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2002 DIGILAW 642 (GUJ)

Kadarbhai Kasambhai Pirvani v. STATE

2002-08-26

B.J.SHETHNA

body2002
B. J. SHETHNA, J. ( 1 ) IT is well settled law that more filing of charge sheet is no change in circumstances. In this case, charge sheet was submitted before the court way back in november, 2001 and thereafter his subsequent bail applications were rejected by the Sessions Court as well as this court. However, learned counsel Mr. Anandjiwala for the applicant-accused stated that so far the same is not supplied to the accused along with other papersr therefore, this subsequent bail application is maintainable. ( 2 ) THE submission of Mr. Anandjiwala, learned counsel for the petitioner-accused was that in this case FIR No. 1-128/01 was lodged for offences under Sections 406, 407 and 420 read with Section 34 of the IPC against the applicant-accused along with 11 other accused for breach of trust and cheating and misappropriation of only rs. lo,715/=. He submitted that the accused is in jail since last 4 months and all other accused are on bail, therefore, he should be released on bail, if he is not released on bail, then it would amount to pretrial punishment to him before he is found guilty and convicted by the court. ( 3 ) IT is true that as per FIR there is a misappropriation of Rs. lo,715/=, but the present petitioner was the Managing director of the bank and in all lakhs of rupees have been misappropriated whereby the poor depositors of the bank were made to suffer. ( 4 ) WITH the registration of FIR No. I- 128/01 with Bhavnagar City C Division police Station against present applicant- accused and others for the offences punishable under Sections 406, 409 and 420 read with Section 34 of IPC the applicant-accused applied for anticipatory bail by way of Misc. Criminal Application no. 732/01 before the Sessions Court, bhavnagar. It was granted on 24. 8. 2001 with certain terms and conditions. Thereafter, he filed regular bail application being Criminal Misc. Application No. 799/ 01 before the Sessions Court, Bhavnagar and the same was granted by the learned sessions Judge on 5. 9. 2001 on certain terms and conditions mentioned in that order. The learned Sessions Judge imposed 7 conditions in that order. He committed the breach of those conditions. Therefore, the State of Gujarat filed Misc. Criminal application No. 1082/01 before the learned sessions Judge under Section 439 (2) of cr. 9. 2001 on certain terms and conditions mentioned in that order. The learned Sessions Judge imposed 7 conditions in that order. He committed the breach of those conditions. Therefore, the State of Gujarat filed Misc. Criminal application No. 1082/01 before the learned sessions Judge under Section 439 (2) of cr. P. C. for cancellation of bail granted in favour of the accused. He was duly served with the notice of the said application and after hearing him the learned Sessions judge found that he committed breach of the conditions imposed in the bail order passed in his favour, therefore, by his judgment and order dated 23. 1. 2002 he cancelled the bail granted earlier in favour of the accused. ( 5 ) THE aforesaid impugned judgment and order of cancellation of bail dated 23. 1. 2002 passed by the learned Sessions judge was challenged by the present applicant-accused by way of Criminal Misc. Application No. 644/02 before this court on 30. 1. 2002 learned Single Judge of this court while issuing notice to the respondent-State granted interim relief in terms of para 17 (B) of that application by a brief reasoned order. By virtue of the interim relief, though the bail of the accused was cancelled by the learned judge, he continued to remain on bail. The said Interim Relief was extended from time to time by different Honble Judges of this court. At least, on three occasions, this court also granted time on the assurance given by the learned Senior Advocate Shri p. M. Thakkar for the petitioner-accused for raising funds to show his bonafide. In spite of number of opportunities given to the petitioner-accused, he failed to raise funds. Ultimately, Criminal Misc. Application no. 644/02 was finally heard and decided on merits by this court on 16. 4. 2002, after carefully going through the impugned order passed by learned Sessions Judge cancelling the bail of the applicant-accused on 23. 1-2002 in Criminal Misc. Application no. 1082/01 filed by the State of Gujarat. Ultimately, Criminal Misc. Application no. 644/02 was finally heard and decided on merits by this court on 16. 4. 2002, after carefully going through the impugned order passed by learned Sessions Judge cancelling the bail of the applicant-accused on 23. 1-2002 in Criminal Misc. Application no. 1082/01 filed by the State of Gujarat. This court clearly found that there was a clear breach of conditions imposed in the earlier bail order passed by the learned judge as I was clearly of the opinion that once the accused is enlarged on bail on certain terms and conditions and if he commits any breach of it, then the bail granted in his favour was required to be cancelled and accordingly it was cancelled by the learned Judge. In that view of the matter, there was no reason for this court to interfere with the cancellation order of bail passed by the learned Judge. In fact, learned Senior Advocate Mr. Thakkar appearing for the applicant-accused had fairly conceded before me that there was a breach of condition, but his submission was that on such technical breach the learned judge ought not to have cancelled the bail. That submission of Mr. Thakkar was rejected by this court because practically the accused committed breach of almost all conditions imposed in the bail order by the learned Sessions Judge in his bail order. If no strict view of the matter is taken then all the accused would start committing breach of their conditional bail orders, which would frustrate the very purpose of releasing the accused on bail on stringent conditions. Accordingly, previous bail application being Criminal Misc. Application No. 644/02 filed by the present applicant accused was rejected and the accused was ordered to be arrested forthwith. Accordingly, he was arrested on 16. 