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2011 DIGILAW 311 (GUJ)

RAMESHBHAI BATUBHAI DHABI v. STATE OF GUJARAT

2011-04-11

ANANT S.DAVE

body2011
ANANT S. DAVE, J. Rule. Learned A.P.P., waives service of notice of Rule for respondent-State. 2. This application is filed under Sec. 439 of the Code of Criminal Procedure in connection with first information report registered on 3-3-2011 vide CR. No. 1-16 of 2010 with Bagodara Police Station, for the offences alleged to have taken place 12 months before and punishable under Sees. 376, 365, 344, 506(2) and 114 of the Indian Penal Code. 3. Brief facts of this case are as under : That the marriage of the complainant aged about 19 years with Mahesh Bhopabhai Koli Patel was solemnized as per Hindu customary rituals an 31-3-2009 at Ahmedabad in the marriage ceremony performed at Shiv Marriage Point Hall. The complainant and her husband had given an advertisement in the newspaper about their marriage. The relevant documents namely marriage certificate and the advertisement published in the newspaper have been annexed with this application. Even an affidavit sworn by the complainant that she had left her husband and without taking valuable articles dated 31-3-2009 is also on record of this case. 4. The complainant herself filed a complaint against her relatives and requested for protection from her family members at Bagodara Police Station on 14-4-2009, in which, it was stated that she received threats from her relatives. In the above complaint, it was stated by her that she had left her parental place voluntarily and had no grievance with her husband pursuant to the registration of marriage before the Registrar of Marriages. 5. For the offences alleged to have taken place before one year or so a complaint came to be filed on 3-3-2010 against one Prabhat Makwana and other three persons and the applicant herein is accused No.2. According to the complainant she was taken by accused No. 1 to various places and at initial stage the accused herein had abetted the crime. However, according to her, she got married with one Mahesh Bhopabhai Koli Patel, who later on expired and Prabhat Makwana, accused No. 1 threatened her with dire consequences and had administered threat to her life, she lodged complaint after so many months. However, fact remains that there are no direct allegations against the present applicant of commission of crimes punishable under Sec. 376 read with Sec. 114 of the I.P.C. 6. However, fact remains that there are no direct allegations against the present applicant of commission of crimes punishable under Sec. 376 read with Sec. 114 of the I.P.C. 6. Learned Counsel appearing for the applicant submits that the applicant is falsely implicated and no overt act is attributed to him. All allegations are against one Prabhat Makwana and two co-accused Shri Mahesh Valjibhai Barevadia, (Parchanwala) was granted anticipatory bail in exercise of powers under Sec. 438 of the Cr. P.C., 1973 by the Co-ordinate Bench of this Court as per order dated 5-8-2010 passed in Misc.Cri.A. No. 8237 of 2010 (Coram: Hon'ble Mr. Justice Z. K. Saiyed) and Ajitbhai B. Dodiya was enlarged on regular bail in exercise of powers under Sec. 439 of the Code vide order dated 13-8-2010 in Misc.Cri.A. No. 9316 of 2010 (Coram: Hon'ble Mr. Justice Z. K. Saiyed). It is, therefore, submitted that the applicant herein against whom also similar allegations have been levelled in a belated complaint filed after about more than 12 months and when the version of the complainant taken as a whole is unbelievable, who got married with one Mahesh Bhopabhai Koli Patel travelled and stayed together, the marriage was solemnized, certificate of marriage was produced, a declaration on oath was made and even an advertisement in the newspaper was also given, in such circumstances, order rejecting the' application of the applicant for regular bail by the learned trial Judge (learned Sessions Judge, Ahmedabad Rural) deserves to be quashed and set aside. Learned Counsel further submits that in spite of the above two orders granting anticipatory and regular bail to the co-accused by the High Court were produced on the record of the trial Court and an application for bail which was preferred after filing of the charge-sheet came to be rejected by not accepting the ground of parity by stating the reason that said argument could be canvassed before the High Court. It is further submitted that learned Sessions Judge ought to have exercised the powers under Sec. 439 of the Code by considering the above two orders passed by this Court granting and enlarging other co-accused on bail having almost similar and identical role to the applicant. It is further submitted that learned Sessions Judge ought to have exercised the powers under Sec. 439 of the Code by considering the above two orders passed by this Court granting and enlarging other co-accused on bail having almost similar and identical role to the applicant. Learned Counsel for the applicant emphatically submitted that while considering the decision of the Apex Court in the case of Gudikanti Narasimbulu v. Public Prosecutor, High Court