R/CR.MA/32439/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
32439 of 2016
DEEPAKBHAI TULSIDAS KHATWANI….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)
Appearance:
MR.NANDISH H THACKAR, ADVOCATE for the Applicant(s) No. 1
MR BY MANKAD, ADVOCATE for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 21/09/2017
ORAL ORDER
1. This application is filed for cancellation of bail
granted to respondent No.2 by the Court of learned
Additional Chief Judicial Magistrate, Gandhidham by order
dated 20.11.2016 in connection with an offence being
CR No.I-124 of 2016 registered with Adipur Police Station
for offences under Sections 365, 323, 504, 506(2) and 114
of the Indian Penal Code,
2. The application initially came to be decided by an
order dated 17.07.2017, subsequently an application was
moved being Criminal Misc. Application No.18290 of 2017
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for recalling the order. Learned advocate for the
applicant was on sick note and due to clerical mistake the
sick note could not be reflected. On this ground the
application was allowed and matter was placed for hearing.
3. The application was heard and in the midst of the
dictation of order, time was sought to seek instruction
whether to withdraw the application.
4. For that reason, the matter was kept on the next
date, when it was mentioned before the Court by the
learned advocate for the applicant that the party desires
not to withdraw the application.
5. The FIR was registered against respondent No.2 and
other unknown persons alleging that the respondent No.2
had come to his residence, when his children were away to
the school and demanded to repay his money and by using
abusive language threatened him and asked him to
accompany him at his office. He forced the applicant in
his car and while taking him to office, the respondent
No.2 assaulted him and thereafter, shifted the complainant
to another car, where he was abused by other unknown
persons, who was taken to a hotel on Mundra road and
threatened to return the money of respondent No.2.
Thereafter, he was left at an isolated hotel on Highway
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from where he manage to come back and filed the complaint.
It is the case of the applicant that the respondent No.2
is highly influential person, he was formally arrested in
connection with the complaint, which was filed on
17.10.2016, and on 20.11.2016 the respondent No.2 was
arrested and produced before the concerned Magistrate, who
enlarged on bail by Additional Chief Judicial Magistrate,
Gandhidham.
6. Learned advocate for the applicant submitted that
respondent No.2 is a influential person, after the filing
of the complaint the Police was not arresting the
respondent No.2, and the applicant had to make
applications to the office of DSP, Director General of
Police and only, thereafter, the respondent No.2 came to
be arrested. It is submitted that the respondent No.2 had
to resort to media, newspaper to effect the arrest of the
respondent No.2.
6.1. Learned advocate for the applicant submitted that
the wife of the applicant also addressed a letter to the
Police Authority to take action against the respondent
No.2, as the family was facing threats.
6.2. Learned advocate for the applicant submitted that
the grant of bail was in violation of the mandatory
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provision, which requires an opportunity of hearing to be
given to the Public Prosecutor, and in the instant case,
the Court of the Magistrate has not afforded an
opportunity to the Public Prosecutor, and the order of
bail is passed by acting upon the irrelevant material.
6.3. Learned advocate for the applicant submitted that
after being released also, the threat to the applicant and
his family is continuing. It is submitted that on
27.01.2017, the applicant has filed a complaint against
respondent No.2 for offences Under Sections 504 and 506(2)
of the Indian Penal Code. The Police authority still did
not take any action against him, based on such complaint,
and hence,the applicant filed Special Criminal Application
No.953 of 2017 before this Court, and this Court by order
dated 06.02.2017 directed the concerned Police Inspector
to look into the complaint and take necessary action in
accordance with the law. The applicant thereafter,
approached learned Chief Judicial Magistrate, Gandhidham
by filing Criminal Case No.1810 of 2017 for the offence
under Sections 504 and 506(2) of Indian Penal Code, and by
order dated 08.06.2017, summons were issued against the
respondent No.2 on the private complaint filed by the
applicant.
6.4. Learned advocate for the applicant relied upon the
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Judgment of the Apex Court reported in (2017) 2 SCC 178,
in case of State of Bihar vs. Rajballav Prasad @ Rajballav
Prasad Yadav referring to Paragraph 14.
6.5. Learned advocate for the applicant then, relied upon
the judgment of the Apex Court reported in (2009) 14 SCC
638, Subodh Kumar Yadav vs. State of Bihar, Paragraph 16.
