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CR.MA/13485/2009 1/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 13485 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
PRAVINBHAI
KASHIRAM PATEL - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
YN OZA, SR.ADVOCATE WITH MS ROMA I FIDELIS
for
Applicant(s) : 1
MR DEVANG VYAS, ADDL.PUBLIC PROSECUTOR for
Respondent(s) : 1
MR KB ANANDJIWALA for Respondent(s) :
2
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 29/01/2010
ORAL
JUDGMENT
This
is an application preferred under Section 439[2] read with Section
482 of the Code of Criminal Procedure, 1973 [ code for short],
for cancellation of bail by the original complainant against the
judgment and order dated 21st November, 2009 passed by the
Additional Sessions Judge, Fast Track Court No.1, Ahmedabad [Rural]
Mirzapur in Criminal Misc. Application No. 1170 of 2009 by which the
learned Judge granted bail to the opponent no.2.
2. Mr.
Y.N. Oza, learned Sr. Advocate appearing with Ms. Roma I. Fidelis for
the applicant submitted that on 11.9.2008, a complaint, being CR No.
I-213/08 was filed by the present applicant with Sanand police
station against opponent no.2 for the offence punishable under
Sections 143, 147, 149, 325, 506[1] and 427 of Indian Penal Code
[ IPC for short] in connection with an incident which took place
on 11.9.2008 on the applicant’s land bearing survey no. 166 situated
at village Nidhrad, Taluka-Sanand, District-Ahmedabad. Later on,
charges under Sections 395 and 397 of IPC have also been added in the
FIR against the said accused persons by the investigating agency,
including sec.120-B of IPC. The incident in question took place on
11.9.2008 when the applicant and his family members were assaulted
by a mob of more than 70 people armed with deadly weapons like
dhariyas, pipes, sticks and they had beaten the complainant and
caused severe injuries to him as well as other persons from the
complainant’s side. A conspiracy was hatched by Babulal Jamnadas
Patel and it was put into implementation first at his instance by
opponent no.2-Talati, Nidhrad who entered into the land of the
complainant and prepared fraudulent panchnama without there being any
authority of law, or any order from any court. Three panchas to the
said panchnama are Patel Vasudev Mafatlal [nephew], Patel Harikrishna
M. and Sureshbhai B. Patel. Pancha nos.2 and 3 are brothers-in- law
of brother of Babublal Jamnadas Patel. It is submitted by learned Sr.
Advocate that this aspect was overlooked by the learned Additional
Sessions Judge, while releasing the opponent no.2 on regular bail.
Learned Sr. Advocate further submitted that Babulal Jamnadas Patel,
who is a sitting M.L.A. of ruling Party had tried to grab the land
of poor farmers including the applicant and other complainants in
respect of which a group of matters were filed and are pending
before this Hon’ble Court. It is pertinent to note that with regard
to said group of matters, complaints have also been registered vide
CR No. 254 of 2008 with Karanj police station and M.Case No. 2 and 3
of 2008 with Sarkhej police station against the said Babulal
Jamnadas Patel and others. In view of the above facts and
circumstances, Babulal Jamnadas Patel had an apprehension that he
would be required to pay amount of Rs. 15.00 to 20.00 crores at the
market value of the said plots and he, therefore, with a view to take
revenge and develop a sense of fear among the people, hatched a
conspiracy to grab the land and harass the complainant and further
assaulted the complainant and his family members on 11.9.2008.
Opponent no.2 has misused power of his office with mala fide
intention to prepare fraudulent documents. It is submitted that
considering the aforesaid aspect, the learned Judge ought not to
have granted bail to opponent no.2. Fraudulent panchnama dated
15.4.2008 and the manner in which it was prepared was not taken into
consideration by the learned Judge while releasing the opponent no.2
on bail. On 11.9.2008, the complainant and his family members were
assaulted by a mob of 60 to 70 persons and immediately thereafter,
complainant’s family memebers approached Sanand police station to
lodge the complaint. As the complaint was not registered, family
members of the applicant-complainant immediately approached the
Hon’ble High Court on 11.9.2008 with special permission in the
evening by way of filing Special Criminal Application No. 1821 of
2008 which was ordered to be kept by the Hon’ble Court for hearing
on the next day. It was only after approaching this Hon’ble Court
that Police Inspector of Sanand police station registered FIR being
CR No. 213 of 2008. As per the interim orders passed by the Hon’ble
High Court, a charge-sheet was produced before the Hon’ble Court.
