[CASE NUMBER] ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL ) NO. 15307 of 2014 With CRIMINAL MISC.APPLICATION NO. 16677 of 2014
[ENTITY] Versus [ENTITY] Appearance in Cri. [CASE NUMBER]:
[ENTITY], SENIOR COUNSEL WITH MR. [ENTITY], ADVOCATE for the Applicant MR [ENTITY] SENIOR COUNSEL WITH MR. [ENTITY], ADVOCATE for the Original Complainant MR [ENTITY] APP for the Respondent No. 1.
Appearance in Cri. [CASE NUMBER]:
[ENTITY], ADVOCATE for the Applicant MR [ENTITY] SENIOR COUNSEL WITH MR. [ENTITY], ADVOCATE for the Original Complainant CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 15/12/2014 CAV COMMON ORDER 1 By way of filing the present applications under [SECTION] of the [ACT] the applicant - accused has prayed to enlarge him on anticipatory bail in event of his arrest in connection with the offenses registered at [CASE NUMBER] before Chaklasi Police Station, District Kheda, for the offenses punishable under Sections 154A, 153B, [SECTION], [SECTION]A [CASE NUMBER] ORDER and 120(B) of the [ACT] and under [SECTION] and [SECTION] of the Prevention of Immoral Traffic Act, and 1[SECTION]56 and [CASE NUMBER] registered before DCB Police Station, Amedabad, for the offenses punishable under [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT], [SECTION] of the [ACT] and [SECTION] and [SECTION] of the Immoral Traffic Prevention Act, 1[SECTION]56. Both the FIRs' are registered in connection with the similar type of offence and, therefore, both the applications are heard and decided by a common order. The main ground for filing this second successive anticipatory applications (in all three applications) is some material change in the circumstances prevailing in the year 2005.
2. Brief facts arise from the record are as under:
2.1 That one [ENTITY], the Executive Secretary of of Vadtal Swaminarayan Temple Trust, had lodged an FIR with Chaklasi Police Station, District - Kheda, on 8.1.2005, alleging that certain persons named in the FIR, are trying to circulate certain compact video discs in which saints of the temple and [ENTITY] belongs to the Trust who were indulging in immoral activities with women are picturised which are prohibited in the religion. By giving threats to circulate such CDs at large, they were blackmailing other trustees and wanted to usurp the powers of the Trust. It was further alleged in the FIR that the present applicant had actively participated in the election of the Trust and has also tried to involved certain saints in such election process.
2.2 Pursuant to lodgment of the FIRs', the investigation started. When the applicant came to know that he is likely to be arrested in the said offence, [CASE NUMBER] ORDER he had preferred an application under [SECTION] of the Code in the court of learned Sessions Judge, Thane (State of Maharashtra) and requested that a transit bail may be given for approaching the concerned Sessions Court at Nadiad. The said application came to be allowed and he was granted transit bail and was asked to file an appropriate applications within a particular time. 2.3 Pursuant to the said order, the applicant had preferred an application under [SECTION] of the Code before the learned Sessions Judge which came to be dismissed on 28.11.2005. Thereafter, the applicant had preferred several applications before the Trial Court, before this Court or before the Hon'ble Apex Court. However, in none of the cases, any relief was granted in favour of the applicant. Thereafter, a warrant under [SECTION] of the Code came to be issued against the applicant and subsequently orders under [SECTION] of the Code were passed by the competent court. 2.4 Though, the last order refusing anticipatory bail came to be passed way back in the year 2006, the applicant neither surrendered before the Investigating Agency nor before the court and remain absconded. Meanwhile, one of the accused had died and in case of other accused, relief was granted by this Court when they had approached under [SECTION] of the Code.
