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2024 DIGILAW 332 (GUJ)

State Of Gujarat v. Lalchand Hemantdas Khanani

2024-02-16

RAJENDRA M.SAREEN

body2024
JUDGMENT : 1. Rule. Learned advocate Mr. Kishan Prajapati waives service of notice of rule on behalf of respondent. 2. The present application is preferred under Section 439(2) of the Code of Criminal Procedure, 1973 by the applicant – State of Gujarat for cancellation of bail granted by this Court to the respondent – original applicant in Criminal Misc. Application No.3973 of 2021, wherein vide order dated 01.03.2021, this Court has granted anticipatory bail to the respondent with some conditions in connection with the offence registered against the respondent being C.R. No.11196004201214 of 2020 with Gotri Police Station, Vadodara City. 3. As per the case of the prosecution, above referred FIR was filed for the offences punishable under Sections 65-A, 81, 98(2) and 116-B of the Prohibition Act. Respondent preferred an anticipatory bail application under Section 438 of the Code of Criminal Procedure before this Court wherein after hearing both the parties, this Court vide order dated 01.03.2021 granted anticipatory bail to the respondent, wherein condition No.6(b) is reproduced as under; “(b) remain present at concerned Police Station on 08.03.2021 between 11:00 a.m. and 2:00 p.m.;” 4. As the respondent has not obeyed the said condition and not remained present before the concerned police Station and flouted the condition, this application has been filed. Moreover, this Court while granting the anticipatory bail application relied upon a submission on behalf of the respondent – accused that he is having three antecedents, which is also reflected in the order, whereas as per the State Monitoring Cell there were 48 antecedents. Therefore, suppression of true facts before the Court is also made ground for cancellation of bail. 5. Heard learned APP Mr. Soham Joshi for the petitioner State and learned advocate Mr. Zubin Bharda for learned advocate Mr. Kishan Prajapati for the respondent – accused. 5.1 Learned APP Mr. Joshi submitted that after granting the bail, the respondent has not followed the conditions imposed by this Court and has not co-operated with the investigation, nor he has remained present before the concerned police station though directed by this Court. It is also submitted that respondent furnished the report of antigen test on 08.03.2021, even thereafter the respondent was intimated to appear before the authority on 26.04.2021 but he has not turned up. It is also submitted that respondent furnished the report of antigen test on 08.03.2021, even thereafter the respondent was intimated to appear before the authority on 26.04.2021 but he has not turned up. On 12.05.2021 also he was intimated to remain present but he has not appeared and thereafter through post, a certificate of SRL Laboratory was sent in the month of June 2021 stating respondent to be Covid positive and that was the reason for his absence. 5.2 It is further submitted that upon making inquiry, it is found that the antigen report form produced by the respondent and the report of SRL laboratory – both the documents were concocted. As such the reason assigned by the respondent for his absence was found to be false. In that event, he has flouted the order of anticipatory bail without any convincing and cogent reason and also he has misrepresented through the advocate that there were only 3 antecedents against him, though 48 antecedents were there. In that event, it is submitted by learned APP to allow the present petition by cancelling the bail of the respondent – accused. 5.3 Learned advocate Mr. Bharda fairly conceded to and not able to defend the accused with regard to breach of conditions as ordered by this Court while granting anticipatory bail. It is also conveyed that at present the respondent is in custody in connection with another offence. 6. Upon hearing the submissions of both the sides, it cannot be denied that conditional order was passed in favour of the respondent with specific date and time. However, he has not remained present. On the other hand, as per the case of the State antigen test report form was sent with the forwarding letter by the respondent accused which does not reveal that whether he was suffering from covid or not. Moreover opportunity was granted by the State and letter was written in April and May to remain present but that opportunity was not availed and again a certificate in the month of May was received by the authority regarding respondent being covid positive. Moreover opportunity was granted by the State and letter was written in April and May to remain present but that opportunity was not availed and again a certificate in the month of May was received by the authority regarding respondent being covid positive. It is also on record that the prosecution agency has inquired about the genuineness of covid positive report and it was found that respondent has never gone before the Urban Health Center nor any report has been issued by the SRL Laboratory of a particular reference number ever, to which this Court is of the firm opinion that the certificate or report must have been used by the respondent for avoiding the presence before the authority. Surprisingly the prosecution has not taken any action against the respondent accused after they were informed about the genuineness of the documents. However, it is open for the authority to take appropriate action against the respondent in that regard. 