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CR.MA/19732010/2010 1/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1973 of 2010
=========================================
KALPESHBHAI
GHANSHYAMBHAI DESAI - Applicant(s)
Versus
VIDHYABEN
WD/O SHANTILAL BAVABHAI PATEL & 3 - Respondent(s)
=========================================
Appearance :
MR
BC DAVE for Applicant(s) : 1,
RULE SERVED for Respondent(s) : 1 -
3.
MR KT DAVE for Respondent(s) : 1 - 3.
MR AMIT K DAVE for
Respondent(s) : 1 - 3.
MR. K.L.PANDYA, ADDITIONAL PUBLIC
PROSECUTOR for Respondent(s) :
4,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 16/04/2010
ORAL
ORDER
The
present application has been filed by the Applicant Complainant
for cancellation of anticipatory bail granted to the Respondents
Original Accused herein passed by the learned Additional Sessions
Judge, Fast Track Court No.6, Vadodara in Criminal Misc.
Application No. 268 of 2010 dated 25.02.2010, on the grounds
narrated in the application.
The
complaint being I-CR No. 16 of 2010 has been registered with Varnama
Police Station, Vadodara for the alleged offences under Sections
498A, 306 and 114 of IPC.
Learned
Advocate Mr. B.C.Dave for the Applicant Complainant referred to
the facts stating that the husband of the deceased has expired on
22.1.2008 after a span of marriage life of 15 years. However, he
submitted that the entry was made for entering the name of the
children of the deceased regarding inheritance of the property which
lead to the harassment to the deceased by the Respondents, who are
mother-in-law and sister-in-law. Learned Advocate Mr. Dave
submitted that the conduct of the Respondents is required to be
considered as they have not informed the police station which is
hardly 200 kmts. Away from the place of incident nor they have
informed anybody. He emphasized and submitted that the statements
of neighbour and even the son of the deceased Dhruvil Kumar would
reveal as to what has transpired. He further submitted that the PM
report would reveal the manner in which she has burnt. Therefore,
he referred to page 42 and submitted that I.O. in his affidavit has
also clearly referred to the said facts which he pointedly referred
to emphasis about the role and the conduct of the accused. Learned
advocate Mr. Dave submitted that the police has not made further
investigation on the ground that there is a stay of investigation.
However, he submitted that there is no stay of the investigation and
the application is filed for cancellation of anticipatory bail. He
referred to the affidavit of the I.O. for that purpose. Learned
Advocate Mr. Dave has also referred to the judgment of the Hon’ble
Apex Court in case of Samundar Singh v. State of Rajasthan,
AIR 1987 SC 737 and
submitted that in such a type of case of dowry death, the discretion
for anticipatory bail ought not to have been exercised. He
emphasized that she was not taken to the hospital nor any shouts
were raised or efforts were made to save her, which is reflected
from the statements of neighbours and therefore, the order granting
anticipatory bail is erroneous. He referred to the impugned order
passed by the learned Additional Sessions Judge and Fast Track
Court, Vadodara and submitted that the observations have been made
contrary to the facts and the learned Judge has erroneously granted
anticipatory bail. Learned Advocate Mr. B.C.Dave submitted that the
discretion under Section 438 is a extraordinary power which could
not have been exercised in such a manner and therefore the present
application may be allowed.
Learned
Advocate Mr. K.T.Dave for the Respondents submitted that it is not a
case of dowry death as the charges for the offence under Sections
498A, 306 and 114 of IPC. He submitted that the span of marriage
life was 15 years. He therefore submitted that the observations
made by the Hon’ble Apex Court in case of Samundar Singh
v. State of Rajasthan (supra)
would not have any application.