However, the said charge-sheet did not include the names of all the
accused persons and it was one of the reasons that the Hon’ble Court
transferred further investigation of the present complaint to C.I.D.
Crime vide order dated 23.1.2009 passed in Special Criminal
Application No. 1821 of 2008. It is submitted that prima facie case
indicating involvement of opponent no.2 is clear and therefore, the
learned Additional Sessions Judge ought not to have granted bail as
prayed for by the opponent no.2. In view of the aforesaid facts and
circumstances of the case, the order passed by the learned Additional
Sessions Judge Fast Track Court NO.1, Ahmedabad [Rural] is bad and
illegal in the eyes of law and therefore, the applicant, being
aggrieved by the aforesaid order, has preferred the present
application under Sec.439[2] read with Sec.482 of the Code seeking
cancellation of bail granted to opponent no.2.
3. Learned
Sr. Advocate has placed reliance on the FIR produced as Annexure:A
to the application and the role attributed to the opponent no.2 as
well as various orders passed by this Court and referred to and
relied upon in the compilation itself. Thus, learned Sr. Advocate
submitted that the order passed by the learned Additional Sessions
Judge is perverse, ex facie illegal and therefore, it would attract
provisions of Section 439[2] of the Code and the same deserves to be
quashed and set aside as the relevant material was not taken into
consideration by the learned Additional Sessions Judge while
releasing the opponent no.2 on bail. Learned Sr. Advocate also
submitted detailed written submissions in order to indicate
involvement of opponent no.2 in the alleged commission of offence and
the manner in which the alleged offence is committed by him.
4. It
is submitted that the learned Additional Sessions Judge has proceeded
on the assumption that the case is based on documentary evidence
alone and has completely overlooked the seriousness of injuries
inflicted on the person of the applicant and other two of his family
members. The learned Additional Sessions Judge has committed
egregious error in holding that investigation is at a very delicate
stage and final report is yet to be filed before the competent
court. It is further submitted that the learned Judge, while
considering the bail application held that the accused also requires
to be enlarged on bail on the ground of parity overlooking subsequent
addition of charges of Sections 120B, 467 and 468 of IPC. Learned
Sessions Judge ought to have appreciated that when provision of
Sec.120B of IPC is invoked, role of opponent no.2, hardly becomes
relevant. Thus, learned Sr. Advocate submitted that on the aforesaid
grounds, application for cancellation of bail requires to be allowed
and order passed by the learned Additional Sessions Jude be quashed
and set aside.
5. Learned
Sr. Advocate placed reliance on the following judgments:-
[1] Puran v. Rambilas
and another, reported in [2001] 6 Supreme Court Cases 338.
[2] State of UP
through CBI v. Amarmani Tripathi, reported in [2005] 8 Supreme Court
Cases 21.
[3] Subodh Kumar Yadav
v. State of Bihar & Anr., reported in 2009 AIR SCW 7299.
[4] Dinesh M.N. [S.P.]
v. State of Gujarat, reported in [2008] 5 Supreme Court Cases 66.
[5] State of
Maharashtra v. Ramesh Taurani, reported in [1998] 1 Supreme Court
Cases 41.
[6] Anil Kumar
Tulsiyani v. State of U.P. And another, reported in [2006] 9 Supreme
Court Cases 425.
[7] State represented
by Inspector of Police, T.N. v. Eslian Alias Jothi Basu, reported in
[2006] Supreme Court Cases 785.
[8] State of Gujarat
v. Mayaben Surendrabhai Kodnani and another, reported in 2009 [2] GLH
109.
[9] Satish Jaggi v.
State of Chhatisgarh, [2007 [O] GLHEL-SC 39456]
[10] Judgment dated
25.1.2008 passed by this Court [Coram: Anant S. Dave, J.] in Criminal
Misc. Application No. 12644 of 2007 in the case of State of Gujarat
v. Dinesh M N [S P].
Learned
Sr. Advocate submitted that in view of the ratio laid down in the
aforesaid judgments, since the order passed by the learned Judge is
perverse on the face of it, it requires to be quashed and set aside.
