Gujarat High Court
Bharatsingh @ Pappu Tribhovan Singh ... vs State Of Gujarat on 24 April, 2002
JUDGMENT B.J. Shethna, J.
1. On 9.10.2001 the complainant Kantibhai Shamjibhai Mistry lodged F.I.R. with Naroda Police Station which was registered as CR No.I - 441 of 2001 for the offences u/s. 395, 324 I.P.Code and Section 135(1) of the Bombay Police Act, against the present 2 applicants - accused and 4 unknown persons. It is stated by the complainant in his complaint that he is doing the business in the name and style of AMBIKA TRAVELS at Ahmedabad. After closing his office when he was returning to home in the night hours at about 9.45 p.m. at that time the accused applicant No.1 Bharatsinh @ Pappu stopped him on the road and gave blow with sword. Another accused - applicant No.2 Ram Vijaysinh inflicted Lathi blows and robbed of Rs.2500/- to Rs.2700/- from him. The F.I.R. regarding the incident in question was lodged within less than 3 hours of the incident before the Police i.e. 9.10.2001 at 00.10 hours.
2. Both the applicants - accused were absconding for a considerable period of nearly 2 months after the F.I.R. which was registered against them on 9.10.2001 at 00.10 hrs. The applicant - accused No.1 Bharatsinh @ Pappu came to be arrested on 30.11.2001 and accused - applicant No.2 Ramvijay Sinh was arrested on 1.12.2001.
3. From the averments made in Para : 2 of this Application it appears that earlier the applicants accused filed 3 Bail Application i.e. (1) Criminal Misc. Application No.2522 of 2001, (2) 87 of 2002 and (3) 110 of 2002 before the City Sessions Court at Ahmedabad. From the Memo of 4th Bail Application viz. Criminal Misc. Application No.273 of 2002, annexed along with this petition, it appears that the First Bail Application No.2522 of 2001 was rejected by Shri J.D.Vyas, learned Addl. City Sessions Judge, Ahmedabad on 21.12.2001. Subsequent Bail Application No.87 of 2002 filed after the charge-sheet was dismissed as withdrawn on 18.1.2002 by the same learned Judge Shri J.D.Vyas, and the 3rd Bail Application No. 110 of 2002 was once again rejected by the same learned Judge Shri J.D.Vyas on 30.1.2002.
4. Thereafter, the applicant accused filed 4th Bail Application i.e. Criminal Misc. Application No.273 of 2002 through their another Counsel Shri B.M.Gupta for releasing them on Bail on the grounds mentioned in the said Application. In Para : 2 & 3 of the said Application No.273 of 2002 it is clearly mentioned that all the three Bail Applications were rejected by Shri J.D.Vyas, learned Addl. City Sessions Judge, Ahmedabad.
5. From Para : 1 of the impugned order dated 15.2.2002 passed by Shri Mahendra Unadkat, learned Additional City Sessions Judge, Ahmedabad, dismissing their 4th Bail Application No.273 of 2002 it clearly appears that the learned Addl. City Sessions Judge Shri J.D.Vyas has ordered not to place the matters of Advocate Shri B.M.Gupta in his Court. Therefore, the learned In charge Principal Judge ordered to place the said Bail Application before Shri V.C.Modi, another learned Addl. City Sessions Judge, Ahmedabad, who was on leave on that day, therefore, the matter was placed before him i.e. Addl. City Sessions Judge, Ahmedabad Shri Unadkat.
6. Before Shri Unadkat, learned Addl. City Sessions Judge, an Affidavit dated 12.2.2002 filed by the original complainant Kantibhai Shamjibhai Mistry was placed along with the Bail Application of the applicants - accused wherein it is stated that he had not named the present applicants - accused in the F.I.R. who have caused him injury and they have not taken away money from his pocket. On the basis of the Affidavit learned Counsel Shri C.B.Gupta for the applicants - accused submitted before Shri Unadkat learned Addl. City Sessions Judge, that the matter is compromised between the parties and the applicants - accused should be released on Bail.
7. The learned Judge was of the opinion that when the parties have compromised the matter then such compromise can always be taken into consideration by the Court while deciding the Bail Application, but the learned Judge was of the considered opinion that when the previous Bail Application i.e. Criminal Misc. Application No.110 of 2002 filed by the applicants accused on this very ground was rejected by his colleague Shri J.D.Vyas, learned Addl. City Civil Judge, Ahmedabad, then on this very ground the applicants - accused can not file fresh Bail Application before him.
8. The next contention which was argued before the learned Judge was that other co-accused of the case have been enlarged on Bail by the Gujarat High Court in Criminal Misc. Application No.929 of 2002, therefore, the present applicant - accused should also be released on Bail. The said contention was rejected by holding that the previous Bail Application of the applicants accused were rejected by the Court, therefore, it would not be a ground to release them on Bail.
