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2002 DIGILAW 278 (GUJ)

VOHRA ABDUL RAZAK FAZALBHAI v. STATE

2002-04-04

B.J.SHETHNA

body2002
B. J. SHETHNA, J. ( 1 ) RULE. Mr. R. C. Kodekar, Ld. APP waives service of rule for respondent-State. Mr. Vijay Patel, Ld. Advocate waives service of rule for respondent no. 2 to 11. ( 2 ) THE petitioner Vohra Abdul Razak Fazalbhai is the original complainant. He has lodged complaint on 16. 9. 2001 at 7:15 p. m. before the Police for the incident in question which took place on 15. 9. 2001 between 12:00 noon to 12:15 hours which was registered as Crime Register No. 23 of 2001 for the offences punishable under Section 395, 436, 452 IPC and Section 135 of Bombay Police Act naming in all 11 accused persons with about 200 to 250 persons in the crowd. As per his FIR, the crowd entered Decora Profiles Pipes Pvt. Ltd. and ransacked the same and set at fire and thereby caused loss of Rs. 43,13,400. 00 and robbed them by looting valuables worth Rs. 22,86,000. 00 from the premises of the company. Thus, they have caused in all loss of Rs. 65,99,400. 00. ( 3 ) DR. SUBHASHCHANDRA Haribhai Dave who is a doctor having hospital at Vijapur named as accused no. 1 filed Criminal Misc. Application No. 925 of 2001 alongwith 9 other accused persons seeking anticipatory bail from the Court of Sessions Judge at Mahesana. The same was granted on conditions by the Ld. Additional Sessions Judge, Mahesana by judgement and order dated 26. 9. 2001. ( 4 ) AN application for cancellation of bail was filed against that order before this Court by the present applicant-complainant wherein notice was ordered to be issued by the Learned Single Judge of this Court but before the same came to be decided, the respondents-accused preferred joint regular bail application No. 962 of 2001 which was allowed by the Ld. Additional Sessions Judge by his judgement and order dated 5. 10. 2001 on certain terms and conditions. Aggrieved by that order, the petitioner-complainant has filed this application for cancellation of bail granted in favour of the respondents-accused. ( 5 ) LD. Counsel Shri Tirmizi appears for the petitioner-original complainant. Shri Vijay Patel appears for the respondents-accused no. 2 to 11 and Shri Kodekar, Ld. APP appears for the respondent State. ( 6 ) MR. TIRMIZI, Ld. Aggrieved by that order, the petitioner-complainant has filed this application for cancellation of bail granted in favour of the respondents-accused. ( 5 ) LD. Counsel Shri Tirmizi appears for the petitioner-original complainant. Shri Vijay Patel appears for the respondents-accused no. 2 to 11 and Shri Kodekar, Ld. APP appears for the respondent State. ( 6 ) MR. TIRMIZI, Ld. Counsel for the petitioner-complainant firstly submitted that the District Government Pleader Shri Trivedi is the brother of Shri Dilipbhai Trivedi who is the General Secretary of Vishwa Hindu Parishad and therefore, he did not appear in the matter and his colleague Shri Jani appeared before the Learned Judge. But, thereafter, he had not stretched this submission further and had not pressed it. Therefore, I am not required to go into the same though specific contention was raised by him in memo of this application. ( 7 ) MR. TIRMIZI then contended that it was highly improper on the part of the Learned Judge to go into the merits of the case and after appreciating evidence releasing the accused on bail by holding that the evidence of the witnesses was not reliable. Ld. APP Shri Kodekar also rightly submitted that it was not the stage for the Learned Additional Sessions Judge to appreciate the evidence at this stage and come to the conclusion that the evidence of the witnesses was not reliable. Infact, Ld. Counsel Shri Vijay Patel appearing for the respondents-accused also conceded that it was not open to the Ld. Additional Judge to go into that question and appreciating the evidence at this stage and come to the conclusion that the evidence of the witnesses was not reliable. ( 8 ) WHILE deciding the bail application, the Court has to simply look at the prima facie material and it was not open to a Judge to go into the merits of the case and come to the conclusion that the evidence of the witnesses was reliable or not. This can only be done at the end of conclusion of trial. Any observations made by the Ld. Judge while deciding the bail application should never come in the way of the prosecution. It goes without saying that while deciding the