Gujarat High Court
Bholabhai vs State on 13 May, 2010
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
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SCR.A/2334/2009 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2334 of
2009
=========================================================
BHOLABHAI
CHATURBHAI PATEL - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
ND NANAVATY, SENIOR COUNSEL for MR SP MAJMUDAR
for
Petitioner(s) : 1,
MR DEVANG VYAS, APP for Respondent(s) : 1,
RULE
SERVED BY DS for Respondent(s) : 2,
MR DHARMESH V SHAH for
Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 13/05/2010
ORAL ORDER
1. By way of filing this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dated 21.8.2009 passed by the learned Metropolitan Magistrate, Court No.9, Ahmedabad and further be pleased to release the present petitioner on regular bail in Criminal Misc. Application No.22 of 2003 pending before the learned Metropolitan Magistrate, Court No.9, Ahmedabad. The petitioner has also prayed to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dated 18.9.2009 passed in Criminal Revision Application No.359 of 2009 by the learned City Civil and Sessions Judge, Ahmedabad and to pass any other and/or further orders that may be deemed just and proper in the facts and circumstances of the case.
2. Mr ND Nanavaty, learned Senior Counsel appearing for the petitioner submitted that the order passed by the learned Metropolitan Magistrate, Court No.9, Ahmedabad dated 21.8.2009 rejecting the application of the petitioner which was filed under Section 436A of the Code of Criminal Procedure is arbitrary and illegal. The order was confirmed in a Revision Application filed before the learned City Civil and Sessions Judge being Criminal Revision Application No.359 of 2009. It is submitted that the FIR bearing CR No. I-452 of 2002 has been registered against the petitioner for the offence punishable under Sections 167, 406, 409, 420, 467, 468 and 471 of the IPC. The petitioner preferred Special Leave Petition (Criminal) No.4923 of 2005 before the Apex Court and the same was dismissed by the Apex Court on 16.1.2006. After considerable lapse of time as no progress was made in the trial and due to the change in the circumstances, the petitioner approached the learned Sessions Court for the grant of regular bail by filing Criminal Misc. Application No.14 of 2006 which was also rejected. The petitioner moved the High Court and looking to the medical reports of the petitioner, the petitioner was granted temporary bail upto 31.8.2007. The petitioner urged the Hon ble Court to extend the period of temporary bail on the ground of ill-health and advanced age. Subsequently, another offence being CR No. I-295 of 2002 was registered and the Hon ble Court granted regular bail to the present petitioner in Criminal Misc. Application No.8491 of 2007 on compassionate ground. It is submitted that the similarly situated accused one Babubhai Shah has already been enlarged on bail by this Court and therefore, even on the ground of parity, the petitioner deserves to be enlarged on bail. The learned Senior Counsel has placed reliance on the provisions contained in Section 436A of the Code of Criminal Procedure and submitted that if the trial does not commence within particular time limit, then, in such circumstances the accused is required to be enlarged on bail. Section 436A of the Code of Criminal Procedure provides for maximum period for which an under trial can be detained and as per the said Section, it is stated therein that an undertrial during the period of investigation, inquiry or trial under any offence cannot be detained for a period of more than one and half of the maximum period of imprisonment specified for the offence. Learned Senior Counsel for the petitioner submitted that the case is triable by the Magistrate and since the Magistrate do not have the power to impose sentence upto 10 years as prescribed under Section 467 of the IPC and the matter is not made over to the Sessions Court, the case of the petitioner deserves consideration and he requires to be enlarged on bail as prayed for in the petition.
3. Mr Devang Vyas, learned APP for the State submitted that the petitioner is involved in a serious offence punishable under Sections 167, 406, 409, 420, 467, 468 and 471 of the IPC. Considering the dubious role played by the petitioner in defrauding the bank and as he is the main culprit who has committed the alleged offence, no discretionary relief be granted to the petitioner and the petition deserves to be rejected. Even on perusal of Section 467 of the IPC, it prescribes the sentence upto 10 years. Thus, considering the aforesaid aspect and the period of detention which the petitioner has undergone, he cannot claim the benefit or advantage as provided under Section 436A of the Code of Criminal Procedure. Thus, the learned APP submitted that the petitioner has not made out a case for the grant of relief as prayed for in the petition. The learned APP also placed reliance on the earlier order passed by this Court as well as by the Apex Court wherein the petition of the petitioner was decided on merits. The Coordinate Bench of this Court had considered all the arguments which are now sought to be raised by the petitioner in the present petition. Therefore, the contentions raised by the learned advocate in the present petition also do not call for interference as the same was considered at length by the Coordinate Bench of this Court while passing the order in Criminal Misc. Application No.4225 of 2009 in Criminal Misc. Application No.4553 of 2008 (Coram : Rajesh H. Shukla, J.) dated 25.6.2009. Thus, there is no merit in the petition preferred by the petitioner and it deserves to be dismissed in limine.
4. I have heard Mr ND Nanavaty, learned Senior Counsel for the petitioner, Mr Devang Vyas, learned APP for the State and Mr Dharmesh Shah, learned advocate for the original complainant at length and in great detail. I have considered the averments made in the petition and perused the orders passed by the Coordinate Bench of this Court as well as the order passed by the Apex Court in Special Leave Petition (Criminal) No.4923 of 2005. It has been strenuously contended by the learned Senior Counsel for the petitioner that the petitioner is detained in custody since 2002 and considering the provisions of Section 436A of the Code of Criminal Procedure since the petitioner has already undergone more than half of the period in detention, he deserves to be enlarged on bail by invoking the provisions of Section 436A of the Code of Criminal Procedure. The Courts below have not considered the aforesaid aspect in its true perspective while rejecting the application preferred under Section 436A of the Code of Criminal Procedure. I have perused the order passed by the Courts below and the reasons assigned therein. The petitioner is facing the charge for the offence punishable under Sections 167, 406, 409, 420, 467, 468 and 471 of the IPC. The gravity of the offence, nature of offence in which the petitioner is involved as well as the manner in which he has defrauded the Visnagar Nagarik Sahakari Bank Ltd. has been taken into consideration by me. The petitioner is the main culprit and considering the seriousness of the offence and the provisions which are invoked in the present case as well as the sentence which can be imposed on the petitioner in the ultimate event of his conviction in the matter is also taken into consideration by me. Section 467 of the IPC provides for punishment for imprisonment for life, or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. It has been contended that the petitioner is languishing in custody since his arrest on 21.10.2002. However, the petitioner was released on temporary bail in the interregnum period, but considering the totality of facts and circumstances and the material on record of the case, I am of the view that even the provisions of Section 436A of the Code of Criminal Procedure cannot be invoked in the present case. On further reading the earlier orders passed by the Coordinate Bench of this Court, the contentions which were raised in the present case were also considered by the Coordinate Bench of this Court. Therefore, it is of no help to the petitioner. Even the Apex Court considered the bail application preferred by the petitioner and it was rejected by the Apex Court by order dated 16.1.2006.
5. In view of the above, as there is no change in the circumstances which in my view would warrant interference in a petition filed under Articles 226 and 227 of the Constitution of India by the petitioner and as no case is made out for interference by this Court, the petition is hereby dismissed. Rule is discharged.
[H.B.ANTANI, J.] mrpandya Top