Gujarat High Court
State Of Gujarat vs Sarfarazkhan @ Bablu Yusufkhan Pathan on 4 July, 2023
R/CR.MA/17681/2020 ORDER DATED: 04/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17681 of 2020
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STATE OF GUJARAT
Versus
SARFARAZKHAN @ BABLU YUSUFKHAN PATHAN
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Appearance:
MR TIRTHRAJ PANDYA APP for the Applicant(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 04/07/2023
ORAL ORDER
1. This application is preferred under Section 439(2) of the Code of Criminal Procedure, 1973 by the State of Gujarat for cancellation of bail granted to the respondent
- original accused by the learned 7th Additional Sessions Judge, Khambhat vide order dated 8.5.2020 passed in Criminal Misc. Application No.117 of 2020 for the offence punishable under Sections 143, 147, 148, 149, 435, 436, 427, 395, 397, 295(A), 332, 186, 337, 504, 506(2), 120(B) etc. of the Indian Penal Code and Section 135 of G.P. Act in connection with the offence registered being I-C.R. No.11215012200049 of 2020 before Khambhat City Police Station
2. Heard Mr. Tirthraj Pandya, the learned APP appearing for the applicant State of Gujarat. Though rule served, respondent accused has chosen not to appear before this Court.
3. Mr. Pandya,, the learned APP for the applicant, Page 1 of 4 Downloaded on : Tue Jul 04 20:45:31 IST 2023 R/CR.MA/17681/2020 ORDER DATED: 04/07/2023 submitted that the impugned order is ex facie illegal and arbitrary and that the same is passed without appreciating the facts and circumstances of the case. He also submitted that even after granting bail, the respondent accused has not co-operated with the investigation and even did not remain present before the trial court during the trial. He has also submitted that while exercising the power, the concerned Trial Court has completely overlooked the facts which are observed in paragraph Nos. 5.6, 5.7, 5.8, 5.9 and paragraph No.6. He further submitted that the investigation is in progress and even the Investigating Officer has to collect the material for submission of chargesheet and the weapon which is used for commission of crime is yet to be recovered. He further submitted that the accused has played active role and participation is also supported by the statement of the witnesses, however it seems that the learned Trial Judge has completely overlooked all these facts while granting the bail in favour of respondent original accused.
4. I have perused the FIR and the impugned order passed by the Trial Court in the application for regular bail. I have considered the submissions canvassed by learned advocates appearing on behalf of both the sides and the averments made in the application.
5. It appears that in present proceedings the notice Page 2 of 4 Downloaded on : Tue Jul 04 20:45:31 IST 2023 R/CR.MA/17681/2020 ORDER DATED: 04/07/2023 issued by this Court was served long back on 19.1.2021 to the accused person, but the accused person chosen not to remain present before this Court till today. Therefore, it is clear that the respondent accused person is non- cooperative person. It also seems that after releasing on bail, the respondent accused has not co-operated with the investigation and also not present personally before the trial court.
6. The ratio laid down by the Apex Court in the catena of decisions that the accused granted bail and entitled to liberty if he is not co-operating with the investigating agency or not remaining present and flouting the conditions imposed upon him while granting bail, then in that case, he is not entitled for any leniency and in that circumstances, the bail is required to be cancelled. The reported decisions of the Apex Court in this regard are summarized as under :
[1] CBI versus Santosh Karnani and Anr., reported in 2023 SCC OnLine SC 427;
[2] Deepak Yadav versus State of UP and Anr., reported in [2022] 8 SCC 559;
[3] Kamla Devi versus State of Rajasthan and Anr., reported in [2022] 6 SCC 725;
[4] Manoj Kumar Khokhar versus State of Rajasthan and Anr., reported in [2022] 3 SCC 501;
[5] Brijmani Devi versus Pappu Kumar and Anr., reported in [2022] 4 SCC 497;
[6] Supreme Bhiwandi Wada Manor Infrastructure Pvt.Page 3 of 4 Downloaded on : Tue Jul 04 20:45:31 IST 2023
R/CR.MA/17681/2020 ORDER DATED: 04/07/2023 Ltd versus State of Maharashtra and Anr., reported in [2021] 8 SCC 753;
[7] Nathu Singh versus State of UP and Ors., reported in [2021] 6 SCC 64;
[8] Jitendra Taneja versus State of UP and ors., reported in [2021] 5 SCC 308; and [9] Union of India versus K.A. Najeeb, reported in [2021] 3 SCC 713.
7. In view of aforesaid facts, non-cooperation of the accused in the investigation, the request of cancellation of bail granted to the accused is acceded to.
8. For the foregoing reasons and in view of the decisions of the Apex Court as aforesaid, I am of the opinion that the present application deserves to be allowed and it is hereby allowed. The impugned order dated 8.5.2020 passed by learned 7th Additional Sessions Judge, Khambhat, Anand in in Criminal Misc. Application No.117 of 2020 is hereby quashed and set aside. The bail stands cancelled. The Investigating Officer is at liberty to approach the concerned Sessions Court for issuance of non-bailable warrant and if warrant is already issued against the accused person then the Investigating Officer shall take appropriate action for execution of the warrant issued by the Trial Court in accordance with law. Rule is made absolute.
(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 4 of 4 Downloaded on : Tue Jul 04 20:45:31 IST 2023