case, the Learned Judge shall consider the evidence of the witnesses which has been led before him and which is subjected to cross examination of the defence counsel. Any observations made by the Ld. Judge while deciding the bail application should never come in the way of the prosecution. It goes without saying that while deciding the case, the Learned Judge shall consider the evidence of the witnesses which has been led before him and which is subjected to cross examination of the defence counsel. If he is satisfied then he may rely upon it and if he is not satisfied with the testimony led before him then he may not rely upon it. ( 9 ) MR. TIRMIZI, Ld. Counsel for the petitioner-complainant then submitted that the Learned Judge was wrong in releasing the respondents-accused on bail on the ground that there was a delay of 30 hours in lodging the FIR. There is a lot of substance in the submission made by Mr. Tirmizi that in such type of cases, there may be some delay in lodging FIR and that would not be a ground to release the accused on bail. The delay caused in some cases may be properly explained by the complainant and if in a given case, if the Ld. Judge at the end of the conclusion of the trial is satisfied about the explanation offered by the complainant regarding the delay caused in lodging the FIR, then he may pass appropriate order at the time of trial. ( 10 ) HOWEVER, Ld. Counsel Shri Patel for the respondents-accused tried to submit that on this count, this Court should not interfere because the Learned Judge had discretion. On facts of this case, if he has exercised his jurisdiction in favour of the respondents-accused, then this Court shall not interfere with such discretionary orders. As stated earlier, it was not open to the Ld. Judge to release the accused on the ground of delay because on facts of this case, I am of the considered opinion that the Learned Judge was not justified in releasing the respondents-accused on bail on this ground also. ( 11 ) HOWEVER, Ld. Counsel Shri Vijay Patel for the respondents-accused submitted that the respondent no. 2-accused is none else but a practising doctor who is having hospital and has treated all the patients of all communities. Inspite of this, his name is falsely involved in the matter. ( 11 ) HOWEVER, Ld. Counsel Shri Vijay Patel for the respondents-accused submitted that the respondent no. 2-accused is none else but a practising doctor who is having hospital and has treated all the patients of all communities. Inspite of this, his name is falsely involved in the matter. He, therefore, submitted that the possibility of names of all respondents-accused of being falsely implicated in the matter cannot be ruled out, more particularly, when there was a delay of 30 hours in lodging the FIR. In this application, an attempt is made to explain the delay of 30 hours that under what circumstances, the delay was caused. However, at this stage, it would be difficult for this Court to go into the question as to whether the complainant has falsely implicated the name of the respondent no. 2-accused or not. It is a matter of evidence which can be decided by the Learned Trial Judge at the end of trial. ( 12 ) IF these were the only reasons for granting bail by the Learned Judge then perhaps, this Court would have interfered with the order and cancelled the bail but from the order passed by the Learned Judge, it appears that nothing was recovered from the respondents-accused and that the impugned order was passed by the Learned Judge on 5. 10. 2001 with certain conditions and so far they have been strictly complied with. Therefore, I am not inclined to interfere with the impugned discretionary order of releasing the accused on bail. ( 13 ) HOWEVER, I make it clear that if the Learned Judge had not granted bail in this case and if the accused had come before this Court then perhaps, this Court might not have released them on bail, but the consideration would be different when the matter comes up before this Court for cancellation. If the Learned Judge had discretion and if it is exercised without any ulterior motive by the Learned Judge in favour of the respondents-accused and if one ground is sufficient to sustain the order, then even if this court is inclined to take different view in the matter, then also, this court would not interfere with such discretionary order. ( 14 ) WITH these observations, this bail application is dismissed. Rule discharged. .