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2017 DIGILAW 1874 (GUJ)

Bisnoi Balwantram Babulal v. State of Gujarat

2017-12-05

J.B.PARDIWALA

body2017
JUDGMENT : J.B. PARDIWALA, J. 1. By this application under Article 227 of the Constitution of India, the applicant-original accused calls in question the legality and validity of the order dated 17th November, 2017 passed by the In-charge, 5th Ad-hoc Addl. Sessions Judge, Mehsana in the Criminal Revision Application No. 69 of 2017, by which, the Revisional Court rejected the revision application filed by the applicant herein thereby affirming the order dated 13th November, 2017 passed by the 7th Judicial Magistrate, First Class, Mehsana. 2. The facts giving rise to this application may be summarized as under; 2.1 On 10th November, 2017, a first information report came to be lodged by one Shri J.A. Barot, Police Sub-Inspector, Langhnaj Police Station, Mehsana for the offence punishable under sections 65(E), 116(B) and 81 of the Gujarat Prohibition Act. In all, five persons have been named as the accused in the said first information report. One of those is the applicant herein. He is shown as the accused No. 5. After being arrested, the applicant applied for bail before the 7th Judicial Magistrate, First Class, Mehsana. The Magistrate concerned, having regard to the nature of the offence, the maximum punishment provided in the Act and other considerations, thought fit to exercise his discretion and ordered the release of the applicant on he furnishing a bail of Rs. 25,000/- and a solvent surety of the like amount. Certain other conditions also came to be imposed in the order of the bail. This order, granting bail, was passed on 13th November, 2017. On the very same day and date, an application was filed by the Public Prosecutor with a prayer that the order of grant of bail be stayed from its operation. The Magistrate concerned, relying on a decision of this Court in the case of State of Gujarat v. Lalji Popat & Ors., (1988) 2 GLR 1073 thought fit to allow the application filed by the Public Prosecutor and stayed the operation of his own order, releasing the accused on bail. Being dissatisfied with the order passed by the Magistrate, the applicant preferred a revision application before the Sessions Court at Mehsana. The revision application also came to be rejected. Being dissatisfied, the applicant is here before this Court with this application under Article 227 of the Constitution of India. 3. Mr. Being dissatisfied with the order passed by the Magistrate, the applicant preferred a revision application before the Sessions Court at Mehsana. The revision application also came to be rejected. Being dissatisfied, the applicant is here before this Court with this application under Article 227 of the Constitution of India. 3. Mr. Kotai, the learned counsel appearing for the applicant, submitted that once the Magistrate passes an order, releasing the accused on bail, then he has no jurisdiction, thereafter, to stay his own order on the request of the Public Prosecutor. To put it in other words, the argument is that once the court exercises discretion in favour of an accused and orders his release on bail, he becomes functus officio. It is submitted that the grant of bail has something to do with the personal liberty of an accused as envisaged under Article 21 of the Constitution of India. Once, the Court comes to the conclusion that the accused has made out a case for bail and orders his release, then, thereafter, the Court has no power or should not stay the operation of his order as the same would be violative of Article 21 of the Constitution of India. Mr. Kotai submitted that the order of bail has been suspended from its operation for a period of thirty days. The period of thirty days would expire on 13th December, 2017. If the State is really serious in questioning the order of grant of bail, then, by now, an appropriate application for cancellation of bail should have been filed in accordance with law. No application has been filed till this date for cancellation of the bail. 4. In such circumstances, referred to above, Mr. Kotai prays that there being merit in this application, the impugned order be quashed and the applicant be ordered to be set at liberty forthwith. 