{"id":15492,"date":"2010-01-29T00:00:00","date_gmt":"2010-01-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pravinbhai-vs-state-on-29-january-2010"},"modified":"2015-04-15T01:05:37","modified_gmt":"2015-04-14T19:35:37","slug":"pravinbhai-vs-state-on-29-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pravinbhai-vs-state-on-29-january-2010","title":{"rendered":"Pravinbhai vs State on 29 January, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Pravinbhai vs State on 29 January, 2010<\/div>\n
Author: H.B.Antani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.MA\/13485\/2009\t 1\/ 12\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nMISC.APPLICATION No. 13485 of 2009\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE H.B.ANTANI\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nPRAVINBHAI\nKASHIRAM PATEL - Applicant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 1 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nYN OZA, SR.ADVOCATE WITH MS ROMA I FIDELIS\nfor\nApplicant(s) : 1 \nMR DEVANG VYAS, ADDL.PUBLIC PROSECUTOR for\nRespondent(s) : 1 \nMR KB ANANDJIWALA for Respondent(s) :\n2 \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.B.ANTANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 29\/01\/2010 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
\t\tThis
\nis an application preferred under Section 439[2] read with Section
\n482 of the Code of Criminal Procedure, 1973 [ code  for short],
\nfor cancellation of bail by the original complainant against the
\njudgment and order dated 21st November, 2009 passed by the
\nAdditional Sessions Judge, Fast Track Court No.1, Ahmedabad [Rural]
\nMirzapur in Criminal Misc. Application No. 1170 of 2009 by which the
\nlearned Judge granted bail to the opponent no.2.\n<\/p>\n
2.\t\tMr.\n<\/p>\n
Y.N. Oza, learned Sr. Advocate appearing with Ms. Roma I. Fidelis for
\nthe applicant submitted that on 11.9.2008, a complaint, being CR No.
\nI-213\/08 was filed by the present applicant  with Sanand police
\nstation against opponent no.2 for the offence punishable under
\nSections 143, 147, 149, 325, 506[1] and 427 of Indian Penal Code
\n[ IPC  for short] in connection with an incident which took place
\non 11.9.2008 on the applicant’s land bearing survey no. 166 situated
\nat village Nidhrad, Taluka-Sanand, District-Ahmedabad. Later on,
\ncharges under Sections 395 and 397 of IPC have also been added in the
\nFIR against the said accused persons by the investigating agency,
\nincluding sec.120-B of IPC. The incident in question took place on
\n11.9.2008 when the applicant and  his family members were assaulted
\nby a mob of  more than 70 people armed with deadly weapons like
\ndhariyas, pipes, sticks and they had beaten the complainant and
\ncaused severe injuries to him as well as  other persons from the
\ncomplainant’s side. A conspiracy was hatched by Babulal Jamnadas
\nPatel and it was put into implementation first at his instance by
\nopponent no.2-Talati, Nidhrad who entered into the land of the
\ncomplainant and prepared fraudulent panchnama without there being any
\nauthority of law, or any order from any court. Three panchas to the
\nsaid panchnama are Patel Vasudev Mafatlal [nephew], Patel Harikrishna
\nM. and Sureshbhai B. Patel. Pancha nos.2 and 3 are brothers-in- law
\nof brother of Babublal Jamnadas Patel. It is submitted by learned Sr.
\nAdvocate that this aspect was overlooked by the learned Additional
\nSessions Judge, while releasing the opponent no.2 on regular bail.
\nLearned Sr. Advocate further submitted that  Babulal Jamnadas Patel,
\nwho is  a sitting M.L.A. of ruling Party had tried to grab the land
\nof poor farmers including the applicant and other complainants in
\nrespect of which  a group of matters were filed and are pending
\nbefore this Hon’ble Court. It is pertinent to note that  with regard
\nto said group of matters, complaints have also been registered vide
\nCR No. 254 of 2008 with Karanj police station and M.Case No. 2 and 3
\nof 2008 with Sarkhej police station against  the said Babulal
\nJamnadas Patel and others. In view of the above facts and
\ncircumstances, Babulal Jamnadas Patel had  an apprehension that he
\nwould be required to pay amount of Rs. 15.00 to 20.00 crores at the
\nmarket value of the said plots and he, therefore, with a view to take
\nrevenge and develop a sense of fear among the people, hatched a
\nconspiracy to grab the land and harass the complainant and  further
\nassaulted the complainant and his family members on 11.9.2008.