6. Learned
advocate Mr. K.B. Anandjiwala, appearing for opponent no.2 submitted
that while granting bail, the learned Additional Sessions Judge has
taken into consideration the material placed before him, provisions
of Sections 143, 147, 149, 325, 506[1], 427, 395, 397,467, 468 of IPC
and Sec.135 of B.P.Act, quantum of punishment as well as gravity of
offence, nature of offence and thereafter, by passing a very reasoned
and exhaustive order, granted bail to the opponent no.2. Learned
Judge has also considered the ground of parity which was urged at the
time of hearing of the bail application and considering the same,
bail was granted. Learned advocate, placing reliance on Sec.439[2] of
the Code submitted that powers under Sec.439[2] of the Code can be
exercised only in exceptional or extraordinary circumstances. If the
person in whose favour bail is granted, has committed breach of
conditions imposed by the Court, or the order on the face of it is
illegal, or reasoning given by the learned Judge is perverse, then,
the same can be interfered with while exercising powers under
Sec.439[2] of the Code. On bare perusal of the order passed by the
learned Additional Sessions Judge, it becomes clear that while
granting bail, the learned Judge has taken into consideration the
entire material on the record of the case and thereafter has passed
reasoned order which cannot be said to be perverse and, therefore, no
interference is called for in the order passed by the learned
Additional Sessions Judge and as the application preferred by the
applicant is devoid of merit, the same deserves to be dismissed.
7. Learned
APP Mr. Devang Vyas, representing the opponent no.1 State, submitted
that the order passed by the learned Judge is just and proper and the
learned Judge has assigned reasons for enlarging the opponent no.2 on
bail and there is no infirmity in the order passed by the learned
Additional Sessions Judge, and therefore, the application deserves
to be dismissed.
8. I
have heard Mr. Y.N. Oza, learned Sr. Advocate appearing with Ms. Roma
I. Fidelis for the applicant, Ms. Devang Vyas, learned APP for the
opponent no.1 State and Mr.K.B. Anandjiwala for opponent no.2, at
length and in great detail. I have carefully taken into consideration
the material which is produced by the learned advocates for my
perusal. The order passed by the learned Additional Sessions Judge,
Fast Track Court No.1, Ahmedabad [Rural] and the reasons assigned
therein by him are also taken into consideration by me. I have also
considered the provisions of Sections 143, 147, 149, 325, 506[1],
427, 395, 397 and 120B of IPC, quantum of punishment, manner in which
the offence is alleged to have been committed by opponent no.2 along
with other accused persons as well as provisions of Section 439[2] of
Code for cancellation of bail. I have also considered the judgments
cited by the learned Sr. Advocate for the complainant. There is no
dispute about the ratio or proposition laid down therein.
9.
Learned Additional Sessions Judge has, after taking into account the
material which was placed before him and the provisions of various
sections alleged against the opponent no.2, held that considering the
material on the record of the case, it is a fit case to enlarge
opponent no.2 on bail as opponent no.2 is not likely to jump the
bail. Learned Judge has also considered the ground of parity which
was urged before him by the learned advocate for the opponent no.2
and after discussing in exhaustive manner, has passed the order
enlarging the opponent no.2 on bail. The complainant, who is
aggrieved by the aforesaid order, has challenged the order by filing
application under Sec.439[2] of the Code. Power conferred under
Sec.439[2] of the Code for cancellation of bail is required to be
exercised in very rare and exceptional circumstances. On perusal of
Sec.439[2] of the Code, it becomes clear that while cancelling the
bail, conduct subsequent to release on bail and the supervening
circumstances alone are required to be taken into account. The Apex
Court has, while considering the question of cancellation of bail has
discussed extensively in case of State through C.B.I. v. Amarmani
Tripathi [AIR 2005 SC 3490]. If a party concerned has committed
breach of the condition imposed by the court or if the order on the
face of it is illegal or perverse, then, the Court can interfere
under Sec.439[2] of the Code, but only in exceptional cases.
10. Thus,
on overall reasoning given by the learned Additional Sessions Judge
and the entire compilation which is produced by the learned advocate
for the applicant-original complainant for the first time at the
time of hearing of the application, I am of the view that no
interference is called for in the order passed by the learned
Additional Sessions Judge & Fast Track Court No.1, Ahmedabad
[Rural], while granting bail to opponent no.2.
11. For
the foregoing reasons, there is no merit in the application and the
same is hereby rejected. Rule is discharged.
[H.B.
ANTANI, J.]
pirzada/-
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