Gujarat High Court
Divyang Upendrabhai Jha vs State Of Gujarat on 10 April, 2018
Author: A.J.Desai
Bench: A.J.Desai
R/SCR.A/2548/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO.2548 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO.2470 of 2018
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DOLYBEN KANTILAL PATEL
Versus
STATE OF GUJARAT
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Appearance :
1. Special Criminal Application No.2548 of 2018
MR SHALIN MEHTA, SENIOR COUNSEL ASSISTED BY MR JAL SOLI
UNWALA WITH MR.PARTH CONTRACTOR for the PETITIONER.
MR RS SANJANWALA, SENIOR COUNSEL ASSISTED BY MR K.J.
PANCHAL, ADVOCATE for the RESPONDENT No.2
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR RUTVIJ OZA, APP
for the RESPONDENT No.1.
2. Special Criminal Application No.2470 of 2018
MR RS SANJANWALA, SENIOR COUNSEL ASSISTED BY MR K.J.
PANCHAL, ADVOCATE for the APPLICANT
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR RUTVIJ OZA, APP
for the RESPONDENT.
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CORAM : HONOURABLE MR.JUSTICE A.J.DESAI
Date : 10/04/2018
ORAL ORDER
1. By way of Special Criminal Application No.2548 of 2018, the applicant has prayed as under :-
"(A) That the Hon'ble Court may be pleased to issue any appropriate writ or direction to quash and set aside the impugned orders at Annexure - "A" dated 27.11.2017 and 21.02.2018 and further be pleased to hold that the impugned orders are bad, illegal and without jurisdiction and against the directions given by this Hon'ble Court in the order dated 9.10.2017 in Special Page 1 of 8 R/SCR.A/2548/2018 ORDER Criminal Application No.7365 of 2017 as well as order dated 6.7.2017 passed in Special Criminal Application No.,4380 of 2017 which is at Annexure "G" and "H"
respectively;
(B) Pending hearing and final disposal of
this petition, this Hon'ble Court may be
pleased to stay the operation,
implementation and execution of the
impugned orders dated 27.11.2017 and
21.02.2018 at Annexure - "A" passed by
the learned Magistrate and further be
pleased to release the present petitioner from judicial custody pursuant to the impugned orders by exercising the power under Section 482 of the CRPC read with Section 439 of CRPC;"
2. These matters were listed before this Court on 2.4.2018 and the same were adjourned to 3.4.2018 and thereafter adjourned to today at the request of learned advocate appearing for the private respondent. Today, the matters are taken up for final hearing.
3. Rule. Mr. Mitesh Amin, learned Public Prosecutor as well as Mr. K.J. Panchal, learned advocate appearing for the private respondent waive service of rule on behalf of respective respondents.
4. The brief facts arise from the record are that the Page 2 of 8 R/SCR.A/2548/2018 ORDER present applicant lady who is an accused in connection with an offence registered on 21.5.2012 as I C.R. No.5 of 2012 with Gandhinagar Police Station, Gandhinagar for the offences punishable under Sections 406, 409, 420, 465, 467, 468, 471, 120- B and 477A of Indian Penal Code came to be released on bail by order dated 11.7.2012 passed by coordinate Bench of this Court in Criminal Misc. Application No.7680 of 2012 on certain terms and conditions. After conclusion of the investigation, charge-sheet came to be filed and the case was numbered as Criminal Case No.556 of 2012 before the learned Chief Metropolitan Magistrate, Ahmedabad.
5. Since the case was required to be committed to the learned Sessions Judge and the same was not done, proceedings were initiated by one Harish Shashikant Patel by preferring Special Criminal Application No.4380 of 2017 and thereafter Special Criminal Application No.7365 of 2017. Special Criminal Application No.7365 of 2017 came to be disposed of by this Court vide oral judgment dated 9.10.2017.
6. Thereafter, the private respondent herein preferred an application on 27.11.2017 requesting the learned Magistrate to issue Warrant against the present applicant since she had not complied with the conditions. The learned Chief Metropolitan Magistrate, Ahmedabad on the same day i.e. on 27.11.2017 issued Non-Bailable Warrant against the applicant. Though the Non- Bailable Warrant was issued, the same was not executed till the month of February, 2018. In the meantime, the applicant came to be arrested with regard to five offences registered with Makarpura Police Station of City of Vadodara and, therefore, again an application being Exh.85 was submitted by the complainant -
Page 3 of 8R/SCR.A/2548/2018 ORDER private respondent herein on 21.2.2018 requesting the learned Magistrate to direct the concerned Police Station of Gandhinagar Police Station to arrest the applicant in connection with the Non- Bailable Warrant issued on 27.11.2017. The said application Exh.85 was allowed on the same day and accordingly, the applicant came to be arrested with regard to the offence in question. Hence this application.
7. Mr. Shalin Mehta, learned Senior Counsel assisted by Mr. Jal Soli Unwala as well as Mr. Parth Contractor, learned advocates appearing for the applicant would submit that the impugned orders passed by the learned Magistrate have been passed having no jurisdiction in view of the order passed by this Court in Special Criminal Application No.7365 of 2017. He would submit that it has been categorically observed by this Court that the learned Magistrate had become functus officio when the case is committed to the Court of Sessions. He would submit that it was also observed by this Court that all applications pending in the Criminal Case shall be decided by the learned Sessions Judge on its own merits. He, therefore, would submit that both the impugned orders are without jurisdiction and hence, the same may be quashed and set aside.