9. Before the learned Judge the accused relied upon the Judgment of this Court in case of MAHIPATSINH PANCHAJI JADEJA v/s. STATE OF GUJARAT, reported in 1990 (2) G.L.R. 856 and submitted that on the basis of the Affidavit of the complainant the accused should be released on Bail after directing the Investigating Agency to inquire about the truthfulness of the Affidavit of the complainant. However, the said contention was rejected by the learned Judge by holding that in the instant case earlier Bail Application No.110 of 2002 was rejected and therefore, the Judgment of this Court in Mahipatsinh (Supra) will have no application. Thus, the learned Additional City Sessions Judge Shri Mahendra Unadkat rejected the 4th Bail Application of the applicants accused i.e. Criminal Misc. Application No.273 of 2002 by his impugned order dated 15.2.2002.
10. The applicants - accused have filed the present Bail Application through their Counsel Shri B.M.Gupta before this Court on 1.3.2002, but for the reasons best known to him this Bail Application was moved for urgent circulation only on 19.4.2002 with the Urgent Note filed by Shri Gupta in the office of this Court on 17.4.2002 and accordingly this matter was listed before this Court on 19.4.2002 i.e. on Friday.
11. On 19.4.2002 this matter was called out in the first Sitting and after arguing the matter for a considerable time it was kept in 2nd sitting after recess on the request of Shri Gupta as he wanted to take necessary instruction in the matter as to whether the matter be pressed or not. The request was granted and the matter was kept in the 2nd sitting after recess. After recess Shri Gupta further argued the matter for a considerable time of about an hour or so and at that time the Court time was over, therefore, the order was reserved.
12. Learned Counsel Shri B.M.Gupta for the applicants - accused firstly submitted that though the compromise purshis dated 29.1.2002 (Annexure : D, Page : 23) filed by the original complainant Shri Kantibhai Shamjibhai Mistry was very much there on record of the earlier Criminal Misc. Application No.110 of 2002 Shri J.D.Vyas, learned Addl. City Sessions Judge wrongly refused the said Bail Application by his order dated 30.1.2002. Therefore, the applicants - accused were obliged to file successive Bail Application i.e. Criminal Misc. Application No.273 of 2002 through him on 15.2.2002 along with the Affidavit dated 12.2.2002 of the complainant Shri Mistry stating that the matter is compromised between them, therefore, the accused should be released on Bail. However, Shri Unadkat, learned Addl. City Sessions Judge did not consider the same in proper perspective and rejected the Bail Application.
Relying upon the unreported Judgment of my learned Brother C.K.Buch, J. delivered on 18.4.2001 in Criminal Misc. Application No.2336 of 2001 Mr.Gupta submitted that in view of the Affidavit dated 12.2.2002 filed by the complainant Shri Kantibhai Mistry and the compromise purshis dated 29.1.2002 submitted by the complainant in Criminal Misc. Application No.110 of 2002 before the City Sessions Court, Ahmedabad, this Court should release the applicants - accused on Bail.
In the Judgment of my learned Brother C.K.Buch, J. except the fact of compromise arrived at between the parties in the case, out side the Court, no further details regarding the offence, etc. have been mentioned. However, it was orally submitted that it was a case of murder u/s. 302 I.P.C. and keeping in mind the fact that the accused was in custody since long and the trial was not going to be over soon, therefore, on facts of that case the learned Single Judge of this Court after being satisfied with the genuineness of the compromise arrived at between the complainant and accused, released the applicant - accused of that case on bail.
Whereas in the instant case for the reasons best known to the applicants - accused they have not joined the complainant as party - respondent in this Application. Affidavit dated 12.2.2002 filed by the complainant along with this Application, Annexure : B, to this petition, speaks volume about it. It clearly appears to me that initially the applicants accused, though in Jail, were able to terrorize and threaten the complainant to file purshis dated 29.1.2002 before the City Civil Court in their Bail Application No.110 of 2002. In Para : 2 of that Application it is stated that the complainant and the accused are staying at the same address and now the matter is settled between them because of the intervention of the good people. In Para : 3 it has been stated that as the compromise has already taken place, therefore, he has no objection if the applicants accused are released on Bail (See Annexure : D, Page : 23). This much was stated in the so called compromise purshis filed by the complainant before the trial Court though he was not a party to that bail application. In spite of this purshis the learned Judge Shri J.D.Vyas rejected their 3rd Bail Application. Therefore, the 4th Bail Application No.273 of 2002 was filed by the accused but this time, through learned Advocate Shri B.M.Gupta wherein they have filed the Affidavit of the complainant (Annexure : B). It is stated in the Affidavit by the complainant that the applicants - accused are his friends. On 8.10.2001 at about 10.00 p.m. while going home he was assaulted by 2 to 3 unknown persons and robbed of Rs.2500/-. When Police came to record his complaint he was semiconscious. While giving complaint he had not given the names of Ramvijay Sing @ Bablu (accused No.2) and those two persons named in F.I.R. who alleged to have assaulted and robbed of Rs.2500/- from him. He had gone to that extent by saying that on the date of incident i.e. on 8.10.2001 when the incident took place he had not seen the applicants and applicant accused No.1 Bharatsing Pappu was not in Ahmedabad city because he was knowing very well that he was externed and, therefore, he was not in Ahmedabad. He does not know that why the police mentioned the names of accused Ramvijaysing and Bharatsing and arrested them. He had not given the name of any one of them and they have not assaulted nor robbed him.