of Andhra Pradesh, AIR 1978 SC 429 , learned Judge has thoroughly failed to apply the ratio laid down therein and erroneously held that principle of bail is a rule outdated in present circumstances in view of increasing crime rates. The above declaration on the part of learned trial Judge is unwarranted., misconceived and amounts not only dereliction of his duties, but wilful disobedience and disregard to the pronouncement and declaration of law by the highest Court of the country. Such a conduct on the part of learned Sessions Judge in exercise of judicial powers under Sec. 439 of the Code would certainly exposed learned Judge for the proceedings to be initiated under the Contempt of Court Act. It is submitted that it is not open to a subordinate Court to misconstrue and misread and disregard the judgment of the Apex Court or any other higher Court and to interpret it in a different manner on extraneous grounds and such an attempt on the part of the learned Judge of a subordinate Court would amount to disobedience of the order of a superior Court. Learned Counsel also relied on the decision in the case of K. Veerabasappa v. District Judge, Chitradurga, AIR 1979 Kant. 40 and a decision in the case of Shaft Ahmed Khudabux Kazi v. Hashmatbi Hujjumiya Mogal, AIR 1997 Bom. 260 and submitted that an attempt on the part of learned Sessions Judge in this case to term principle of law on regular bail as laid down in Gudikanti Narasimbulu (supra) as an outdated is nothing, but complete disregard to a bench-mark case-law vis-a-vis exercise of powers under Sec. 439 of the Code, deserves to be viewed seriously along with other observations and finding that ground of parity can be advanced before the High Court and not before the Sessions Court. The above reasoning and approach of the learned Judge is contrary to law and amounts depriving the applicant of his legitimate right to claim parity and similar treatment at the hand of judicial forums. It is, therefore, submitted that the order impugned not only deserves to be quashed and set aside but appropriate action be taken against learned Sessions Judge for misconstruing and disregarding principle of law on bail under Sec. 439 of the Code and the applicant herein be considered for regular bail at par with other two co-accused and even on merit also, as submitted hereinabove. 7. Learned A.P.P., however, would submit that so far as submission made by learned Counsel for the applicant about misconstruing and misreading the provisions of law and the decision of the Gudikanti Narasimbulu (supra) and parity, can be urged before High Court only, it is difficult to defend the stand taken by the learned Sessions Judge but on merit it is submitted that allegations are levelled against the applicant of abetting the crime of a serious nature, and therefore, the applicant does not deserve any relief under Sec. 439 of the Code. 8. Having heard learned Counsels appearing for the parties and considering the factual aspects, prima facie, remain uncontroverted. That, the marriage of the complainant with Mahesh Bhopabhai Koli Patel was solemnized on 31-3-2009 as per Hindu customary rituals and was registered accordingly. That, public advertisement was given in a newspaper about the marriage of the complainant with Mahesh Bhopabhai Koli Patel and affidavit was also filed on 31-3-2009 declaring on oath that the complainant had voluntarily left her parental house without taking any item or money or jewellery. On 14-4-2009, a complaint was filed before Bagodara Police Station about threats received and harassment meted out by the complainant from her relatives and to give her protection and finally a statement which was recorded on 25-10-2009 by the Police Sub-Inspector of Bagodara Police Station after death of husband of the complainant and no involvement of the applicant is shown. The complaint, for which, the bail is sought for is filed after about 12 months from the date of alleged incident. The investigation is over and now charge-sheet is filed. Besides, two co-accused have been granted anticipatory bail and regular bail under Sees. 438 and 439 of the Code respectively. The complaint, for which, the bail is sought for is filed after about 12 months from the date of alleged incident. The investigation is over and now charge-sheet is filed. Besides, two co-accused have been granted anticipatory bail and regular bail under Sees. 438 and 439 of the Code respectively. The applicant is not the principal offender but is alleged to have accompanied the main accused in the car. The complainant during the intervening period has travelled and resided with her late husband and had an ample opportunity to ventilate her grievance and on two different occasions her statement was recorded by the P.S.I, Bagodara Police Station and the complainant had stated about harassment and threats received by her from family members of the complainant and even after a period of five months thereafter in another statement also no allegations were levelled against the applicant or any other accused. 