Gujarat High Court
Asha Dharamnarayan Sharma vs State Of Gujarat & on 12 February, 2016
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/20335/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
20335 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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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 or any order
made thereunder ?
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ASHA DHARAMNARAYAN SHARMA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR MAUNISH T PATHAK, ADVOCATE for the Applicant(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 1
RC JANI & ASSOCIATE, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 12/02/2016
ORAL JUDGMENT
1. This application is filed under Section 439(2) of Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code' for short), wherein the applicant - original complainant has prayed that order dated 12.10.2015 passed by learned Additional Sessions Judge, Ahmedabad (Rural) in Criminal Misc. Application No.1273 Page 1 of 8 HC-NIC Page 1 of 8 Created On Tue Feb 16 02:35:01 IST 2016 R/CR.MA/20335/2015 JUDGMENT of 2015 be quashed and set aside and thereby the bail granted to the respondent No.2 be cancelled.
2. Heard learned advocate Mr. Maunish T. Pathak for the applicant - original complainant, learned APP Mr. L.B.Dabhi for respondent No.1 - State of Gujarat and learned advocate Mr. R.C.Jani for respondent no. 2 - accused.
3. Learned advocate for the applicant submitted that FIR being C.R.No.I-83/2015 came to be registered with Vastrapur Police Station, Ahmedabad, against the respondent no.2 - accused, for the offence punishable under Sections 376, 328 and 506(1) of IPC. The respondent - accused was arrested in connection with the said offence. Thereafter, he preferred an application being Criminal Misc. Application No.10092 of 2015 for releasing him on regular bail in connection with the aforesaid FIR before this Court. This Court by an order dated 27.05.2015 allowed the said application and thereby released the respondent - accused on bail on certain terms and conditions. The said order is produced on page 47 with the compilation.
4. It is submitted by learned advocate for the applicant that thereafter the respondent - accused has violated some of the conditions imposed by this Court while releasing the respondent - accused on bail. Learned advocate further submitted that as per condition No.(d) Page 2 of 8 HC-NIC Page 2 of 8 Created On Tue Feb 16 02:35:01 IST 2016 R/CR.MA/20335/2015 JUDGMENT the accused is required to take permission of the Court when he wants to leave the territory of State of Gujarat. Despite the said condition imposed by this Court, respondent - accused has visited the village of the applicant at District Pratapgarh, Rajasthan on 17.06.2015 by staying in the hotel "Sohan Palace." It is further alleged that by staying at the said hotel the accused had tried to meet the family members of the applicant for giving advise to the applicant to compromise in the FIR lodged by the applicant against the respondent - accused. Thus, the respondent - accused has also violated condition Nos.(a) and
(b) imposed by this Court while releasing the respondent - accused on bail.
5. In support of the said contention, learned advocate has referred to the documents annexed with this application and more particularly the affidavit dated 28.08.2015 filed by one Mukesh Rajkumar Khiyani, friend of the respondent - accused.
6. It is further submitted that when the respondent - accused has committed the breach of the conditions imposed by this Court while releasing him on bail, the applicant initially filed an application under Section 439(2) of the Code before the learned Sessions Court for cancellation of the bail granted to the respondent - accused by this Court. However, learned Sessions Court dismissed the said Page 3 of 8 HC-NIC Page 3 of 8 Created On Tue Feb 16 02:35:01 IST 2016 R/CR.MA/20335/2015 JUDGMENT application and therefore the present application is filed before this Court. In the aforesaid facts of the case, learned advocate Mr. Pathak submitted that when the respondent - accused has violated the condition, this Court may cancel the bail by quashing and setting aside the order passed by the Sessions Court.
7. On the other hand, learned advocate Mr. R.C.Jani appearing for the respondent - accused referred to the affidavit filed by the accused and submitted that present application is filed by the applicant with a view to extort money from the respondent - accused. The version given by the applicant does not inspire any confidence. The FIR came to be filed against the respondent - accused and thereafter the applicant - complainant and her associates have tried to contact the respondent - accused for the purpose of settlement and thereby demanded the money from him. Learned advocate has referred to the transcript of the call records in support of the said contention, which is annexed at Annexure-R3 with the affidavit. Learned advocate Mr. Jani thereafter submitted that the affidavit filed by Mukesh Rajkumar Khiyani on 28.08.2015 cannot be relied upon in view of the fact that the wife of the respondent - accused has filed FIR being C.R.No.I-73 of 2015 on 28.06.2015 before Adalaj Police Station, Gandhinagar against said Mukesh Khiyani for the offence punishable under Sections 323, 354, 427, 454 and 504 of IPC. The wife of Page 4 of 8 HC-NIC Page 4 of 8 Created On Tue Feb 16 02:35:01 IST 2016 R/CR.MA/20335/2015 JUDGMENT the respondent - accused has also given complaint on 10.07.2015 before the Collector against Mukesh Khiyani. Thereafter, learned advocate Mr. Jani has referred to the order dated 23.07.2015 passed by this Court in Criminal Misc. Application No.13558 of 2015, which is annexed at page 102 of the compilation, whereby this Court has modified condition No.(g), imposed by this Court vide order dated 27.05.2015 passed in Criminal Misc. Application No.10092 of 2015 while releasing the respondent - accused on bail, after hearing the advocate appearing for the present applicant. He, therefore, submitted that this application is filed with mala fide intention and therefore when the respondent - accused has not violated any of the conditions imposed by this Court as discussed in the order passed by the learned Sessions Court, present application be dismissed.
