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2022 DIGILAW 1225 (GUJ)

Kirtibhai Jivanbhai Bharvad v. State of Gujarat

2022-10-06

NIKHIL S.KARIEL

body2022
ORDER : 1. Heard learned Sr. Advocate Mr. B.B. Naik appearing with learned Advocate Mr. Dipak Dave for the applicant, learned APP Mr. Dabhi for the respondent State and learned Sr. Advocate Mr. Anshin Desai appearing with learned Advocate Mr. Parth Contractor for the First Informant. 2. By way of this application under Section 438 of the Code of Criminal Procedure, 1973, the applicant – original accused prays for being released on anticipatory bail in connection with FIR No.11216024200717 of 2020 registered with Kalol City Police Station, Gandhinagar on 4.12.2020 for offences punishable under Sections 119, 380, 406, 409, 477, 384, 457, 114 & 120B of IPC. 3. At the outset, it is required to be noted that five applications, including the present one, praying for grant of pre-arrest bail by different accused of the very FIR are listed together and whereas this Court has started hearing of the present application and since it appears that there are certain aspects in the present application, which are not common to other applicants, therefore, this application is being heard and decided independently and whereas this Court has not heard the rest of the applications. It is further clarified that this order is only with regard to the present application being Criminal Misc. Application No.5891 of 2021. 4. It is further required to be noted that while the instant FIR came to be registered on 4.12.2020, since the present applicant was not cooperating with the investigation, the Investigating Officer had sought for issuance of warrant under Section 70 of Cr.P.C., and whereas vide an order dated 24.2.2021, the learned Magistrate had issued warrant for arrest of the present applicant. It further appears that since the said warrant could not be served upon the present applicant, the Investigating Officer had moved a further application for proclamation under Section 82 of Cr.P.C., and whereas the learned Magistrate, vide an order dated 9.6.2021 had been pleased to allow such application. 5. It also appears that the order of issuance of warrant under Section 70 of Cr.P.C., and the order of proclamation under Section 82 of Cr.P.C., had been challenged by the present applicant before the learned Coordinate Bench of this Court under Section 482 of Cr.P.C., by filing Special Criminal Application No.8272 of 2021 and vide an order dated 26.9.2022, learned Coordinate Bench of this Court had been pleased to reject such challenge. 6. 6. Heard learned Sr. Advocate Mr. B.B. Naik appearing with learned Advocate Mr. Dipak Dave for the applicant, who would submit that while there are decisions of the Hon’ble Apex Court inter alia taking a view that once proclamation under Section 82 of Cr.P.C., has been issued, thereafter the applicant – accused is not entitled to grant of anticipatory bail under Section 438 of Cr.P.C., and whereas it is the contention of the learned Sr. Advocate that such decisions of the Hon’ble Apex Court are not good law, more particularly according to learned Sr. Advocate Mr. Naik, such decision is per incuriam the observations of the Hon’ble Apex Court in case of Gurbaksh Singh Sibbia Vs. State of Punjab, reported in (1980) 2 SCC 565 . Learned Sr. Advocate Mr. Naik has tried to make good his submission by relying upon the observations of the Hon’ble Apex Court in case of Gurbaksh Singh Sibbia (supra), where the Hon’ble Apex Court has inter alia observed that words of width and amplitude, as found in Section 438 of Cr.P.C., ought not generally to be cut down so as to read into the language of the statute, restraints and conditions which the legislature itself did not think it proper or necessary to impose. Learned Sr. Advocate Mr. Naik has also relied upon the observations of the Hon’ble Apex Court in the said decision, where the Hon’ble Apex Court has inter alia laid down that in matters of grant of bail, the Courts concerned should exercise the discretion on case-to-case basis and whereas discretion conferred upon the Courts cannot be stultified. Learned Sr. Advocate Mr. Naik would further rely upon the observations, whereby the Hon’ble Apex Court has inter alia stated that words, which are not found in the statute, cannot be read into provisions of Section 438 of Cr.P.C., to restrict its scope and ambit. 6.1. Having regard to such submissions, learned Sr. Advocate Mr. Naik would submit that the decision of the Hon’ble Apex Court in case of Lavesh Vs. 6.1. Having regard to such submissions, learned Sr. Advocate Mr. Naik would submit that the decision of the Hon’ble Apex Court in case of Lavesh Vs. State (NCT of Delhi), reported in (2012) 8 SCC 730 and the decision in case of State of M.P. vs. Pradeep Sharma, reported in (2014) 2 SCC 171 , where the Hon’ble Apex Court has inter alia laid down that in case if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of Cr.P.C., he is not entitled to relief of anticipatory bail, as being improper, more particularly the same observation impinging upon the discretion of this Court under Section 438, is clearly per incuriam the observation of the Hon’ble Apex Court in case of Gurbaksh Singh Sibbia (supra). 