{"id":218139,"date":"2010-12-08T00:00:00","date_gmt":"2010-12-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/h-vs-state-on-8-december-2010"},"modified":"2018-02-02T12:07:52","modified_gmt":"2018-02-02T06:37:52","slug":"h-vs-state-on-8-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/h-vs-state-on-8-december-2010","title":{"rendered":"H vs State on 8 December, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
H vs State on 8 December, 2010<\/div>\n
Author: Anant S. Dave,&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\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.MA\/11996\/2010\t 16\/ 16\tORDER \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. 11996 of 2010\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\n\t\t\tbe referred 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\nH\nN CHAVDA - Applicant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Respondent(s)\n \n\n=============================================\n \nAppearance : \nMR\nBM MANGUKIYA for Applicant(s) : 1,MS BELA A PRAJAPATI for\nApplicant(s) : 1, \nMR LR PUJARI ADDL. PUBLIC PROSECUTOR for\nRespondent(s) : 1, \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 ANANT S. DAVE\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 08\/12\/2010 \n\n \n\nORAL\nORDER<\/pre>\n
1.\tThe
\napplicant apprehending his arrest in connection with FIR lodged with
\nGujarat University Police Station, Ahmedabad City as C.R.
\nNo.I-79\/2008 for the offences punishable under Section 419, 414, 466,
\n468, 471, 474, 120-B of Indian Penal Code, has filed this application
\nunder Section 438 of the Code of Criminal Procedure, 1973.\n<\/p>\n
2.\tAt
\nthe outset, this is the second application under Section 438 of the
\nCode of Criminal Procedure, 1973 before this Court in view of
\nrejection of Criminal Misc. Application No.7772 of 2010 by this Court
\n(Coram: Hon’ble Mr. Justice Z.K. Saiyed).  The applicant is a
\nGovernment servant and is an officer in the education department and
\nat relevant point of time he was posted as Secretary to the Gujarat
\nSecondary and Higher Secondary Education Board (for short “the
\nBoard”) established under the Gujarat Secondary and Higher
\nSecondary Education Act, 1972.  The Board undertakes Secondary and
\nHigher Secondary Certificate Examinations every year as per the
\nschedule fixed.\n<\/p>\n
3.\tInitially,
\nthe FIR came to be lodged at the Gujarat University Police Station,
\nAhmedabad City, on 14.3.2008 for the offences punishable under
\nSections 419 and 114 of IPC and as per the above FIR, students one
\nMaster Harsh Pravinbhai Kotak and one Miss Komal Sanjaybhai Patel
\nappearing in Standard 12 examination Science stream were not able to
\nwrite their papers and requested for assistance of a writer and
\naccordingly students were permitted to have an assistance of one
\nMr.Hriday Prashantbhai  Archarya studying in Standard 11 in science
\nstream in Swastik Shishu Vihar Secondary School, Sardar Patel
\nStadium, Ahmedabad and Miss Komal S. Patel who claimed to have
\nfractured her right hand was provided one Mr. Parth Mukeshbhai Pandya
\nalso studying in the same standard and in the same school.  While, on
\n14th March, 2008, on checking by a squad instead of Mr.
\nHriday Prashantbhai  Archarya, Dharmik Ambalal Patel, a writer of
\nMaster Harsh Pravinbhai Kotak and in case of Miss Komal Patel, one
\nMr. Kevin Paragbhai Desai  instead of  Mr. Parth Mukeshbhai Pandya
\nwere writing papers.  Thus, writer students provided to assist and
\nwrite the examination of Master Harsh Kothak and Miss Komal Patel,
\nwere not assisting or writing the papers but some other students were
\nfound on the day when checking squad inspected the examination hall.
\nIt appears that upon preliminary investigation, I.O. submitted a
\nreport on 21.3.2008 and requested to add offences punishable under
\nsections 464, 468, 471, 474 and 120-B of IPC.  Later on, after
\narresting the students another report dated 16.9.2008 was submitted
\nfor deleting sections 464, 468, 471, 474 and 120-B of the IPC.