2.5 Similarly, an FIR was lodged at DCB Police Station, Ahmedabad, which came to be registered as [CASE NUMBER] for the offenses punishable under [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] as well as under [SECTION] and [SECTION] of the Immoral Traffic (Prevention) Act, 1[SECTION]56, alleging similar type of activities being carried out by the applicant and other [CASE NUMBER] ORDER accused. In the said case, some of the accused had approached this Court under [SECTION] whereas present applicant and some other accused persons approached the learned Sessions Court and came to be acquitted by the learned Sessions Judge.
2.6 It is pertinent to mention at this stage that the present applicant had also filed an application, being [CASE NUMBER], in the court of learned Sessions Judge,Thane, Maharashtra, inter alia, seeking provisional bail in anticipation of his arrest by Naupada Police Station at the instance of Chaklasi Police Station, Kheda District, Gujarat, in connection with the offenses registered at [CASE NUMBER]. The learned Sessions Judge, Thane, by Order dated 1.10.2005, time was given to the applicant to approach the competent court at Nadiad, District - Kheda, for obtaining order under [SECTION] of the Code in respect of [CASE NUMBER] of Chaklasi Police Station, State of Gujarat. It is also observed in the order that in the meantime "if the applicant is arrested", he shall be released on provisional bail till 7.10.2005. It is also clarified that the order is not passed on consideration of merits, but it is passed in the nature of "Transit Bail" to enable the applicant to approach the competent court at Nadiad, District-Kheda. 2.7 Relying upon the above referred progress in the matter,qua, other accused, present applicant again approached the learned Sessions Judge, Kheda, under [SECTION] of the Code by filing an application being [CASE NUMBER] on the ground that since the case against co-accused has been quashed and in similar case other co-accused have been acquitted, his case may be considered. The learned Sessions [CASE NUMBER] ORDER Judge, by order dated 7.1.2014, allowed the said application and released the applicant on anticipatory bail. In the meantime, complainant had filed an application, being Criminal Misc. Application No.220[SECTION] of 2014 before this Court for cancellation of bail granted to the present applicant. The said application came to be allowed with a direction to the learned Sessions Judge, Kheda at Nadiad, to decide and dispose of the bail application of the present applicant afresh on its merits within two months from the date of receipt of th order. Similarly, the applicant had also filed an application under [SECTION] of the Code for anticipatory bail before the City Sessions Court at Ahmedabad, being [CASE NUMBER] , seeking anticipatory bail in the event of his arrest in connection with the offence registered at DCB Police Station, being [CASE NUMBER] for the offenses under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] and under [SECTION] of the [ACT] and [SECTION] and [SECTION] of the Immoral Traffic (Prevention) Act, 1[SECTION]56 which came to be allowed by Order dated 27.12.2013 by Court No.10, City Sessions Court, Ahmedabad, which came to be challenged by the original complainant before this Court by filing [CASE NUMBER]. The said application came to be partly allowed by the Coordinate Bench of this Court (Coram: [ENTITY], J.) by order dated 21.7.2014 and the Order dated 27.12.2013 passed by the learned Additional Sessions Judge, Court No.10, passed in Criminal Misc. [CASE NUMBER] was quashed and set aside with a direction to the learned Sessions Court to decide and dispose of the bail application of the respondent No.1 afresh on its own merits and in view of the case law cited at the bar within two months from the date of receipt of the order. The [CASE NUMBER] ORDER applicant was ordered to be on bail as he was on bail for eight months by then. The aforesaid application was again remanded to the sessions Court and was heard by the learned Sessions Judge, Court No.3, which came to be rejected by order dated 4.10.2014.
