Gujarat High Court
Kumari Ruzada Ashikali Gilani vs State Of Gujarat on 4 May, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
R/CR.MA/23833/2015 JUDGMENT DATED: 04/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23833 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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KUMARI RUZADA ASHIKALI GILANI
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR PS CHAMPANERI(214) for the Applicant(s) No. 1
MR TEJAS M BAROT(2964) for the Respondent(s) No. 3
MR.L.B.DABHI, APP or the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 04/05/2022
ORAL JUDGMENT
1. RULE. Learned advocates appear and waive service of notice on behalf of the respective respondents.
2. The present application has been filed, inter alia, seeking the following prayer.
"14. (B) THIS HON'BLE COURT BE PLEASED to present application by canceling the bail granted to respondent No.3 by way of order dated 15/07/2015 passed by Additional Sessions Judge and Special POSCO Judge, Ahmedabad (Rural), passed in Criminal Misc. Application No.1223 of 2015 in connection with C.R.No.I-38 of 2015 registered before Viramgam Town Police Station and further be pleased to quash and set aside order dated 28/10/2015 passed in Criminal Misc. Application No.1860 of 2015, passed by the Additional Sessions Judge and Special POSCO Judge, Ahmedabad (Rural), in the interests of justice."
3. Learned advocate Mr.Champaneri appearing for the applicant has submitted that the impugned order is required to Page 1 of 8 Downloaded on : Sat Dec 24 16:13:59 IST 2022 R/CR.MA/23833/2015 JUDGMENT DATED: 04/05/2022 be quashed and set aside, since it is passed ignoring the correct proposition of law. He has submitted that the respondent-accused was granted regular bail for the offences punishable under Sections 354A(1), 354D(1), 114 of the Indian Penal Code, 1860, (for short, 'the IPC'), and Sections 11(1) and 11(4) of the Prevention of Children from Sexual Offences Act, 2012 (for short, "POCSO Act"), however, thereafter the Investigating Officer filed a report dated 22.07.2015 for addition of Sections 376D(B) and 376D(C) of the IPC and Sections 3 and 4 of the POCSO Act. It is submitted that Additional Sessions Judge, Ahmedabad (Rural), vide order dated 22.07.2015 added the offence. It is submitted that thereafter, the State of Gujarat preferred an application under Section 439(2) of the Code of Criminal Procedure, 1973, for cancellation of bail granted to the respondent No.3-accused due to addition of serious offence. However, the said application has been rejected by the impugned order dated 28.10.2015 by Additional Sessions Judge and Special POCSO Judge, Ahmedabad (Rural), Ahmedabad.
3.1 Learned advocate Mr.Champaneri, has submitted that pursuant to the release of the respondent-accused on bail for the aforesaid offence punishable under Sections 354A(1), 354D(1) and 114 of the IPC and Sections 11(1) and 11(4) of the POCSO Act, subsequently, serious charges of Section 376 of the IPC came to be added, hence the trial court should not have rejected the application for cancellation of bail filed by the State Government only for the reason that earlier bail application filed by the respondent-accused was passed after the statement of the prosecutrix was recorded. It is submitted that after the addition of the serious offences under Section Page 2 of 8 Downloaded on : Sat Dec 24 16:13:59 IST 2022 R/CR.MA/23833/2015 JUDGMENT DATED: 04/05/2022 376 of the IPC, the trial court either could have cancelled the bail application or the accused should have been arrested, however, nothing was done and hence, the applicant was constrained to file the present application, challenging the impugned order. Thus, he has submitted that the impugned order may be quashed and set aside and the matter may be remanded back.
