Gujarat High Court
Anilbhai vs State on 11 February, 2010
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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SCR.A/2025/2009 11/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2025 of 2009
=========================================================
ANILBHAI
BHAGWANJIBHAI VARIA GENERAL POA OF SANJAYBHAI SHAH - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
SB VAKIL SR. ADV. WITH MR VIRAL K SHAH
for
Applicant(s) : 1,
MS CM SHAH, APP for Respondent(s) : 1,
MR
ASHISH M DAGLI for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 11/02/2010
ORAL
ORDER
Brief facts need to be noted at the outset.
Petitioner is the original complainant. He had filed complaint annexure B dated 3rd October 2008 making allegations of offences punishable under section 406 and 420 of the Indian Penal Code against respondent No.2 herein. Apprehending arrest in connection with the said complaint, respondent No.2 had approached the High Court seeking anticipatory bail. He was granted anticipatory bail by order dated 23rd October 2008 in Criminal Misc. Application No.13740 of 2008. One of the conditions of the said anticipatory bail order was as under:
7.
This order will hold good if the applicant is arrested anytime within 90 days from today. This order for release on bail will remain operative only for a period of ten days from the date of his arrest. Thereafter, it will be open to the applicant to make a fresh application for being enlarged on bail in usual course which when it comes before the competent court will be disposed of in accordance with law, having regard to all the attending circumstances and the materials available at the relevant time uninfluenced by the fact that anticipatory bail was granted.
Pursuant to the said order of anticipatory bail, respondent No.2 presented before the Police Authorities. He was arrested on 8.1.09. He thereafter filed Regular Bail application before the concerned court, i.e. Judicial Magistrate, First Class under section 437 of the Criminal Procedure Code on 13.1.09. The Investigating Officer however sought for remand of respondent No.2 which was granted for one day.
On 6.2.09, the Investigating Officer submitted an application before the JMFC, Rajkot seeking permission to add section 409 of the Indian Penal Code for investigation against the accused. After hearing the other side, the same was permitted to be added.
On account of addition of section 409 of the Indian Penal Code, the accused filed fresh anticipatory bail application before the learned Sessions Judge, Rajkot on 10.2.09 being Misc. Criminal Application No.160/09. In the said application, State filed Application Ex.10 and contended inter alia that earlier the accused was granted anticipatory bail by the High Court pursuant to which he has been released on bail and the regular bail application is pending. The accused, therefore, cannot file a fresh anticipatory bail application. In any case, for the same offence, the High Court has already disposed of the anticipatory bail application previously granting such bail. Accused, therefore, cannot file a fresh application and the application is therefore not maintainable.
It is stated by the counsel for the accused that the present petitioner, original complainant, also adopted similar stand before the Sessions Court. However, it appears that no opposition in writing was made by him. Be that as it may, on application Ex.10 of the State Government, the learned Additional Sessions Judge, heard the parties and passed order dated 7th March 2009 rejecting the request of the State to dismiss the anticipatory bail application as not maintainable. This order of the Sessions Court was carried further by the petitioner by filing Special Criminal Application No.503 of 2009.
Before coming to the fate of Special Criminal Application No.503 of 2009, it may be noted that respondent No.2 i.e. original accused approached the High Court by filing Criminal Misc. Application No.4886 of 2008 in Criminal Misc. Application No.13740 of 2008. It may be recalled that Criminal Misc. Application No.13740 of 2008 was filed for anticipatory bail which was granted by the High Court at the time when the accused faced charges under sections 406 and 420 of the Indian Penal Code. In Criminal Misc. Application No.4886 of 2008, the applicant stated at length the developments after the High Court granted him anticipatory bail and pointed out at considerable length the addition of section 409 of the Indian Penal Code in the investigation. He also pointed out that on account of such addition, he has preferred fresh anticipatory bail application. He pointed out that by virtue of addition of section 409 of the IPC, the learned Magistrate would not be competent to entertain his regular bail application. He, therefore, prayed that the Court may grant ten days time for filing Regular Bail Application before the Sessions Court for offence under section 406, 420 and 409 of the Indian Penal Code and till the same is decided, he may not be arrested. In para 10(B), it was prayed as under:
B) This Hon'ble Court may be pleased to allow this Criminal Misc. Application by granting further 10 days time to the petitioner to file regular bail application before the sessions court in order passed by this Hon'ble Court in Criminal Misc. Appln. No.13740 of 2008 (Coram:
M.D.Shah J.) on 23.10.2008.