\nSubsequently, in view of inconsistency of medical reports submitted
\nby both students and certificates issued by the concerned Orthopedic
\nSurgeon, once again police officer requested that Sections 464, 468,
\n471, 474 and 120-B be added and however, the investigation was
\ntransferred to the crime branch for further investigation and after
\ncollection of evidence, recording statements of about 11 persons, it
\nwas found that there was conspiracy to introduce dummy writers.  As
\nper the report submitted on 10.3.2010, police officer of Crime
\nBranch, Ahmedabad, requested to add the offences punishable under
\nSections 466, 468 and 471 of IPC.  Thus, on 10th March,
\n2010, offences were on the record punishable under Section 466, 468,
\n471 and 120-B of IPC.  That, in the anticipatory bail application
\nwhich was preferred and dismissed on 5.8.2010 (Coram: Hon’ble Mr.
\nJustice Z.K. Saiyed) being Criminal Misc. Application No.7772 of
\n2010, all contentions available on facts were taken up including
\nreliance placed in the case of State of Gujarat vs. Deepak
\nJaswantlal Sheth<\/a> [1998 (3) GLR 2240] and after considering
\nmaterial on record in para 6 and 7, the learned Single Judge has
\nobserved as under:\n<\/p>\n
“6.\tI
\nhave considered the rival submissions made by the learned advocates
\nappearing for the parties and perused the papers produced on record
\nand visitor register.  From the statements of the witnesses, it is
\nprima-facie established by the prosecution that FIR is not
\nencyclopedia and the question of alibi cannot be considered during
\nthe hearing of bail application.  From the documents produced on
\nrecord, it appears that the present applicant is involved in this
\noffence.\n<\/p>\n
7.\tIt
\nis true that once the conspiracy to commit any illegal act is proved,
\nthe act of one conspirator becomes the act of another.  I have also
\nfound from the papers that there was a meeting of mind to commit the
\noffence.  Conspiracy can be inferred even from the circumstances
\ngiving rise to exclusive or irresistible inference on an agreement
\nbetween two or more persons to commit the offence.  I have also found
\nfrom the papers that from the conduct of the present applicant and
\nothers, it is an admitted fact that the prosecution has proved
\nprima-facie that there was a conspiracy.  In view of the above, I am
\nof the opinion that there is some substance in the submission of
\nlearned APP Mr. Trivedi that present applicant accused is an
\ninfluential personality and he can be tempered with the evidence if
\nanticipatory bail is granted to him.  I have also gone through the
\ndecision cited by Mr. Mangukia learned advocate appearing for the
\napplicant.  In the said decision, this Court has observed that the
\nplea of alibi cannot be looked into by Court at the time of
\nconsideration of the question of bail.  Considering the facts and
\ncircumstances of the case and the papers produced on record, it
\nappears that the prosecution has prima-facie established the case
\nagainst the present applicant-accused.\n<\/p>\n
4.\tMr.\n<\/p>\n
B.M.Mangukiya, learned counsel for the applicant submits that, in
\nview of the decision of the Apex Court in the case of Ravindra
\nSaxena v. State of Rajasthan [(2010) 1 SCC 684], wherein it is
\nheld that anticipatory bail can be granted at any time so long as the
\napplicant has not been arrested, anticipatory bail cannot be denied
\nmerely because allegations of cheating and forgery have been made.