4. Learned advocate Mr.Tejas Barot, appearing for the respondent No.3 - accused has submitted that the impugned order does not require any interference, since the same is precisely passed. He has submitted that the incident had occurred on 06.07.2015 and the FIR has been registered on 07.07.2015 at 1:15 p.m. and, therefore, there is delay in registering the FIR. It is submitted by him that there are various disputes going-on between the respondent-accused and the family members of the complainant and in order to harass the respondent-accused, the FIR has been registered. It is submitted by him that the addition of the offence under Section 376 of the IPC will not alter the position in any manner and the bail granted to the respondent-accused under the provisions of Section 439 of the Cr.P.C., does not require interference. It is submitted that the FIR does contain any allegation with regard to the offence under Sections 376D(B) and 376D(C) of the IPC. It is thus, submitted that the impugned order may not be interfered with. In support of his submissions, he has placed reliance on the judgment of the Apex Court in the case of Pradeep Ram Vs. State of Jharkhand and another, (2019) 17 SCC 326. Finally, it is submitted that the State did not prefer any application challenging the aforesaid order and hence, the impugned order may not be disturbed.
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5. I have heard the learned advocates for respective parties to the lis. I have also perused the relevant documents.
6. The facts has narrated hereinabove with regard to the addition of charges by the Investigating Officer vide his report dated 22.07.2015 is not in dispute. The statement of the prosecutrix was recorded under the provisions of Section 164 of the Cr.P.C.
7. Learned Additional Public Prosecutor has tendered the statement of the prosecutrix. The same is ordered to be taken on record. This Court has also perused such statement .
8. The only issue which requires consideration is whether in view of the addition of charges under Section 376 of the IPC, the regular bail, which was granted to the respondent-accused for the offence punishable under Sections 354A(1), 354D(1) and 114 of the IPC and Sections 11(1) and 11(4) of the POCSO Act, is required to be cancelled or not. The respondent-accused was released on bail by the order dated 15.07.2015 passed in Criminal Misc. Application No.1223 of 2015. The statement of the prosecutrix under Section 164 was recorded on 16.07.2015. It is not in dispute that there was an addition of charge under the offence punishable under Section 376 of the IPC and on addition of such charges, the State preferred an application being Criminal Misc. Application No.1860 of 2015 for cancellation of bail of the respondent-accused. By the impugned order dated 28.10.2015, such application was rejected by the Additional Sessions Judge, Special POCSO Judge, Ahmedabad (Rural), Ahmedabad. On perusal of the order, it reveals that the Sessions Judge, has very cursorily Page 4 of 8 Downloaded on : Sat Dec 24 16:13:59 IST 2022 R/CR.MA/23833/2015 JUDGMENT DATED: 04/05/2022 rejected the application filed by the State for cancellation of the bail, by only assigning one reason that the earlier bail application was granted considering the statement of the prosecutrix. It is also recorded that since the respondent- accused has not violated any condition mentioned in the order granting bail the same cannot be disturbed.
9. In light of the aforenoted facts, it would be apposite to incorporate the observations made by the Apex Court in the case of Pradeep Ram (supra). The Apex Court has, while examining the para-material issue, observed thus:-
"29. Relying on the above said order, learned counsel for the appellant submits that respondent State ought to get first the order dated 10.03.2016 granting bail to appellant cancelled before seeking custody of the appellant. It may be true that by mere addition of an offence in a criminal case, in which accused is bailed out, investigating authorities itself may not proceed to arrest the accused and need to obtain an order from the Court, which has released the accused on the bail. It is also open for the accused, who is already on bail and with regard to whom serious offences have been added to apply for bail in respect of new offences added and the Court after applying the mind may either refuse the bail or grant the bail with regard to new offences. In a case, bail application of the accused for newly added offences is rejected, the accused can very well be arrested. In all cases, where accused is bailed out under orders of the Court and new offences are added including offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences. The power under Sections 437(5) and 439(2) are wide powers granted to the court by the Legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to earlier offences. Sections 437(5) and 439(2) cannot be read into restricted manner that order for arresting the accused and commit him to custody can only be passed by the Court after cancelling the earlier bail.
