Gujarat High Court
Shardaben vs State on 28 November, 2011
Author: G.B.Shah
Bench: G.B.Shah
Gujarat High Court Case Information System
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CR.MA/13116/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 13116 of 2011
=========================================================
SHARDABEN
AMBALAL DANTANI WD/OAMBALAL ATMARAM DANTANI - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
BHUNESH C RUPERA for
Applicant(s) : 1,
MS MINI NAIR APP for Respondent(s) : 1,
MR
SANJAY PRAJAPATI for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 28/11/2011
ORAL
ORDER
1. Heard learned advocate Mr.B.C. Rupera for the applicant, learned A.P.P. Ms.Mini Nair for respondent No.1-State and learned advocate Mr.Sanjay Prajapati for respondent No.2.
2. The applicant has preferred the present application under Section 439(2) of the Code of Criminal Procedure, 1973 for cancellation of regular bail granted to respondent No.2 by the learned Additional Sessions Judge, Court No.18, Ahmedabad vide order dated 23.08.2011 passed in Criminal Misc. Application No.2995 of 2011 in connection with the F.I.R. being C.R.No.II-3549 of 2010 registered with the Madhavpura police station for the offence punishable under Sections 302, 323, 294(B) and 114 of the Indian Penal Code.
3. Brief facts of the present case are that on 24.10.2010, at about 11:00 p.m., respondent No.2-original accused No.1 and other two co-accused persons have started quarreling and shouting foul and abusive language near the house of the present applicant. The husband of the applicant told the accused persons not to use abusive and foul language and, therefore, the accused persons got excited and started using abusive language against the husband of the applicant but, due to intervention of the people in vicinity, accused persons left the premises. Thereafter, on 25.10.2010 at about 7:30 am., all the accused persons came to the house of the applicant and again started shouting using abusive and foul language. When the applicant and her son told the accused persons not to use abusive language, the accused persons got excited and started giving fists and kicks blows to the husband of the present applicant and they also give fists and kicks blows to the applicant and her son. After about three hours of the said incident, the husband of the applicant had unbearable pain in the chest and he was immediately shifted to the Civil Hospital and complaint being C.R.No.II-3549 of 2010 came to be lodged before Madhavpura police station for the offence punishable under Sections 323, 294(B) and 114 of the Indian Penal Code on 26.10.2010. During the treatment in the hospital, health of the husband of the applicant was not improved and went on deteriorating hour-by-hour and, on 27.10.2010 in early morning at about 3:00, he succumbed to the injuries which he had received by fists and kicks blows on his chest, stomach and other vital parts of his body. Thereafter, the Investigating Officer added Section 302 of the Indian Penal Code in the said complaint.
3.1. After completion of the investigation, the Investigating Officer filed charge-sheet against all the three accused persons on 25.12.2010. Thereafter, respondent No.2 herein and other co-accused persons have preferred regular bail application being Criminal Misc. Application No.1804 of 2011 before this Court and as this Court was not inclined to grant regular bail to the accused persons, the said application came to be withdrawn by them. Thereafter, respondent No.2 herein has preferred Criminal Misc. Application No.2995 of 2011 for regular bail before the learned City Sessions Court, Court No.19, Ahmedabad. The learned trial Court, vide order dated 23.08.2011, has been pleased to enlarge respondent No.2 on regular bail.
4. Learned advocate Mr.B.C. Rupera for the applicant submitted that the post-mortem report of the husband of the applicant clearly indicates that the cause of death is due to Cardio Respiratory arrest due to heart and lung disease associated with the injuries received by him on the vital part of the body in the said incident. Therefore, the learned advocate for the applicant submitted that as respondent No.2 has played active role in such a heinous crime of murder of the husband of the applicant, order of the learned trial Court releasing respondent No.2 being illegal and improper, required to be quashed and set aside. He has also drawn attention of this Court at page Nos.49 and 50 and submitted that the said complaint has been given on 08.08.2011 as the threat was given by the original accused.
5. Learned advocate Mr.Sanjay Prajapati for respondent No.2 vehemently opposed the present application for cancellation of bail and submitted that the learned trial Court has given cogent reasons for granting regular bail to respondent No.2 in its order dated 23.08.2011 and looking to the well-settled law, once the bail is granted, for cancellation of the same, cogent and overwhelming circumstance are necessary.
6. Learned A.P.P. Ms.Mini Nair for respondent No.1-State has supported the stand taken by the learned advocate for respondent No.2 and submitted that the learned trial Court has not committed any error of law which would warrant interference in the order granting regular bail to respondent No.2.
7. Having considered the overall facts and circumstances of the case, I am of the view that the Court below has not committed any illegality or impropriety while releasing respondent No.2 on regular bail.
Moreover, for cancellation of regular bail, conduct subsequent to release on bail and the supervening circumstances are relevant to be looked into. So far as application/complaint dated 08.08.2011 is concerned, referring the page No.51, it is clear that surety has been taken by the Executive Magistrate and there appears no much substance in the submission made by the learned advocate for the applicant. To me, there appears no overwhelming circumstance which demands cancellation of the bail order passed by the learned trial Court earlier.
8. This Court is of the view that while granting regular bail to respondent No.2, all relevant parameters have been considered. On behalf of the applicant, nothing has been indicated to show that respondent No.2 has, in any manner, misused the liberty granted to him. In the circumstances, no case is made out for cancellation of regular bail granted to respondent No.2. The application, being devoid of merits, deserves to be rejected and is accordingly rejected. Notice is discharged.
(G.B.SHAH, J.) Hitesh Top