2.8 The original complainant, having come to know about passing such an order, preferred two applications under [SECTION] of the Code, being Criminal Misc. Application No. 220[SECTION] of 2014 and 2210 of 2014 before this Court and had requested that the anticipatory bail granted to the present applicant be cancelled. A Coordinate Bench of this Court (Coram: Mr. Justice [ENTITY]) by judgment and order dated 21.7.2014 partly allowed the application and cancelled the anticipatory bail granted to the applicant and the matter was remanded to the learned Sessions Judge for fresh hearing since the Trial Court has not considered certain aspects which was brought to the notice of the court. As per the order, the matter was remanded and heard again by another learned Sessions Judge and by Order dated 20.[SECTION].2014, dismissed the application on the ground that discretionary relief cannot be granted. Hence the present applications. 3 Mr. [ENTITY], learned APP, appearing for the respondent - State of Gujarat, has placed relevant material with regard to whatever investigations carried out against the present applicant during last few years and opposed both the applications. Original complainant has filed two separate detailed affidavits and produced several orders and judgments passed by different courts against the present applicant with regard to the FIR being [CASE NUMBER] registered with Chaklasi Police Station, District-
[CASE NUMBER] ORDER Kheda as well as another FIR being [CASE NUMBER] registered with
DCB Police Station, Ahmedabad and vehemently opposed both the applications. Original complainants have filed their affidavits and opposed this application. They are represented by Senior Advocate Mr. [ENTITY] with learned Advocate Mr. [ENTITY].
4 Learned Senior Counsel Mr. [ENTITY] assisted by learned Advocate [ENTITY], appearing for the applicant in Cri. [CASE NUMBER] and Mr. [ENTITY], learned Advocate appearing for the applicant in Cri. [CASE NUMBER], have submitted that the applicant has never absconded and was available at this residence. The police has never arrested him and, therefore, he cannot be treated as proclaimed offender. Mr. [ENTITY], learned Senior Counsel, would further submit that there are change in circumstances for getting anticipatory bail and particularly when reliefs have been granted in favour of the co-accused. By taking me through the orders passed by the Coordinate Bench of this Court, he would submit that the FIR itself has been quashed and set aside against the co-accused and, therefore, it would be a change of circumstances in favour of the applicant. He would further submit that since the applicant was contesting election and was opposing certain illegalities committed by the Trustees with regard to the administration of the Trust itself, he has been falsely implicated in the offence. He would further submit that there is no evidence against the present applicant which would, prima faice establish the case alleged by the prosecution.
4.1 Mr. [ENTITY], learned Senior Counsel, for the applicant, tried to [CASE NUMBER] ORDER
show the change in circumstances by submitting that the applicant is one of the accused in two different offenses. One is registered before Chaklasi Police Station, District Kheda, being [CASE NUMBER] and another is registered with Ahmedabad DCB Police Station, being [CASE NUMBER]. The allegations in both the FIRs' are of similar in nature. He would submit that in case of the offence registered before Ahmedabad Police Station, some of the accused had approached this Court by way of filing applications for discharge, which were allowed by the Coordinate Bench in the year 200[SECTION] and thereafter in the year 2011. One accused had died and therefore the case is abated. Three co-accused have been acquitted by the Sessions Court after full fledged trial having found no evidence against them. By taking me through the judgments of the Sessions Court, he would submit that, in absence of any material, the accused persons have been acquitted. He would further submit that present applicant is neither named in the FIR nor the Investigating Agency has found any material against him.
4.2 Mr. [ENTITY], learned Senior Counsel, would further submit that with regard to the crime registered at Chaklasi Police Station is concerned, some of the co-accused had filed application under [SECTION] of the [ACT] before this Court and in those cases, the FIRs' have been quashed by this Court as far as those accused are concerned. In some of the cases, stay against further proceedings has been granted and those applications are pending.