5. On the other hand, this application has been vehemently opposed by Mr. Devnani, the learned APP appearing for the State. Mr. Devnani placed reliance on the decision of this Court in the case of State of Gujarat v. Lalji Popat & Ors., (1988) 2 GLR 1073 . Mr. Devnani submitted that the applicant herein was arrested while transporting a huge quantity of liquor in a truck. In all, 15,324/- bottles of liquor were seized valued at Rs. 32,78,400/-. Mr. Devnani placed reliance on the decision of this Court in the case of State of Gujarat v. Lalji Popat & Ors., (1988) 2 GLR 1073 . Mr. Devnani submitted that the applicant herein was arrested while transporting a huge quantity of liquor in a truck. In all, 15,324/- bottles of liquor were seized valued at Rs. 32,78,400/-. Having regard to the huge quantity of liquor seized, the Magistrate ought not to have exercised his discretion in favour of the accused in the first place. According to the learned APP, although the Magistrate thought fit to exercise his discretion in favour of the accused, yet, he had the power or the jurisdiction to stay the operation of his own order to enable the State to challenge the order before the Higher Forum. In such circumstances, according to the learned APP, no interference is warranted in the facts of this case. 6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the court concerned committed an error in passing the impugned order. 7. I am not impressed with the submission that the Magistrate has no power or jurisdiction to either stay the operation of the bail order for a few days upon the prayer made by the Public Prosecutor or make the same operative from the future date to enable a party to approach the higher Court. I am of the view that the Magistrate possesses such power and can pass such order for good reasons. 8. In Lalji Popat (supra), this Court observed, in para-22, as under; "22. Further, in my view, to avoid any complications if the learned Public Prosecutor submits to the Sessions Court that the order granting bail may be suspended for few days so that the prosecuting agency can approach the High Court and obtain appropriate order, then the Sessions Court should consider the said oral or written application. If the accused are involved in serious offence and there is some evidence connecting them with the crime, then it would be just and reasonable for the Sessions Court to suspend the order granting, bail to them for few days so that the prosecuting agency may get a chance of approaching the High Court." 9. If the accused are involved in serious offence and there is some evidence connecting them with the crime, then it would be just and reasonable for the Sessions Court to suspend the order granting, bail to them for few days so that the prosecuting agency may get a chance of approaching the High Court." 9. In the aforesaid context, I have to my benefit a decision of the Bombay High Court in the case of C.P. Nangia, Assistant Collector of Customs, Bombay v. Omprakash Aggarwal, Criminal Misc. Application No. 2602 of 1993, decided on 22nd September, 1993. Before the Bombay High Court, an identical issue had come up for consideration. It was a case, in which, the respondent therein was arrested in connection with the offence punishable under section 135(1) (a)(i) of the Customs Act, 1962 and section 5 of the Imports & Exports (Control) Act, 1967. The respondent therein came to be released on bail by the Chief Metropolitan Magistrate, Bombay. The Chief Metropolitan Magistrate was requested by the learned counsel appearing for the customs to stay the order of bail and give effect from a future date. The Chief Metropolitan Magistrate, Bombay declined to accede to such prayer on the ground that there is no provision to that effect in the criminal procedure code. The Assistant Collector of Customs questioned the order of grant of bail before the High Court. A learned Single Judge of the Bombay High Court, in paras-10 and 11, noted the submissions canvassed on behalf of the Customs Department. Paras-10 and 11 reads as under; "10. The learned Advocate for the petitioner first relied upon Section 437 of the Criminal Procedure Code in support of his submission. The said section deals with rearrest of an accused and committing him to custody by the Court which has released him on bail under subsection (1) or sub-section (2) of Section 437. In my opinion, it is not possible from the said sub-section to spell out that such a power is possessed by the Metropolitan Magistrate. The learned Advocate for the petitioner relied upon certain observations of the Apex Court made in, Usmanbhai D. Memon v. State of Gujarat. They are to the effect that there is no finality attached to an order passed by designated Court granting or refusing bail. Such an application for bail can always be renewed from time to time. The learned Advocate for the petitioner relied upon certain observations of the Apex Court made in, Usmanbhai D. Memon v. State of Gujarat. They are to the effect that there is no finality attached to an order passed by designated Court granting or refusing bail. Such an application for bail can always be renewed from time to time. In my opinion, these observations are to no help to the petitioner. Similar is the position regarding 1992 Cri LJ 390, Nazeem v. Asstt, Collector of Customs (Judgment of Single Judge of this Court). It is again observed orders granting bail and imposing terms are all interim orders capable of modification. The learned Advocate for the petitioner then relied upon the Division Bench Judgment reported in 1986 Cri LJ 213, Bombay Municipal Corporation v. Suresh U. Gupta. In the