Gujarat High Court
State vs Pradhumansinh on 17 August, 2010
Author: A.M.Kapadia
Bench: A.M.Kapadia
Gujarat High Court Case Information System
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CR.MA/7328/2000 18/ 20 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 7328 of 2000
with
CRIMINAL
MISC.APPLICATION No. 7586 of 2000
With
CRIMINAL
MISC.APPLICATION No. 7595 of 2000
With
CRIMINAL
MISC.APPLICATION No. 7284 of 2000
and
CRIMINAL
REVISION APPLICATION No. 167 of 2002
==============================================================
STATE
OF GUJARAT - Applicant(s)
Versus
PRADHUMANSINH
VIKRAMSINH CHUDASAMA - Respondent(s)
==============================================================
Appearance
:
Cri.Misc.Application
No. 7328/2000
Mr.
HM Prachchhak, APP for petitioner
Mr.
SV Raju with Mr. RJ Goswami for respondent.
Cri.
Misc. Application No. 7586/2000
Mr.
PR Nanavati for petitioner
Mr.
HM Prachchhak APP for respondent No.1.
Mr.
JR Dave for respondent No.2.
Cri.
Misc. Application No. 7595 of 2000.
Mr.
Ashutosh R. Bhatt for the petitioner
Mr.
HM Prachchhak APP for respondent No.1.
Mr.
JR Dave, Mr. SV Raju and Mr. RJ Goswami for
respondent No.2.
Cri.Misc.
Application No. 7284 of 2000.
Mr.
HM Prachchhak, APP for petitioner ? State
Respondents
-served.
Cri.
Revision Application No. 167 of 2002.
......Suo
Motu
Mr.
JR Dave for respondent Nos.1 and 2
Mr.
SV Raju with Mr.RJ Goswami for respondent
No.3.
Mr.
HM Prachchhak APP for respondent No.4- State.
Mr.
HN Jhala for respondent No.5.
==================================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
Date
: 07/09/2005
COMMON
ORAL ORDER
1. Instant common order shall govern the disposal of these five petitions arising out of one and same FIR registered vide CR No.319/1998 with Ghatlodia Police Station for commission of the alleged offence under Section 307 of the Indian Penal Code on the basis of the complaint filed by one Ashok Ratilal Shah.
2. Since common questions of law and facts are involved in this batch of petitions, they are heard together and decided by this common order.
3. Criminal Misc. Application No.7328 of 2000 is filed under Section 439 (2) of the Code of Criminal Procedure ('the Code' for short) by the State of Gujarat against Pradyumansinh Vikramsinh Chudasma, one of the accused, against the order dated 21.10.2000 passed in Criminal Misc. Application No.2278 of 2000 by the learned Additional Sessions Judge, Ahmedabad by which the respondent is granted bail and it is prayed to cancel the bail;
(i) Criminal Misc. Application No. 7586 of 2000 is filed under Section 439 (2) of the Code by one Ashok Ratilal Shah/ original complainant against State of Gujarat, Jayendrasinhji Lalubhai Zala and Narendrasinh Keshubha Parmar, against the order dated 21.10.2000 passed in Criminal Misc. Application No. 2277 of 2000 by the learned Additional Sessions Judge, Ahmedabad by which respondent Nos.2 and 3 who are original accused have been released on bail and it is prayed that bail granted to them may be cancelled;
(ii) Criminal Misc. Application No. 7595 of 2000 is filed under Section 439 (2) of the Code by Ashok Ratilal Shah/original complainant against the State of Gujarat and Pradyumansinh Vikramsinh Chudasama, one of the accused against the order dated 21.10.2000 passed in Criminal Misc. Application No. 2278 of 2000 by the learned Additional Sessions Judge, Ahmedabad by which respondent No.2 herein (one of the accused against whom Criminal Misc. Application No.7328 of 2000 is also filed) is released on bail and prayed to cancel the bail granted to him;
(iii) Criminal Misc. Application No. 7284 of 2000 is filed under Section 439 (2) of the Code by State of Gujarat against Jayendrasinhji Lalubhai Zala and Narendrasinh Keshubha Parmar/ original accused against the order dated 21.10.2000 passed in Criminal Misc. Application No. 2277 of 2000 by the learned Additional Sessions Judge, Ahmedabad by which the respondents herein/ original accused (against whom Criminal Misc. Application No.7586 of 2000 is also filed by the original complainant Ashok Ratilal Shah) are released on bail and therefore it is prayed to cancel the bail;
(iv) Criminal Revision Application No.167 of 2002 is initiated suo motu against the order of committal passed by the learned Metropolitan Magistrate of a charge-sheet filed in his court in connection with crime registered vide Cr.No.I-319 of 1998 with Ghatlodia Police Station.
