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2024 DIGILAW 823 (GUJ)

Niravbhai Bhulabhai Patel v. State Of Gujarat

2024-04-09

J.C.DOSHI

body2024
ORDER : 1. By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.I-11822004220561 of 2022 registered with Khergam Police Station. 2. Facts of the case are as under :- 2.1. The said First Information Report is given by one Harshad son of Arunbhai Jinabhai Pavar who is the Sarpanch of village Khundgam. He has stated that on October 08, 2022 when he was at home at 09.00 pm, he received a call from one Mayank Patel of village Khundpokda and informed that fire engine was summoned and therefore, he summoned the driver and fireman at Panchayat Office and he also reached at the Panchayat Office. The first informant stated that meanwhile, the employee of the Panchayat Mr. Ramesh Patel and member of Panchayat Mr. Gokul Rathod had also arrived and therefore, everyone started from the office in the fire engine and reached at Khergam, however, the people were sitting the road and obstructed the road and though siren of fire engine was blowing continuously, no space was given. He also saw the MLA Mr. Anantbhai Patel in the said mob and he has stated that he had identified about 13 persons and did not permit to reach the shop where the fire took place. The mob has stated that shop of Bhikhubhai Ahir has been set on fire and no engine shall reach the shop and take away the fire engine and tried to assault with iron pipe and sticks and also damage the fire engine by breaking glass of windshield, signals and also damaged the wirings and assaulted its kicks. Hence, impugned FIR is filed. 3. Heard learned advocate for the petitioner/accused and learned APP for the State. 4. Learned advocate for the petitioner submitted that the petitioner has been falsely involved in the offence. Offence is registered as counter-blast to the FIR filed by the sitting MLA Mr.Anand Patel vide C.R.No.11822004220551 of 2022 dated 09.10.2022. It is submitted that since the petitioner is follower of sitting MLA Mr. Anand Patel, who belongs to other than ruling party, ergo to harass the petitioner, one after another false complaints are filed against the petitioner. It is submitted that FIR is filed after considerable long period. It is submitted that since the petitioner is follower of sitting MLA Mr. Anand Patel, who belongs to other than ruling party, ergo to harass the petitioner, one after another false complaints are filed against the petitioner. It is submitted that FIR is filed after considerable long period. It is also submitted that on reading FIR, no-where role of the petitioner has been attributed in commission of offence. Every time in each offence it is stated that unlawful assembly of people gathered on the spot and have committed offence wherein petitioner was shown as part of unlawful assembly. It is submitted that three FIR are registered against the petitioner for one and same incident and it implies that FIR has been filed to harass the petitioner. It is submitted that all the FIRs are filed to tarnish political image of the petitioner who is supporter of sitting MLA. It is submitted that sitting MLA who has slated to be main accused in the offence has been granted anticipatory bail and therefore, principle of parity is attracted. It is submitted that the petitioner is dragged into offence as he is not following ruling party and is supporter of MLA who belongs to other party. 4.1. Making above submissions, learned advocate for the petitioner submitted that since the petitioner is innocent, he is permanent resident of Navsari and has not played any role in commission of offence but merely, the petitioner was part of people gathered on the spot, has been falsely involved in the offence. The petitioner is ready and willing to extend co- operation to the Investigating Officer. There is no flight-risk. It is submitted that FIR is filed to take revenge against petitioner and therefore, the petitioner should be saved from humiliation of being arrested. 4.2. Upon above submissions, it is submitted to allow the petition and grant anticipatory bail to the petitioner. 5. On the other hand, learned APP for the State objected to grant of bail. He would submit that the petitioner is not law abiding citizen. Time and again he is involved in various kind of agitation to disturb law and order. He submitted that FIR itself indicates that Adivasi people have been incited by the petitioner not once but more than it and put law and order situation at peril. He would submit that the petitioner is not law abiding citizen. Time and again he is involved in various kind of agitation to disturb law and order. He submitted that FIR itself indicates that Adivasi people have been incited by the petitioner not once but more than it and put law and order situation at peril. It is submitted that vediography of scene of offence has been collected during investigation and it indicates that petitioner is one of the mastermind in all three offences alleged against him. It is submitted that apart from offence under IPC, offence under Damage to Public Property Act is also registered against the petitioner. It is submitted that the petitioner has ransacked shop of the complainant and gathered people, took entire law and order situation in hand and provoked Adivasai people and passed threat to the police. To control the mob, police from other districts was required to be called. This kind of modus operadi is adopted by the petitioner for more than once to threat public law and order situation. It is submitted that since shop of the complainant was ransacked, fire tankers were called to douse fire set by the petitioner and others on the shop of the complainant but it was stopped in midway and fire tanker was also ravaged. It is submitted that police were put to peril and the petitioner passed threat of dire consequences on the police, as such entire law and order situation was taken in hand by the petitioner along with other persons. Multiple FIRs are filed against the petitioner. The petitioner is head strong person. It is submitted that apart from three offences registered, another offence of IPC under section 306 being C.R.No.11822004230689 of 2023 was registered with Khergam Police Station. The petitioner has preferred anticipatory bail application being Cr.M.A.No. 22946 of 2023 before this Court for getting pre-arrest bail. This Court has rejected the same vide order dated 31.01.2024. The order is carried to challenge before the Hon’ble Apex Court by filing Special Leave to Appeal (Cr.) No.2813 of 2024 and it was dismissed. It is submitted that since the petitioner is habitual offender, he should not be granted anticipatory bail. Moreover, it is argued that since the petitioner is running away, process has been commenced for warrant under section 70 of Cr.P.C. against the petitioner. It is submitted that since the petitioner is habitual offender, he should not be granted anticipatory bail. Moreover, it is argued that since the petitioner is running away, process has been commenced for warrant under section 70 of Cr.P.C. against the petitioner. The petitioner is absconding and he is not entitled for anticipatory bail. Therefore, it is submitted to dismiss the present anticipatory bail application. 