8. Learned APP Mr. Dabhi has supported the case of the applicant - complainant.
9. I have considered the submissions advanced on behalf of the learned advocates appearing for the parties. I have also gone through the material produced on record. The respondent - accused was released by this Court by an order dated 27.05.2015 in Criminal Misc. Application No.10092 of 2015 on certain terms and conditions. Thereafter the respondent - accused preferred Criminal Misc. Application No.13558 of 2015 for modification/deletion of condition No.(g) imposed Page 5 of 8 HC-NIC Page 5 of 8 Created On Tue Feb 16 02:35:01 IST 2016 R/CR.MA/20335/2015 JUDGMENT vide order dated 27.05.2015, wherein this Court has passed an order on 23.07.2015, whereby condition No.(g) imposed vide order dated 27.05.2015, was modified. The said order was passed after hearing the learned advocate of the present applicant. Though the said order was passed in July 2015, the applicant has not produced the said order along with this application. This application is filed on 23.10.2015. Prima facie it appears that the applicant has intentionally not produced this order with her application because during the course of hearing of the said application also learned advocate appearing for the present applicant submitted that the accused has violated one of the conditions imposed by this Court. This Court in the said order recorded the submission of learned advocate appearing for the present applicant in para 5 as under:
"5. On the other hand, learned advocate Mr. Bharat Bhavsar appearing for the original complainant submitted that after the applicant is released on bail, he has violated one of the conditions as he has gone to Pratapgarh, Rajasthan and stayed at Hotel Sohan Palace without prior permission of the concerned court, and thereby, he has violated condition No.(d) of the aforesaid order. The original complainant has, therefore, given complaints to the Commissioner of Police, Ahmedabad City, on 9.7.2015 and 16.7.2015, whereby, a request was made to him to take appropriate action against the accused.
The complainant has also filed an
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HC-NIC Page 6 of 8 Created On Tue Feb 16 02:35:01 IST 2016
R/CR.MA/20335/2015 JUDGMENT
application for cancellation of bail
before the learned Sessions Court,
Ahmedabad (Rural). He, therefore,
requested that this application be
dismissed."
10. Thus, this Court while modifying the
condition, considered the submission advanced by the learned advocate appearing for the present applicant that the respondent - accused has violated one of the conditions.
11. It is also revealed from the record that the reliance cannot be placed on the affidavit filed by Mukesh Khiyani, which was filed on 28.08.2015 because prior to filing of the said affidavit by Mr. Mukesh Khiyani, wife of the respondent - accused has registered the FIR in June 2015 against the said person and in July 2015 she has also given a complaint to the Collector against the said person. Therefore, obviously, the said person can file an affidavit against the respondent - accused with some mala fide intention. So far as the other averments with regard to respondent - accused's stay in the hotel "Sohan Palace" at District Pratapgarh, Rajasthan is concerned, the learned Sessions Court after verifying the record discussed in detail in the impugned order about the said aspect and thereafter not believed the story put forward by the applicant - complainant.
12. In view of the aforesaid facts and circumstances of the case, once the discretion is Page 7 of 8 HC-NIC Page 7 of 8 Created On Tue Feb 16 02:35:01 IST 2016 R/CR.MA/20335/2015 JUDGMENT exercised by this Court while releasing the applicant on bail, liberty of the respondent - accused cannot be taken away and interference with the order of granting bail is very harsh order and in absence of cogent and relevant material, it is not proper for this Court to exercise the powers under Section 439(2) of the Code by cancelling the bail granted in favour of the respondent - accused. I am also in complete agreement with the reasoning given by the learned Sessions Court while dismissing the application filed by the applicant - original complainant.
13. In view of the aforesaid discussion, no case is made out for interference with the order passed by the learned Sessions Court nor any case is made out for exercise of the powers under Section 439(2) of the Code by this Court. Accordingly, this application is dismissed. Rule is discharged.
(VIPUL M. PANCHOLI, J.) Jani Page 8 of 8 HC-NIC Page 8 of 8 Created On Tue Feb 16 02:35:01 IST 2016