Gujarat High Court
State Of Gujarat vs Bhagubhai Mansangbhai Chaudhary on 27 January, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/3506/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
3506 of 2013
With
CRIMINAL MISC.APPLICATION NO. 4153 of 2013
In
CRIMINAL MISC.APPLICATION NO. 3506 of 2013
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STATE OF GUJARAT....Applicant(s)
Versus
BHAGUBHAI MANSANGBHAI CHAUDHARY....Respondent(s)
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Appearance:
MR KP RAVAL, APP for the Applicant(s) No. 1
MR PM LAKHANI, ADVOCATE for the Respondent(s) No. 1
MR. RB CHAUDHARY, ADVOCATE for the Respondent(s) No. 1
MRS R P LAKHANI, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 27/01/2015
COMMON ORAL ORDER
1. Since the issues involved in both the applications are the same, those were heard together and are being disposed of by this common order. Both the captioned applications are for cancellation of bail; one is filed by the State of Gujarat being Criminal Misc. Application No.3506 of 2013 and the other filed by the original first informant being Criminal Misc. Application No.4153 of 2013.
2. The respondent original accused is a practicing doctor. He was arrested in connection with C.R. No.II406 of 2012 registered with the Visnagar Police Station, District Mehsana of the offence punishable Page 1 of 4 R/CR.MA/3506/2013 ORDER under Sections3(a), 5, 6, 4, 22, 23, 25 and 29 of the Preconception and Prenatal Diagnostic Techniques (PNDT) Act and under Sections313, 315 and 114 of the Indian Penal Code.
3. It appears that after the arrest, the accused filed Criminal Misc. Application No.161 of 2012 for bail in the Court of learned Additional Sessions Judge, Visnagar, Mahesana. The learned Additional Sessions Judge vide order dated 14.12.2012 allowed the application and ordered the release of the accused on bail subject to certain terms and conditions. The learned Additional Sessions Judge took into consideration the following aspects:
(i) The maximum punishment provided so far as the offence under the PNDT Act is concerned, is upto 05 years.
(ii) Whereas, so far as the offence under Sections313 and 315 of the IPC is concerned the punishment is upto 10 years or life.
(iii) The learned Additional Sessions Judge also took into consideration the Provision of Section28 of the Act which provides that no Court shall take cognizance of an offence under the Act, 1994 on a complaint made by the appropriate authority concerned or any officer authorized in that behalf of the Central Government or State Government.
(iv) The learned Additional Sessions Judge took into consideration the fact that the cognizance was taken on a police report i.e. on the chargesheet filed by the Investigating Officer.
(v) The accused is aged 63 years. Many procedural aspects were not strictly complied with at the time of the investigation of the offence.
Page 2 of 4R/CR.MA/3506/2013 ORDER
4. I have heard Mr. K.P. Raval, the learned APP for the State and Mr. Bhadrish Raju, the learned advocate appearing on behalf of the original first informant. They vehemently submitted that having regard to the serious nature of the crime, the discretion ought not to have been exercised in favour of the accused.
5. On the other hand, these applications have been opposed by Mr. P.M. Lakhani, the learned advocate appearing on behalf of the accused. He submitted that the discretion was exercised in favour of the accused after taking into consideration all the relevant aspects of the matter and appropriate conditions have also been imposed with a view to protect the interest of the prosecution.
6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the order of bail passed by the learned Additional Sessions Judge deserves to be cancelled.
7. I do not intend to enter into merits of the submission as regards noncompliance of the provisions of Section28 of the Act, since I am told that an application under Section482 of the Code is pending for consideration before the coordinate Bench.
8. In my view, it could not be said that the discretion was exercised in a arbitrary manner or contrary to the law. The accused is aged 63 years. He is on bail almost past more than two years. There is no further complaint of misuse of any liberty. Although a strenuous effort has been made to convince to me that the order of bail on merit is not in accordance with law, yet, it is difficult for me to uphold such contentions. It also appears that all the sonography machines were Page 3 of 4 R/CR.MA/3506/2013 ORDER seized at the relevant point of time and they remain to be in custody of the investigating officer.
9. Taking into consideration the aspects noted above, I am of the view that no useful purpose would served at this stage by cancelling the bail. However, taking into consideration the overall facts and circumstances of the case, the trial Court is directed to see that the charge is framed immediately and the Criminal Case No.1511 of 2013 is disposed of finally within a period of six months from today. If necessary, the recording of the evidence should be on daytoday basis as directed by the Supreme Court in the case of 'Akil @ Javed Vs. State of NCT, Delhi' reported in 2013 (7) SCC 127.
10. With the above, both these applications failed and are hereby rejected.
(J.B.PARDIWALA, J.) aruna Page 4 of 4