\nOpponent no.2 has misused power of his office with mala fide
\nintention to prepare fraudulent documents. It is submitted that
\nconsidering the aforesaid aspect, the learned Judge  ought not to
\nhave granted bail to opponent no.2. Fraudulent panchnama dated
\n15.4.2008 and the manner in which it was prepared was not taken into
\nconsideration by the learned Judge while releasing the opponent no.2
\non bail.  On 11.9.2008, the complainant and his family members were
\nassaulted by a mob of 60 to 70 persons and immediately thereafter,
\ncomplainant’s family memebers approached Sanand police station to
\nlodge the complaint. As the complaint was not registered, family
\nmembers of the applicant-complainant immediately approached the
\nHon’ble High Court on 11.9.2008 with special permission in the
\nevening by way of filing Special Criminal Application No. 1821 of
\n2008 which was ordered to be kept by the Hon’ble Court  for hearing
\non the next day. It was only after approaching this Hon’ble Court
\nthat Police Inspector of Sanand police station registered FIR being
\nCR No. 213 of 2008. As per the interim orders passed by the Hon’ble
\nHigh Court, a charge-sheet was produced before the Hon’ble Court.
\nHowever, the said charge-sheet did not include the names of all the
\naccused persons and it was one of the reasons that the Hon’ble Court
\ntransferred further investigation of the present complaint to C.I.D.
\nCrime vide order dated 23.1.2009 passed in Special Criminal
\nApplication No. 1821 of 2008. It is submitted that prima facie case
\nindicating involvement of opponent no.2 is clear and therefore, the
\nlearned Additional Sessions Judge ought not to have granted bail as
\nprayed for by the opponent no.2. In view of the aforesaid facts and
\ncircumstances of the case, the order passed by the learned Additional
\nSessions Judge Fast Track Court NO.1, Ahmedabad [Rural] is bad and
\nillegal in the eyes of law and therefore, the applicant, being
\naggrieved by the aforesaid order, has preferred the present
\napplication under Sec.439[2] read with Sec.482 of the Code seeking
\ncancellation of bail granted to opponent no.2.\n<\/p>\n
3.\t\tLearned
\nSr. Advocate has  placed reliance on the FIR  produced as Annexure:A
\nto the application and  the role attributed to the opponent no.2 as
\nwell as various orders passed by this Court and referred to and
\nrelied upon in the compilation itself. Thus, learned Sr. Advocate
\nsubmitted that the order passed by the learned Additional Sessions
\nJudge is perverse, ex facie illegal and therefore, it would attract
\nprovisions of Section 439[2] of the Code and the same deserves to be
\nquashed and set aside as the relevant material was not taken into
\nconsideration by the learned Additional Sessions Judge while
\nreleasing the opponent no.2 on bail. Learned Sr. Advocate also
\nsubmitted detailed written submissions in order to indicate
\ninvolvement of opponent no.2 in the alleged commission of offence and
\nthe manner in which the alleged offence is committed by him.\n<\/p>\n
4.\t\tIt
\nis submitted that the learned Additional Sessions Judge has proceeded
\non the assumption that the case is based on documentary evidence
\nalone and has completely overlooked the seriousness of injuries
\ninflicted on the person of the applicant and other two of his family
\nmembers.  The learned Additional Sessions Judge has committed
\negregious error in holding that investigation is at a very delicate
\nstage and final report is yet to be filed before the competent
\ncourt. It is further submitted that the learned Judge, while
\nconsidering the bail application held that the accused also requires
\nto be enlarged on bail on the ground of parity overlooking subsequent
\naddition of charges of Sections 120B, 467 and 468 of IPC. Learned
\nSessions Judge ought to have appreciated that when provision of
\nSec.120B  of IPC is invoked, role of opponent no.2, hardly becomes
\nrelevant. Thus, learned Sr. Advocate submitted that on the aforesaid
\ngrounds, application for cancellation of bail requires to be allowed
\nand order passed by the learned Additional Sessions Jude be quashed
\nand set aside.\n<\/p>\n
5.\t\tLearned
\n Sr. Advocate placed reliance on the following judgments:-\n<\/p>\n
[1]\tPuran v. Rambilas
\nand another, reported in [2001] 6 Supreme Court Cases 338.\n<\/p>\n
[2]\tState of UP
\nthrough CBI v. Amarmani Tripathi, reported in [2005] 8 Supreme Court
\nCases 21.\n<\/p>\n
[3]\tSubodh Kumar Yadav
\nv. State of Bihar & Anr., reported in  2009 AIR SCW 7299.\n<\/p>\n
[4]\tDinesh M.N. [S.P.]
