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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