\nIt is further submitted that there is no bar for this Court to
\nexercise powers under Section 438 of the Code even if on earlier
\noccasion the request  of anticipatory bail is rejected.  So far as
\nthe proposition of law laid down as above and contended, this Court
\nis in full agreement and, therefore, this case is considered on
\nmerit.\n<\/p>\n
4.1.\tAccording
\nto Mr. B.M. Mangukiya, learned counsel for the applicant, the
\napplicant who was serving as Secretary of the Board is falsely
\nimplicated and there are no allegations in the FIR lodged on
\n14.3.2008 and it had only mentioned about incident of dummy writers
\nand certain other irregularities which took place in the examination
\nhall.  It is further submitted that except the visit of the applicant
\non 12.3.2008 on the day of the incident on 14.3.2009 the applicant
\nwas nowhere present in the examination hall and time and again the
\napplicant has  presented himself before the investigating officer,
\nassisted and co-operated and, therefore, the applicant being a
\nGovernment servant available for investigation be granted
\nanticipatory bail.\n<\/p>\n
4.2.\tLearned
\ncounsel further emphasized that all other co-accused have been
\nenlarged either under Section 439 or under Section 438 of the Code
\nand on the ground of parity also the applicant deserves equal
\ntreatment at the hand of this Court and this aspect may also be borne
\nin mind while exercising powers under Section 438 of the code and
\nbenefit be extended to the applicant while granting anticipatory
\nbail.  It is also submitted that there is no necessity or any
\nrequirement  of custodial interrogation of the applicant since the
\ninvestigating authority had failed to collect any material even prima
\nfacie connecting the applicant with the crime and at the most some
\nstatements which have been made about role of the applicant are of
\naccused or persons who have grudge against the applicant to involve
\nthe applicant in the crime.  It is next contended that none of the
\ningredients of the offence registered against the applicant is
\nattracted qua offences under Sections 419, 466, 467, 471, 474 of the
\nIPC and learned counsel has taken this Court to the definition and
\nlanguage of the above sections and submitted that considering the
\nabove, by no stretch of imagination it can be said that the applicant
\nhas committed any crime.  Learned counsel has also referred to the
\norder dated 12.5.2010 passed in Criminal Misc. Application NO.4743 of
\n2010; the order dated 17.9.2010 passed in Criminal Misc. Application
\nNo.1050 of 2010 by learned Single Judge of this Court and other such
\norders and contended that after considering the record prima facie
\nCo-ordinate Bench of this Court was satisfied and powers have been
\nexercised in favour of the co-accused and they were enlarged on bail
\nby imposing suitable conditions.  It is also submitted that in view
\nof the law laid down by the Apex Court in the case of Mohd.
\nIbrahim and Ors. v. State of Bihar and Anr. [(2009) 8 SCC 751],
\nState of Gujarat vs. Deepak Jaswantlal Sheth<\/a> [1998 (3) GLR 2240],
\nBharat Chaudhary & Anr. vs. State of Bihar and Anr. [(2003) 8 SCC
\n77],  this Court may be pleased
\nto bear in mind the principles governing grant of anticipatory bail
\nnamely, gravity of offence, prima facie ingredients, status and
\nreputation of the persons seeking bail, undue harassment that may
\ncause, the custodial interrogation etc. and the applicant be enlarged
\non bail .\n<\/p>\n
4.3.\tThe
\nlearned counsel has also vehemently contended that the hue and cry
\ncreated by the media  need not influence the court and justice be
\ndone to the applicant and if the record pertaining to the visit of
\nthe applicant on 12th
\nMarch, 2008 and entries made in the register book of the various
\nexamination centre are seen, it would clear the issue that the
\nallegations levelled against the applicant are baseless.  It is also
\nsubmitted that the complaint was filed in March, 2008 and after a
\nperiod of 2 \u00bd years of investigation the applicant has neither
\ntried to influence the investigation nor in any manner tried to
\ntamper any kind of material and basic allegations remained against
\nthe parents of the students, students and dummy writers and at the
\nmost the tutor and doctors who had issued  certificates, while the
\napplicant had not played any role in commission of the crime,
\ntherefore by imposing suitable conditions, the applicant may be
\nenlarged on bail.\n<\/p>\n
4.4.\tLastly,
