Gujarat High Court
Chandravadan Manubhai Patel vs Mukeshbhai Motibhai Patel
Author: N.V.Anjaria
Bench: N.V.Anjaria
CHANDRAVADAN MANUBHAI PATEL....Applicant(s)V/SMUKESHBHAI MOTIBHAI PATEL R/CR.MA/14636/2012 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
14636 of 2012 In CRIMINAL MISC.APPLICATION NO. 8355 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA ================================================================ 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 ?
CHANDRAVADAN MANUBHAI PATEL....Applicant(s) Versus MUKESHBHAI MOTIBHAI PATEL & 1....Respondent(s) ================================================================ Appearance:
MUKESH N UPADHAYAY, ADVOCATE for the Applicant(s) No. 1 MR DILIP B RANA, ADVOCATE for the Respondent(s) No. 1 MS. MAITHILI MEHTA, APP for the Respondent(s) No. 2 CORAM:
HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 28 / 03 / 2013 CAV JUDGEMNT The applicant herein alleging that the respondent-accused violated condition No.(g) above, moved the above captioned application for cancellation of bail granted to respondent No.1 herein. Respondent No.1 was original accused No.8 against whom complaint being Crime Register No. I-36/2012 was registered with Shinor Police Station, District Vadodara in respect of the offences punishable under sections 143, 147, 148, 149, 323, 332, 337, 353, 427, 436, 506 (2) of Indian Penal Code, 1860, as well as for the offences under sections 3 and 7 of the Damage to Public Properties Act.
2. The applicant was arrested pursuant to the said complaint and thereafter was released on regular bail by order dated 20th June, 2012 passed by this High Court in Criminal Misc. Application No. 8355 of 2012, on the conditions mentioned in the order. The conditions imposed in the order of bail were : (a) not take undue advantage of liberty or misuse liberty; (b) not act in a manner injurious to the interest of the prosecution; (c) surrender passport, if any, to the lower court within a week; (d) not leave India without prior permission of the Sessions Judge concerned; (e)mark presence at the concerned police station on the first Sunday of every month between 10.00 am and 3.00 pm for three months only; (f) furnish the present address of residence to the I.O. and also to the Curt at the time of execution of the bond and shall not change the residence without prior permission of this court; (g) not enter village Sandhali, Taluka Sinor, District Baroda till the filing of the charge-sheet. As seen above, under one of the conditions for bail being condition No. (g) the respondent was not supposed to enter the limits of village Sandhali till filing of the charge-sheet.
3. It is the applicant s case for cancellation of bail of the respondent that in violation of the condition No.(g), he entered village Sandhali and cast his vote at the election to the Administrative Committee of Vadodara District Milk Producers Co-operative Union, Sandhali held on 29.09.2001. Respondent contested the said election and returned as successful candidate.
4. Learned advocate for the applicant Mr. Mukesh Upadhyaya, submitted that the bail granted to the respondent-accused was liable to be cancelled as the accused committed breach of condition No.(g) by entering village Sandhali. It was further in committing breach of condition No.(a) as well as condition No.(b). The condition No. (a) provided that he shall not take undue advantage of the liberty granted to him, whereas Condition No. (b) prohibited him from acting in a manner injurious to the interests of the prosecution. Learned advocate submitted that the conduct of the accused may be viewed strictly and the bail granted to him may be cancelled under section 439(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ) 4.1 Opposing the application, learned Senior counsel Mr. B.B.Naik assisted by learned advocate Mr. Dilip Rana for Respondent No. 1 raised a preliminary objection contending that the applicant is a third party and has no locus standi to move the present application. It was submitted that he was not original complainant who could have moved the Court with such prayer. He being a total stranger cannot pray for cancellation of bail. It was further submitted that applicant was a candidate in the election to the Administrative Committee of Vadodara District Milk Producers Co-operative Union, but since he was defeated he has filed the present application. Learned Sr. Counsel relied on decision R. Rathinam vs. State and Anr. (AIR 2000 SC 1851) as well as of this High Court in Abdul Sattarbhai Mohmed Hussain Shaikh vs. State of Gujarat & Ors. [2004 (3) GLH 366], to contend that only the complainant could file an application for cancellation of bail.
4.2 At the same time, respondent No.1 contested the prayer by filing affidavit in reply, wherein it was contended that as the applicant also contested the election and since he lost the same and the respondent No.2 was elected, the present application was filed revengefully. It was further contended that the polling booth for casting the votes was at Agricultural Produce Market Committee s office at Sandhali, where he had gone to cast the vote only without any other intention and after casting of vote was over. he left the place immediately. It was submitted that no untoward incident took place.
4.3 Learned senior advocate for the respondent-accused raised another aspect of the matter. He submitted that the conditions imposed in the order of granting bail, including the condition of which breach has been alleged, were to endure till filing of the charge-sheet. He submitted that the charge-sheet has now already been filed, therefore the present application cannot be said to be surviving as the conditions themselves have seized to operate after filing of the charge-sheet. It may be noted that this aspect is placed on record by filing additional affidavit dated 4th January, 2013. The relevant part therefrom is extracted hereunder.
1. It is submitted that during the pendency of the present application before this Hon ble Court, the investigation is completed by the agency and charge-sheet is also filed on 08.12.2012. A copy of the charge-sheet filed by the investigation agency on 08.12.2012 is annexed herewith and marked as Annexure-A to this affidavit.
2. It is submitted that the Hon ble Court granted bail to the respondent vide order dated 20.06.2012 on various conditions and condition No.(g) pertains to not to enter village : Sandhali, Taluka : Sinor, District : Baroda till the filing of the charge-sheet . It is submitted that the charge-sheet is already filed, now the said condition is no more survives and has become infructuous and no relief as prayed for can be granted in the application when the said condition is no more exist.