4. Facts in brief:
4.1. One Ashok Ratilal Shah has filed a complaint at Ghatlodia Police Station wherein, inter alia, stating that one Aniruddh Bhatt and two unnamed persons had come near the parking area of Mahavir Tower where the deceased resided and had fired on the right palm and right jaw of the deceased and had attempted to kill him. The injured was taken to V.S. Hospital where he succumbed to the injuries on 30.11.1998. The FIR in connection with the said incident came to be registered at Ghatlodia Police Station vide CR No.I-319 of 1998 for alleged commission of offence under Section 307 of the IPC.
However, subsequently, since the injured succumbed to the injuries, offence under Section 302 of the IPC was also included in the said FIR. The investigation of the said complaint was transferred to Ahmedabad City Crime Department vide administrative order of the concerned Commissioner of Police, Ahmedabad City. Therefore, accused were produced before the Metropolitan Magistrate, Court No.11 where the Ahmedabad City Crime Branch in the normal course produces the accused. The accused therefore applied to the learned Additional City Sessions Judge, Court No.7, Ahmedabad for regular bail which came to be granted by the learned Judge vide order dated 21.10.2000 which has given rise to the instant batch of five petitions.
4.2. In first four petitions, the prayer is for cancellation of bail granted to the accused whereas the 5th petition i.e., Criminal Revision Application is a suo motu revision as according to the learned Judge, the order of committal passed by the Court of learned Metropolitan Magistrate with Ghatlodia Police station is erroneous as it suffers from want of territorial jurisidction.
5. Mr. HM Prachchhak, learned APP and Mr. PR Nanavati, learned advocate of the complainant, jointly contended that since the offence was registered with Ghatlodia Police Station, the accused should have been produced before the learned JMFC, Ahmedabad Rural and the accused ought to have been applied for bail before the Sessions Court, Ahmedabad Rural. However, they have applied before the City Sessions Judge, Ahmedabad and therefore according to them, City Sessions Court, Ahmedabad does not have territorial jurisdiction to grant bail to the accused.
5.1. Besides this, on merits also they contended that on perusal of the contents of the FIR, the respondents/accused have committed offense under section 302 of IPC which is a grave and serious offence and therefore the learned City Sessions Judge ought not to have granted bail to them. They therefore urged that the order granting bail to the accused deserves to be quashed and set aside by allowing these petitions. They therefore urged to allow these petitions.
5.2. So far as Criminal Revision Application No.167 of 2002 wherein order of committal is taken in suo motu revision is concerned, according to them, the learned Metropolitan Magistrate ought not to have committed the case to the City Sessions Court but instead should have returned the charge-sheet for presentation before the appropriate court and therefore the committal order passed by the learned Metropolitan magistrate is illegal.
However, they urged that since the matters are committed to the City Sessions Court, Ahmedabad and trial is awaited since five years, appropriate orders may be passed.
6. Per contra, M/s. SV Raju and JR Dave, learned advocates for respondents/original accused, contended that so far as the contention with regard to the territorial jurisdiction advanced by Mr. H.M. Prachchhak, learned APP and Mr. PR Nanavati, learned advocate is concerned, it has no substance, as according to them, the order granting bail cannot be set aside on the ground of lack of territorial jurisdiction in view of the statutory provisions contained under section 462 of the Code.
6.2. According to them, so far as the merit of the case is concerned, the learned trial Judge has very rightly exercised discretion vested in him by granting bail in favour of the respondents and as all the respondents/accused are on bails since 2000 and no untoward incident has taken palace till today, on the ground of delay also, bail cannot be cancelled as it loses all its purpose and significance to the greatest prejudice and interest of the prosecution.