\nit is submitted that the applicant has fundamental right under
\nArticle 21 of the Constitution of India and his freedom and liberty
\nmay not be curtailed at the behest of shaky investigation which is
\nbased on no material.  Once the applicant is arrested, it may attach
\nsocial stigma and also lead to departmental proceedings and,
\ntherefore, the applicant be considered for discretionary relief under
\nSection 438 of the Code.\n<\/p>\n
5.\tMr.\n<\/p>\n
L.R. Pujari, learned APP, for the respondent-State submits that
\nordinarily this second application for anticipatory bail need not be
\nentertained by this Court exercising powers under Section 438 of the
\nCode since it was rejected on merit by assigning reasons vide order
\ndated 5.8.2010 and there is no change of fact or law and enlarging
\nother accused on regular bail cannot have any bearing on the present
\ncase, when the officer of the rank of Class-I performing duties as a
\nSecretary of the Board and also responsible to conduct free and fair
\nexamination himself is involved in committing irregularities as per
\nthe offence registered under Sections 419, 414, 466, 468, 471, 474,
\n120-B of Indian Penal Code.  According to learned APP, all the above
\nofffences have  severe consequences and allegations are supported by
\nthe materials collected during investigation and about seven to eight
\nwitnesses have in no uncertain terms stated presence of the applicant
\non the day of alleged irregularities and three persons have so stated
\nthat the applicant had introduced one Bhagwatsinh Rawat a tutor who
\nwas responsible for dictating answers of questions to writers of the
\nstudents namely Master Harsh Kotak and Miss Komal Patel.  It is
\nfurther submitted that all these above offences are to be read and
\nconsidered along with Section 120-B of the IPC and there being prior
\nmeeting of mind and conspiracy to execute the plan so hatched by all
\naccused together ultimately made a false claim before the Board about
\ndeformities or disability to write the examination and requested that
\nassistance of writers by getting medical certificates of such
\ndisabilities and ultimately it was found on record that none
\nof the students who sought for assistance of writer had any kind of
\ndeformity and writers were aided and assisted by the present
\napplicant as a Secretary of the Board, who was found present on the
\nday when the examination for standard 12 was conducted and helped in
\ncommitting crime as above.  It is further submitted that the
\ninvestigation is yet not complete and the authority has to find out
\nvarious other materials,  viz. badges given to a concern persons for
\nentering into examination hall and mobile telephones made on the day
\nto various persons besides entry made by the applicant in the
\nRegister book of the school also to be confirmed by securing presence
\nof the applicant.  Not only that but the applicant has evaded his
\narrest and procedure is followed of issuance of warrant under Section
\n70 of the Code and lastly the learned Metropolitan Magistrate, Court
\nNo.11 has issued summons under Section 82 of the Code and the
\nDivision Bench of this Court headed by  Hon’ble the Chief Justice has
\npassed various orders with regard to nature and method of
\ninvestigation from time to time and periodical reports are also
\nsubmitted accordingly.  It is further submitted that powers under
\nSection 438 of the Code is to be exercised only if this Court thinks
\nfit that such power is warranted and there cannot be any straight
\njacket formula for exercising the powers under Section 438 of the
\nCode.\n<\/p>\n
6.\tHaving
\nheard learned counsels for the parties, perusal of the record,
\nstatements of various persons and witnesses shown by learned APP by
\nproducing the file on record reveal that the applicant, a responsible
\nofficer and in-charge of free and fair examination of Secondary and
\nHigher Secondary examination, is prima facie involved in the offences
\nso registered.  It is not a simple case of connivance but an active
\nand overt part is taken as per the reading of the statements  would
\nreveal that the applicant has introduced a tutor known to the
\nstudents to answer the questions of science papers.\n<\/p>\n
6.1.\tRecently,
\nthe Apex Court in the case of Siddharam Satlingappa Mhetre
\nv. State of Maharashtra and Ors.\n<\/p>\n
decided on 2nd
\nDecember, 2010 in Criminal Appeal No.2271 of 2010 has referred to
\nearlier decision of the Apex Court including the decision of
\nConstitution Bench in Shri Gurbaksh Singh Sibbia & Ors.
