Gujarat High Court
Bhanuben Jayantibhai Chauhan vs State Of Gujarat & on 5 March, 2014
Author: S.H.Vora
Bench: S.H.Vora
R/CR.MA/15923/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
15923 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.H.VORA
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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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BHANUBEN JAYANTIBHAI CHAUHAN....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR VIRAT G POPAT, ADVOCATE for the Applicant(s) No. 1
MR PRATIK B BAROT, ADVOCATE for the Respondent(s) No. 2
MS JIRGA JHAVERI APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 05/03/2014
ORAL JUDGMENT
1. The applicant, by present Criminal Misc. Application filed Page 1 of 5 R/CR.MA/15923/2013 JUDGMENT under section 439(2) of the Code of Criminal Procedure, 1973 (for short "the Code") challenged the judgment and order dated 16.09.2013 passed by the learned Addl. Sessions Judge, Court No.12, Ahmedabad City in Criminal Misc. Application No.3180 of 2013, whereby the learned Addl. Sessions Judge by exercising power conferred under Section 438 of the Code has enlarged the opponent No.2 on anticipatory bail on certain terms and conditions.
2. The facts filtering out unnecessary details are thus:
2.1. The facts as revealed from the record are such that the applicant-complainant lodged an F.I.R. being I-C.R.No.111 of 2013 before Gomtipur police station for the offences punishable under Sections 337, 338, 468, 470 and 471 of the Indian Penal Code. It is alleged in the F.I.R. that on account of spurious injection given by the opponent No.2, the son of the complainant has got paralysis and, therefore, the opponent No.2 was responsible for the said act which has caused paralysis to the son of complainant.
3. Having come to know about lodging of complaint by the complainant against opponent No.2, he has filed aforesaid Criminal Misc. Application praying to enlarge him on anticipatory bail before the learned Addl. Sessions Judge. The learned Addl. Sessions Judge after considering the application as well as papers placed on record before him, exercised his powers under Section 438 of the Code and accepted the application of the opponent No.2 and released him on anticipatory bail by the impugned judgment. Hence, the present application.Page 2 of 5
R/CR.MA/15923/2013 JUDGMENT
4. Learned advocate Mr.V.G. Popat for the applicant-original informant submitted that the learned Additional Sessions Judge has wrongly concluded that the opponent No.2 - accused is acquitted in other offences of similar nature and, therefore, the learned Additional Sessions Judge has wrongly exercised the powers conferred under Section 438 of the Code. It is submitted that in light of the decision rendered in case of Thakorbhai Meghjibhai Patel V/s. State of Gujarat reported in 2004(0) GLHEL-HC 213030, the learned Additional Sessions Judge has committed error in relying upon the decision of the Rajasthan High Court rendered in the case of Jaichand V/s.
State of Rajasthan reported in 1991(3) Crimes 63. Upon these broad submissions, learned advocate Mr.Popat has urged to cancel anticipatory bail granted in favour of the opponent No.2 as he is involved in a serious offence.
5. Per contra, learned advocate Mr.Barot for opponent No.2 submitted that no illegality or impropriety is committed by the learned Additional Sessions Judge in granting anticipatory bail to the opponent No.2 because there is no medical evidence conclusively establishing the professional misconduct on the part of the opponent No.2.
6. After hearing submissions made by learned advocates appearing for the parties and considering the parameters laid down by the Hon'ble Apex Court in the case of Bhagirathsinh Jadeja Vs. State of Gujarat reported in AIR 1984 SC 372 and in the case of Dolatram Vs. State of Haryana reported in (1995) 1 SCC 349 with regard to exercise of power under section 439(2) of the Code, it cannot be said that other than legal consideration was weighed with the learned Addl. Sessions Judge for exercising powers and keeping in mind the law laid Page 3 of 5 R/CR.MA/15923/2013 JUDGMENT down by the Hon'ble Apex Court in case of Siddaram Mhatre Vs. State of Maharashtra reported in (2011) 1 SCC 694, the opponent No.2 was rightly granted anticipatory bail and therefore, no case is made out for this Court to exercise power under Section 439(2) of the Code.
7. At the outset, it is required to be noted that there is no direct medical evidence appearing in the police papers proving the fact that on account of spurious injection administered by opponent No.2, son of the complainant got paralyzed. However, it may be true that opponent No.2 is facing charge of such identical offence while dealing with his patients. While examining the facts of the present case, seriousness of the offence in which the opponent No.2 is involved, requires to be considered in light of the evidence gathered by the Investigating Agency. Without entering into the contention whether past record has any bearing in granting or non- granting bail to the accused person, it is evident that there is no conclusive evidence gathered by the Investigating Agency pointing out professional misconduct on the part of the opponent No.2 so as to infer that because of the injection administered by him, son of the complainant got paralyzed. Under these circumstances, the learned Additional Sessions Judge has rightly exercised his powers under Section 438 of the Code in favour of the opponent No.2 and no illegality or impropriety is committed in passing the impugned order.
8. Considering the ratio laid down by the Hon'ble Apex Court in various decisions, it is clear that powers of appellate Court are different than granting bail by the trial Court. In case of Dolatram (supra), the Hon'ble Apex Court has held that bail once granted should not be cancelled in mechanical manner Page 4 of 5 R/CR.MA/15923/2013 JUDGMENT without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. Therefore, I am of the opinion that the opponent No.2-accused has rightly been released on anticipatory bail and he has not committed breach of condition imposed by the trial Court.
9. In view of above, present application is meritless and therefore, the same deserves to be dismissed and is accordingly dismissed. Rule is discharged.
(S.H.VORA, J.) Hitesh Page 5 of 5