6.3. So far as Criminal Revision Application No.167 of 2002 is concerned, according to them, no illegality is committed by the learned Metropolitan magistrate in committing the case to the City Sessions Judge and therefore the order of committal passed by the learned Metropolitan Magistrate, Ahmedabad does not call for any interference in so far as suo motu revision is concerned and therefore all the petitions deserve to be rejected. They therefore urged tor reject the petitions.
7. This Court has considered the submissions advanced by the learned advocates appearing for the parties, perused the impugned order, police investigation papers which have been supplied by the learned advocates appearing for the parties during the course of their submissions and the judgments cited at the bar.
8. So far as the factual matrix is concerned, there is no dispute to the lodging of complaint by one Ashok Ratilal Shah with Ghatlodia Police Station inter alia contending that his cousin was attacked by one Aniruddh Bhatt and two other unnamed persons near parking area of Mahavir Tower who fired on right palm and jaw of his cousin brother and attempted to kill him and he ultimately succumbed to the injuries during the course of treatment in V.S. Hospital on 30.11.1998. Therefore, initially FIR came to be registered for offence under section 307 of the IPC but subsequently it came to be amended and section 302 is added and subsequently the said FIR has been transferred to Ahmedabad City Crime Department vide administrative order of the concerned Commissioner of Police, Ahmedabad City and therefore the accused were produced before the learned Metropolitan Magistrate, Court No.11, Ahmedabad.
9. So far as statutory provisions contained in section 177 of the Code is concerned, it provides that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. However, section 179 of the Code is an exception to general rule and it provides that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued. Section 179 of the Code is pari materia to Section 179 of the Code of Criminal Procedure, 1898 ('the old Code' for short). However, the old Code had certain examples which illustrated Section 179 which are absent in the present Code. Illustrations (a) and (d) make it very clear that if a person is injured in a particular place but he succumbs to the injuries in another place, both the places would have concurrent jurisdiction. In the instant case, the deceased was injured within the jurisdiction of Ghatlodia Police station which is situated in Ahmedabad Rural area but when he succumbed to the injuries, he was within the territorial jurisdiction of Ahmedabad City and therefore both JMFC, Ahmedabad Rural and Metropolitan Magistrate, Ahmedabad would have concurrent jurisdiction. Therefore, according to this Court, production of the accused before the learned Metropolitan Magistrate and passing the order by him committing the accused to the City Sessions Court and also the City sessions Court, Ahmedabad granting bail to the accused cannot be set aside for want of territorial jurisdiction.
10. In this connection, it would be appropriate to refer to the reported decision of the Supreme Court in the case of Mohan Baitha and others v. State of Bihar and another, JT 2001 (4) SC
27. In the said case, a complaint for the offence under sections 304-B, 498-A, 120B and 406 of IPC was registered at Bhagalpur but the victim died at Jahanaganj in State of Uttar Pradesh. The Supreme Court has ruled that there existed continuity of action and hence Magistrate at Bhagalpur had jurisdiction.
In the case of State of Madhya Pradesh v. Suresh Kaushal and another, 2001 AIR SCW 4587, before the Supreme Court, the allegation was that the wife was subjected to physical torture when she was in family way and she had to be taken back to her parental house at place 'J'. Consequence of beating , i.e., miscarriage took place at place 'J'. The Supreme Court has held that the Court at place 'J' has jurisdiction to try the offence. Queshment of charge solely on the ground that since acts alleged against accused took place at place 'I' where couple resided after marriage the Courts at place 'J' acquire no jurisdiction is illegal.
11. In view of the aforesaid settled principle of law and in view of the statutory provisions contained in section 179 of the Code coupled with the clear elucidation of the Supreme Court in the above referred to judgments to the facts of the present case, this court is of the opinion that the City Sessions Court, Ahmedabad has jurisdiction to try and decide sessions case which has been committed to it by the learned Metropolitan Magistrate, Ahmedabad.
12. Besides this, in view of the statutory provisions contained in section 462 of the Code, no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice. In the instant case, a failure of justice or the plea of prejudice is neither pleaded nor proved. Therefore, since in the contentions raised by the applicant no plea of failure of justice has been raised, the order of cancellation of bail cannot be set aside merely on the ground that the proceedings were held at the wrong place.