said case, an order staying criminal prosecution for an indefinite period pending civil suit was passed. It came to be held that the said order cannot be treated as an interlocutory order and hence bar under Section 397(2) of the Criminal Procedure Code will not apply to such an order. Again this is of no help or assistance to the petitioner. The learned Advocate for the petitioner relied upon, Raghubir Singh v. State of Bihar. In the said case, accused was released on bail under the proviso to Section 167(2). The question arose whether by filling a charge-sheet or by remand to custody under Section 309(2) the bail can be cancelled. It was held that bail can be cancelled only under section 437(5) of Section 439(2). It was observed "Generally the grounds of cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him". Again this has nothing to do with the point involved in the present case. 11. The learned Advocate for petitioner then relied upon Section 309(1) and submitted that if entire proceedings can be stayed by the Magistrate or trial Court then certainly in the interest of justice he can stay the order of bail which is nothing but a part of enquiry. The definition of 'inquiry' as contained in Section 2(g) points out that except trial other proceedings taken by the Magistrate or Court is an inquiry. The definition of 'inquiry' as contained in Section 2(g) points out that except trial other proceedings taken by the Magistrate or Court is an inquiry. The apex Court in para 26-A in the judgment reported in AIR 1979 SC 94 : (1979 Cri LJ 41), Ratilal Bhanji Mithani observed that the trial in a warrant case starts with the framing of charge; prior to it proceedings are only an inquiry. The inquiry has thus wide connotation and includes every inquiry other than trial. In support of this contention he relied upon the judgment of the Apex Court, State of Gujarat v. Mohanlal J. Porwal. In the said case, the request for adducing additional evidence by the prosecution was rejected on the ground of delay. The apex Court held that the view was incorrect and observed as follows :- "The community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the Community deserves equal treatment at the hands of the Court in the discharge of its judicial functions. The Community or the State is not a persona non grata whose cause may be treated with disdain. The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on persons profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear and criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest." Similarly, reliance is also placed on another decision of the apex Court in, K.M. Mathew v. State of Kerala. In the said case, process was issued on a private complaint which was filed under section 504 read with S. 34 I.P.C. The accused was a Chief Editor of Newspaper. Thereafter appeared before the Magistrate and pointed out the cause why the proceedings should be dropped. In the said case, process was issued on a private complaint which was filed under section 504 read with S. 34 I.P.C. The accused was a Chief Editor of Newspaper. Thereafter appeared before the Magistrate and pointed out the cause why the proceedings should be dropped. The question arose whether the Magistrate can exercise such a power and it was held that there is no bar to drop the proceedings against any of the accused persons. If the complaint does not prima facie disclose any offence against him. In para 8, the apex Court observed as follows :- "8. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused." 10. Thereafter, in paras-12, 13, 14 and 15, the submissions canvassed on behalf of the accused have been noted. Paras-12, 13, 14 and 15 reads as under; "12. As against this, the learned Advocate for respondent No. 1 contended that liberty of an individual is involved in this and there is urgency as far as the bail matters are concerned and, therefore, the Magistrate cannot pass an order staying the same for a few days or staying the operation of the same for a particular period. It is not possible to accept this. No doubt, as far as bail matters are concerned, there is urgency and liberty of an individual is involved. But it cannot be accepted that for good reasons the Magistrate is divested of such a power because of this. It is not possible to accept this. No doubt, as far as bail matters are concerned, there is urgency and liberty of an individual is involved. But it cannot be accepted that for good reasons the Magistrate is divested of such a power because of this. The learned Advocate for the respondent No. 1 then contended that such a power can only be exercised by the High Court under section 482, Cr.P.C. or Articles 226/227 of the Constitution of India or by the Supreme Court under Art. 136 and it cannot be exercised by the Magistrate or trial Court. He submitted that the trial Court has no inherent power as possessed by this Court or the apex Court. He also submitted that if stay is granted it