4.3 Mr. [ENTITY], learned Senior Counsel, would further submit that apart from the changed circumstances, the applicant cannot be treated as an [CASE NUMBER] ORDER absconder since he has been enlarged on bail pursuant to an Order dated 7.1.2014 passed by the learned Sessions Judge. He submits that the applicant has already executed a bond as per the said order. Mr. [ENTITY], learned Senior Counsel, in support of his submission, has relied upon a decision of the Apex Court, in the case of [PRECEDENT]., as reported at (2008) 4 SCC
64[SECTION]. By relying upon Para-32 of the said judgment, would submit that once the applicant is released on bail, all the proceedings initiated under [SECTION] or [SECTION] of the Code stand cancelled and the applicant cannot be treated as an absconder. By relying upon another decision of the Hon'ble Apex Court in the case of [PRECEDENT], as reported at (200[SECTION]) 7 SCC 104 and particularly relying upon paras 40, 41 and 43, he would submit that once an accused has been arrested, he cannot be treated as a proclaimed offender. He would submit that, though, the bail which was granted by the Trial Court, came to be cancelled by the Coordinate Bench of this Court, the applicant was continued on anticipatory bail till the fresh decision is pronounced by the Sessions Court. 4.4 As far as the arrest subsequent to the order passed in January, 2014 is concerned, Mr. [ENTITY], learned Advocate would submit that the order itself has been quashed and set aside by this Court and, therefore, all the actions taken pursuant to the said order, would also go and, therefore, the judgments relied upon by the learned Advocate, appearing for the applicant would not be applicable in the facts and circumstances of the present case.
4.5 Mr. [ENTITY], learned Senior Counsel, appearing for the [CASE NUMBER] ORDER
applicant, has placed reliance on the decisions of the Hon'ble Apex Court in the case of Jayendra Vishnu Thakur vs. State of Maharashtra & Anr., as reported at (200[SECTION]) 7 SCC 104; in the case of [PRECEDENT]., as reported at (2008) 4 SCC 64[SECTION]; in the case of [PRECEDENT] and in the case of [PRECEDENT], as reported at (2013) 4 SCC 422 and submitted that the aforesaid case laws would squarely applicable in the facts of the present case, both the applications may kindly be allowed and applicant may kindly be enlarged on anticipatory bail on any suitable terms and conditions as may be imposed by this Hon'ble Court.
5 On the other hand, learned APP Mr. [ENTITY], has opposed both the applications and submitted that the applicant is a person who has designed the entire crime and in his leadership the conspiracy was hatched with an ulterior motive. He would submit that the applicant was absconding since 2006. By placing reliance on the police diary, he would submit that, the investigating agency had visited at his two different permanent addresses on number of occasions, but the applicant was not found at home. He would submit that the applicant is neither a permanent resident of State of Maharashtra nor any other activity was carried out in the State of Maharashtra, even though, he filed an application under [SECTION] of the Code in the court of learned Sessions Judge, Thane, way back [CASE NUMBER] ORDER in the year 2006. He would further submit that the learned Sessions Judge, Thane, had asked the applicant to approach the concerned court in Gujarat on or before 7.10.2008, but he did not file such application within time . He would further submit that the application filed in the year 2005 was dismissed on 28.10.2005 by the learned Sessions Judge. He would further submit that all the applications filed by the applicant for releasing him on anticipatory bail have been rejected by this Court in the year 2005 and 2006 but he did not surrender before the Investigating Agency. He would further submit that even though the proceedings initiated under [SECTION] of the [ACT] were challenged by the applicant before this Court as well as before the Hon'ble Apex Court which came to be dismissed in the year 2006, the applicant did not surrender before the authority and failed to abide by the orders of the Apex Court. He would further submit that such a person, who has no respect for the orders of the Trial Court, High Court as well as of the Hon'ble Apex Court, is not entitled for any relief and on the said ground both the applications are required to be rejected.
5.1 On instructions, Mr. [ENTITY], learned APP, would submit that when an application was decided in the year 2014, the Investigating Agency was not intimated about such filing of the application and, therefore, sufficient material was not placed before the court, which was subsequently placed before this court while considering the application of cancellation of anticipatory bail as well [CASE NUMBER] ORDER as after the remand to the learned Sessions Judge. Therefore, he would submit that when the entire material was placed before the learned Sessions Judge, the Sessions Judge has exhaustively dealt with all these aspects and by well reasoned judgment and order, the applications submitted by the applicant were dismissed, which require no interference at all. He would further submit that, though, there are vast powers under [SECTION] of the Code, if, the High Court finds that the reasons assigned by the Trial Court while considering the application under [SECTION] or [SECTION] of the Code are found to be in accordance with law and facts, the High Court would not like to interfere with the same, and that too, in absence of any material change, as submitted by learned Advocate appearing for the applicant. Mr. [ENTITY], learned APP, therefore, submitted that both the applications may kindly be rejected.