6. Having heard learned advocates for the parties, it is required to be noted that in total four FIR are registered against the petitioner with Khergam Police Station, details of which are as under :- (i) C.R.No.11822004230689 of 2023 registered with Khergam Police Station. (i) C.R.No.11822004220560 of 2022 registered with Khergam Police Station. (iii) C.R.No.11822004220561 of 2022 registered with Khergam Police Station. (iv) C.R.No.11822004220566 of 2022 registered with Khergam Police Station. 7. In case of SIDHHARAM SATLINGAPPA MEHTRE V/s. STATE OF MAHARASHTRA reported in - 2011(1) GLH 11 , the Hon’ble Apex Court held that to exercise discretion under Section-438 of the Cr.P.C., a competent court has to keep in mind the position of law emerged from the discussion in various judgments by Hon'ble High Courts and Supreme Court. The Court has further held that the following factors and parameters can be taken into consideration while dealing with the anticipatory bail. i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the petitioner including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the petitioner to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the petitioner by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of bail, a balance has to be struck between bathely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of Andassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” 8. Apt to refer observations made by Hon'ble Supreme Court in another case of JAI PRAKASH SINGH V. STATE OF BIHAR AND ANOTHER, reported in, 2012 Cri.LJ 2101, wherein the Hon’ble Apex Court held as under: "The court may not exercise its discretion in derogation of established principles of law, rather it has to be in strict adherence to them. Discretion has to be guided by law, duly governed by rule and cannot be arbitrary, fanciful or vague. The court must not yield to spasmodic sentiment to unregulated benevolence." 9. On perusing 3 different FIRs filed against the petitioner by the complainant or his wife, it appears that the petitioner accused along with sitting MLA incited mob and stalled law and order proceedings; sat on public road, blocked the public road and also provoked Adivasi people against the complainant. Shop of the complainant was ransacked and set on fire and prior to it, it was looted. The petitioner played major role in that issue and as such promoted enmity between Adivasi and non Adivsai community. (see FIR being C.R.No.11822004220560 of 2022 registered with Khergam Police Station). Shop of the complainant was ransacked and set on fire and prior to it, it was looted. The petitioner played major role in that issue and as such promoted enmity between Adivasi and non Adivsai community. (see FIR being C.R.No.11822004220560 of 2022 registered with Khergam Police Station). 10. What further requires to be noted that when fire tankers were running towards shop for dousing fire, they were also ransacked. It was stopped by the petitioner and others on the road and they were not allowed to move on road in small city. Allegations are levelled against the petitioner that in order to achieve common object, he has promoted Adivasi community saying that fire tankers belongs to the complainant and therefore, it has to be broken and as such fire tankers were also ransacked or damaged and damage to public property also took place. (see FIR being C.R.No.11822004220561 of 2022 registered with Khergam Police Station). 11. Not only that, accused has also tried to provoke enmity between two communities and law and order was put to peril. (see FIR being C.R.No.11822004220566 of 2022 registered with Khergam Police Station). 12. Role of the petitioner is visible from all three FIRs. He has played active role. The petitioner has provoked enmity between two communities to achieve one particular target. Charge-sheet is filed in the matter. The petitioner – accused is on run. In charge-sheet, he is shown in column no.2, which indicates that he is absconding. 13. In view of law laid down by the Hon’ble Apex Court in case of State of Haryana vs. Dharamraj reported in 2023 INSC 784 , Lavesh vs. (NCT of Delhi) reported in (2012) 8 SCC 730 , Abhishek vs. State of Maharastra reported in 2022 (8) SCC 282 , it is observed that as accused remained absconder and considering the aforesaid fact, this is not a fit case to exercise the jurisdiction in favour of the petitioner. Even the antecedents registered against the petitioner also runs against him to deny bail. 14. At this juncture, I may refer to judgment of Hon’ble Apex Court in the case of Srikant Upadhyhay v/s. State of Bihar [ 2024 INSC 202 ]. Hon’ble Apex Court dealt with meaning of term absconding. Para 17 to 20 are relevant, which reads as under :- “17. Section 70 (2), Cr. PC mandates that every warrant issued under Section 70 (1), Cr. Hon’ble Apex Court dealt with meaning of term absconding. Para 17 to 20 are relevant, which reads as under :- “17. Section 70 (2), Cr. PC mandates that every warrant issued under Section 70 (1), Cr. PC shall remain in force until it is cancelled by the Court which issued it, or until it is executed. In this case, as noticed hereinbefore, the bailable warrants and thereafter the non-bailable warrants, were issued against the appellants. They were neither cancelled by the Trial Court nor they were executed. It is not their case that they have successfully challenged them. Sections 19, 20, 21, 174 and 174 A, IPC assume relevance in this context. They, insofar as relevant read thus: 19. "Judge".