On the said application of the accused, the learned single Judge of this Court passed the following order:
Rule.
Learned APP waives service of notice of rule for the respondent State of Gujarat.
On the facts and in the circumstances, the application is allowed in terms of para 10(B). Rule is made absolute accordingly. Direct service is permitted.
In the meantime, the accused filed a pursis before the Sessions Court in the pending anticipatory bail application on 24th March 2009 stating, inter alia, that the learned APP has declared that the accused is not likely to be arrested and therefore the application may be adjourned.
Subsequently, in view of the further developments, respondent No.2 withdrew the anticipatory bail application from the Sessions Court on 28.4.2009. By virtue of withdrawal of the anticipatory bail application, the petition filed by the present petitioner challenging the order of the learned Sessions Judge dated 7.3.09 became infructuous. He therefore withdrew Special Criminal Application No.503 of 2009 which was permitted recording that in view of the order in Criminal Misc. Application No.5262 of 2009, the Special Criminal Application is not pressed.
To complete the chain of events, it may also be noted that the present petitioner had sought for recalling of order dated 24.4.09 passed in Criminal Misc. Application No.4886 of 2009 by filing Criminal Misc. Application No.5296 of 2009. Such proceedings came to be disposed of by order dated 4.8.09 in following terms:
It has been submitted by learned Sr. Counsel Mr. Nanavaty that regular bail application being Criminal Misc Application no.440 of 2009 is pending before the Sessions Court which is yet not decided.
The learned Sessions Judge is directed to hear and decide this application on its own merits and in accordance with law without being influenced by the order passed by this Court.
With the aforesaid direction, this application stands disposed of.
The petitioner moved application Ex.14 in the pending regular bail application being Misc. Criminal Application No.440 of 2009 before the Sessions Court and contended that the accused cannot be treated in custody for offence under section 409 of the Indian Penal Code and therefore his bail application is not maintainable. This application Ex.14 was dismissed by the learned Additional Sessions Judge by order dated 17th September 2009 which is challenged in this petition.
On the basis of above chain of events, it is the case of the petitioner that the regular bail request of the petitioner is not maintainable. The petitioner was granted anticipatory bail only for offence under sections 406 and 420 of the Indian Penal Code. The anticipatory bail therefore cannot cover the subsequent additional section 409 of the Indian Penal Code which is a much graver offence. The accused therefore cannot be stated to have been in custody so as to enable him to file regular bail application for offence under section 409 also.
My attention was also drawn to the clarification made by the High Court on the application of the present petitioner, namely, that the trial court shall decide the pending bail application independently to contend that at no stage the High Court envisaged making a regular bail application of the accused maintainable which was otherwise not.
Learned counsel for the petitioner has relied upon a decision of the Apex Court in the case of Nirmal Jeet Kaur v. State of M.P., (2004) 7 SCC 558 wherein the Apex Court has held as under:
22.
For making an application under section 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin case the protection in terms of section 438 is for a limited duration during which the regular court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Sections 438 and 439 shall be rendered meaningless and redundant.
Reliance is also placed on a decision of the Apex Court in the case of Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281 wherein the above ratio has been reiterated and purpose of anticipatory bail has been highlighted.
Reliance is also placed on a decision of Allahabad High Court in the case of Rama Pati Yadav v. State of U.P., 2002 Cri.L.J. 3646, wherein the learned single Judge has observed as under:
5.
The earlier bail granted to the petitioners was granted in the absence of the injury report, supplementary report and the x-ray report, which have been prepared subsequent to the grant of bail.
6. Considering the seriousness of the injuries, the petitioners cannot be permitted to continue on the same bail bonds. They will have to apply for fresh bail for offence under S.326 IPC.
On the other hand, learned advocate Shri Dagli for respondent No.2 submitted that respondent No.2 had moved fresh anticipatory bail application upon addition of section 409 of the IPC which was opposed by the State as well as the complainant as not maintainable. He submitted that therefore the regular bail application by virtue of anticipatory bail granted by the High Court cannot be opposed as not maintainable which would render the accused remedyless.
He further submitted that all facts were placed before the High Court when extension of bail period was sought for. In the application filed by the accused, all facts were disclosed and addition of section 409 of the IPC was also stated whereupon the High Court has extended the bail period for making regular bail application before the Sessions Court. It was, therefore, submitted that the High Court should be treated to have permitted the accused to approach the Sessions court under regular bail application.