6.6. Learned advocate for the applicant, thereafter,
relied upon the Supreme Court Judgment (2013) 16 SCC 190,
Gulabrao Baburao Deokar vs. State of Maharashtra and
others, Paragraph 11.
1994 Supp (2) SCC 205, Santram vs. State of Haryana
and others and (2001) 6 SCC 338, Puran vs. Rambilas and
another to contend that the order of bail can be examined
on merits.
7. Learned advocate for the respondent No.2 has
vehemently opposed the application and submitted that the
applicant, original-complainant had borrowed money from
the respondent No.2, which is a huge amount and when the
time was due to repay the amount instead of repayment the
applicant has sought to resorting a filing of complaint to
avoid repaying the borrowed money.
7.1. It is submitted that the act on the part of the
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applicant in filing the complaint and thereafter,
immediately one after the other making applications in his
own name and the in the name of his family members to the
Police authorities with the sole intention that the
respondent No.2 be arrested, he be defamed in society and
discourage from demanding his legitimate dues from the
applicant.
8. Learned advocate for the applicant drew attention of
this Court, to the press and media publicity given by the
applicant to pressurise the arrest of the respondent No.2.
The applicant had proceeded to give a press note in public
that he would sit on fast in public as the respondent No.2
is not arrested. He also drew attention of this Court to
the press cuttings annexed by the applicant alongwith his
application. It is submitted that the respondent No.2 is
a businessman doing legitimate business and only out of
good faith he has given financial assistance on demand of
the applicant to help him, he is doing a business of
legitimate finance, since long and he has financed several
projects and individuals and nobody has ever made any
grievance against the respondent No.2 with regard to his
business conduct. If Respondent No.2 is acting in the
fashion, which is alleged then obviously, there would be
several persons in the town who would be aggrieved by such
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conduct. However, there is no complaint in any manner,
and it is only the applicant herein who has resorted to
his tactics to avoid his liability.
9. Learned advocate for the respondent No.2 submitted
that the attitude of the complainant is evident from the
fact that he is involving the family members to file false
and frivolous complaints against the respondent No.2.
Such complaints, which are investigated by the Police
authorities have been found to be false and reports are
also produced before the appropriate authority, still the
applicant out of vendetta is bent upon to defame the
applicant only with an intention to avoid his liability
towards the respondent No.2.
10. Learned APP has relied upon the affidavit-in-reply of
Police Inspector of Local Crime Branch, Gandhidham and
produced on record a report copy dated 27.07.2017, based
on the investigation carried out, pursuant to the
direction of this Court in Special Criminal Application
No.953 of 2017.
11. This Court has considered the rival submissions and
perused the documents on record filed alongwith
application as well as additional affidavit.
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12. From the conduct of the applicant, it is clear that
the attempt on the part of the applicant-complainant is to
avoid his civil liability to repay the amount borrowed
from the respondent No.2 by entangling the respondent in
Criminal litigation in one way or the other. Though, this
Court is not examining the correctness of the allegations
in the FIR, however, observing the chronology of the
events, the Court is constrained to observe against the
tactics resorted to by the applicant, which is emerging
from the record produced by the applicant himself, the
press note on page 19 onwards, the public notice on page
35 and 36, the publicity in newspaper and social media is
indicative of the attitude of the applicant, who
admittedly has business/financial transaction with the
respondent No.2. The threat issued to the Police authority
to sit on fast and immediately after such threats being
issued in public through newspaper and social media, the
arrest immediately thereof, of the respondent No.2 speaks
volume about the conduct of the applicant himself. This
Court is also constrained to observe that in a place like
Adipur, which is a mid size town, the alleged business
conduct of the respondent No.2 would have left, many
people aggrieved, specially when respondent No.2 is in the
business of financing. However, nothing is brought on the
record of this Court to suggest that the respondent No.2
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is consistent in high handed behaviour or there are large
number of grievances against him in the town of Adipur.
13. I have perused the orders. The Court has assigned
reasons to the extent of considering the nature of
offence, the provisions for sentence the fact that the
applicant is doing business and has no criminal
antecedents, and that the complainant is also discharged
from Hospital long back and therefore, after hearing, the
respondent No.2 was admitted to conditional bail. The
applicant has not brought to the notice of this Court
though an additional affidavit is filed by him the
subsequent development in connection with this. From the
record it appears that an application dated 16.05.2017 was
filed for modification of condition of bail seeking
permission for travelling out of Gujarat by respondent
No.2, against this application the applicant had filed a
detailed objection dated 26.05.2017, and after considering
the rival submissions a detailed order is passed on
30.05.2017 allowing the application of the respondent
No.2. This, in view of the Court, is a relevant
circumstance, which ought to have been brought to the
record, notice of this Court by the applicant.