amounts to practically reviewing the order passed as the accused is required to remain in detention. In support of this, he first relied upon,, Bindeshwari Prasad Singh v. Kali Singh. The question involved was whether a Magistrate can recall a case disposed of by judicial order. In that connection, it came to be held that there is no provision in the Criminal Procedure Code empowering the Magistrate to review or recall a judicial order passed by him. It was held that there is no inherent power in the subordinate Courts. Similarly, in this connection, reliance is placed in, Maj. Genl. A.S. Gauraya v. S.N. Thakur. Again in the said case, the complaint came to be dismissed for default and question was whether the Magistrate is having inherent power to review this order of dismissal and restore the same. In that connection, it came to be observed that "So far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction to restore the case." This was in turn based on. For this very contention, the learned Advocate for respondent No. 1 relied upon the judgment of the Single Judge of this Court (Saldanha, J.) dated 28-12-1990 in Criminal Application No. 3130 of 1990. For this very contention, the learned Advocate for respondent No. 1 relied upon the judgment of the Single Judge of this Court (Saldanha, J.) dated 28-12-1990 in Criminal Application No. 3130 of 1990. In the said case, a prayer was made for stay of the order passed by this Court granting bail and it was rejected observing that no stay ought to be granted in such cases of granting bail. As far as this case is concerned, this does not amount to the saying that the Court does not possess the power. These are general observations or expressions and no inference can be drawn that power of Court is excluded. It is an error to spell out from this that the learned Judge wanted to say that there is no power. The judgment of another Judge of this Court Kishanlal v. Parvatibai and of the single Judge of Allahabad High Court reported in 1975 Cri LJ 658 : (1974 All LJ 844), Rameshwar Prasad v. State are also to the effect that Magistrate does not possess inherent power. However, this is not a case of review or exercise of inherent power and therefore reliance placed on the above mentioned judgments by learned Advocate for respondent No. 1 is misplaced. They are of no help to him. 13. Then in (FB of Gujarat High Court) State of Gujarat v. Shah Lakhamshi Umarshi the learned Magistrate called for charge-sheet from the police officer and the scheme of Sections 169, 170 and 173 of the Criminal Procedure Code came to be considered. It was observed that there is no provision in the Criminal Procedure Code expressly conferring on the Magistrate such power to call for charge-sheet. It is also held that such power cannot be implied. However, this is also not a case of implying any power for Magistrate. 14. It is then contended by learned Advocate respondent No. 1 that it is a question of remand or bail under section 167(2). It is neither enquiry nor trial. It is only supervision by Court over investigation. It is not possible to accept this. The proceeding under section 167(2) is judicial and Magistrate acts in judicial capacity. It is part of enquiry. It is covered by Section 2(g) and falls within Section 309(1) of Criminal Procedure Code. 15. It is neither enquiry nor trial. It is only supervision by Court over investigation. It is not possible to accept this. The proceeding under section 167(2) is judicial and Magistrate acts in judicial capacity. It is part of enquiry. It is covered by Section 2(g) and falls within Section 309(1) of Criminal Procedure Code. 15. The learned Advocate for respondent No. 1 contended that bail order is passed after hearing the prosecution and putting proper conditions and hence there is no power of stay that can be exercised by trial Court. I cannot accept this. For good reasons and in the interest of justice such power can always be reasonably exercised." 11. Thus, in the aforenoted decision, it is laid down that for reasons to be recorded, the Magistrate do possess the power to stay his own order of grant of bail if a request is made by the Public Prosecutor in that regard. I am in agreement with the view taken by his lordship of the Bombay High Court referred to above. However, the matter does not rest over here. I take notice of the fact that the Magistrate concerned considered the plea for bail put up by the applicant herein on merits. It appears that at the time of opposing the bail application, it was not contended by the Public Prosecutor that the applicant is a hardened criminal or that he has any criminal antecedents or that his release on bail was likely to affect the law and order situation or that it was likely to adversely affect the prosecution case in any manner. The presence of the applicant at the trial has also been secured by imposing the requisite conditions. In such circumstances, whether the Magistrate was justified in suspending his own order of grant of bail from operation to enable the State to challenge the same before the Higher Forum? Well, it is always open for the State to argue before the Higher Forum that the Magistrate ought not to have granted bail to the accused having regard to the huge quantity of liquor seized and his involvement in the alleged offence and get his bail cancelled. However, in the facts of the case, in my view, the Magistrate was not justified in suspending his own order. 