6.2. Learned Sr. Advocate would further rely upon the observations of the Hon’ble Apex Court in case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011) 1 SCC 694 , more particularly paragraphs 124 to 138, learned Sr. Advocate referring to and relying upon the observations of the Hon’ble Apex Court as regards the principle of ‘per incuriam’. Having regard to such submissions, learned Sr. Advocate Mr. Naik has submitted that the proposition laid down by the Hon’ble Apex Court in Lavesh (supra) and State of M.P. Vs. Pradeep Sharma (supra) not being absolute and correct law, this Court may hear the present application on its merits and decide the same in accordance with law i.e. exercise discretion in favour of the present applicant. 6.3. In view of the legal question, which has been raised by the learned Sr. Advocate Mr. Naik, this Court has thought it appropriate to first hear the learned Advocates on the legal aspects and whereas only if the Court were to be convinced on such aspects, this Court would hear the learned Advocates for respective parties on factual submissions. 7. As regards the legal submissions, learned Sr. Advocate Mr. Anshin Desai appearing with learned Advocate Mr. Parth Contractor appearing for the First Informant would rely upon the decisions of the Hon’ble Apex Court in case of Lavesh (supra) and State of M.P. Vs. Pradeep Sharma (supra) and would submit that the observations of the Hon’ble Apex Court in both the decisions are abundantly clear. Learned Sr. Advocate Mr. Anshin Desai appearing with learned Advocate Mr. Parth Contractor appearing for the First Informant would rely upon the decisions of the Hon’ble Apex Court in case of Lavesh (supra) and State of M.P. Vs. Pradeep Sharma (supra) and would submit that the observations of the Hon’ble Apex Court in both the decisions are abundantly clear. Learned Sr. Advocate Mr. Desai would submit that the law laid down by the Hon’ble Apex Court being that once a person has been declared as an absconder/proclaimed offender in terms of Section 82 of Cr.P.C., he is not entitled to relief of anticipatory bail cannot be read in any other manner as has been sought to be argued by learned Sr. Advocate Mr. Naik for the applicant. Learned Sr. Advocate Mr. Desai would submit that the law laid down by the Hon’ble Apex Court is very clear and in the instant case a proclamation has been issued against the applicant herein and the same having been confirmed by the learned Coordinate Bench, where the proclamation had been challenged, the power of this Court to exercise jurisdiction to grant anticipatory bail to the applicant under Section 438 may not be absolute and unencumbered. 7.1. Learned Sr. Advocate Mr. Desai would also rely upon the decision of the Hon’ble Apex Court in case of Prem Shankar Prasad Vs. State of Bihar and Anr., reported in 2021 SCC online SC 955, whereby the Hon’ble Apex Court has reiterated and relied upon the law laid down by the Hon’ble Apex Court in case of Lavesh (supra). Learned Sr. Advocate Mr. Desai has also referred to and relied upon the recent decision of the Hon’ble Apex Court in case of Abhishek Vs. State of Maharashtra and Ors., reported in 2022 SCC online SC 678, whereby the Hon’ble Apex Court inter alia observed that once a person has been declared as an ‘absconder’ and remains out of reach of the investigating agency and thereby stands directly at conflict with law, ordinarily, he deserves no concession or indulgence in terms of grant of pre-arrest bail under Section 438 of Cr.P.C. 7.2. Having regard to the such submissions, learned Sr. Advocate Mr. Desai would request this Court not to exercise discretion in favour of the applicant, more particularly in view of the law laid down by the Hon’ble Apex Court. 8. Having regard to the such submissions, learned Sr. Advocate Mr. Desai would request this Court not to exercise discretion in favour of the applicant, more particularly in view of the law laid down by the Hon’ble Apex Court. 8. This application is also vehemently objected to by the learned APP Mr. Dabhi, who would submit that while the law laid down by the Hon’ble Apex Court is absolutely clear, in case there was no intervening decision of a learned Coordinate Bench exercising jurisdiction under Section 482 of Cr.P.C., where the proclamation against the applicant under Section 82 has been confirmed, then it may have been possible for this Court to appreciate the submissions made by the learned Sr. Advocate Mr. Naik for the applicant as regards the alleged mala fides of the officers in issuing proclamation against the applicant. Learned APP would submit that since the order of granting proclamation stands confirmed by the learned Coordinate Bench of this Court, therefore, this Court may not exercise jurisdiction, to go beyond the order of proclamation and to decide whether such proclamation had been rightly issued or not. Furthermore, in view of the decision of the Apex Court, more particularly in case of Lavesh (supra) and Pradeep Sharma (supra), learned APP would submit that in view of the proclamation, this Court may not exercise jurisdiction and consider the present application at all. 9. Heard learned Sr. Advocates for the respective parties and learned APP for the respondent State, who have not submitted anything else. 10. While this Court is conscious of the fact that in deciding an application for pre-arrest bail under Section 438 of Cr.P.C., an elaborate discussion is not generally required, but at the same time, in view of the questions of law raised by the learned Sr. Advocate Mr. Naik for the applicant, this Court deems it appropriate to discuss the said aspects as herein below. 