9. All the above aspects along with order passed by the Co-ordinate Bench in the case of two co-accused having similar role like the applicant, on 5-8-2010 and 13-8-2010 in Misc. Criminal Application Nos. 8237 of 2010 and 9316 of 2010 were brought to the notice of the learned Sessions Judge by which the co-accused were granted anticipatory and regular bail. In spite of the above factual scenario, learned Sessions Judge has refused to exercise the powers under Sec. 439 of the Code on the ground that the applicant was not traceable, while nothing is brought on the record that under what circumstances the applicant was not available or any effort was made by the investigating agency to trace him out. Though, two orders granting bail to co-accused passed by the High Court were brought to the notice of the learned Sessions Judge, it is held that ground of parity can be claimed by co-accused only before the High Court. The above approach of the learned Judge is not only illegal, but contrary to settled practice of considering the order of superior Court in proper perspective. That, in the set of facts and circumstances almost similar or identical, when superior Courts exercise the powers either under Secs. The above approach of the learned Judge is not only illegal, but contrary to settled practice of considering the order of superior Court in proper perspective. That, in the set of facts and circumstances almost similar or identical, when superior Courts exercise the powers either under Secs. 438 or 439 of the Code, the subordinate Courts are duty-bound to consider the same and apply if the same sets of facts are in existence and unless there being any extraordinary circumstances or striking dissimilarities exist to deviate from the law of parity, the Courts below should consider the same in accordance with law. At the same time the principle of law laid down by the Apex Court in the case of Gudikanti Narasimbulu (supra) about exercise of powers under Sec. 439 of the Code namely that 'bail is a rule and jail is an exception' is held to be 'outdated' by learned Sessions Judge. That the above declaration by the learned Judge is contrary to the law laid down by this Court in the case of Bai Jasud Wd/o. Kantilal alias Fulchand Anopchand v. Railal Anopchand Shah, 1997 (2) GLH 493 . In the above decision, learned Single Judge has deprecated the approach of the subordinate, Court in misconstruing and misinterpreting the decision of law by the higher Court, and therefore, in the facts of this case, a casual and cursory remark' on the part of the learned Sessions Judge about declaration of principle of law of bail in the case of Gudikanti Narasimbulu (supra) is nothing but an attempt to transgress all basic canons of judicial discipline and it was not open to a subordinate Court to misconstrue and misread a judgment of the Supreme Court and terming a principle of 'bail is a rule and jail is an exception' as an outdated, when no decision either of the Supreme Court or this Court has stated so. 10. The declaration made by the learned Sessions Judge that principle of 'bail is a rule' is outdated and in a case where co-accused is enlarged by the High Court parity can be claimed only before the High Court are held to be illegal and contrary to law, and therefore, the order dated 20-1-2011 passed in Misc. Criminal Application No. 60 of 2011 by learned' Sessions Judge, Ahmedabad Rural is held to be illegal and quashed and set aside. 11. Criminal Application No. 60 of 2011 by learned' Sessions Judge, Ahmedabad Rural is held to be illegal and quashed and set aside. 11. Considering the above aspects, 1 am of the view that this order be placed before the Hon'ble the Chief Justice so as to take any action if deem necessary on administrative side. 12. In view of the facts, prima fade, noticed by this Court and recorded in earlier Paragraphs, I deem it just and proper to extend the parity to the applicant herein and enlarge him on bail in exercise of powers under Sec. 439 of the Code of Criminal Procedure, 1973. Under the circumstances, the applicant is ordered to be released on bail in connection with CR. No.1-16 of 2010 with Bagodara Police Station, on his furnishing bond of Rs. 5,000/- (Rupees Five Thousand) with one surety of like amount to the satisfaction of the lower Court and subject to following conditions : 1. not take undue advantage of his liberty or abuse his liberty; 2. not act in a manner injurious to the interest of the prosecution; 3. maintain law and order; 4. mark his presence before the concerned Police Station on every 1st and 15th day of English Calendar month between 11-00 a.m. to 2-00 p.m.; 5. not leave the State of Gujarat without prior permission of the Sessions Judge concerned; 6. furnish the address of his residence at the time of execution of the bond and shall not change the residence without prior permission of this Court; 7. surrender his passport, if any, to the lower Court immediately. 13. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to take appropriate action in the matter. 14. Bail before the lower Court having jurisdiction to try the case. 15. Rule is made absolute. Application is disposed of accordingly. 16. Direct Service is permitted. (NRP) Application allowed.