12. However, in the facts of the case, in my view, the Magistrate was not justified in suspending his own order. 12. I am of the view that once the Magistrate exercises his discretion in favour of the accused and orders his release on bail, thereafter, his personal liberty should not be curbed by suspending the operation of the order of bail on mere asking by the public prosecutor. The public prosecutor has to make out a strong case in that regard. He must put forward good grounds for the Magistrate to stay the order of bail. Even, as on date, it is open for the State to file an application for cancellation of bail before the appropriate forum in accordance with law. I inquired with Mr. Devnani, the learned APP whether the applicant herein has any past antecedents or is involved in bootlegging activity on regular basis. According to Mr. Devnani, there are no past antecedents of the applicant herein. This is the first case registered against him under the Gujarat Prohibition Act. The applicant has been ordered to be released on he furnishing a bail of Rs. 25,000/- with a solvent surety of the like amount subject to other terms and conditions so as to safeguard the interest of the prosecution. 13. I take notice of the fact that in the application filed by the Public Prosecutor dated 13th November, 2017, the only ground assigned is that the accused herein is a resident of the State of Rajasthan and the State would like to challenge the order of grant of bail by filing a revision application. In my view, just because an accused happens to be of a different State, that by itself, is not sufficient to deny bail to him if appropriate conditions to secure his presence at the time of trial are imposed. Besides the same, the Public Prosecutor is under a misconception of law that a revision application is maintainable against the grant of bail. An application under section 439(2) needs to be filed before the appropriate court. 14. I also take support from one order passed by this Court dated 6th October, 2004 in the Criminal Misc. Application No. 8071 of 2004. In the said case, a learned Single Judge of this Court ordered release of the applicant-accused on bail subject to certain terms and conditions. 14. I also take support from one order passed by this Court dated 6th October, 2004 in the Criminal Misc. Application No. 8071 of 2004. In the said case, a learned Single Judge of this Court ordered release of the applicant-accused on bail subject to certain terms and conditions. After the order was pronounced, a request was made by the learned APP to suspend the operation of the order granting bail to the applicant for a period of three weeks to enable the State to approach the higher forum. This Court declined the prayer observing as under; "Learned APP Mr. Desai, at this stage, prays for suspending the operation of the order granting bail to the applicant for a period of three weeks, to enable the State to approach the higher forum. This request is opposed to by learned Advocate Mr. Pardiwala on the ground that this Court has considered the case of the applicant on merits and has come to a finding that the applicant is entitled to bail. There is no reason indicated for suspending the order and, therefore, the request may not be accepted. Considering the fresh request made by the learned APP, it may be noted that the applicant's case for bail has been considered on merits by this Court favourably. It is not canvassed either that the applicant is a hardened criminal or that he has criminal antecedents or that his release on bail is likely to affect law and order situation or that it is likely to adversely affect the prosecution case in any manner. The presence of the applicant at the trial or even for interrogation is secured by imposing requisite conditions and, therefore, in the opinion of this Court, the request by the State cannot be accepted." 15. For the foregoing reasons, this application is allowed. The impugned orders passed by the courts below are hereby quashed and set aside. The order dated 13th November, 2017, releasing the applicant on bail, shall be given effect too at the earliest. 16. It is clarified that this order shall not come in the way of the State if they intend to file any application seeking cancellation of bail. If any such application is filed, the same shall be considered on its own merits without being influenced in any manner by any of the observations made in this order. Direct service is permitted.