- The word "Judge" denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body or persons, which body of persons is empowered by law to give such a judgment. 20. "Court of Justice".- The words "Court of Justice" denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially. 21. "Public servant".- The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely:- [Third.-Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;] 174. 21. "Public servant".- The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely:- [Third.-Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;] 174. Non-attendance in obedience to an order from public servant.- Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order, or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. 174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub- section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine. 18. Taking note of the aforesaid facts with respect to the issuance of summons, warrants and subsequently the proclamation, a conjoint reading of Sections 19, 20 and 21, IPC containing the terms "Judge", "Court of Justice" and "Public Servant" and Sections 174 and 174A, IPC can make them liable even to face further proceedings. Same is the position in case of non-attendance in obedience to proclamation under Section 82, Cr. PC. 19. Bearing in mind the aforesaid provisions and position, we will refer to certain relevant decisions. Same is the position in case of non-attendance in obedience to proclamation under Section 82, Cr. PC. 19. Bearing in mind the aforesaid provisions and position, we will refer to certain relevant decisions. In Savitaben Govindbhai Patel & Ors. v. State of Gujarat, the High Court of Gujarat observed thus: - "9. Filing of an Anticipatory Bail Application by the petitioners-accused through their advocate cannot be said to be an appearance of the petitioners-accused in a competent Court, so far as proceeding initiated under Section 82/83 of the Code is concerned; otherwise each absconding accused would try to create shelter by filing an Anticipatory Bail Application to avoid obligation to appear before the court and raises the proceeding under Section 83 of the Code claiming that he cannot be termed as an absconder in the eye of law. Physical appearance before the Court is most important, if relevant scheme of Sections 82 and 83, is read closely." (underline supplied) 20. We are in full agreement with the view taken by the Gujarat High Court that filing of an anticipatory bail through an advocate would not and could not be treated as appearance before a court by a person against whom such proceedings, as mentioned above are instituted. The meaning of the term "absconded" has been dealt by us hereinbefore. We found that its etymological and original sense is that the accused is hiding himself. What is required as proof for absconding is the evidence to the effect that the person concerned was knowing that he was wanted and also about pendency of warrant of arrest. A detailed discussion is not warranted in this case to understand that the appellants were actually absconding. It is not in dispute that they were served with the "summons". The fact that bailable warrants were issued against them on 12.04.2022 is also not disputed, as the appellants themselves have produced the order whereunder bailable warrants were issued against them. We have already referred to Section 70 (2), Cr. PC which would reveal the position that once a warrant is issued it would remain in force until it is cancelled by the Court which issued it or until its execution. There is no case for the appellants that either of such events had occurred in this case to make the warrants unenforceable. PC which would reveal the position that once a warrant is issued it would remain in force until it is cancelled by the Court which issued it or until its execution. There is no case for the appellants that either of such events had occurred in this case to make the warrants unenforceable. They also got no case that their application was interfered with by a higher Court. That apart, it is a fact that the appellants themselves on 23.08.2022, moved a bail-cum-surrender application before the Trial Court but withdrew the same fearing arrest. It is also relevant to note that in the case on hand even while contending that they were before a Court, the appellants got no case that in terms of the provisions under Section 438 (1-B), Cr. PC an order for their presence before the Court was ordered either suo motu by the Court or on an application by the public prosecutor. When that be the circumstance, the appellants cannot be allowed to contend that they were not hiding or concealing themselves from arrest or that they were not knowing that they were wanted in a Court of law.” 15. Discretion of this Court requires to be exercised while deciding application under section 438 of Cr.P.C. is sound discretion guided by law and must be governed by rule. It must not be arbitrary, vague and fanciful, but legal and regular and in the case of granting bail the judicial discretion of Judge must be exercised not in opposition to, but in accordance with the established principle of law. 16. Useful reference can be taken from the Judgment of Hon’ble Apex Court in the case of Prem Shankar Prasad v/s. State of Bihar [ (2022) 14 SCC 516 . Para 10.3 is relevant, which reads as under :- “10.3 In the case of State of Madhya Pradesh vs. Pradeep Sharma (Supra), it is observed and held by this court that if anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr.PC, he is not entitled to relief of anticipatory bail. In paragraph 14 to 16, it is observed and held as under: “14. In order to answer the above question, it is desirable to refer to Section 438 of the Code which reads as under: “438. In paragraph 14 to 16, it is observed and held as under: “14. In order to answer the above question, it is desirable to refer to Section 438 of the Code which reads as under: “438. Direction for grant of bail to person apprehending arrest.—(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely— (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.” The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty. 17. The petitioner failed to make out case to exercise extra ordinary jurisdiction to grant anticipatory bail. Consequently, present petition fails and stands dismissed.