14. Even in connection with the subsequent complaint of
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the applicant and/or his wife under Sections 504, 506(2)
after the respondent No.2 was enlarged on bail. The
Investigating Officer filed a detailed report, pursuant to
the order of the High Court, and in the report, it was
stated that no offence of Sections 504 and 506(2) was made
out, and an explanation was sought from the applicant for
filing a false complaint.
15. The judgment of the Apex Court cited by the learned
advocate for the applicant in case of Gulabrao Baburao
Deokar (Supra), the Apex Court was examining the
provisions of Section 439 and mandatory compliance of
provisions of Section 439. Insofar as, the opportunity of
hearing to the Public Prosecutor, the case on hands is an
exercise of power under Section 437, which operates in a
completely different sphere. Even on merits, there is
nothing on record to establish conclusively that the
opportunity of hearing to the Public Prosecutor was not
afforded by the Court before passing the order, the
observations made by the Magistrate, while passing the
order of bail indicate the Investigating Officer was heard
beyond this observation unless anything contrary is
brought on record by the applicant, the Court will not
presume the lack of opportunity to the public Prosecutor.
16. In case of Puran (Supra) the Apex Court was again
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examining the provisions regarding cancellation of ground
and held that the bail order passed by ignoring material
evidence on record without giving reasons would be
perverse and contrary to principle of law and this could
be the grounds for moving an application for cancellation
of bail. The perusal of the order, thus indicate that
application of mind to the relevant material on record,
which include the nature of offence, gravity of offence
and the maximum sentence that can be inflicted in
connection with this offence. The Court has also applied
mind with regard to other relevant factors.
17. In case of Santram (Supra) the Apex Court was
examining the cancellation of bail,where the state had
moved the Court for cancellation upon the report verified
by the Police Officers, where the cancellation was
necessitated in order to maintain a terror free atmosphere
during the proceedings of trial, when the material
witnesses had in the course of deposition point out that
the accused had threatened them.
18. In the case of Subodh Kumar Yadav (Supra), the Apex
Court has laid down the ingredients to be considered by
the Superior Court while exercising the discretion in the
matter of cancellation of bail and the Supreme Court has
held that where the exercise of discretion to grant bail
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is based on irrelevant material or if there is non
application of mind or failure to take note of any
statutory bar to grant of bail or if there was a manifest
impropriety including failure to hear the Public
Prosecutor/Complainant were required. The Apex Court was
examining the facts of the case where the complaint was
for offences under Sections 498A, 384, 307 and 406 of the
Indian Penal Code. In the facts of that case, it was a
case for cancellation of bail where the learned Sessions
Judge concluded that the Magistrate had enlarged the
accused on bail, on considerations otherthan judicial and
that order of the Sessions Judge was subject matter of
challenge before the Patna High Court, which confirm the
order of the Sessions Court and thereafter, before the
Apex Court. As held in the preceding paras, in the opinion
of the Court, nothing is brought on the record to suggest
that the proviso to Section 437 which mentions regarding
the opportunity of hearing is not aforded in the face of
the observation made by the Chief Judicial Magistrate
about the hearing of Investigating Officer, lack of such
opportunity cannot be presumed. In the facts of this case
pertaining to loan and repayment of private nature the
liberty of an individual will have to weighed against the
presumption of lack of opportunity or non availment of
opportunity to the Public Prosecutor. In any case,
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considering the subsequent development and the conduct of
the applicant himself, the Court is disinclined to delve
upon the technical objection, which is not the part of the
main petition, but as an afterthought is raised in the
additional affidavit on behalf of the applicant, specially
where the conduct of the applicant and the motive of the
applicant behind such criminal litigation is ready a large
from the record before this Court.
19. There is no application or grievance from the
Investigating Officer or the Police authority with regard
to the breach of condition of bail and now relevant
consideration for cancellation of bail being well led in
several pronouncement of the Apex Court, absent in the
facts of this case, no interference is called for.
20. In view of this Court, the applicant has failed to
bring on record any perversity in the order of bail or any
overwhelming and supervening circumstance to cancel the
bail of respondent No.2, the petition deserves to be
dismissed and is hereby dismissed. Notice is discharged.
(A.Y. KOGJE, J.)
Alok
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