4. 2002. Since then he is in jail. ( 6 ) IT must be stated that after his bail application was rejected by this court on 16. 4. 2002 once again he moved the learned sessions Judge by way of Criminal Misc. Application No. 471/02 for temporary bail. The same was rejected by the learned judge on 28. 5-2002 by observing that he can be taken to the hospital for the purpose of treatment at his own cost with police bandobust. Aggrieved of that order of rejection of bail the applicant-accused had earlier preferred Criminal Misc. Application No. 3164/02 through another counsel Ms. The same was rejected by the learned judge on 28. 5-2002 by observing that he can be taken to the hospital for the purpose of treatment at his own cost with police bandobust. Aggrieved of that order of rejection of bail the applicant-accused had earlier preferred Criminal Misc. Application No. 3164/02 through another counsel Ms. Nirali Munshi. On instruction from the applicant-accused Ms. Munshi sought permission to withdraw that petition and accordingly it was dismissed as withdrawn on 21. 6. 2002. ( 7 ) SURPRISINGLY, once again, after order of rejection of bail passed on 21. 6. 2002 passed in Criminal Misc. Application No. 3164/02 as withdrawn within two weeks thereof the present petitioner-accused moved another bail application i. e. Criminal Misc. Application no. 3851/02 through another Senior advocate of this Court Mr. H. N. Jhala, without disclosing the fact of filing of earlier Criminal Misc. Application No- 3164/02 through Ms. Munshi on the same subject. It may be stated that filing of all other previous bail applications were mentioned in it, but the most important fact of last bait application being Criminal misc. Application No. 3164/02 which was dismissed as withdrawn was suppressed. When that Criminal Misc. Application no. 3851/02 came up for hearing on 4. 7. 2002, before this court, within two weeks from rejection of earlier bail application on 21. 6. 2002, the aforesaid fact was brought to the notice of learned Senior counsel Mr. Jhala, who after tendering his sincere apology straightaway sought permission to withdraw that petition. Because of that the petition was permitted to be withdrawn and accordingly it was dismissed as withdrawn. ( 8 ) IT may be stated that aforesaid criminal Misc. Application No. 3851/02 came to be dismissed as withdrawn on 4. 7. 2002 and within 16 days thereof the applicant-accused once again filed another criminal Misc. Application No-629/02 before learned Sessions Judge which was also rejected by another Additional sessions Judge, Bhavnagar by his impugned judgment and order dated 26. 7. 2002 running into five typed pages. Hence, the petitioner-accused has filed this bail petition through another senior counsel Mr. Anandjiwala. ( 9 ) FIRST submission of Mr. Anandjiwala in this application is that when all other accused have been enlarged on bail, then the present accused cannot be kept in jail for more than four months. It would amount to pretrial punishment. This submission of Mr. Hence, the petitioner-accused has filed this bail petition through another senior counsel Mr. Anandjiwala. ( 9 ) FIRST submission of Mr. Anandjiwala in this application is that when all other accused have been enlarged on bail, then the present accused cannot be kept in jail for more than four months. It would amount to pretrial punishment. This submission of Mr. Anandjiwala has no substance because the present applicant- accused was also initially enlarged on bail by the Sessions Court itself but on conditions. It was found by the learned sessions Judge on an application filed by state of Gujarat for cancellation of bail that he committed breach of almost all conditions of bail, therefore, the learned sessions Judge thought it fit to cancel the same. In view of the above matter, when this court on earlier occasion rejected his misc. Criminal Application No. 644/02 on 16. 4. 2002 by a detailed reasoned order, then there is no question of now releasing the accused on bail. Conditions are not mere formality. When conditions are imposed, while releasing the accused on bail, then they have to be fully complied with. Breach of any of the conditions would be sufficient to cancel the bail and when the trial Court exercised its discretion against the petitioner-accused, in such type of cases this court would never interfere, more particularly, when on earlier occasions this court has rejected his bail applications. ( 10 ) SECOND submission of mr. Anandjiwala was that though the charge sheet filed on 16. 11. 2001, learned magistrate has not served the papers of the charge sheet to the accused can be taken care of by directing the Magistrate by supplying the papers of charge sheet to the accused at the earliest but that will not be a ground to release the accused on bail, if the applicant-accused has not been served with papers of charge sheet then the learned Magistrate shall serve the papers of the charge sheet along with it within fortnight from the date of receipt of this order. ( 11 ) IN view of the above discussion, this petition fails and is summarily rejected. The office shall send copy of the order to the learned Magistrate forthwith. .