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CR.RA/501/2009 1/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 501 of 2009
=========================================
PUNITKUMAR
SATISHBHAI MITTAL - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
MR
NS SHETH for MR ANKIT Y BACHANI
for Applicant(s) : 1,
MS
KRINA P CALLA, APP for Respondent(s) : 1,
MR MAHENDRA TRIVEDI for
Respondent(s) : 2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 11/02/2010
ORAL ORDER
1. Heard
learned advocate Mr NS Sheth for Mr Ankit Y Bachani for the
applicant, learned Additional Public Prosecutor, Ms Krina P Calla for
the State and Mr Mahendra Trivedi for respondent No.2.
2. This
Revision Application is preferred under Section 397 of the Code of
Criminal Procedure against the judgment and order passed by the
learned Additional Sessions Judge, Mehsana Camp at Visnagar in
Criminal Misc. Application No. 283 of 2009 dated 22.6.2009 by which
the learned Judge rejected the application for cancellation of bail
under Section 439(2) of the Code of Criminal Procedure and directed
to issue non-bailable warrant against the applicant.
3. Learned
advocate Mr NS Sheth for the applicant submitted that the complaint
was lodged on 9.1.2009 and the applicant was arrested on 24.3.2009.
After the period of remand, the applicant preferred bail application
before the Judicial Magistrate First Class at Unjha on 31.3.2009.
The learned Magistrate was pleased to release the applicant on
regular bail on certain terms and conditions. Respondent No.2 filed
Criminal Misc. Application No.283 of 2009 on 13.4.2009 before the
learned Sessions Court, Mehsana praying for cancellation of bail
granted to the applicant by the learned JMFC on 31.3.2009.
Respondent No.1 i.e. the State of Gujarat also filed Criminal Misc.
Application No. 295 of 2009 before the learned Sessions Court,
Mehsana for cancellation of bail. Both the aforesaid Criminal Misc.
Application Nos. 283 and 295 of 2009 were allowed by the learned
Additional Sessions Judge, Mehsana Camp at Visnagar by order dated
22.6.2009. Being aggrieved by the aforesaid order dated 22.6.2009,
the applicant has preferred the present Revision Application.
4. Learned
advocate for the applicant submitted that the order passed by the
learned Additional Sessions Judge is contrary to the facts and
evidence on record of the case. The learned Judge has misread the
evidence on record for the purpose of considering the prima facie
case against the applicant. The learned Judge committed grave error
in holding that the alleged offence would have serious effect on the
society as police had not recovered Muddamal articles in question.
The learned Judge ought to have held that the applicant had not
committed breach of the conditions imposed by the learned Magistrate
and therefore, there was no reason to interfere with the order passed
by the learned Magistrate. The learned Judge ought to have
appreciated the provisions of Section 439(2) of the Code of Criminal
Procedure in its true perspective while cancelling the bail granted
to the applicant by the learned Magistrate. Thus, it is submitted by
the learned advocate for the applicant that the provisions of Section
439(2) is very clear. If breach of conditions imposed by the Court
is committed by the applicant or the order is ex-facie, illegal or
perverse, then, in such circumstances, the Court can interfere with
the order passed by the Court below granting bail.
5. The
learned advocate for the applicant has placed reliance on the
judgment rendered in the case of Narendra
K. Amin Vs. State of Guajrat and another, reported
in 2008 (13)
SCC 584 and submitted that parameters for the grant
of bail as well as for cancellation of bail are quite different. The
Court while dealing with the cancellation of bail application is
required to find whether irrelevant material of substantial nature
was taken into account or relevant material omitted from
consideration, while granting bail. If so, then, the order granting
bail would be perverse and justifying the cancellation. Thus, the
learned advocate for the applicant submitted that considering the
reasonings given by the learned Judge, the provisions of Section
439(2) have not been properly appreciated by the learned Judge and
therefore, the order cancelling the bail deserves to be quashed and
set aside.