5.2 Mr. [ENTITY], learned APP would further submit that when the charge-sheet was filed against the other accused, the applicant was shown as `absconder' and, qua, him the trial is pending. He would submit that since the applicant is absconding since 2005-2006, exhaustive investigation could not be done against the present applicant. He would, therefore, submit that the acquittal order in similar type of offenses, would be of no help to the applicant for filing such applications on the ground of change of circumstances. 6 Learned Senior Counsel Mr. [ENTITY], appearing for the original complainant, has taken me through the Affidavits filed by the complainant and had relied upon number of judgments delivered [CASE NUMBER] ORDER by the Apex Court and this Court. He would submit that the applicant is not a law abiding citizen and has no respect towards judiciary since he was prosecuted in contempt of court for scandalizing the Judges and the Court. The Division Bench of this Court by passing an oral order on 5.10.2005 in [CASE NUMBER] (produced along with the reply), it is submitted that he was sentenced to suffer imprisonment till rising of the court and to pay fine of Rs.2,000/-. Mr. [ENTITY], learned Senior Counsel, would further submit that an absconder has no right to demand anticipatory bail. 6.1 Mr. [ENTITY], learned Senior Counsel, has supported the submission made by the learned APP that the order itself, pursuant to which the applicant was released on anticipatory bail, has been quashed and set aside, all the subsequent procedures undertaken by the Investigating Agency or applicant - accused would go and the case of the accused would be treated as if it is a simple application under [SECTION] of the Code.
6.2 Learned Senior Counsel Mr. [ENTITY], appearing for the original complainant, has also placed reliance on the decision of the Hon'ble Apex Court, namely, in the case of [PRECEDENT]; in the case of [PRECEDENT]; in the case of Amrik Singh vs. State of Rajasthan, as reported at (1[SECTION][SECTION]4) 1 SCC 563; in the case of Munna Muni Khan vs. State of Rajasthan, as reported at 1[SECTION][SECTION]6 [CASE NUMBER] ORDER Cri. LJ 831 and would submit that the law laid down in the above said decisions would be squarely applicable in the facts of the present case.
6.3 Mr. [ENTITY], learned Senior Counsel, by taking me through the judgment of the learned Sessions Judge at Ahmedabad in another case, he has tried to submit that sufficient observations have been made against the present applicant while rejecting the application of the applicant, however, submitted that the learned Sessions Judge has rightly not gone into the details in absence of the present absconding accused. He, therefore, would submit that the present application may be rejected.
7 Heard learned Advocates appearing for the parties and perused the record. The following facts are undisputed.
(i) That the impugned FIRs are lodged way back on 8.1.2005 at Chaklasi Police Station and 15.2.2005 at DCB Police Station, Ahmedabad. The present applicant preferred an application for transit anticipatory bail in the court of learned Sessions Judge, Thane (State of Maharashtra). Though, he was granted time to approach the competent court till 7.10.2005, he approached the court subsequent to the said date. The applications submitted by the applicant came to be dismissed by the learned Sessions Judge, Nadiad, on 28.11.2005 and learned Sessions Judge, Ahmedabad, on 21.7.2006.
