Gujarat High Court
Khokhar Ismail @ Pintu Ibrahim vs State Of Gujarat on 1 July, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/8456/2020 IA ORDER DATED: 01/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR RECALL) NO. 1 of 2020
In R/CRIMINAL MISC.APPLICATION NO. 8456 of 2020
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ISMAIL @ PINTU IBRAHIM KHOKHAR THRO NILOFAR ISMAIL KHOKHAR Versus STATE OF GUJARAT ========================================================== Appearance:
ADITYA R GUNDECHA for the PETITIONER(s) No. SUMIT K PRAJAPATI for the PETITIONER(s) No. NOTICE SERVED for the RESPONDENT(s) No. MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR for the RESPONDENT(s) No. ========================================================== CORAM:HONOURABLE MS. JUSTICE GITA GOPI Date : 01/07/2021 IA ORDER
1. The petitioner has filed this application with the following prayers:
"8(1) To review and quash the order dated 26/06/2020 passed in Criminal Misc. Application No. 8456 of 2020 by (Coram: Hon'ble Justice Gita Gopi) and grant temporary bail;
(2) To direct to produce CCTV footage of 25/06/2020 between 10 to 2 before this Hon'ble Court and to transfer the investigation from Hashot Police Station to some other police station;
(3) To pass any other and further orders as may be deemed fit and proper to this Hon'ble Court."Page 1 of 6 Downloaded on : Fri Jul 02 22:18:52 IST 2021
R/CR.MA/8456/2020 IA ORDER DATED: 01/07/2021
2. Mr. Aditya R. Gundecha, learned advocate appearing on behalf of the applicant has submitted that the applicant is an under-trial prisoner for the offences punishable under Sections 143, 147, 148, 149, 452, 436, 427, 504 of the Indian Penal Code which is registered at Hanshot Police Station, Bharuch as C.R. No. I - 17 of 2017. It is stated that on 18.06.2017 the applicant came to be arrested and since then the applicant is in judicial custody at Bharuch.
2.1 Mr. Gundecha, learned advocate for the applicant submitted that three different applications being Criminal Misc. Application No. 8477 of 2020, Criminal Misc. Application No. 8464 of 2020 and Criminal Misc. Application No. 8456 of 2020 were moved by the applicant and except the impugned order which has been called for review, the other two applications were allowed vide order dated 24.06.2020 which were filed for temporary bail. He submitted that on the basis of the statements of the doctor and the wife of the applicant; the temporary bail was granted to the applicant. Mr. Gundecha stated that while the hearing of the impugned order the complainant's advocate had requested for further recording of the statement of the doctor, and thus, the matter was adjourned to 26.06.2020 and thereafter on 25.06.2020 the statement of the doctor was recorded by Hashot Police Station. It is alleged by the petitioner that on 25.06.2020 the doctor was accompanied by the complainant and the complainant's brother in his own car and under intimidation, threat and collusion with the police, the statement of the doctor was recorded which was contrary to his previous statement and that on subsequent statement of the doctor;
Page 2 of 6 Downloaded on : Fri Jul 02 22:18:52 IST 2021R/CR.MA/8456/2020 IA ORDER DATED: 01/07/2021 the temporary bail application was rejected.
2.2 Learned advocate for the applicant further submitted that CCTV footage of Hashot Police Station would reflect the fact that the subsequent statement of the doctor recorded by the police was under intimidation threat and collusion. He further stated that the applicant had never taken the medical certificate of Dr. Danial for employment purpose and the wife of the applicant cannot be in any employment because of religious belief.
2.3 Learned advocate for the applicant further submitted that three different complaints have been registered against the complainant before Hashot Police Station bearing C.R. No. I - 22 of 2009, C.R. No. 12 of 2011, C.R. No. I - 23 of 2011, C.R. No. I - 11 of 2012, C.R. No. I - 12 of 2013 and C.R. No. I - 3 of 2015.
2.4 Learned advocate for the applicant states that the petitioner does not pray for review of the whole order but prays for review of the observations made in para 8 and 9 of the impugned order which reads thus:
"8. It appears that investigation is required to be conducted against the applicant, Doctor and even against the wife of present applicant. Thus, Police Inspector, Hashot Police Station, Dist: Bharuch is hereby directed to file an FIR in relation to false document i.e. Sick Leave Certificate and False Medical Certificate produced on record.Page 3 of 6 Downloaded on : Fri Jul 02 22:18:52 IST 2021
R/CR.MA/8456/2020 IA ORDER DATED: 01/07/2021
9. In the result, there is no requirement of learned APP to produce the verification report of earlier two bail applications. It is also to be noted that such practices of producing false and fabricated documents in the Court records are to be deprecated. Registry to place a copy of this order in any other applications, henceforth moved by the present applicant."
