Gujarat High Court
Ladhani (Muslim) Ahmedbhai Ismailbhai vs State Of Gujarat & on 30 January, 2013
Author: A.J.Desai
Bench: A.J.Desai
LADHANI (MUSLIM) AHMEDBHAI ISMAILBHAI....Applicant(s)V/SSTATE OF GUJARAT R/CR.MA/17059/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO. 17059 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE A.J.DESAI ================================================================ 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 ? ================================================================ LADHANI (MUSLIM) AHMEDBHAI ISMAILBHAI....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance: MR ASHISH M DAGLI, ADVOCATE for the Applicant(s) No. 1 MR.KAMAL SOJITRAY, ADVOCATE for MR VAIBHAV A VYAS, ADVOCATE for the Respondent(s) No. 2 MRS. HANSA PUNANI, APP for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 30/01/2013 ORAL JUDGMENT
1. Rule.Mrs.Hansa Punani, learned APP waives service of notice of Rule on behalf of respondent No.1-State.
2. Heard Mr.Ashish M.Dagli, learned advocate for the petitioner, Mr.Kamal Sojitray, learned advocate for Mr.Vaibhav V.Vyas, learned advocate for respondent-accused No.2 and Mrs.Hansa Punani, learned APP for respondent No.1-State.
3. By way of present application under Section 439(2) of the Code of Criminal Procedure, 1973, the original complainant has challenged the judgment and order dated 30.10.2012 passed by the learned Additional Sessions Judge, Court No.9, Ahmedabad City in Criminal Misc. Application No.4115/2012, by which, respondent No.2 has been released on regular bail on certain conditions.
4. The main grievance raised by the complainant is with regard to suppression of material facts before the learned Sessions Judge while preferring the above referred application preferred by him under Section 439 of the Code. It is alleged in the present petition that when the respondent-accused preferred Criminal Misc. Application No.4115/2012 in the Court of learned Sessions Judge, Ahmedabad, he did not mention anything about the order dated 05.03.2012 passed by this Court in Criminal Misc. Application No.791/2012, by which, the application filed by the respondent-accused for releasing him on bail was dismissed. It is alleged that by suppressing this material fact and by pressing the factum of release of co-accused by this Court on regular bail, the accused was successful in getting bail from the Trial Court. He further submitted that the learned Judge was not aware about his dismissal of the application as withdrawn filed before this Court after filing of the charge-sheet and hence, on the principles of parity, the learned Judge has released the respondent on bail, relying only upon the grant of bail to co-accused.
5. On the other hand, Mr.Kamal Sojitray, learned advocate for the accused submitted in absence of any affidavit-in-reply that the Sessions Judge has considered the case of the similarly situated co-accused, who were released on bail by this Court vide order dated 05.3.2012 and has exercised his powers under Section 439 of the Code and therefore, there is no reason to interfere with the order passed by the learned Sessions Judge to release the accused person on bail.
6. I have heard learned advocates appearing for the parties and perused the papers of the investigation submitted by learned APP.
7. The undisputed facts arising from the record are as under:
7.1) The impugned FIR, in which, the respondent has been released on bail, was lodged with Madhavpura Police Station, Ahmedabad on 07.08.2011 under Sections 147, 148, 149, 120-B, 307, 326, 324, 506(2), 323, 293(B) of the Indian Penal Code and under Section 135 of the Bombay Police Act.
Subsequently, section 302 of the IPC was added, since the injured died during the investigation. The respondent was arrested by the police on 17.8.2011. The petitioner preferred an application under Section 439 of the Code being Criminal Misc. Application No.4190/2011 before the learned Sessions Court after filing the charge-sheet, which was dismissed by the Sessions Court. The petitioner preferred an application before this Court being Criminal Misc. Application No.791/2012 under Section 439 of the Code. The application filed by the respondent came to be heard on 5.3.2012 and the same was disposed of as withdrawn. Thereafter, the respondent-accused filed another Criminal Misc. Application being Criminal Misc. Application No.4115/2012 in the Court of learned Sessions Judge and prayed to release him on bail. During the pendency of the trial, learned Sessions Judge considered the case of the respondent-accused on the ground that the High Court had released the co-accused vide order dated 5.3.2012 passed in another Criminal Misc. Application No.1096/2012. Since the respondent-accused has brought to the notice of the learned Sessions Judge with regard to the said order and not with regard to withdrawal of his own application, which was withdrawn on 05.03.2012 itself, the Sessions Judge considered the case of accused on the ground of parity and released him on bail by the impugned order.
8. I have gone through the application filed by the respondent-accused being Criminal Misc. Application 4115/2012, which was filed before the Trial Court after withdrawal of application filed before this Court. It appears from the said application that he has not mentioned in the application itself that he had preferred an application for releasing him on bail after filing of the charge-sheet before the High Court and the same was disposed of as withdrawn by this Court. It also appears from the impugned order that the learned Sessions Judge was made aware only about the order passed by this Court vide order dated 5.3.2012 in Criminal Misc. Application No.1096/2012, by which, co-accused was released on regular bail by this Court. I am of the opinion that the accused was bound to bring to the notice before the Trial Court and ought to have specifically mentioned all the applications, which had been preferred before the Trial Court or before the Higher Forum. It is pertinent to note that the orders passed in Criminal Misc. Application No.1096/2012, by which, co-accused are released on bail as well as order passed in Criminal Misc. Application No.791/2012, by which, the application filed by the respondent-accused was withdrawn, came to be passed on the same day i.e.05.03.2012 by this Court(Coram:M.D.Shah, J.).
9. When the accused had filed an application after filing of the charge-sheet and the same was withdrawn in the form of dismissal, there was no change of circumstances in filing the second application before the Sessions Court. The applications of co-accused were considered by the same bench of this Court on the same day. There is no change of circumstances for filing any new application, even otherwise, when this Court has considered the application of the accused on merits after filing of the charge-sheet. Learned Sessions Judge cannot exercise his powers, even if, there are new change of circumstances, if the Higher Court has already decided such application. The only remedy available to the said person would be filing a fresh application before the Higher Forum, which has finally decided the matter.
10. In the present case, I am of the opinion that the learned Judge was not aware about the applications filed by the respondent-accused before this Court and relying upon the judgment of the order of co-accused, considered the case of the accused, since the respondent has concealed the material facts and suppressed the relevant orders from the Trial Court. It is well settled principle of law that a person should come before the Court with clean hands and shall not suppress any relevant and material fact from the Court. In this case as stated herein above, the accused has suppressed very relevant and material fact from the Trial Court. Therefore, he is not entitled for bail, which has been granted by the Trial Court vide order dated 30.10.2012.
11. In the above facts, the present application is allowed. The judgment and order dated 30.10.2012 passed by the learned Additional Sessions Judge, Court No.9, Ahmedabad City in Criminal Misc. Application No.4115/2012, is hereby quashed and set aside. Rule is made absolute to the aforesaid extent.
12. It would be open for the respondent to file an appropriate application before the appropriate Court for bail. This application is accepted not on merits but only on the ground of suppression of material facts.
(A.J.DESAI, J.) Ashish Tripathi Page 7 of 7