4.4 As regards the preliminary contention raised on the maintainability of the application at the instance of the present applicant, learned advocate for the applicant submitted that application under section 439(2) of the Code was maintainable at the instance of the present applicant. He relied on the decision in Sant Ram vs. Kalicharan [1997 Cr.L.J. 486 (Delhi)]. In that decision, the Court treated application under section 439(2) which was filed by private party, to be maintainable. Another decision in Ranjit Singh vs. Nand Lal [1975 Cr.L.J. 1416 (P&H)] was also relied on for similar preposition. Learned advocate further relied on a decision of this High Court in Chandulal Harilal Lodhiya vs. State of Gujarat & Anrs. [1993 (1) GLH 520] seeking to bring his point home that the application under section 439(2) for cancellation of bail was maintainable even at the instance of the private party.
5. It may be noted at this stage that in course of the proceedings of the present application, the Court had required the learned Additional Public Prosecutor Ms. Maithili Mehta to call for the report from the concerned police authority on the issue of breach of condition of bail. The Police Sub-Inspector, Shinor Police station, accordingly sent report dated 18.02.2013 to the learned APP alongwith forwarding letter dated 20.02.2013. Copy of the said report was produced by learned APP before the Court.
5.1 Learned Additional Public Prosecutor submitted that the issue was required to be looked at from two angles. She submitted that respondent-accused did cast vote in the election to the Milk Producers Co-Operative Union at the village Sandhali, and the election went off peacefully, and there was no untoward incident reported. She at the same time, submitted that it could not be denied that there was a breach of condition of bail, because the accused had entered village Sandhali for casting his vote and violated condition No.(g) by entering into the village Sandhali.
5.2 No untoward incident took place when the accused entered the village and cast his vote. The report of the police authority also mentions the said aspect. Nor there are any allegation or suggestions that by entering the village Sandhali, the accused attempted to influence any witness or did anything obstructive in course of investigation. Be as it may. The contention is that by entering the village, the condition of the bail was breached.
6. Proceeding to consider the preliminary contention at the out set, in the memorandum of the application, the present applicant has not stated anything about his capacity. It is the contention of the other side, as noted above, that the applicant is a busybody who could not have filed this application for cancellation of the bail of the accused. The facts on record go to show that the present applicant was one of the candidates in fray in the election in question, wherein the respondent-accused was also a candidate and contested the election and cast his vote. The applicant lost the election whereas accused was the returned candidate. The allegation of breach of condition is with reference to the factum that the accused had gone to cast the vote in village Sandhali where he was prohibited from entering. What is sought to be contended by the other side in substance is that the applicant who lost the election has now filed the application seeking cancellation of the bail of the accused and thereby he is grinding his own axe.
6.1 In R. Rathinam (supra), the facts before the Supreme Court were that application for cancellation of bail was moved by 75 advocates practicing in various Courts in the state of Tamilnadu praying for cancellation of bail granted to certain persons pursuant to the incident of carnage which took place in a village wherein 6 persons belonging to Scheduled Caste were slaughtered. The police had arrested 34 persons in connection with the said massacre. As the accused persons were released on bail, the advocates presented petition seeking cancellation of bail of the accused who are freed of bail. While in the facts of that case, the supreme court held that the petition could not have been refused to be entertained on the ground that it was not maintainable and the advocates had nothing to do with the case. However, the following observation deserves to be considered.
The frame of the sub-section indicates that it is a power conferred on the said Courts. Exercise of that power is not banned on the premise that bail was earlier granted by the High Court on judicial consideration. In fact, the power can be exercised only in respect of a person who was released on bail by an order already passed. There is nothing to indicate that the said power can be exercised only if the State or investigation agency or even a public prosecutor moves for it by a petition. (para 7) It is not disputed before us that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. Nor is it disputed that the said power can be exercised suo motu by the High Court. If so, any members of the public, whether he belongs to any particular profession or otherwise, who has a concern in the matter can move the High Court to remind it of the need to invoke the said power suo motu. There is no barrier either Section 439 of the Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. If the High Court considers that there is no need to cancel the bail for the reasons stated in such petition, after making such considerations, it is open for the High Court to cancel the bail if the High Court feels that the reasons stated in the petition are sufficient enough for doing so. It is, therefore, improper to refuse to look into the matter on the premise that such petition is not maintainable in law. (para-8)
7. Having carefully gone through the facts of the case and having considered the submissions of the learned counsel appearing for the parties, it is not in dispute that the only act of violation of the condition of bail on the part of the accused was that he came to the village Sandhali for the purpose of casting of vote. He wanted to exercise his franchise and for that purpose entered the village. The applicant herein was a rival candidate who lost in the election. As such, he can not be said to have any concern in the subject matter namely the bail granted to the accused and the conditions imposed therein. The contention of learned senior counsel has considerable substance that the applicant was not only a third party, but he was foreign to the subject matter. He could not have derived locus to seek cancellation of bail. In the facts and circumstances of the case, the applicant can be said to be a person who has no concern in the matter .
8. Accordingly, the present petition is liable to be dismissed on the aforesaid preliminary ground and the same is dismissed on that ground. It goes without saying that while the present applicant had no locus standi to seek cancellation of bail, it is observed that prosecution, if deems proper in the facts and circumstances of the case, is at liberty to move the Court for cancellation of bail of the respondent to be considered in accordance with law and on its own merits.
9. This application stands dismissed accordingly. Notice stands discharged.
(N.V.ANJARIA, J.) cmjoshi Page 9 of 9