\nvs. State of Punjab<\/a>
\n[(1980) 2 SCC 565]  and in para
\n119, 121 and 122 held as under:\n<\/p>\n
“119.\tThis
\nCourt in the Sibbia’s case (supra) laid down the following principles
\nwith regard to anticipatory bail:\n<\/p>\n
a]\tSection
\n438(1) is to be interpreted in light of Article 21 of the
\nConstitution of India.\n<\/p>\n
b]\tFiling
\nof FIR is not a condition precedent to exercise of power under
\nsection 438.\n<\/p>\n
c]\tOrder
\nunder section 438 would not affect the right of police to conduct
\n\tinvestigation.\n<\/p>\n
d]\tConditions
\nmentioned in section 437 cannot be read into section 438.\n<\/p>\n
e]\tAlthough
\nthe power to release on anticipatory bail can be described as of \tan
\n“extraordinary” character this would “not justify
\nthe conclusion that the \tpower must be exercised in exceptional cases
\nonly”.  Powers are discretionary to be exercised in light of
\nthe circumstances of each case.\n<\/p>\n
f]\tInitial
\norder can be passed without notice to the Public Prosecutor.
\n\tThereafter, notice must be issued forthwith and question ought to be
\nre-\texamined after hearing. Such ad interim order must confirm to
\n\trequirements of the section and suitable conditions should be
\nimposed on \tthe applicant.\n<\/p>\n
121.
\nNo inflexible guidelines or straitjacket formula can be provided for
\ngrant or refusal of anticipatory bail.  We are clearly of the view
\nthat no attempt should be made to provide rigid and inflexible
\nguidelines in this respect because all circumstances and situations
\nof future cannot be clearly visualized for the grant or refusal of
\nanticipatory bai.  In consonance with the legislative intention the
\ngrant or refusal of anticipatory bail should necessarily depend on
\nfacts and circumstances of each case.  As aptly observed in the
\nConstitution Bench decision in Sibbia’s case (supra) that the High
\nCourt or the Court of Sessions to exercise their jurisdiction under
\nsection 438 of the Code by a wise and careful use of their discretion
\nwhich by their long training and experience they are ideally suited
\nto do.  In any event, this is the legislative mandate which we are
\nbound to respect and honour.\n<\/p>\n
122.\tThe
\nfollowing factors and parameters can be taken into consideration
\nwhile dealing with the anticipatory bail:\n<\/p>\n
i.\tThe
\nnature and gravity of the accusation and the exact role of the
\naccused must be properly comprehended before arrest is made;\n<\/p>\n
ii.\tThe
\nantecedents of the applicant including the fact as to whether the
\naccused has previously undergone imprisonment on conviction by a
\nCourt in respect of any cognizable offence;\n<\/p>\n
iii.\tThe
\npossibility of the applicant to flee from justice;\n<\/p>\n
iv.\tThe
\npossibility of the accused’s likelihood to repeat similar or the
\nother offences;\n<\/p>\n
v.\tWhere
\nthe accusations have been made only with the object of injuring or
\nhumiliating the applicant by arresting him or her.\n<\/p>\n
vi.\tImpact
\nof grant of anticipatory bail particularly in cases of large
\nmagnitude affecting a very large number of people;\n<\/p>\n
vii.\tThe
\ncourts must evaluate the entire available material against the
\naccused very carefully.  The court must also clearly comprehend the
\nexact role of \tthe accused in the case.  The cases in which and 149
\nof the Indian Penal \tCode, the court should consider with even
\ngreater care and caution because over implication in the cases is a
