amarmani Tripathi, reported in [2005] 8 Supreme Court Cases 21.
[3] Subodh Kumar Yadav v. State of Bihar & Anr., reported in 2009 AIR SCW 7299.
[4] Dinesh M.N. [S.P.] v. State of Gujarat, reported in [2008] 5 Supreme Court Cases 66.
[5] State of Maharashtra v. Ramesh Taurani, reported in [1998] 1 Supreme Court Cases 41.
[6] Anil Kumar Tulsiyani v. State of U.P. And another, reported in [2006] 9 Supreme Court Cases 425.
[7] State represented by Inspector of Police, T.N. v. Eslian Alias Jothi Basu, reported in [2006] Supreme Court Cases 785.
[8] State of Gujarat v. Mayaben Surendrabhai Kodnani and another, reported in 2009 [2] GLH
109.
[9] Satish Jaggi v.
State of Chhatisgarh, [2007 [O] GLHEL-SC 39456] [10] Judgment dated 25.1.2008 passed by this Court [Coram: Anant S. Dave, J.] in Criminal Misc. Application No. 12644 of 2007 in the case of State of Gujarat v. Dinesh M N [S P].
Learned Sr. Advocate submitted that in view of the ratio laid down in the aforesaid judgments, since the order passed by the learned Judge is perverse on the face of it, it requires to be quashed and set aside.
6. Learned advocate Mr. Mehul Shah, appearing for opponent no.2 submitted that while granting bail, the learned Additional Sessions Judge has taken into consideration the material placed before him, provisions of Sections 143, 147, 149, 325, 506[1], 427, 395, 397,467, 468 of IPC and Sec.135 of B.P.Act, quantum of punishment as well as gravity of offence, nature of offence and thereafter, by passing a very reasoned and exhaustive order, granted bail to the opponent no.2. Learned Judge has also considered the ground of parity which was urged at the time of hearing of the bail application and considering the same, bail was granted. Learned advocate, placing reliance on Sec.439[2] of the Code submitted that powers under Sec.439[2] of the Code can be exercised only in exceptional or extraordinary circumstances. If the person in whose favour bail is granted, has committed breach of conditions imposed by the Court, or the order on the face of it is illegal, or reasoning given by the learned Judge is perverse, then, the same can be interfered with while exercising powers under Sec.439[2] of the Code. On bare perusal of the order passed by the learned Additional Sessions Judge, it becomes clear that while granting bail, the learned Judge has taken into consideration the entire material on the record of the case and thereafter has passed reasoned order which cannot be said to be perverse and, therefore, no interference is called for in the order passed by the learned Additional Sessions Judge and as the application preferred by the applicant is devoid of merit, the same deserves to be dismissed.
7. Learned advocate appearing on behalf of opponent no.2 has also filed written submissions wherein, it is contended that opponent no.2 is wrongly roped into the offence being CR No. I-213/08 and, therefore, application for cancellation of bail does not call for any interference by this Court while exercising powers under Sec.439[2] of the Code. It is submitted that the applicant has not come with clean hands and tried to misguide the Court by stating incorrect facts. It has been narrated extensively by the learned advocate for the opponent no.2 as to how the applicant has suppressed material facts before this Court.