\nv. State of Gujarat, reported in [2008] 5 Supreme Court Cases 66.\n<\/p>\n
[5]\tState of
\nMaharashtra v. Ramesh Taurani,<\/a> reported in [1998] 1 Supreme Court
\nCases 41.\n<\/p>\n
[6]\tAnil Kumar
\nTulsiyani v. State of U.P. And<\/a> another, reported in [2006] 9 Supreme
\nCourt Cases 425.\n<\/p>\n
[7]\tState represented
\nby Inspector of Police, T.N. v. Eslian Alias Jothi Basu, reported in
\n[2006] Supreme Court Cases 785.\n<\/p>\n
[8]\tState of Gujarat
\nv. Mayaben Surendrabhai Kodnani and another, reported in 2009 [2] GLH\n<\/p>\n
109.<\/p>\n
[9]\tSatish Jaggi v.\n<\/p>\n
State of Chhatisgarh, [2007 [O] GLHEL-SC 39456]<\/p>\n
[10]\tJudgment dated
\n25.1.2008 passed by this Court [Coram: Anant S. Dave, J.] in Criminal
\nMisc. Application No. 12644 of 2007 in the case of State of Gujarat
\nv. Dinesh M N<\/a> [S P].\n<\/p>\n
\t\tLearned
\nSr. Advocate submitted that in view of the ratio laid down in the
\naforesaid judgments, since the order passed by the learned Judge is
\nperverse on the face of it, it requires to be quashed and set aside.\n<\/p>\n
6.\t\tLearned
\nadvocate Mr. K.B. Anandjiwala, appearing for opponent no.2 submitted
\nthat while granting bail, the learned Additional Sessions Judge has
\ntaken into consideration the material placed before him, provisions
\nof Sections 143, 147, 149, 325, 506[1], 427, 395, 397,467, 468 of IPC
\nand Sec.135 of B.P.Act, quantum of punishment as well as gravity of
\noffence, nature of offence and thereafter, by passing a very reasoned
\nand exhaustive order, granted bail to the opponent no.2. Learned
\nJudge has also considered the ground of parity which was urged at the
\ntime of hearing of the bail application and considering the same,
\nbail was granted. Learned advocate, placing reliance on Sec.439[2] of
\nthe Code  submitted that powers under Sec.439[2] of the Code can be
\nexercised only in exceptional or extraordinary circumstances. If the
\nperson in whose favour bail is granted, has committed breach of
\nconditions imposed by the Court, or the order on the face of it is
\nillegal, or reasoning given by the learned Judge is perverse, then,
\nthe same can be interfered with while exercising powers under
\nSec.439[2] of the Code.  On bare perusal of the order passed by the
\nlearned Additional Sessions Judge, it becomes clear that while
\ngranting  bail, the learned Judge has taken  into consideration the
\nentire material on the record of the case and thereafter has passed
\nreasoned order which cannot be said to be perverse and, therefore, no
\ninterference is called for in the order passed by the learned
\nAdditional Sessions Judge and as the application preferred by the
\napplicant is devoid of merit, the same deserves to be dismissed.\n<\/p>\n
7.\t\tLearned
\nAPP Mr. Devang Vyas, representing the opponent no.1 State, submitted
\nthat the order passed by the learned Judge is just and proper and the
\nlearned Judge has assigned reasons for enlarging the opponent no.2 on
\nbail and there is no infirmity  in the order passed by the learned
\nAdditional Sessions Judge, and therefore,  the application deserves
\nto be dismissed.\n<\/p>\n
8.\t\tI
\nhave heard Mr. Y.N. Oza, learned Sr. Advocate appearing with Ms. Roma
\nI. Fidelis for the applicant, Ms. Devang Vyas, learned APP for the
\nopponent no.1 State and Mr.K.B. Anandjiwala for opponent no.2, at
\nlength and in great detail. I have carefully taken into consideration