At this stage I may state that if the complainant turns hostile during the trial and state this in his evidence under threat or for any other consideration then he will have to be prosecuted for purgery by the learned Judge who is trying the case. In my considered opinion it is nothing but an attempt to save the accused from prosecution u/s. 142 of the Bombay Police Act for committing breach of the externment order passed against him.
13.Shri Gupta then relied upon the Judgment of the learned Single Judge of this Court reported in 1990(2) G.L.R. 856 and submitted that for verifying the correctness of the Affidavit the matter must be sent back to the Sessions Court. I am not inclined to do it. Because, in the instant case the facts are so gross that I do not see any reason to send the matter for investigation, as according to me the accused have procured such affidavit of the complainant forcibly and under threat.
14. It may be stated that the present applicants accused are charged with serious offences like Dacoity, etc. under Section 395, 326, 324 I.P.Code and the complainant was alleged to have been assaulted with sword, pipe, stick, etc. and also robbed in the night time. Within less then 3 hours of the incident he lodged the complaint before the Police about the incident and gave names of 2 accused who are the present applicants and 4 unknown persons who are not known to him. If the complainant had not given the names of the present applicants then how the police could mention their names in the incident where the F.I.R. is lodged within less than 3 hours, when accused No.1 was already externed from Ahmedabad.
15. Shri Gupta, learned Counsel for the applicants accused then tried to submit that the applicant - accused was already externed, therefore, his presence at the time of incident was highly doubtful. He submitted that even after the F.I.R. (Annexure : A) filed by the complainant the police had not registered the case against the applicant - accused No.1 for committing the breach of externment order under the Bombay Police Act. Whether the Police had registered the case against accused No.1 for committing the breach of externment order or not would be hardly of any importance. At this stage one has to consider the averments made in the F.I.R., as it is, and the same was filed in this case at the earliest point of time i.e. less than 3 hours of the incident.
16. Shri Gupta then submitted that both the applicants - accused were at Surendranagar on the date of the incident and therefore they have been falsely implicated in the instant case. In absence of any material available on record this submission of Shri Gupta cannot be accepted.
17. Shri Gupta then submitted that in the instant case the offence u/s. 326 is not made out. At the most it would be an offence either u/s. 324 or 325 I.P.Code which are bailable and therefore the accused should be released on Bail. It may be stated that initially Section 326 of the I.P.Code was not mentioned in the F.I.R. but it was added on the next day by the Police looking to the injury received by the injured complainant as per the medical Certificate. Therefore, at this stage it would not be possible to come to the conclusion that in the instant case offence u/s. 326 I.P.Code is not committed. That apart, the applicants - accused are also charged with serious offence of dacoity u/s. 395 I.P.Code which is not bailable. Therefore, even if it is held that the offence would be under Section 324 or 325 I.P.Code, then also the accused would not be entitled for Bail.
18. Shri Gupta then submitted that the accused are in Jail since last more than 4 months, therefore, in view of the Judgment of the Supreme Court, reported in 2001 (5) SC 448 they should be released on Bail. In that case the accused were in Jail since last 8 months and on the facts of that case the Hon'ble Supreme Court was of the view that the accused should be released on Bail, therefore, he was released. I fail to understand how that Judgment will help the accused in this case, when the accused are in Jail since last just more than 4 months.
19. Shri Gupta then place reliance upon the Judgment of the Hon'ble Supreme Court reported in 2001 (5) Supreme 425. I fail to understand that how that Judgment will have any application to the facts of that case. In that case the Hon'ble Supreme Court released the accused as on apprehension, the accused was not granted bail on the ground that if he is released on bail then he is likely to jump the bail. In the instant case the facts are totally different. The applicant - accused No.1 is externee. In the instant case while remaining in Jail they are able to win over the complainant and tampered with the evidence. It seems that no one would come forward to depose against them if they are released on bail.