11. Advocate Mr. Naik for the applicant, this Court deems it appropriate to discuss the said aspects as herein below. 11. At the outset, this Court deems it appropriate to refer to the decision of the Hon’ble Apex Court in case of Lavesh (supra), more particularly the observation at paragraph 12 being relevant for the present purpose is quoted herein below for benefit :- “(12) Another circumstance against the appellant is that even though this Court on 23.03.2012, while ordering notice, granted interim protection, namely, not to arrest the appellant in connection with FIR No. 259/2011 registered at Police Station, Punjabi Bagh, New Delhi, it is the claim of the respondent-State that the appellant did not cooperate and visit the said police station. Though Dr. Sarbjit Sharma, learned counsel for the appellant, submitted that the appellant visited the police station on 23.03.2012, 20.07.2012, 24.07.2012 and 27.07.2012, it is brought to our notice that at the relevant period, viz., 07.04.2012, 01.05.2012 and 18.06.2012, he neither visited the police station nor contacted Mr. Narender Khatri, Inspector – Investigation, Punjabi Bagh Police Station. The last three dates are relevant since after getting the interim protection granted by this Court on 23.03.2012, the appellant did not care either to visit the police station or to the Investigation Officer concerned. The claim of his visit on later dates, particularly, in the month of July, 2012 have no relevance. Considering his conduct, not amenable for investigation and, moreover, declaring him as an absconder, there is no question of granting anticipatory bail. Thus, the conduct of the appellant does not entitle him to anticipatory bail as prescribed in Section 438 of the Code.” 12. The Hon’ble Apex Court in the said decision has laid down the law that when a person against whom a warrant under Section 70 of Cr.P.C., has been issued is absconding or concealing himself in order to avoid execution of warrant is declared as a proclaimed offender under Section 82 of the Code, then such person is not entitled to the relief of anticipatory bail. In the considered opinion of this Court, the observations and law laid down by the Hon’ble Apex Court do not entail or are not open for any interpretation. In the considered opinion of this Court, the observations and law laid down by the Hon’ble Apex Court do not entail or are not open for any interpretation. The law laid down being absolutely clear, inasmuch as once a proclamation is issued in terms of Section 82 of the Code, then an application for anticipatory bail of such person could not be considered by this Court, exercising jurisdiction under Section 438 of Cr.P.C. 13. The law laid down by the Hon’ble Apex Court in case of Lavesh (supra) has been reiterated by the Hon’ble Apex Court in case of Pradeep Sharma (supra), where after considering and reproducing paragraph 12 of the decision in case of Lavesh (supra), the Hon’ble Apex Court at paragraph 16, has observed as under:- “16. … It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.” 14. It, thus, appears that the observations of the Hon’ble Apex Court in case of Lavesh have been reiterated and clarified in Pradeep Sharma, inasmuch as the Hon’ble Apex Court has clearly stated that once an order of proclamation in terms of Section 82 of the Code is issued against a person, then such person is not entitled for relief of anticipatory bail. It also appears that the decision of the Hon’ble Apex Court in case of Lavesh has been relied upon and reiterated in a recent decision of the Hon’ble Apex Court in case of Prem Shankar Prasad (supra). 15. Having observed as herein above, this Court will now deal with the submissions of the learned Sr. Advocate Mr. Naik as regards the contention that the decisions in case of Lavesh, followed in Pradeep Sharma are in clear conflict with or in absolute negligence of the decision of the Apex Court in case of Gurbaksh Singh Sibbia (supra) and, therefore, the same may be declared as per incuriam. Advocate Mr. Naik as regards the contention that the decisions in case of Lavesh, followed in Pradeep Sharma are in clear conflict with or in absolute negligence of the decision of the Apex Court in case of Gurbaksh Singh Sibbia (supra) and, therefore, the same may be declared as per incuriam. In the considered opinion of this Court, the observations of the Hon’ble Apex Court