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Gujarat High Court · body

2022 DIGILAW 620 (GUJ)

Sanjaybhai Hemantbhai Biswas v. State Of Gujarat

2022-04-29

VIPUL M.PANCHOLI

body2022
ORDER : 1. This application is filed under Section 439 of the Code of Criminal Procedure, 1973 (for short “the Code”) with a request that the applicant be enlarged on regular bail in connection with the FIR being C.R. No.I-1 of 2019 registered with Ahwa Police Station, Dang for the offenses punishable under Sections 406, 409, 34, 120B of the Indian Penal Code, under Section 3 of GPID Act, 2006 and under Sections 4, 5, 6 of the Price Chits and Money Circulation Schemes (Banning) Act. 2. Heard learned advocate Mr.Mihir Pathak for the applicant and learned Additional Public Prosecutor Mr.Ronak Raval for the respondent State. 3. Learned advocate for the applicant submitted that the applicant is shown as accused No.2 in the aforesaid FIR. Initially, he has joined as an employee in the company in question, however, thereafter, he was appointed as a Director. It is submitted that the applicant has been falsely implicated in the FIR in question. Learned advocate has referred to the counter of the charge-sheet, which is placed on record at page no.21. 4. At this stage, learned APP Mr.Raval has pointed out from the records that the applicant was arrested in connection with the aforesaid FIR and therefore, he filed application being Criminal Misc. Application No.77 of 2019 before the Sessions Court. The Sessions Court rejected the said application vide order dated 23.05.2019. Copy of the said order is placed on records at page no.46. It is submitted by learned APP that the applicant thereafter, filed an application before this Court being Criminal Misc. application No.10554 of 2019. It is submitted that during the pendency of the said application, the charge-sheet was filed and therefore, the learned advocate appearing for the applicant sought permission of this Court to withdraw the said application with a liberty to file fresh application before the concerned trial court and this Court has therefore, granted permission to the applicant to file application before the Sessions court. Learned APP, at this stage, however, submitted that thereafter, the applicant has not approached before the Sessions Court and after a period of more than two and half years, now, directly the present application has been filed. 4.1 Learned APP therefore, urges that this Court may not entertain this application, as the applicant has, without filing application under Section 439 of the Code before the Sessions Court, directly filed the present application. 4.1 Learned APP therefore, urges that this Court may not entertain this application, as the applicant has, without filing application under Section 439 of the Code before the Sessions Court, directly filed the present application. Learned APP, at this stage, also contended that various FIRs have been filed against the present applicant at different places and therefore, looking to the antecedents of the applicant also, this Court may not entertain this application. Learned APP further submitted that serious allegations are levelled against the present applicant, and it is pointed out from the affidavit filed by the Investigating Officer before the Sessions Court and from the counter of the chargesheet, which is placed on records, that there are number of victims. Learned APP therefore, urges that this application may not be entertained. 5. At this stage, learned advocate Mr.Pathak appearing for the applicant submitted that it is true that this Court has permitted the applicant to file application before the Sessions Court under Section 439 of the Code after filing of the charge-sheet, however, as this Court is having concurrent jurisdiction to entertain the bail application under Section 439 of the Code, and therefore, the applicant has directly filed this application and this Court may entertain this application on merits. 6. Having heard the learned advocates appearing for the parties and having gone through the material placed on records, it would emerge that the applicant has been arrested in connection with the aforesaid FIR, he is shown as accused No.2. After his arrest, the applicant filed application under Section 439 of the Code before the concerned Sessions Court. The said application was dismissed by the by the Sessions Court vide order dated 23.05.2019. Thereafter, the applicant filed Criminal Misc. Application No.10554 of 2019 before this Court. During the pendency of the said application, the Investigating Agency filed the charge-sheet on 11.07.2019 and therefore, the applicant withdrew the said application. Copy of the said order is placed on records at page no.76. Thereafter, the applicant filed Criminal Misc. Application No.10554 of 2019 before this Court. During the pendency of the said application, the Investigating Agency filed the charge-sheet on 11.07.2019 and therefore, the applicant withdrew the said application. Copy of the said order is placed on records at page no.76. From the order dated 21.08.2019 passed by this Court, it is clear that this Court granted permission to the applicant to withdraw the application with a view to file a fresh application before the concerned trial court, however, the applicant has, after a period of more than two and half years, now, directly filed the application before this Court under Section 439 of the Code by contending that it is permissible as this Court is having concurrent jurisdiction. 6.1 At this stage, the decision rendered by this Court in case of Harivallabh Parikh vs. State of Gujarat, reported in 1997 1 GLR 638 , is required to keep in view by this Court. This Court has observed in paragraph 15, which reads as under : “15. There is also growing tendency to approach to the High Court under Section 438 of the Cr.P.C. for anticipatory bail directly without approaching to the Court of Sessions Judge. It is true that the High Court and the Court of Sessions judge have concurrent jurisdiction under Section 438 of the Cr.P.C. for grant of bail to person apprehending the arrest. But considering the convenience, smooth and effective functioning of the Court, it is always desirable that, at the first instance, the application is made to the Court of Sessions Judge, otherwise, if all the applications under Section 438 are filed before the High Court directly, the police papers will have to be summoned from the various parts of the State, putting the entire police machinery only at the disposal of the High Court for consideration of application under Section 438. On the other hand, if the applicant moves to the Court of Sessions Judge within whose jurisdiction the case has been registered, police papers can be quickly made available. On the other hand, if the applicant moves to the Court of Sessions Judge within whose jurisdiction the case has been registered, police papers can be quickly made available. The Public Prosecutor and the police will be able to effectively and quickly assist the Court in consideration of an application under Section 438 of the Cr.P.C. In case the bail application is rejected and the matter comes to the High Court, it would be advantageous for the High Court to not only know the full facts but also the views of the Sessions Judge. In view of this, well established practice in almost all the High Courts is that in the matter of application under Section 438 or 439 of Cr.P.C. the party first approach to the Court of the Sessions Judge. Thus, in my view, the practice of filing the bail application under Section 438 or 439 of the Cr.P.C. straightaway to the High Court without resorting to filing of such applications before the Court of Sessions should not be permitted unless there are exceptional and compelling circumstances.” 6.2 From the observations made by this Court in the aforesaid decision, it is clear that the practice of filing the bail application under Section 438 or 439 of the Code straight way to the High Court, without resorting to filing of such application before the Court of Sessions, should not be permitted unless there are exceptional and compelling circumstances. It is pertinent to note at this stage that the learned advocate appearing for the applicant has failed to point out such exceptional circumstances for filing directly application under Section 439 of the Code before this Court and that too after a period of two and half years. 7. Thus, in the facts and circumstances of the present case, I am not inclined to entertain this application and this application is therefore, dismissed. However, it is open for the applicant to file application before the Sessions court as observed in the order dated 21.08.2019. As and when such application is filed, the Sessions Court shall consider the same on its own merits.