Learned
Advocate Mr. K.T.Dave for the Respondents submitted that
the Respondent No.1 is the mother-in-law, aged about 87 years and
Respondent Nos. 2 and 3 are sister-in-law, who are married and
residing separately. Learned Advocate Mr. K.T.Dave submitted that
the children were not present and therefore it could not have been
stated as to what has transpired. He submitted that though the
children, particularly, the son is stated to be a witness, he has
obly stated about the minor quarrels. He therefore submitted that
it is a matter of appreciation of evidence at the trial and the
order granting anticipatory bail may not be disturbed. Learned
Advocate Mr. Dave has also referred to and relied upon the judgment
of the Hon’ble Apex Court in case of Savitri Agarwal and
Others v. State of Maharashtra and Another, (2009) 8 SCC 325
and strenuously submitted that the criteria / parameters for
cancellation of bail are different than grant of bail and submitted
that the order granting anticipatory bail is just and proper and may
not be disturbed. Referring to the observations made in the
aforesaid judgment he emphasized and submitted that the cogent and
oral circumstances are necessary for directing the cancellation of
bail already granted.
Learned
APP Mr. K.L.Pandya submitted that in view of the affidavit filed by
the I.O. ad the statement of witnesses, including the statement of
neighbours of the child Dhruvil Kumar, the anticipatory bail
deserves to be cancelled.
Learned
Advocate Mr. B.C.Dave in Rejoinder submitted that the powers for
recording anticipatory bail are extraordinary in nature and
therefore, in the facts of the case, it could not have been
exercised.
In view of
the rival submissions, it is required to be considered whether the
present order granting anticipatory bail calls for any interference
or not.
It
is well settled that the discretion under Section 438 is
extraordinary and is required to be exercised with care and
circumspection. It is also observed that such orders are not
required to be passed to arm the accused to thwart the prompt
investigation. This Court is not required to appreciate and
scrutinize the evidence in detail at this stage. Further,
considering this facts and a bare minimum facts, which are required
to be appreciated are that the motive is attributed with regard to
the entry of the name of the children of the deceased regarding
inheritance, which lead to the quarrel. This aspect is also required
to be considered in light of the statements of neighbours and also
of the son Dhruvil. In the opinion of this Court, the learned Judge
may not have, while recording the reasons properly appreciated and
therefore, without any elaboration on this aspect, the order
granting anticipatory bail to the Respondents, who are females, is
required to be considered,
whether it calls for any interference and
whether such anticipatory bail is required to be cancelled or not.
The
statement of witnesses and the son Dhruvil Kumar prima facie suggest
about the constant quarrel and harassment in wake of the entry
regarding inheritance in the name of the children of the deceased.
Further, the conduct of the accused persons which is highlighted,
also cannot be said to be satisfactory. The submissions made by
learned Advocate Mr. K.T.Dave for the Respondents referring to the
judgment in case of Savitri Agarwal and Others v. State
of Maharashtra and Another (supra),
would stand on a different footing as it was given in the facts of
the case when the deceased was removed to the hospital and her
statement was recorded, where she has narrated as to what has
transpired, whereas the facts of the present case are totally
different and this also is required to be appreciated that the
exercise of discretionary power under Section 438 has to be
exercised with more care and circumspection keeping in mind nature
and character of evidence and whether the accused are likely to
tamper with or cause prejudice to the investigation.
In
the facts of the present case, though the cause is entry of the
children regarding inheritance, however, it is also required to be
considered that the children are taken care of by Respondent
No.1 mother-in-law as stated at the bar on inquiry. All the
accused are females and therefore considering the overall facts and
circumstances and material on record
coupled with the fact that the respondents are females, the present
application deserves to be rejected and accordingly stands rejected.
Rule is discharged.
(Rajesh H.
Shukla, J.)
FURTHER
ORDER:
After the
order was pronounced, learned Advocate Mr. B.C.Dave for the
Applicant requested for stay of the order recording cancellation of
anticipatory bail on the ground that the previous Bench has passed
an order and therefore it may be continued.
Learned
Advocate Mr. K.T.Dave for the Respondents submitted that infact
after the order was passed, the Applicant was not arrested, and
therefore, the stay may not be granted.
Normally,
the time to approach the higher forum is granted, however, since it
is an order in an application regarding cancellation of anticipatory
bail, the order cannot be stayed, and therefore, the request made by
learned Advocate Mr. B.C.Dave for the Applicant is rejected.
(Rajesh H.
Shukla,J)
Jayanti*
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