in case of Gurbaksh Singh Sibbia, more particularly the observations with regard to non-reading of words into the provisions of Section 438 of the Code are, in the humble opinion of this Court, in context of the observations of the Full Bench of Punjab and Haryana High Court, which had summarized the position with regard to Section 438 of the Code, which was being considered by the Hon’ble Apex Court. In the considered opinion of this Court, the observations of the Punjab and Haryana High Court that power under Section 438 of Cr.P.C., being of an extraordinary character and must be exercised sparingly in exceptional cases only are the observations, which appear to have prompted the Hon’ble Apex Court to inter alia observe that there ought not to be over-generous infusion of constraints in reading the provisions of law as it stands, more particularly by such over-generous infusion, a power which is of great width and amplitude ought not to be cut down, more particularly when the legislature itself did not think it proper and necessary to impose such conditions. In the considered opinion of this Court, the observations of the Hon’ble Apex Court in a judgement cannot be read in a manner, which is divorced from its context. The context in the considered opinion of this Court was the observations of the Punjab and Haryana High Court and whereas the observations would have to be necessarily read in that context. It is further the opinion of this Court that words from a judgement cannot be read differently from its context in support of a submission/proposition which was not at all an issue which was being considered by the Hon’ble Apex Court. 15.1. It is further the opinion of this Court that words from a judgement cannot be read differently from its context in support of a submission/proposition which was not at all an issue which was being considered by the Hon’ble Apex Court. 15.1. Having regard to such observations, more particularly since it appears to this Court that the observations of the Hon’ble Apex Court in case of Gurbaksh Singh Sibbia are in a completely different context, which are not co-relatable to an issue as raised in the present application or an issue which had cropped up before the Hon’ble Apex Court in case of Lavesh, or in case of Pradeep Sharma or in case of Prem Shankar Prasad, in the considered opinion of this Court, the submissions on the said decisions, which inter alia lay down the law that a person, who is declared as proclaimed offender would not be entitled to grant of anticipatory bail being in conflict with the observations of the Hon’ble Apex Court in case of Gurbaksh Singh Sibbia cannot be countenanced and the same are hereby rejected. 16. At this stage, it would also be pertinent to observe that Section 438 of Cr.P.C., inter alia lists down factors, which are to be taken into consideration while hearing an application for prearrest bail of an accused, one of the core factors to be considered being Entry No.3 of Section 438 of Cr.P.C., which reads as under:- “438. Direction for grant of bail to person apprehending arrest.- (1) xxx (i) xxx (ii) xxx (iii) the possibility of the applicant to flee from justice; and” 17. It would appear to this Court that once a person, who has not cooperated with the investigation and against whom a warrant under Section 70 of the Code has been issued evades even service of such warrant and even after the Court concerned has thereafter issued a proclamation declaring the person as a proclaimed offender, then the normal presumption would be that such person would not be available to face the trial. Furthermore, as has been observed by the Hon’ble Apex Court in the recent decision of Abhishek Vs. State of Maharashtra and Ors. (supra) a person against whom a proclamation is issued is a person, who is directly at conflict with law and such person would not deserve any concession or indulgence whatsoever. 18. Furthermore, as has been observed by the Hon’ble Apex Court in the recent decision of Abhishek Vs. State of Maharashtra and Ors. (supra) a person against whom a proclamation is issued is a person, who is directly at conflict with law and such person would not deserve any concession or indulgence whatsoever. 18. Furthermore, in the considered opinion of this Court, since the law on the aspects as laid down by the Apex Court in case of Lavesh (supra) followed in Pradeep Sharma (supra) and again reiterated in Prem Shankar Prasad is clear inasmuch as the person against whom an order of proclamation has been issued not being entitled to anticipatory bail and in the instant case, over and above such proclamation, a learned Coordinate Bench of this Court having, after considering legality and validity of the order of proclamation, confirmed such proclamation, would in the considered opinion of this Court, lead this Court to come to the inevitable conclusion that the present applicant would not be entitled to be considered for grant of anticipatory bail. 19. Having regard to the observations and conclusions arrived at by this Court, the present application fails and hence, is hereby rejected.