13. Section 462 of the Code is pari materia to section 531 of the old Code. In the case of Smt. Raj Kumari Vijh v. Dev Raj Vijh, (1977) 2 SCC 190, the Supreme Court has discussed section 531 of the Code. In the said case the petition for maintenance was filed before the learned magistrate who addressed himself to the question of territorial jurisdiction, recorded and considered the evidence and came to the finding that the petition was maintainable in his court and, therefore, the Supreme Court has held that benefit of section 531 should be given if that finding is set aside.
14. Applying the principle laid down by the Supreme Court in the above referred to judgment wherein the Supreme Court has interpreted section 531 of the Old Code which is pari materia to section 462 of the Code, no prejudice is pleaded nor proved by the prosecution or by the private complainant that order of bail granted in favour of the respondents/accused cannot be justified on the ground of City Sessions Court not having territorial jurisdiction.
15. So far as seeking cancellation of bail on merit is concerned, according to this court, there is no merit in the contentions raised by the learned advocates of the petitioners.
It is settled principle of law that very cogent and overwhelming circumstances are required to be indicated for cancellation of bail. The grounds that can be considered relevant for cancellation of bail are interference or attempt to interfere with due course of administration of justice or evasion or attempt to evade during the course of administration of justice or abuse of the concession granted to the accused in any manner. For this purpose, each case has to be judged on its own merits considering the factual aspects. The powers of cancellation of bail are to be exercised in exercise of judicial discretion and without arbitrariness.
16. This court is fortified in aforesaid view by the following judgments of the Apex Court as well as this Court:
i) Dolat Ram v. State of Haryana (1995) 1 SCC 349,
ii) Subhendu Mishra v. Sabrat Kumar Mishra and another, AIR 1999 SC 3026,
iii) Kamuben, w/o. Ramanlal Keshavlal v. Parmar Chamanbhai Narsinhbhai and others, 1997 Cri.L,R. (Gujarat) 75 and
iv) State of Gujarat v. Nilesh alias Munno Rasiklal Patel and others, 1997 Cri.L.R. (Gujarat) 63.
17. Applying the principles laid down by the Supreme Court in the above referred to judgments to the facts of the present case, what is found from the record is that the learned Additional City Sessions Judge has after considering the material before him granted regular bail to the accused persons. It is not the allegation of the petitioners that the respondents/accused have tired to interfere or attempted to interfere with due course of administration of justice or evaded or attempted to evade during the course of administration of justice or abused the concession granted to them in any manner.
18. It may be noted that the present respondents/original accused have been granted bail in the year 2000 and thereafter during the span of five years no untoward incident has taken place. It is unfortunate that because of the entertaining of the petition and granting of stay against the trial by this Court, the trial could not be proceeded so far.
19. The Supreme Court in the case of Panchanan Mishra v. Digambar Mishra and others, (2005) 3 SCC 143 has held that if there is a delay in cancellation of bail, the object of cancellation of bail practically loses all its purpose and insignificance to the greatest prejudice and the interest of the prosecution.
20. In view of the foregoing discussion, according to this court, since the petitioners have failed to make out any case for cancellation of bail on the plea of territorial jurisdiction as well as on merits of the matter, the prayer for cancellation of bail deserve to be rejected. Similarly, according to this Court, the learned Metropolitan Magistrate has jurisdiction to commit the case since the victim had died within his jurisdiction and therefore investigation agency has rightly filed charge-sheet in the court of learned Metropolitan Magistrate, 11th Court, Ahmedabad, and the learned Metropolitan Magistrate, Ahmedabad has rightly committed the case to the City Sessions Court, Ahmedabad and therefore the learned Additional City Sessions Judge has rightly entertained the applications seeking bail and granted bail to respondents/ original accused. Therefore, notice deserves to be discharged in all the petitions.
21. For the foregoing reasons, all the petitions fail and accordingly they are rejected. Notice issued in each petition, including in Criminal Revision Application No.167 of 2002, wherein suo motu cognizance is taken, is discharged.
22. Since the Sessions trial arising out of the FIR vide CR No.I-319 of 1998 registered with Ghatlodia Police Station is awaited trial for the last 5 years, the learned City Sessions Judge before whom the Sessions Case arising out of the FIR vide CR No.I-319 of 1998 of Ghatlodia Police station is pending and any cognate Session Case pending on the basis of supplementary charge-sheet shall conclude the trial as early as possible and preferably on or before 31.12.2005.
(A.M. Kapadia, J.) ...
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