6. Learned
Additional Public Prosecutor, Ms Krina P Calla for the State, while
opposing the bail application, submitted that the applicant had
committed breach of the conditions imposed by the Trial Court and
therefore, the bail was rightly cancelled by the learned Sessions
Judge. The learned Judge has
assigned adequate reasons for cancelling the bail application of the
applicant. The Muddamal was not recovered during pendency of the
Revision Application as observed by the learned Sessions Judge and
the applicant had left the premises by placing the lock on the
premises. The applicant is also involved in other offence under the
provisions of Negotiable Instrument Act and in spite of issuance of
summons under Section 160 of the Code of Criminal Procedure, he was
not available at his residence and had also locked the shop where he
is doing his business. As per the reasoning given by the learned
Sessions Judge, the applicant is involved in the offence punishable
under Sections 406, 420 and 114 of the IPC and amount worth
Rs.24,73,626/- is at stake.
Considering the aforesaid aspects, the learned Judge has rightly
allowed the applications filed by the complainant as well as by the
State and cancelled the bail granted to the applicant under Section
439(2) of the Code of Criminal Procedure and hence, no interference
is called for in the said order passed by the learned Judge and this
application deserves to be dismissed.
7. Learned
advocate Mr Mahendra Trivedi for respondent No.2 submitted that the
learned Judge has assigned sufficient reasons for cancelling the bail
granted to the applicant. The applicant was not found either in the
residential premises or in the shop and as the applicant had
committed breach of the terms of the order of bail, the learned Judge
has rightly exercised the powers for cancellation of bail as provided
under Section 439(2) of the Code of Criminal Procedure. The learned
advocate for respondent No.2 submitted that considering the aforesaid
aspects and the exhaustive reasons given by the learned Judge, no
interference is called for in the order passed by the learned Judge
and the application deserves to be dismissed.
8. I
have heard learned advocate Mr NS Sheth for the applicant, learned
Additional Public Prosecutor, Ms Krina P Calla for the State and
learned advocate Mr Mahendra Trivedi for respondent No.2 at length
and in great detail. I have also considered the detailed and
exhaustive reasons given by the learned Judge while cancelling the
bail application bearing Criminal Misc. Application No. 283 of 2009
of the applicant. As per the reasons given by the learned Judge, the
Muddamal in question was not recovered till filing of the Revision
Application. The applicant had left the premises and whereabouts of
the applicant were not known, even summons under Section 160 of the
Code of Criminal Procedure was issued against the applicant. The
applicant was not extending full co-operation when he was arrested
and even subsequently, Police Inspector, Unjha Police Station had to
issue RPAD notice to the applicant at his New Delhi residence.
Considering the aforesaid aspects and since the applicant was not
immediately available either at his residence or at the business
premises, the learned Judge has cancelled the bail granted to the
applicant, exercising the powers under Section 439(2) of the Code of
Criminal Procedure. It has been strenuously contended by the learned
advocate that as per the arrest warrant dated 22.7.2009, the place of
residence of the applicant is shown as Iqbal Gadh, Tal. Amalkat,
District Banaskantha and he had not left either the residential house
or the business premises as mentioned in the reasoning given by the
learned Judge.
9. Considering
the submissions canvassed by the learned advocates and the reasonings
given by the learned Judge, I am of the view that the learned Judge
has assigned sufficient and adequate reasons for cancelling the bail
under Section 439(2) of the Code of Criminal Procedure. The
provisions of Section 439(2) can be invoked when a person who is
released on bail committed breach of the conditions imposed or the
order on the face of it, is illegal or perverse. Thus, considering
the aforesaid aspects and the reasons given by the learned Judge, I
do not think that any interference is called for in the order passed
by the learned Additional Sessions Judge, Mehsana Camp at Visnagar
dated 22.6.2009 which is under challenge in the present Revision
Application. As the Revision Application is devoid of merit, it is
liable to fail and therefore, the same is hereby dismissed.
[H.B.
Antani, J.]
FURTHER
ORDER
The
stay granted on earlier occasion is extended for a period of four
weeks.
[H.B.
Antani, J.]
mrpandya
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