8. It is stated that civil litigations which have been referred to by the applicant in his written submissions are Special Civil Application Nos. 9334/07, 5256/08, 7572/08 and 28693/07. In all the above referred matters, prayers are almost identical. Prayer contained in those matters are reproduced by the learned advocate for opponent no.2 and it is submitted that all the aforesaid petitions were withdrawn. This aspect has been deliberately suppressed by the applicant. On behalf of opponent no.2, copy of order of withdrawal passed by the Court is also produced which forms part of written submissions given by learned advocate for opponent no.2. It is submitted that the applicant has produced document at page 248 stating that the said affidavit was filed by AUDA on 10.9.08 which fact is not correct. The affidavit referred to at page 248 was affirmed on 10.9.08, but the same was served to the learned advocates appearing for respective parties only on 11.9.2008 and that too also during the court hours. The incident has taken place on 11.9.08 during 12.00 to 12.30 hours. Thus, say of the applicant that because of the affidavit filed by AUDA, one Babulal Jamnadas Patel has to pay premium amount and because of which, attack is made on the applicant is not true and correct fact. The said affidavit is also produced by the learned advocate for opponent no.2 at Annexure:R/3 to the written submissions. It is submitted that out of seven accused who were arrested and against whom charge-sheet was filed on 23.2.09, six accused were granted regular bail by the Sessions Court. The said order passed by the Additional Sessions Judge was challenged before this Court by the applicant by way of application of cancellation of bail being Criminal Misc. Application No. 14874 of 2008. However, the said application was not pressed and it was disposed of. Copy of the order passed by the Court is produced at Annexure:R/4 to the written submissions. It is submitted that considering the facts of the matter, opponent no.2 was arrested in connection with FIR being CR No. I-213/08 which is based on false allegations. Complaint which was filed by the applicant was for the offence punishable under sections 143, 147, 148, 149, 325, 506[2] and 427 of IPC and Sec.135 of Bombay Police Act. It is submitted that pursuant to the order dated 23.1.09, passed by this Court [Coram: D.H. Waghela, J.] in Special Criminal Application No. 1821 of 2008, the applicant made comprehensive representation in February, 2009 and created entirely new story of forging of documents. It is submitted that even though panchnama was drawn before five months of the said incident, applicant had not made any averment of forging of documents in the FIR nor in Special Criminal Application No. 1821 of 2008 filed on behalf of the applicant. It is submitted by the learned advocate that even if the allegations are assumed to be correct, then, the same could have been narrated in the FIR. However, none of the offences which is investigated now and for which, opponent no.2 is arrested were even alleged in the FIR in his statement or in the above Special Criminal Application No. 1821 of 2008. It is submitted that on the same day, i.e. on 11.9.08, relatives of complainant have already filed Special Criminal Application No. 1821 of 2008, but in the said petition, none of the allegations made in the representation were incorporated in the FIR or in the statement which was recorded pursuant to the order passed by the Hon'ble High Court. Initially, FIR was registered for the offence punishable under Sections 143, 147, 148, 149, 325, 506[2] and 427 of IPC and Sec.135 of Bombay Police Act. But after lot of delay, Sections 395, 397 and 120B of IPC were added in the month of September, 2008. Thereafter, applicant moved the Hon'ble Court to see that offnece under Section 307 of IPC is also added which fact is reflected in the order dated 12.11.2008 passed by this Hon'ble Court in Special Criminal Application No. 1821 of 2008. As the applicant could not succeed, he filed Special Criminal Application No. 1821 of 2008 which came to be partly allowed and with the concession made by learned advocate for the applicant, the matter was remanded for further investigation under Sec.173[8] of the Code. Thus, till 23.1.08, the applicant had not alleged in the incident or made any allegation for offences punishable under Sections 467, 468, 471 of IPC. For the first time in February, 2009, the applicant has come with the allegation of offences under Sec. 467, 468 and 471 of IPC. Thus, on perusal of the entire record of the case, it can be said that the entire incident of commission of forgery as alleged in the representation is nothing but an afterthought and got up story only with an intention of falsely implicating the present opponent no.2 in the offence. Learned Additional Sessions Judge has taken into consideration the entire material of the case which was placed for his perusal as well as parity of the case, by which other accused are granted bail by this Court. The learned Additional Sessions Judge has rightly granted bail to opponent no.2. Learned advocate submitted that accused no.7 Vasudevbhai Patel against whom the applicant has raised hue and cry in written submissions has been granted anticipatory bail by the learned Additional Sessions Judge in Criminal Misc. Application No. 1104 of 2008. The said order is not challenged by the applicant. Accused no.7 is also subsequently granted regular bail on 11.4.08 by the competent Sessions Court in Criminal Misc. Application No. 1187 of 2008 and the said order is also not challenged by the applicant. Therefore, the order passed by the learned Additional Sessions Judge applying parity in case of the present opponent no.2 is just and proper and opponent no.2 has been rightly released on bail and no interference is called for by this Court while exercising powers under Sec.439[2] of the Code. It is submitted that voluminous documents are produced by the learned advocate for the applicant before this Court, but they are not part of the record of the trial court and, therefore, the said documents cannot be taken into consideration by this Court while deciding application for cancellation of bail. Learned advocate has placed reliance on the following judgments in support of the submission that power under Sec.439[2] of the Code has to be exercised with great care and circumspection:-
[1] State of Gujarat v. Babubhai Somabhai Gamit [2006[1] GLH 758].