[CASE NUMBER] ORDER (ii) That he prefers an application under [SECTION] of the Code
before this Court, which was withdrawn on 2[SECTION].12.2005 and thereafter Applicant had preferred a petition under [SECTION] and [SECTION] of the [ACT] challenging the issuance of warrant by the learned Magistrate under [SECTION] of the Code, which was dismissed by a reasoned order rejecting the similar submissions made by the applicant about his availability. The said reasoned order came to be challenged by the applicant by way of filing a [CASE NUMBER] with [CASE NUMBER] before the Hon'ble Apex Court. The Hon'ble Apex Court by order dated 5.6.2006, dismissed the petition, however, observed as under:
"We are not inclined to entertain these petitions. The special leave petitions are dismissed. However, it goes without saying that if the applicant surrenders before the concerned Court which has issued non-bailable warrant under [SECTION] of [ACT], they will become inoperative on surrender."
(iii) It was observed by the Hon'ble Apex Court in the order that if the applicant surrenders before the concerned Court which has issued non-bailable warrant under [SECTION] of the Code, it will become inoperative. Such observations in the order by the highest court is required to be respected by the accused, though, there may not be a direction asking the applicant to surrender to a competent court. The conduct of the applicant in not surrendering before the concerned court is required to be [CASE NUMBER] ORDER condemned.
(iv) Instead of surrendering before the concerned Magistrate, the applicant had preferred another application before this Court, being [CASE NUMBER], under [SECTION] of the Code, which was again by a reasoned order dated 21.7.2006, came to be dismissed. It also appears from the record that the applicant had also filed a writ petition under [SECTION] of the Code before this Court for quashing of the FIR, which was also dismissed in the year 2006.
(v) Thus, it is clear that all the proceedings either filed under [SECTION] or [SECTION] of the Code or challenging the warrant issued under [SECTION], have come to an end, the applicant did not surrender for years together. After 2006, in absence of any order granting any relief by any court including the highest court of the country, he did not obey the orders or surrender before the investigating agency or concerned court which had issued warrant under [SECTION] of the Code and thereafter order of proclamation has passed under [SECTION] of the Code. It is pertinent to note that the applicant has also filed an application under [SECTION] of the Code for quashing of the FIR, which was not entertained by this Court. The applicant is shown as an absconder when the charge-sheet was filed against the accused way back in the year 2005- 2006.
[CASE NUMBER] ORDER (vi) My predecessor, while considering the case of the applicant
about his availability, has dealt with in detail and has refused to entertain such applications and when the anticipatory bail orders are not challenged before the Hon'ble Apex Court, the same have become final and, therefore, this Court cannot take any different view. The applicant has miserably failed in showing that even after 2007-2014, though, he was readily available but the investigating agency failed to arrest him.
(vii) Since the Order dated 7.1.2014 by which the applicant came to be enlarged on anticipatory bail, is quashed and set aside by the Coordinate Bench by a reasoned order, I would not like to observe anything against the learned Addl. Sessions Judge, who has passed the order since he had retired from the service. If the order is perused, the details referred here-in-above are not at all considered and, therefore, the coordinate Bench has rightly quashed and set aside the order. While canceling the anticipatory bail, several observations have been made by the Bench, which deals with the conduct to the applicant, however, I would not like to reproduce the same.
(viii) The contention raised with regard to grant of anticipatory bail, he is arrested and thereafter released on bail and pursuant to which he has been released on bail and thereafter charge sheet is filed, he cannot be treated as an absconder, cannot be [CASE NUMBER] ORDER accepted since the order pursuant to which bail has been taken, itself is quashed and set aside. As per the judgment referred here-in-above and relied upon by the learned Advocate appearing for the prosecution and complainant and considering the conduct of the applicant in not obeying the orders and remaining absconding for years together, I am of the opinion that such accused is not entitled for any relief under [SECTION] of the Code.
(ix) Since the investigation has not even started against the present applicant, it is premature to compare the case of the applicant with other accused, whose case is considered by this Court. In my opinion, relief granted in favour of some of the accused, cannot be treated as change of circumstances for a person, who has no respect for the judicial pronouncements which are against himself only.
7 In the result, both applications are required to be dismissed and are dismissed accordingly. Rule discharged .
[ENTITY], J.) pnnair