20. Shri Gupta then relied upon another Judgment of the Hon'ble Supreme Court reported in AIR 1978 SC 527 and submitted that subsequent bail application with further details must be taken into consideration. In the instant case as stated earlier there is no new circumstance, therefore, this Judgment of the Hon'ble Supreme Court will have also no application.
21. Lastly Shri Gupta submitted that another co-accused Umashanker Mathuraprasad of this case has been enlarged by the learned Single Judge of this Court (Coram : R.P.Dholakiya, J.) in Criminal Misc. Application No.929 of 2001 on 14.2.2002, therefore, this Court should release the applicant - accused on Bail on the ground of parity. In my considered opinion merely because another co-accused of this case has been enlarged on bail by another learned Single Judge of this Court would not be a ground to release the present accused on bail. In the instant case, within less than 3 hours of the incident the complainant had given the names of the present applicants - accused in his F.I.R. He was not knowing other 4 accused, therefore, their names were not disclosed by him in his FIR. In that view of the matter when another co-accused Umashanker, whose name was not disclosed by the complainant in F.I.R., is released on bail by this Court would not be a ground to release the present applicant accused on bail, more particularly when the present applicants - accused tried to obtain order of bail by hook or crook from the trial Court.
Firstly, they got the compromise purshis from the complainant in the 3rd bail Application No.110 of 2002. When their third successive bail Application was rejected by the same Judge Shri J.D.Vyas, then they got the 4th bail Application No.273 of 2002 filed through their another Counsel Shri B.M.Gupta, whose matters are not taken up by Shri J.D.Vyas, learned Addl. City Sessions Judge, Ahmedabad.
22. Lastly, it must be stated after arguing the Bail Application for hours together Shri B.M.Gupta submitted that it may be placed before the ld. Single Judge, who had earlier allowed the Criminal Misc. Application No.929 of 2002 filed by the co-accused Umashanker Mathuraprasad on 14.2.2002. If this request to place this matter before the learned Single Judge was made by Shri Gupta when the matter was called out then certainly this Court would have directed the office to place it before the Hon'ble Chief Justice, but such a request was made by Shri Gupta at a belated stage therefore, this request cannot be granted. If such a request is granted then it would be a waste of valuable time of the court, therefore, the request has to be rejected.
23. It may be stated that as per the circular dated 8.4.2002, relating to subsequent bail Applications of the same accused are required to be listed before the same Judge, who decided earlier Bail Application in view of the Judgment of the Hon'ble Supreme Court in the case of SHAHZAD HASAN KHAN V/S. ISHTIAQ HASAN KHAN, reported in AIR 1987 SC 1613 and in the case of HARJEET SINGH ALIAS SEETA V/S.STATE OF PUNJAB reported in AIR 2002 SC 281. But in the instant case the present applicants accused have not filed previous bail application before this Court, therefore, the office has placed this matter before this court and not before the learned Single Judge. The previous Roster was from 7.1.2002 to 10.3.2002 and as per the said Roster the work of bail matters were assigned to another learned Judge. It may be stated that though Shri Gupta, learned Counsel for the petitioner had filed this Bail Application for the applicants - accused on 1.3.2002, but for the reasons best known to him this matter was never moved till 10.3.2002 and only on 17.4.2002 by filing urgent note he moved this Court for urgent orders on 19.4.2002. The Bail matters are listed on the note filed by the learned Counsel within 48 hours, therefore, if Mr. Gupta had filed urgent note than it would have been placed before the learned Judge prior to 10.3.2002, but that was not done. From 11.3.2002 the work of Bail matters is assigned to this Court as per the present Roster. The Circular dated 8.4.2002 issued by the Joint Registrar of this Court, is as under :
CIRCULAR "In view of the decisions of the Hon'ble Supreme Court in case of Shahzad Hasan Khan vs. Ishtiaq Hasan Khan, reported in AIR 1987 SC 1613 and Harjeet Singh, alias Seeta vs. State of Punjab and another, reported in AIR 2002 SC 281, relating to subsequent bail applications to be listed before the same Judge who decided the earlier bail applications, the Hon'ble the Chief Justice has been pleased to direct that the law of the land be followed.
Therefore, in compliance of the directions as above, all the concerned are directed to list the subsequent bail applications by the same accused, before the same Judge who decided bail applications earlier. Same practice would also follow even for setting aside the order passed by the Hon'ble Court granting bail.
All the concerned are, therefore, directed to follow the above instructions scrupulously, failing which it would be viewed seriously."
24. From the above it is clear that as per the above circular subsequent bail applications of the same accused are to be placed before the Judge, who had earlier decided matter. Admittedly, the present applicants accused have filed this Bail Application for the first time before this Court, therefore, the request made by Shri Gupta to place this matter before another learned Judge has to be rejected.
In view of the above discussion this application is summarily dismissed.