[2] State of Gujarat v. Virbhadrasinh Govubha Gohil [1997 [1] GLR 860.
[3] Nityanand Rai v.
State of Bihar [2005[4] SCC 178].
[4] Ramchandran v.
State of Madhya Pradesh, [2004 [13] SCC 616.
[5] Dolat Ram v. State of Garyana [1995[1] SCC 349].
9. Learned APP Mr. Devang Vyas, representing the opponent no.1 State, submitted that the order passed by the learned Judge is just and proper and the learned Judge has assigned reasons for enlarging the opponent no.2 on bail and there is no infirmity in the order passed by the learned Additional Sessions Judge, and therefore, the application deserves to be dismissed.
10. I have heard Mr. Y.N. Oza, learned Sr. Advocate appearing with Ms. Roma I. Fidelis for the applicant, Mr. Devang Vyas, learned APP for the opponent no.1 State and Mr.Mehul S. Shah for opponent no.2, at length and in great detail. I have carefully taken into consideration the material which is produced by the learned advocates for my perusal.
The order passed by the learned Additional Sessions Judge, Fast Track Court No.1, Ahmedabad [Rural] and the reasons assigned therein by him are also taken into consideration by me. I have also considered the provisions of Sections 143, 147, 149, 325, 506[1], 427, 395, 397 and 120B of IPC, quantum of punishment, manner in which the offence is committed by opponent no.2 along with other accused persons as well as provisions of Section 439[2] of Code for cancellation of bail. I have also considered the judgments cited by the learned Sr. Advocate for the applicant-complainant as well as by Mr. Mehul Shah on behalf of opponent no.2. There is no dispute about the ratio or proposition laid down therein.
11. Learned Additional Sessions Judge has, after taking into account the material which was placed before him and the provisions of various sections alleged against the opponent no.2, held that considering the material on the record of the case, it is a fit case to enlarge opponent no.2 on bail as opponent no.2 is not likely to jump the bail. Learned Judge has also considered the ground of parity which was urged before him by the learned advocate for the opponent no.2 and has considered the same and after discussing in exhaustive manner, has passed the order enlarging the opponent no.2 on bail. The complainant, who is aggrieved by the aforesaid order, has challenged the order by filing application under Sec.439[2] of the Code. Power conferred under Sec.439[2] of the Code for cancellation of bail is required to be exercised in very rare and exceptional circumstances. On perusal of Sec.439[2] of the Code, it becomes clear that while cancelling the bail, conduct subsequent to release on bail and the supervening circumstances alone are required to be taken into account. The Apex Court has, while considering the question of cancellation of bail has discussed extensively in case of State through C.B.I. v. Amarmani Tripathi [AIR 2005 SC 3490]. If a party concerned has committed breach of the condition imposed by the court or if the order on the face of it is illegal or perverse, then, the Court can interfere under Sec.439[2] of the Code, but only in exceptional cases.
12. Thus, on overall reasoning given by the learned Additional Sessions Judge and the entire compilation of documents which is produced by the learned advocate for the applicant-original complainant in this application for the first time at the time of hearing of the application, I am of the view that no interference is called for in the order passed by the learned Additional Sessions Judge & Fast Track Court No.1, Ahmedabad [Rural], while granting bail to opponent no.2.
13. For the foregoing reasons, there is no merit in the application and the same is hereby rejected. Rule is discharged.
[H.B. ANTANI, J.] pirzada/-
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