Gujarat High Court
Afroz Mohmed Hasanfatta vs State Of Gujarat & on 3 November, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/20824/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATIONNO. 20824 of 2015
(FOR TEMPORARY BAIL)
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AFROZ MOHMED HASANFATTA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR ND NANAVATY, SENIOR ADVOCATE for MR CHETAN K PANDYA, ADVOCATE for the
Applicant(s) No. 1
MS TRUSHA K PATEL, ADVOCATE for the Respondent(s) No. 2
MR KP RAVAL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 03/11/2015
ORAL ORDER
1. Rule returnable forthwith. Mr.K.P.Raval, learned APP waives service of notice of Rule on behalf of respondent No. 1 and Ms. Trusha K. Patel, learned advocate waives service of notice of Rule on behalf of respondent No.2.
2. By way of this application, the applicant original accused has prayed as under:
[a] To grant and/or extend temporary bail for 30 days in connection with File No. ECIR/01/SRT/2014 under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002, which is converted into PMLA Case No. 3 of 2014, pending before the Hon'ble Designate Special Court at Ahmedabad.
[b] Pending admission, hearing and final disposal of this application, this Hon'ble Court be pleased to extend the temporary bail granted by the Hon'ble Designate Special Court at Ahmedabad in connection with File No. ECIR/01/SRT/2014 under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002, which is converted into PMLA Case No. 3 of 2014.
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R/CR.MA/20824/2015 ORDER
[c] To pass any other and further orders as may be deemed
fit and proper by this Hon'ble Court."
3. It appears that when this application was filed, the order of temporary bail granted by the learned Sessions Judge and Designated Special Judge, Ahmedabad (Rural) dated 27.10.2015 was in operation. The trial Court ordered release of the applicant on temporary bail for a period of five days subject to certain terms and conditions. Those conditions are as under:
"* The application is partly allowed.
* The applicant be released on temporary bail for a
period of 5 days starting from 28th October 2015 on executing a bond of Rs.1,00,000 [Rupees One Lac Only] with two local sureties of Rs.50,000/ each with police escort to be provided by the Police Authority at the cost of the applicant subject to the condition that he shall:
* Not take undue advantages of liberty and misuse liberty;
* Not act in a manner injuries to the interest of the prosecution;
* Shall deposit passport of his wife and children, if any, before this Court.
* Shall not hamper or tamper with the prosecution evidence and / or any witness of prosecution. * The applicant shall surrender himself before the Jail Authority on or before 11.00 hours in the morning on 2nd November, 2015.
* If the applicant is found to have breached any of the conditions, his temporary bail shall stands automatically cancelled."
4. Yesterday, when the matter was taken up, it was stated that although temporary bail for a period of 30 days was prayed for, the trial Court ordered release of the applicant on temporary bail only for a period of 5 days.Page 2 of 5
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5. It appears that the order passed by the learned Trial Court out lived its life and yesterday at 2.00 o'clock afternoon, the applicant surrendered before the Jail Authority. The applicant was released on temporary bail by the trial Court on the ground that his wife is ailing. The observations made by the trial Court in Para - 9 of the order releasing the applicant on temporary bail are as under:
"9. Considered the arguments of both the sides, medical papers produced alongwith the application and reply of the opponent. It clearly appears that the applicant had preferred application for temporary bail before the Hon'ble High Court vide No. 9097/2015. However, the applicant withdrew the said application on 3/6/2015 with liberty to file fresh application. Considering the medical papers produced alongwith the application it appears that applicant's wife is taking treatment of Gynecologist since 8/4/2015 and she is also suffering from severe Anaemia, Diabetes, Hypertension and Thalassemia minor.The applicant has stated that at the relevant time the operation was postponed by the doctor considering the applicant's wife's situation and so they withdrew the temporary bail application. Considering the medical papers the same appears to be believable. Admittedly, it is not the case of the opponent that the applicant is not entitled to approach this Court for temporary bail after withdrawal of the application from the Hon'ble High Court. As the applicant has sought temporary bail on the ground of ailment / operation of his wife, if we peruse the Annexure "C" Certificate issued by Dr. Dipali Mevawala, M.D. [Obst & Gynec.] dt. 8/5/2015 the Doctor had opined for abdominal hysterectomy operation as early as possible. As per Annexure 'E' Certificate issued by Dr. Reshma R. Rao, M.D., D.G.O. the petitioner is suffering from Amaemia, Diabetes and Hypertension and Thalessemia minor and the applicant's wife was required to be admitted on 25/10/2015 for blood transfusion and surgery for abdominal Hysterectomy on 26/10/2015. If we peruse the reply of the opponent, more particularly para 4, the opponent had inquired the said doctor over phone. It is an admitted position that Dr. Reshma Rao had issued Page 3 of 5 HC-NIC Page 3 of 5 Created On Thu Nov 05 01:44:36 IST 2015 R/CR.MA/20824/2015 ORDER the said certificate. The said Doctor was inquired as to whether treatment [illness of the applicant's wife] by medicines were an option to which she replied that medicines were a short term of option. Thus it appears that operation is required to be performed. The applicant has also produced various reports vide list Exh. 6. As per the contents of the certificate issued by Dr. Reshma Rao Exh.6/5 the operation was postponed as the applicant's wife was nervous and insisted that surgery should be done in the presence of her husband. Admittedly, from the medical papers it appear that the applicant's wife is suffering from depression, hypertension and Thalessemia minor. Under the circumstances, the nervousness of the applicant wife undergoing the operation in absence of her husband can be believed. The date of operation is now fixed on 29/10/2015, therefore, considering the illness of the applicant's wife this Court believes that if the applicant accompany his wife at the time of operation, because the Thalessemia, if any complication arise and if any decision is to be taken he can take the decision on the spot. Thus, considering the condition of the applicant's wife, on the humanity ground, if temporary bail for 5 days is granted it would be in the interest of justice. To eliminate the apprehension of hampering or tampering the applicant be released on temporary bail with police escort and stringent conditions may be imposed."
5. Ordinarily, having surrendered before the Jail Authority on expiry of the temporary bail, any further release for a temporary period should be prayed for before the trial Court and if it is rejected, the High Court may consider the prayer accordingly. I could also have relegated the applicant to prefer a fresh application before the trial Court. However, in the peculiar facts and circumstances of the case, this application is considered and I am of the view that the applicant may be released on temporary bail for a period of two weeks subject to the same terms and conditions as those were earlier imposed by the learned trial Court.
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R/CR.MA/20824/2015 ORDER
[a] The applicant shall be released on temporary bail for a
period of two weeks from the date of his actual release on executing a bond of Rs.1,00,000 [Rupees One Lac Only] with two local sureties of Rs.50,000/ each with police escort to be provided by the Police Authority at the cost of the applicant subject to the condition that he shall:
[b] Not take undue advantages of liberty and misuse liberty;
[c] Not act in a manner injuries to the interest of the prosecution;
[d] Shall deposit passport of his wife and children, if any, before this Court.
[e] Shall not hamper or tamper with the prosecution evidence and / or any witness of prosecution.
[f] The applicant shall surrender himself before the Jail Authority on expiry of temporary bail, without fail.
[g] If the applicant is found to have breached any of the conditions, his temporary bail shall stands automatically cancelled."
7. Affidavitinreply filed on behalf of respondent No. 2 opposing the application is ordered to be taken on record.
8. Rule made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) *Kazi...
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