30. Coming back to the present case, the appellant was already into jail custody with regard to another case and the investigating agency applied before Special Judge, NIA Court to grant production warrant to produce the accused before the Court. The Special Judge having accepted the prayer of grant of production warrant, the accused was produced before the Court on 26.06.2018 and remanded to custody. Thus, in the present case, production of the accused was with the permission of the Court. Thus, the present is not a case where investigating agency itself has taken into custody the appellant after addition of new offences rather accused was Page 5 of 8 Downloaded on : Sat Dec 24 16:13:59 IST 2022 R/CR.MA/23833/2015 JUDGMENT DATED: 04/05/2022 produced in the Court in pursuance of production warrant obtained from the Court by the investigating agency. We, thus do not find any error in the procedure which was adopted by the Special Judge, NIA Court with regard to production of appellant before the Court. In the facts of the present case, it was not necessary for the Special Judge to pass an order cancelling the bail dated 10.03.2016 granted to the appellant before permitting the accused appellant to be produced before it or remanding him to the judicial custody.
31. In view of the foregoing discussions, we arrive at following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:-
31.1 The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested.
31.2 The investigating agency can seek order from the court under Section 437(5) or 439(2) of Cr.P.C. for arrest of the accused and his custody.
31.3 The Court, in exercise of power under Section 437(5) or 439(2) of Cr.P.C., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail.
The Court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail.
31.4 In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail."
10. The Supreme Court in a similar issue has, thus enunciated that the accused can surrender and apply for bail for newly added cognizable and non-bailable offences after such offence has been subsequently added and in the event of refusal of bail, the accused can certainly be arrested. It is further held that the investigating agency can seek order from the court under Section 437(5) or 439(2) of the Cr.P.C., for arrest of the accused. It is also held that the Court, in exercise Page 6 of 8 Downloaded on : Sat Dec 24 16:13:59 IST 2022 R/CR.MA/23833/2015 JUDGMENT DATED: 04/05/2022 of power under Section 437(5) or 439(2) of the Cr.P.C., can direct the person, who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences, which may not be necessary always with order of cancelling of earlier bail and finally, it is held that, in a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it needs to obtain an order to arrest the accused from the Court which had granted the bail.
11. In the present case, it was open for the State to follow the dictum of the Apex Court, as narrated hereinabove to obtain an order for arresting the accused from the same court, which has granted the bail. However, the State authorities had filed an application for cancellation of the bail for the offences, for which, the respondent-accused was already granted regular bail. It is surprising to note that the State did not challenge the impugned order and the complainant was constrained to file the present application. Non-challenge of such order by the State cannot dilute the remedy of the complainant in questioning the impugned order. Thus, the impugned order suffers from illegality and perversity and hence, the same is required to be quashed and set aside.
12. Thus, looking to the facts and circumstances of the case, this Court, at this stage, is not inclined to cancel the bail of the respondent No.3, who has been granted the same under Section 439 of the Cr.P.C., for the offences punishable under Page 7 of 8 Downloaded on : Sat Dec 24 16:13:59 IST 2022 R/CR.MA/23833/2015 JUDGMENT DATED: 04/05/2022 Sections 354A(1), 354D(1), 114 of the Indian Penal Code, 1860, and Sections 11(1) and 11(4) of the Prevention of Children from Sexual Offences Act, 2012.
13. However, at the same time the respondent-accused cannot be allowed to get benefit of the impugned order dated 28.10.2015. Hence, the present application is allowed in part. The impugned order dated 28.10.2015 passed by the Additional Sessions Judge and special POCSO Judge, Ahmedabad (Rural), Ahmedabad, in Criminal Misc. Application No.1860 of 2015 is hereby quashed and set aside. The matter is remanded back to the concerned trial court for deciding the application filed by the State afresh. It will also be open for the State to file appropriate application seeking arrest of the respondent accused for the offence of Section 376 of the IPC. It is clarified that this Court has not opined anything on merits since the same would come in the way of the either of the parties. It will also be open for the respondent No.3-accused to file appropriate proceedings under the law. Rule is made absolute to the aforesaid extent.
Sd/- .
(A. S. SUPEHIA, J)
MAHESH BHATI/PC/07
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