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CR.MA/2523/2010 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2523 of 2010
=========================================================
CHANDRASHEKHAR
GOPALSINH RAJPUT - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MR
SN SINHA for
Applicant(s) : 1,
MR DC SEJPAL, APP for Respondent(s) : 1,
None
for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 25/03/2010
ORAL
ORDER
1. This
is an application preferred by the applicant for anticipatory bail
under Section 438 of the Code of Criminal Procedure in connection
with the FIR bearing CR No. I 268 of 2002 registered with Amraiwadi
Police Station for the offence punishable under Sections 498-A,
294-B, 323, 506(1) and 114 of the Indian Penal Code as well as
Sections 3 & 7 of the Dowry Prohibition Act.
2. Learned
advocate Mr. S.N. Sinha for the applicant, at the outset, submitted
that respondent no.2 lodged a complaint on 27.06.2002 against the
applicant at Amraiwadi police station vide C.R. No. I/268/2002 for
the offences punishable under Sections 498-A, 294-B, 323, 506(1) and
114 of the Indian Penal Code as well as Sections 3 & 7 of the
Dowry Prohibition Act. The applicant was arrested and subsequently
released on bail. The charge sheet was submitted by the Investigating
Officer on 29.07.2002 with the learned Metropolitan Magistrate Court.
Thereafter, the respondent no.2 preferred an application before the
learned Metropolitan Magistrate with a prayer to add Section 307 of
the Indian Penal Code which was rejected by the learned Trial Judge.
Being aggrieved by the said order, the respondent no.2 preferred
revision application before the learned City Sessions Judge,
Ahmedabad being Criminal Revision Application No. 30 of 2003 which
was partly allowed by the learned Sessions Judge vide order dated
31.03.2003 was pleased to direct to add Section 307 of the Indian
Penal Code qua the present applicant and further pleased to issue
warrant against him. Being aggrieved by the aforesaid order, the
applicant preferred Criminal Revision Application No. 177 of 2003
before the Hon’ble High Court and the Hon’ble High Court was pleased
to grant stay against the implementation of the order dated
31.03.2003 passed by the learned Sessions Judge. Learned advocate
submitted that during the pendency of the aforesaid revision
application, settlement was arrived between the applicant and
respondent no.2 and an application under Section 13(b) of the Hindu
Marriage Act was filed on 05.10.2009 before the Family Court,
Ahmedabad praying for decree of divorce by mutual consent. In
pursuance thereof the applicant has already deposited an amount of
Rs. 2,13,000/- by way of demand draft towards the permanent alimony
and as per the settlement process respondent no.2 is required to
withdraw all the cases filed by her against the applicant and his
family members. The applicant thereafter filed an application under
Section 482 of the Code of Criminal Procedure for quashing the
complaint. As the matter was dismissed by the High Court on
09.12.2009, the applicant preferred an application under Section 438
of the Code of Criminal Procdure before the learned City Sessions
Judge, Ahmedabad seeking anticipatory bail and as the application was
rejected by the learned Sessions Judge, the applicant has preferred
the present application with a prayer to grant anticipatory bail, as
prayed for, in the application.
3. Learned
A.P.P. Mr. D.C. Sejpal, representing the State, while opposing the
bail application, submitted that the order passed by the learned
Judge does not call for any interference by this Court and the
application deserves to be rejected out of hand.
4. Having
considered the rival submissions of learned counsel for both the
sides, role attributed to the applicant, and on perusal of the
documents as well as the order dated 11.02.2010 passed by the learned
Additional Sessions Judge, Court No.17, Ahmedabad in Criminal Misc.
Application No. 180 of 2010 below exhibit 1, the learned Judge has
observed as under in the order:
The
Cr. Misc. Application No. 13140/2009 filed by the applicant for
quashing the FIR came to be rejected by the Hon’ble High
Court, vide its order dated 09/12/2009. Now, the applicant has shown
his apprehension that he will be arrested in connection with the
aforesaid offence. But in my opinion this application itself is not
tenable at law because of the reasons that once the applicant is
released on bail and subsequently Section 307 of IPC is introduced
against him and learned Addl. Session Judge has directed to issue
warrant against the applicant, it will not be open for the applicant
to file such application u/s 438 of Cr.P.C. It is also significant to
note at this stage that once the applicant is arrested in connection
with I-CR No. 268/2002 registered with Amraiwadi Police Station, the
question of again arresting the applicant in connection with the same
CR No. 268/2002 would not survive. Considering this aspect of the
matter this application being devoid of any merits, is liable to be
rejected.
Considering
the aforesaid reasons given by the learned Judge, I am of the view
that the matter requires to be remitted to the learned Judge for
passing de-novo order on merits in the application preferred by the
applicant.
5. With
these observations, the application is partly allowed and the order
passed by the learned Additional Sessions Judge, Court No.17,
Ahmedabad in Criminal Misc. Application No. 180 of 2010 rejecting the
anticipatory bail application in connection with C.R. No. I-268 of
2002 registered at Amraiwadi Police Station for the offences
punishable under Sections 498-A, 294-B, 323, 506(1) and 114 of the
Indian Penal Code as well as Sections 3 & 7 of the Dowry
Prohibition Act is quashed and set-aside. The learned Judge shall
hear and decide the matter de-novo as directed hereinabove.
6. With
the above directions, this application is disposed of.
7. Rule
is partly made absolute. Direct Service is permitted.
[H.B.
Antani, J.]
Shekhar
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