Gujarat High Court
Balvantsinh Nathusinh Admar vs State Of on 1 February, 2013
Author: Sonia Gokani
Bench: Sonia Gokani
BALVANTSINH NATHUSINH ADMAR....Applicant(s)V/SSTATE OF GUJARAT....Respondent(s) R/CR.MA/1718/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION NO. 1718 of 2013 ================================================================ BALVANTSINH NATHUSINH ADMAR....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ================================================================ Appearance: MR BC DAVE, ADVOCATE for the Applicant(s) No. 1 MR KUNAL B DAVE, ADVOCATE for the Applicant(s) No. 1 MS MAITHILI MEHTA, APP for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 01/02/2013 ORAL ORDER
This application has been filed under Section 438 of the Code of Criminal Procedure, for grant of anticipatory bail in connection with F.I.R. being C.R.No. I-49 of 2012, registered with Mangrol Police Station, for offences punishable under Sections 464, 467, 468, 471 and 120(B) of the Indian Penal Code.
This is successive anticipatory bail application preferred by the present applicant who, earlier preferred Criminal Misc. Application No. 13659 of 2012 seeking anticipatory in connection with the very offences. Such application came to be withdrawn on 04.10.2012. This application has been preferred on change of circumstances that the two other co-accused i.e. Secretary and Accountant of the Co-operative Society have been enlarged on regular bail by the Co-ordinate Bench recently.
Learned advocate, Mr. Dave has made submissions for and on behalf the applicant. He has also relied upon the decision in case of Ravindra Saxena Vs. State of Rajasthan reported in 2010 (1) GLH page 382 to advance his submissions that the anticipatory bail can be granted at any time so long the applicant has not been arrested.
He urged the Court that since the entire amount has been paid back to the milk society, no cause survives of complainant and this should be treated as change of circumstances to avail discretion to the petitioner herein. He also has sought parity with the other co-accused, who have been enlarged on regular bail.
Learned APP has objected the same on the ground that the very allegations, which have been levelled in the complaint, would not entitle the present petitioner to be enlarged on anticipatory bail. She also further pointed out that payment of the amount would not ipso facto take away the seriousness of allegation qua the present applicant.
On thus hearing both the sides and on considering material on record, this application is not being entertained.
This Court has taken a note of the decision of Apex Court rendered in Ravindra Saxena Vs. State of Rajasthan (supra).
It is not in dispute that the anticipatory bail can be preferred successively. In the matter before the Apex Court, anticipatory bail was granted as the charge-sheet was filed for the third time and the Court held that as the accused was not arrested and this was a case pertaining to cheating or forgery of a valuable security, there could be no ground to deny him the anticipatory bail only on the ground that the challan had been presented qua the other accused.
In the instant case, the petitioner is urging to grant the anticipatory bail on two grounds. One, that he has paid the amount which is alleged to have been misappropriated being the sum of Rs. 7 lacs and secondly, because two of the other accused have been granted regular bail by the Co-ordinate Bench.
Considering the allegations levelled in the complaint, who was the President of the said society and keeping in mind the nature of evidence that has been collected during the course of investigation against the present applicant, this Court is of the firm opinion that discretion under Section 438 of the Code of Criminal Procedure cannot be exercised in favour of the present applicant.
It would be profitable to reproduce the relevant paragraph as reported in the case of Shiddharam Satlingappa Mhetre Vs. State of Maharashtra and ors. reported in (2011) 1 SCC 694:
111.
No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
The possibility of the applicant to flee from justice;
iv.
The possibility of the accused's likelihood to repeat similar or the other offences.
Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment,humiliation and unjustified detention of the accused;
The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
113. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.
114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the concerned judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available.
125. In Naresh Kumar Yadav v. Ravindra Kumar (2008) 1 SCC 632, a two-Judge Bench of this Court observed;the power exercisable under section 438 Cr.P.C. is somewhat extraordinary in character and it should be exercised only in exceptional cases. This approach is contrary to the legislative intention and the Constitution Bench's decision in Sibbia's case (supra).
126. We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under section 438 Cr.P.C. should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject to the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.
Moreover, he cannot also claim parity with the other two accused who have been enlarged on regular bail as the parameters for considering the application for regular as well as anticipatory bail would defer materially. Application is dismissed.
(MS SONIA GOKANI, J.) Jyoti Page 7 of 7