\nthe material which is produced by the learned advocates for my
\nperusal. The order passed by the learned Additional Sessions Judge,
\nFast Track Court No.1, Ahmedabad [Rural] and the reasons assigned
\ntherein by him are also taken into consideration by me. I have  also
\nconsidered the provisions of Sections 143, 147, 149, 325, 506[1],
\n427, 395, 397 and 120B of IPC, quantum of punishment, manner in which
\nthe offence is alleged to have been committed by opponent no.2 along
\nwith other accused persons as well as provisions of Section 439[2] of
\nCode for cancellation of bail. I have also considered the judgments
\ncited by the learned Sr. Advocate for the complainant. There is no
\ndispute about the ratio or proposition laid down therein.\n<\/p>\n
9.
\n\tLearned Additional Sessions Judge has, after taking into account the
\nmaterial which was placed before him  and the provisions of various
\nsections alleged against the opponent no.2, held that considering the
\nmaterial on the record of the case, it is a fit case to enlarge
\nopponent no.2 on bail as opponent no.2 is not likely to jump the
\nbail. Learned Judge has also considered the ground of parity which
\nwas urged before him by the learned advocate for the opponent no.2
\nand after discussing in exhaustive manner, has passed the order
\nenlarging the opponent no.2 on bail. The complainant, who is
\naggrieved by the aforesaid order, has challenged the order by filing
\napplication under Sec.439[2] of the Code. Power conferred under
\nSec.439[2] of the Code for cancellation of bail is required to be
\nexercised in  very rare and exceptional circumstances. On perusal of
\nSec.439[2] of the Code, it becomes clear that while cancelling the
\nbail, conduct subsequent to release on bail and the supervening
\ncircumstances alone are required to be taken into account. The Apex
\nCourt has, while considering the question of cancellation of bail has
\ndiscussed extensively in case of State through C.B.I. v. Amarmani
\nTripathi [AIR 2005 SC 3490]. If a party concerned has committed
\nbreach of the condition imposed by the court or if the order  on the
\nface of it is illegal or perverse, then, the Court can interfere
\nunder Sec.439[2] of the Code, but only in exceptional cases.\n<\/p>\n
10.\t\tThus,
\non overall reasoning given by the learned Additional Sessions Judge
\nand the entire compilation which is produced by the learned advocate
\nfor the  applicant-original complainant for the first time at the
\ntime of hearing of the application, I am of the view that no
\ninterference is called for in the order passed by the learned
\nAdditional Sessions Judge & Fast Track Court No.1, Ahmedabad
\n[Rural], while granting bail to opponent no.2.\n<\/p>\n
11.\t\tFor
\nthe foregoing reasons, there is no merit in the application and the
\nsame is hereby rejected. Rule is discharged.\n<\/p>\n
[H.B.\n<\/p>\n
ANTANI, J.]<\/p>\n
pirzada\/-\n<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Pravinbhai vs State on 29 January, 2010 Author: H.B.Antani,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-15492","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nPravinbhai vs State on 29 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pravinbhai-vs-state-on-29-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pravinbhai vs State on 29 January, 2010 - 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