Having thus heard the learned advocates for the parties, I find that the facts of the present case are peculiar. The entire issue has to be, therefore, judged on the factual parameters noted above. There can be no doubt and dispute about the legal proposition that an accused can seek regular bail only while in custody or may be under the protective umbrella of an anticipatory bail order. Equally it is true that anticipatory bail order would govern the situation and provision at the time when the same is granted by the Court. If there are subsequent developments, the situation may alter.
In the present case, it is true that when respondent No.2 was granted anticipatory bail by this Court, provisions of section 406 and 420 alone were mentioned in the complaint against him. His arrest and subsequent release by the police pursuant to the anticipatory bail order of the High Court, therefore, would cover only the situation prevailing at the time of passing of such an order. It is also true that shortly thereafter section 409 of the Indian Penal Code was added against respondent No.2 with the permission of the Court.
Challenge of the petitioner, however, needs to be viewed in peculiar facts of the case. Initially only section 406 and 420 were cited against respondent No.2 in the complaint. In respect of the said complaint at Annexure B, respondent No.2 obtained anticipatory bail from the High Court. Thereafter, he was arrested and released on bail by the police. His remand was granted for a day. As required under the anticipatory bail order, he applied for regular bail. At that stage, section 409 of the Indian Penal Code was added.
Respondent No.2 thereupon approached the Sessions Court and sought fresh anticipatory bail order. This was opposed by both, the State as well as the original complainant, the present petitioner. State raised objection through application Ex.10 and raised various contentions, such as fresh anticipatory bail application not being maintainable. Though, as noted above, no opposition in writing was made by the petitioner, the conduct of the petitioner makes it clear that he also supported the stand of the State on this issue. Opposition of the State was turned down by a speaking order. Such order was challenged by the petitioner before this Court. It can thus be seen that as per the petitioner as well as the State, fresh anticipatory bail application of the original accused only on the ground that section 409 of the Indian Penal Code was added later on was not maintainable.
Respondent No.2, original accused, thereupon approached the High Court and sought extension of time for applying for regular bail. In such an application, he made a detailed disclosure of section 409 having been added later on. In fact, it is primarily on this ground that he sought extension of time. In his Criminal Misc. Application No.4886 of 2009, he has categorically stated that the Investigating Officer had submitted report for adding section 409 of the Indian Penal Code. In view of this, he filed anticipatory bail application before the Sessions Court which was opposed by the State contending that such fresh application is not maintainable. It is pointed out that offence under section 409 of the Indian Penal Code being punishable with imprisonment for life, the court of Magistrate cannot entertain regular bail application and such bail application shall have to be filed before the Sessions Court. He, therefore, prayed for extension of time of 10 days for filing regular bail application before the Sessions Court, which as already noted above, was granted by the High Court. Subsequently also, when the petitioner sought recalling of the order of the High Court granting extension of time to the original accused, this Court only stated that the Sessions Court shall decide the application on its own merits and in accordance with law without being influenced by the order of the High Court.
It can thus be seen that accepting the present petition of the original complainant would render respondent No.2 remedyless. On one hand upon section 409 of the Indian Penal Code being added he filed fresh anticipatory bail application which was opposed by the State as well as by the petitioner on the ground that such fresh anticipatory bail application would not be maintainable and on the other, before the High Court, now it is canvassed by the original complainant that without there being a fresh anticipatory bail order, the accused cannot be granted regular bail in view of addition of section 409 of the Indian Penal Code.
Additionally I also find that the accused had approached this Court for extension of time for approaching the Sessions Court for regular bail in view of addition of section 409 of the Indian Penal code. This was specifically granted by the High Court. Request for recalling the order by the present petitioner was not allowed. This Court can thus be treated to have taken all aspects into consideration and allowed the Sessions Court to consider the regular bail application of the accused on merits. In the facts of the case, no other meaning can be read into the above two orders passed by the High Court. Any other view, as noted above, would render respondent No.2 remedyless.
Under the circumstances, present petition is not entertained. However, it is clarified that I have expressed no opinion whatsoever on merits whether respondent No.2 should be granted bail by the Sessions Court or not in the pending bail application. Disposed of accordingly. Notice is discharged. Interim relief is vacated.
(Akil Kureshi, J.) (vjn) Top