\nmatter of common knowledge \tand concern;\n<\/p>\n
viii.\tWhile
\nconsidering the prayer for grant of anticipatory bail, a balance has
\nto \tbe struck between two factors namely, no prejudice should be
\ncaused to \tthe free, fair and full investigation and there should be
\nprevention of harassment, humiliation and unjustified detention of
\nthe accused;\n<\/p>\n
ix.\tThe
\ncourt to consider reasonable apprehension of tampering of the
\n\twitnesses or apprehension of threat to the complainant;\n<\/p>\n
x.\tFrivolity
\nin prosecution should always be considered and it is only the element
\nof genuineness that shall have to be considered in the matter of
\n\tgrant of bail and in the event of there being some doubt as to the
\ngenuineness of the prosecution, in the normal course of events, the
\n\taccused is entitled to an order of bail”.\n<\/p>\n
\tThereafter,
\nthe Apex Court in paras 133 and 134 held as under:\n<\/p>\n
“133.\n<\/p>\n
In our considered view, the Constitution Bench in Sibbia’s case
\n(supra) has comprehensively dealt with almost all aspects of the
\nconcept of anticipatory bail under section 438 Cr.P.C. A number of
\njudgments have been referred to by the learned counsel for the
\nparties consisting of Benches of smaller strength where the courts
\nhave observed that the anticipatory bail should be of limited
\nduration only and ordinarily on expiry of that duration   or
\nstandard    duration,   the   court   granting      the anticipatory
\nbail should leave it to the regular court to deal with
\n                                               69 the matter. This
\nview is clearly contrary to the view taken by the Constitution Bench
\nin Sibbia’s case (supra). In the preceding paragraphs, it is
\nclearly spelt out that no limitation has been envisaged by the
\nLegislature under section 438 Cr.P.C.   The Constitution Bench has
\naptly observed that “we see no valid reason for rewriting
\nsection 438 with a view, not to expanding the scope and ambit of the
\ndiscretion conferred on the High Court or the Court of Session but,
\nfor the purpose of limiting it”.\n<\/p>\n
134.
\nIn view of the clear declaration of law laid down by the
\nConstitution Bench in Sibbia’s case (supra), it would not be proper
\nto limit the life of anticipatory bail. When the court observed that
\nthe anticipatory bail is for limited duration and thereafter the
\naccused should apply to the regular court for bail, that means the
\nlife of section 438 Cr.P.C. would come to an end after that limited
\nduration.  This limitation has not been envisaged by the legislature.
\n The Constitution Bench in Sibbia’s case (supra) clearly observed
\nthat it is not necessary to re-write section 438 Cr.P.C. Therefore,
\nin view of the clear declaration of the law by the Constitution
\nBench, the life of the order under section 438 Cr.P.C. granting bail
\ncannot be curtailed.”\n<\/p>\n
\tThe Apex Court
\nalso considered earlier decisions of the various Benchs and referred
\nto those decisions in paras 135 and 136, which reads as under:-\n<\/p>\n
“135.\n<\/p>\n
The ratio of the judgment of the Constitution Bench in Sibbia’s
\ncase (supra) perhaps was not brought to the notice of their
\nLordships who had decided the cases of Salauddin Abdulsamad Shaikh
\nv. State of Maharashtra, K. L. Verma<\/a> v. State and Another, Adri
\nDharan Das v. State of West Bengal and Sunita Devi<\/a> v. State of Bihar
\nand Another (supra).\n<\/p>\n
136.