8. He would further submit that the application which has been submitted at the instance of private respondent on 27.11.2017 came to be allowed on the same day even without issuing notice or summons to the applicant. He would further submit that even the Public Prosecutor was not heard. Even the Investigating Agency was not called for verifying the correctness of the submissions made by the complainant. He would submit that the said application was submitted on the ground that the applicant Page 4 of 8 R/SCR.A/2548/2018 ORDER had not remained present before the Court on three occasions during 2012 to 2018. However, at no point of time, such application was submitted but came to be filed when the Hon'ble Supreme Court quashed and set aside the decision of the coordinate Bench of this Court by which coordinate Bench of this Court had exercised powers under Section 482 of the Code and quashed all the five FIRs. Since the FIRs came to be revived, the applicant was arrested in the month of February, 2018 and therefore, another application being Exh.85 was submitted by the complainant on 21.2.2018 which came to be allowed. He, therefore, would submit that the petition requires consideration and hence, the same may be allowed.
9. On the other hand, Mr. Mitesh Amin, learned Public Prosecutor appearing for the State, on instructions, has categorically stated that neither the Investigating Agency nor the Public Prosecutor were heard and no papers were called for by the learned Magistrate before passing the impugned orders. He, therefore, would submit that appropriate orders may be passed.
10. Mr. R.S. Sanjanwala, learned Senior Counsel assisted by Mr. K.J. Panchal, learned advocate appearing for the private respondent would submit that the learned Magistrate has not committed any error in passing the impugned orders since the Criminal Case was not committed till 4.4.2018. He would submit that therefore the learned Magistrate has power to issue Non- Bailable Warrant against the applicant and, therefore, no interference is called for in the impugned orders. He, therefore, would submit that the present petition may be dismissed.
11. I have heard learned advocates appearing for the Page 5 of 8 R/SCR.A/2548/2018 ORDER respective parties. It appears from the proceedings in connection with the Criminal Case of the present matter, several applications were submitted which were dealt with by the learned Magistrate. The orders passed by the learned Magistrate were challenged and ultimately, this Court vide order dated 9.10.2017 in Special Criminal Application No.7365 of 2017 issued following directions :-
"7. If the impugned order dated 23.8.2017 is perused, the learned Magistrate has allowed the said application Exh.67 and has ordered committal of the case to the Court of Sessions. Hence, in my opinion, the learned Magistrate cannot deal with any other aspect including applications filed by different parties. The learned Sessions Court shall have the power to decide all such applications pending in the proceedings which were submitted before the learned Magistrate in view of the fact that case has been committed. The learned Magistrate becomes functus officio when the case is committed to the Court of Sessions.
8. In this view of the matter, the present petition requires consideration and hence, the same is allowed. The impugned order dated 23.8.2017 passed by learned Chief Metropolitan Magistrate, Ahmedabad below application Exh.67 in Criminal Case No.556 of 2012 is hereby quashed and set aside so far as it directs compliance of the provisions of Section Page 6 of 8 R/SCR.A/2548/2018 ORDER 306(4)(1)(a) of the Code. The learned Magistrate shall forthwith commit the case to the Court of Sessions. It is needless to state that all pending applications shall be decided by the learned Sessions Judge on its own merits. Rule is made absolute to the above extent."
12. It also appears that though the order of committal was made and the learned Magistrate was aware about the same that too before 27.11.2017, the papers of the Criminal Case were sent to learned Sessions Court only on 4.4.2018. Therefore, in my opinion, the learned Magistrate ought not to have passed the impugned orders. Apart from the said aspect, it is also pertinent to note that neither the summons nor notice was issued to the applicant pursuant to an application submitted by the original complainant and the applicant was not heard before passing the impugned orders. It is also pertinent to note that for number of years, stay against further proceedings of Criminal Case was in existence in view of pendency of application submitted by the applicant under Section 482 of the Code which came to be finally decided by the Hon'ble Supreme Court on 15.11.2017. It is also pertinent to note that the Public Prosecutor was not heard before passing the impugned orders. It is also pertinent to note that the private respondent has also filed an application under the provisions of the Contempt of Courts Act before this Court requesting the Court to take appropriate action since the case was not committed by the learned Magistrate by relying upon the decision passed by this Court referred to herein above. Though the complainant was aware that the case was committed, applications were submitted by him upon which the impugned orders have been passed.
Page 7 of 8R/SCR.A/2548/2018 ORDER
13. Considering the facts and circumstances of the case, I am of the opinion that the present petition requires consideration and hence, the same is allowed. The impugned orders at Annexure
- "A" dated 27.11.2017 and 21.02.2018 are hereby quashed and set aside. However, the applicant shall abide by the conditions imposed upon her while releasing her on bail by the coordinate Bench of this Court vide order dated 11.7.2012 passed in Criminal Misc. Application No.7680 of 2012. Rule is made absolute to the above extent.
14. In view of disposal of Special Criminal Application No.2548 of 2018, Special Criminal Application No.2470 of 2018 which is filed by the original complainant with a prayer to restrain the learned Magistrate from deciding and pronouncing order on applications Exh.88, 90 and 91 and to direct the learned Magistrate to comply with the directions issued by this Court in the order dated 9.10.2017 passed in Special Criminal Application No.7365 of 2017, does not survive and it is accordingly dismissed.
(A.J.DESAI, J) SAVARIYA Page 8 of 8