3. Ms. Monali Bhatt, learned APP submitted that no ground has been raised for review of the petition and subsequent to the impugned order dated 26.06.2020; the FIR was registered on 12.07.2020. Learned APP submitted that the petitioner is making the prayer for review of the order, relying on the medical documents which are subsequent to the order passed by this Court and the medical papers produced by the applicant are dated 30.06.2020, 02.07.2020, 18.07.2020 and 22.07.2020. Learned APP submitted that such documents subsequent to the order cannot be relied upon to consider the application for review of the impugned order. Learned APP further submitted that there is no apparent error in the impugned order which calls for any review under Section 362 of Cr.P.C.
Learned APP has also pointed out the report filed by In- charge Police Inspector, Hanshot Police Station, District Bharuch, dated 17.6.2021. According to the report, the statement of Dr.Bhavesh Maganbhai Chaudhary, Government Hospital, Bharuch was recorded, who had examined Nilofar wife of applicant on 22.07.2020 and the said doctor had prescribed medicines for one month to the applicant's wife who had complained of back pain and leg pain. The doctor has referred Page 4 of 6 Downloaded on : Fri Jul 02 22:18:52 IST 2021 R/CR.MA/8456/2020 IA ORDER DATED: 01/07/2021 the case of the applicant's wife Nilofar for getting the treatment from Neurologist and Orthopaedic Surgeon at Vadodara. It has been stated in the report that the doctor does not know about whether the applicant's wife had taken treatment at Vadodara or not.
4. Criminal Misc. Application No. 8456 of 2020 was filed by the present petitioner - Khokhar Ismail @ Pintu Ibrahim for getting temporary bail. The petitioner had prayed for parity relying on the order dated 24.06.2020 passed in Criminal Misc. Application Nos. 8464 of 2020 and 8477 of 2020. During the course of hearing, it was found that the certificate issued by Dr. Danial, who is holding licence of practicing in Homeopathy had showed illness of applicant's wife for treatment of Hemiplegia (paralytic stroke) and therefore the Police Inspector, Hashot Police Station, District Bharuch, had recorded the statement of Dr. Danial on 25.06.2020, and thus, by giving the reasons the observations were made in para 8 and 9 and the application for temporary bail was rejected by this Court. The order of this Court if at all aggrieved, the petitioner has recourse to challenge it before the Hon'ble Apex Court. To err is human and judiciary being one of the institution created by human is prone to commit the error. Thus, in order to prevent miscarriage of justice which defeat the very purpose of judicial system and to prevent fallibility of the judicial system, Code of Criminal Procedure, 1973, has divided various provisions. Apart from the provision under Section 362 of the Code, the legislature has incorporated the concept of review under the Code of Criminal Procedure which is in the form of "Revision" which has been provided under the Code to uphold the ultimate goal of the entire judicial system. Sections 397 to 405 of the Page 5 of 6 Downloaded on : Fri Jul 02 22:18:52 IST 2021 R/CR.MA/8456/2020 IA ORDER DATED: 01/07/2021 Code include the provisions with respect to revisional jurisdiction granted to the Higher Courts and the procedure by which the Higher Courts exercise this jurisdiction granted to it. The powers granted to the High Court are very wide and discretionary in nature, and therefore, no party can claim it as a matter of right. The petitioner has proposed to invoke the revisional powers of this Court by praying for reviewing and quashing of the impugned order dated 26/06/2020 passed in Criminal Misc. Application No. 8456 of 2020. It is required to be noted that the revisional powers are to be exercised against the order of the inferior court to verify the correctness, legality and proprietory of the findings or the sentence recorded and also to correct the legality of the procedure of any inferior court. Thus to the order which has been impugned in this petition, the challenge could be given in the Apex Court. This Court has no jurisdiction to entertain this application; its stands rejected.
(GITA GOPI,J) A.M.A. SAIYED Page 6 of 6 Downloaded on : Fri Jul 02 22:18:52 IST 2021