6.1 Keeping aside all the aspects, it is apparently clear that the respondent – accused has not obeyed the order of this Court, not even after giving opportunity to show his respect towards the order of this Court. As such the entire conduct of the respondent – accused is of a nature for which no pardon or further opportunity can be granted. 6.2 The ration laid down by the Apex Court in the catena of decisions that if the accused is not co-operating with the investigating agency or not remaining present and flout8ng the conditions imposed upon him while granting the bail, then in that case, he is not entitled for any leniency and in that circumstances, the bail is required to be cancelled. 6.3 It is worthwhile to refer to the decision of this Court in case of Jayshreeba Anirruddhsinh gohil vs. State of Gujarat reported in 2022 (4) GLH 2787 wherein this Court has held and observed in para No.8 and 11 as under; 8. …………. If such an approach is permitted then every accused will get himself released on bail by making false statements and his subsequent conduct from resiling from such statement will be a blessing for him. There will be no sanctity attached to the proceedings of the Court, and the accused will be roaming freely without complying with the directions. …………. If such an approach is permitted then every accused will get himself released on bail by making false statements and his subsequent conduct from resiling from such statement will be a blessing for him. There will be no sanctity attached to the proceedings of the Court, and the accused will be roaming freely without complying with the directions. Non-fulfillment of the commitment or withdrawal from the statement cannot dilute the directions issued by a Court of law. 11. Under the circumstances and in light of the aforesaid glaring facts, this Court has no other option but to cancel the bail granted to the respondent No.2- Original accused No.1 vide order dated 24.05.2021 in Criminal Misc. Application No.3410 of 2021 passed by the City Sessions Judge, Ahmedabad. The impugned order dated 08.09.2021 passed in Criminal Misc. Application No.5749 of 2021 is hereby quashed and set aside. The bail bonds are canceled. The respondent No.2- accused is directed to surrender immediately.” 6.4 It is also worthwhile to refer to the decision of this Court in the case of Merubhai Ramabhai Kodiyatar (Hun) Rabari Vs. State of Gujarat reported in 2021 (2) GLR 1175 wherein this Court has held and observed in paragraph no.11 as under:- “11. The condition of marking presence before the police station for a certain period, is a condition which a court may impose in the interest of justice. Such conditions are generally imposed to secure the presence of the accused for the trial and to prevent him from fleeing the course of justice and such condition becomes necessary so as to prevent him from tampering with evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or court; and sometimes to restraint the movement of the accused in a particular area or locality or to maintain law and order. There may be further consideration in the mind of the court while imposing the condition of marking presence before the concerned police station; generally, this condition bears importance till the filing of chargesheet, as and when the charge-sheet is forwarded to the Magisterial Court empowered to take cognizance of the offence on the police report, the same accused is under the control of the court.” 6.5 Considering the overall aspect and keeping in mind that there is a misrepresentation before this Court regarding antecedents also which became the base for granting the anticipatory bail it also becomes a ground for cancellation of the bail and in that view and aforesaid facts, request for cancellation of bail is acceded to. 7. For the foregoing reasons and in view of the decisions of the Apex Court as aforesaid, I am of the opinion that the present application deserves to be allowed and it is hereby allowed. The impugned order dated 01.03.2021 passed in Criminal Misc. Application No.3973 of 2021 is hereby recalled. The bail stands cancelled. The Investigating Officer is at liberty to approach the concerned Sessions Court for issuance of non- bailable warrant and if warrant is already issued against the accused person then the Investigating Officer shall take appropriate action for execution of the warrant issued by the Trial Court in accordance with law. Rule is made absolute.