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SCR.A/439/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 439 of 2010
=========================================================
MALDEBHAI
PARBATBHAI ODEDARA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance :
MR
ASHISH M DAGLI for
Applicant(s) : 1,
MR SHIVANG SHUKLA, ADDITIONAL PUBLIC PROSECUTOR
for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 18/03/2010
ORAL
ORDER
Heard
learned Advocates appearing for the parties – Mr. Ashish M. Dagli,
learned Advocate for the petitioner and Mr. Shivang Shukla, learned
APP for the respondents.
This
petition under Article 226 of the Constitution of India read with
various provisions of Criminal Procedure Code is filed with a prayer
to quash and set aside the judgment and order passed by the learned
District and Sessions Judge, Porbandar in Criminal Revision
Application No.9//2010 decided on 08.02.2010 and also to quash and
set aside the judgment and order passed by learned Judicial
Magistrate First Class, Porbandar in an application
under Section 167(2) of the Code.
Mr.
Ashish M. Dagli, learned Advocate for the petitioner submits that a
complaint being C.R. No.II-120/2009 was filed before Bhagvadar
Police Station for offences punishable under Mines and Mineral Act
and also under Sections 379 and 114 IPC against nine persons on
29.10.2009. Since the investigation was not completed within 60
days and one co-accused, Shri. Jaisukh Premji Singadia had
approached the High Court of Gujarat by filing Criminal
Miscellaneous Application No.13726/2009, the investigation was
stayed by this Court on 07.12.2009 and the investigating agency has
taken shelter under the above order of the High Court for not filing
the chargesheet within the stipulated time of 60 days.
The
Courts below have accepted the above explanation of the
investigating agency and being aggrieved and dissatisfied by the
order passed by the Courts below, the petitioner has revoked the
extraordinary jurisdiction of this Court under Article 226 of the
Constitution of India.
At
the outset, Mr. Ashish M. Dagli, learned Advocate for the petitioner
has placed reliance on the order dated 5th
March, 2010 passed by the learned
Single Judge in Special Criminal Application No.274/2010 and
submitted that the petitioner is on par with the petitioner of the
above application and deserves same benefit in addition to the
ground urged in the application.
Mr.
Shivang Shukla, learned APP submitted that the charge-sheet could
not be filed within stipulated time period of 60 days in view of the
operation of the stay granted by the High Court in the matter of the
co-accused.
Having
heard the learned Advocates appearing for the parties and on perusal
of the record, I am of the view that the reasoning of the Courts
below denying benefit of provisions of Section 167(2) of the Code is
unjust and contrary to law, inasmuch as the stay granted by this
High Court qua the co-accused was not operating so far as other
accused are concerned and therefore, in Paragraphs 4 and 5, learned
Single Judge has in order dated 5th March, 2010 passed in
Special Criminal Application No.274/2010 observed as under :-
4. I have heard
the learned Advocate of both the sides at length and in great
detail. On perusal of the reasoning given by the
learned District & Sessions Judge, Porbandar in Criminal
Revision Application No.7 of 2010, it becomes clear that the stay
which was granted by the High Court in quashing petition was in
respect of that particular applicant who had approached the
High Court and the entire proceedings were not stayed. This aspect
has not been dealt with by the learned Sessions Judge and since
blanket stay was not granted by the High Court against the FIR
being CR No.II-120 of 2009, I am of the view that the petition
deserves to be allowed. Looking to other evidence on the record of
the case, I am of the view that since stay was not granted against
all the accused to proceed with the investigation, investigating
officer could have filed charge-sheet within stipulated time limit
and since charge-sheet was not filed within the stipulated time
limit, the petitioner is entitled to invoke provisions of Section
167[2] of the Code seeking default bail. The petition, therefore,
deserves to be allowed.
5. For the foregoing reasons, the
petition is allowed. Judgment and order dated 8.2.2010 passed by
the learned District & Sessions Judge, Porbandar in Criminal
Revision Application No.7 of 2010 as well as the judgment and order
dated 28.1.2010 passed by the learned Additional Civil Judge &
Judicial Magistrate First Class, Porbandar in an application
preferred under Section 167[2] of the Code of Criminal Procedure
are hereby quashed and set aside. The petitioner is ordered to be
enlarged on bail in connection with CR No.II-120 of 2009 for the
offence punishable under Section 4[1], 4[1]-A and 21[1][2] of Mines
and Minerals Act along with Section 5-42 and 13[2] of Gujarat Mines
and Minerals Rules as well as under Sections 379 and 114 of Indian
Penal Code registered with Bagvadar Police station on executing a
bond of Rs.10,000/- [Rupees ten thousand only] with one surety of
the like amount to the satisfaction of the Trial Court and subject
to the conditions that he shall :
[a] not take undue advantage of
his liberty or abuse his liberty;
[b] not act in a manner injurious
to the interest of the prosecution;
[c] surrender his passport, if
any, to the lower Court within a week;
[d] not leave the State of Gujarat
without the prior permission of the Sessions Court concerned;
[e] mark his presence at the
concerned Police Station on any day of first week of every English
calendar month between 9.00 AM and 2.00 PM till the trial is over;
[f] furnish the present address of
his residence to the I.O. and also to the Court at the time of
execution of the bond and shall not change his residence without
prior permission of this Court;
[g] maintain law and order.
Considering
the above aspect, I am inclined to accept the prayer of the
petitioner and orders impugned of the Courts below are quashed and
set aside the petitioner is ordered to be released on bail on
his executing a bond of Rs.10,000/- [Rupees Ten Thousand only] with
one surety of the like amount to the satisfaction of the Trial Court
and subject to the conditions that the petitioner shall :-
[a] not
take undue advantage of his liberty or abuse his liberty;
[b] not
act in a manner injurious to the interest of the prosecution;
[c]
surrender his passport, if any, to the lower Court within a week;
[d] not
leave the State of Gujarat without the prior permission of the
Sessions Court concerned;
[e]
mark his presence at the concerned Police Station on any day of
first week of every English calendar month between 9.00 AM and 2.00
PM till the trial is over;
[f]
furnish the present address of his residence to the I.O. and also
to the Court at the time of execution of the bond and shall not
change his residence without prior permission of this Court;
[g]
maintain law and order.
If
breach of the any of the above conditions is committed, the Sessions
Judge concerned will be free to issue warrant or to take appropriate
action in the matter.
Bail
bond to be executed before the lower Court have jurisdiction to try
the case.
At
the trial, the Trial Court shall not be influenced by the
observations of preliminary nature, qua the evidence at this stage,
made by this Court while enlarging the petitioner on bail.
The
petition is accordingly, allowed. Direct Service permitted.
(Anant
S. Dave, J.)
Caroline
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