\nIn Naresh Kumar Yadav v. Ravindra Kumar<\/a> (2008) 1 SCC 632,
\na two-Judge Bench of this Court observed “the power exercisable
\nunder section 438 Cr.P.C. is somewhat extraordinary in character and
\nit should be exercised only in exceptional cases. This approach is
\ncontrary to the legislative intention and the Constitution Bench’s
\ndecision in Sibbia’s case (supra).”\n<\/p>\n
\tThe
\nApex Court in paras 137 and 138 reiterated as under:-\n<\/p>\n
“137.\n<\/p>\n
We deem it appropriate to reiterate and assert that discretion vested
\nin the court in all matters should be exercised with care and
\ncircumspection depending upon the facts and circumstances justifying
\nits exercise. Similarly, the discretion vested with the court under
\nsection 438 Cr.P.C. should also be exercised with caution and
\nprudence.   It is unnecessary to travel beyond it and subject to the
\nwide power
\n       and discretion conferred by the legislature to a rigorous code
\nof self-imposed limitations.\n<\/p>\n
138.
\nThe judgments and orders mentioned in paras 135 and 136   are
\nclearly   contrary   to   the   law   declared   by   the
\nConstitution Bench of this Court in Sibbia’s case (supra).  These
\njudgments and orders are also contrary to the legislative intention.
\nThe Court would not be justified in re-writing section 438 Cr.P.C.”\n<\/p>\n
\tThe
\nApex Court also examined issue of per incuriam and finally in paras
\n149 and 150 reiterated as under:-\n<\/p>\n
“149.\n<\/p>\n
The analysis of English and Indian Law clearly leads to the
\nirresistible conclusion that not only the judgment of a larger
\nstrength is binding on a judgment of smaller strength but the
\njudgment of a co-equal strength is also binding on a Bench of judges
\nof co-equal strength.     In the instant case, judgments mentioned
\nin paragraphs 135 and 136 are by two or three judges of this court.
\nThese judgments have clearly ignored a Constitution Bench judgment of
\nthis court in Sibbia’s case (supra) which has comprehensively dealt
\nwith all the facets of anticipatory bail enumerated under section 438
\nof Cr.P.C..   Consequently,   judgments   mentioned     in paragraphs
\n135 and 136 of this judgment are per incuriam.\n<\/p>\n
150.
\nIn case there is no judgment of a Constitution Bench or larger Bench
\nof binding nature and if the court doubts the correctness of the
\njudgments by two or three judges, then the
\n                                      proper course would be to
\nrequest Hon’ble the Chief Justice to refer the matter to a larger
\nBench of appropriate strength.”\n<\/p>\n
7.\tKeeping
\nthe above broad aspects in mind what is necessary for this Court is
\nto see that whether facts of this case are such which would lead this
\nCourt to think it fit to exercise powers under Section 438 of the
\nCode.  As stated earlier initially there is involvement of the
\napplicant while introducing the tutor one Bhagwatsinh Rawat to write
\nthe examination while answering the questions; secondly, as found by
\nmy predecessor Judge (Coram: Hon’ble Mr. Justice Z.K.Saiyed) that
\nprima facie material is available about prior meeting of minds and
\nall accused have entered into a conspiracy to see that students
\nnamely, Master Harsh Kotak and Miss Komal Patel successfully  make
\nattempt and write the examination though there were no injuries,
\ndeformities or disabilities for seeking assistance of the writers,
\nmedical certificates were obtained; thirdly, certificates issued by
\nthe Orthopedic Surgeon had not mentioned correct deformities even if
\nthere was any and such certificates, prima facie appeared to have
\nbeen issued to help the students to seek assistances of the writers,
\nfourthly, writer students were provided from one school i.e. Swatik
\nShishu Vihar Secondary School; fifthly, managing
\ntrustee\/administrator of the Swastik Shishu Vihar Secondary School is
\nyet not arrested.  Uptil now investigation agency has arrested
\nparents of the students, tutor and the Doctor which reveal that there
\nis a prima facie case and statements of the informant Atul Nareshbahi
\nShah and Kalpana Shankarlal Patel and other persons and report of Mr.
\nP. Paneervel, high ranking officer also reveal presence of the
\napplicant on the day of incident.\n<\/p>\n
8.\tIn
\nthe above circumstances, when further material is yet to be obtained,
\nit cannot be said that custodial interrogation of the applicant is
\nnot necessary.  So far as ground of parity, in view the order dated
\n12.5.2010 passed in Criminal Misc. Application No.4743 of 2010, is
\nconcerned, admittedly, after police officer of Crime Branch added
\nSections 466, 467, 471 and 120-B of the IPC on 10.3.2010, factually
\nnoting is to the extent that offences were punishable under Sections
\n419 and 114 are registered for which punishment is prescribed for a
\nperiod of three years.\n<\/p>\n
9.\tBe
\nthat as it may be, the fact remains that the offences have been
\nregistered not only under Sections 419 and 114 but also 466, 471, 474
\nand 120-B.  So far as the order dated 17.9.2010 passed in Criminal
\nMisc. Application No.10501\/2010 is concerned, the argument of the
\nlearned counsel was that on two occasions, offences under Sections
\n466, 468 and 471 were subsequently withdrawn and even if those
\nsections were read as they were then also no ingredients of forgery
\nwould be attracted and by relying on decision in Mohd. Ibrahim &
\nOrs. V. State of Bihar & Anr. (supra) and the fact that other
\nco-accused were enlarged on bail, the learned Judge also granted
\nbail.\n<\/p>\n
9.1.\tThe
\napplicant has up till now successfully avoided the arrest and as a
\nlast recourse action under Sections 70 and 82 of the Code is
\ninitiated and being a high ranking officer is likely to influence the
\ninvestigation.\n<\/p>\n
10.\tConsidering
\nthe above aspects and law laid down by the Apex Court, prima facie:-\n<\/p>\n
\t(a)\tthe
\napplicant, the custodian and in-charge officer for free and fair
\nexamination for Higher Secondary Stream is alleged to have indulged
\ninto irregularities and illegally by polluting stream of education
\nsystem.\n<\/p>\n
\t(b)\tthe
\nexact role of the accused applicant of introducing a tutor known to
\nthe students appearing in examination is defined.\n<\/p>\n
\t(c)\tthat
\nnumber of items are to be recovered including the badges and visit
\nbooks in which entries have been made by the applicant.\n<\/p>\n
\t(d)\tthat
\nup till now, the applicant has avoided the arrest and, therefore, he
\nis likely to flee course of justice and also easily can influence the
\nwitnesses and may also temper with record and above apprehension
\ncannot be ruled out in view of issuance of warrant under Sections 70
\nand 82 of the Code.\n<\/p>\n
\t(e)\tbesides,
\nthe case is also required to be viewed in light of Section 120-B of
\nIPC.\n<\/p>\n
11.\tSo
\nfar as in the case of Moh. Ibrahim and Ors.\n<\/p>\n
(supra)  is concerned, it was a case under Section 482 of the Code
\nwhere essentially the dispute had arisen which was of a civil nature
\nabout preparation of false documents and what could be the
\ningredients of Sections 415, 420, 463 and 467 and the Apex Court had
\nquashed the complaint in question.  However, the rational and logic
\nand what is held by the Apex court cannot be applied straightaway to
\nthe application under Section 438 of the Code which has a distinct
\ncharacter of its own and, therefore, on the aspect of parity, the
\napplicant cannot be extended any benefit on the above ground also.\n<\/p>\n
12.\tConsidering
\nthe material on record and in view of the fact that according to this
\nCourt there is no change either on fact or any law coupled with
\nwhatever I have observed earlier, this second application for
\nanticipatory bail is dismissed.  Rule is discharged.\n<\/p>\n
[ANANT
\nS. DAVE, J.]<\/p>\n
\/\/smita\/\/<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court H vs State on 8 December, 2010 Author: Anant S. Dave,&Nbsp; Gujarat High Court Case Information System Print CR.MA\/11996\/2010 16\/ 16 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 11996 of 2010 ============================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 […]<\/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-218139","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nH vs State on 8 December, 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\/h-vs-state-on-8-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"H vs State on 8 December, 2010 - 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