Vimalben Ajitbhai Patel vs Vatslabeen Ashokbhai Patel And Others

It, however, is not disputed that on their failure to remain present within a period of 30 days their properties were subjected to order of attachment under Section 85 of the Code of Criminal Procedure. By an order dated 5th January, 2004 the District Magistrate was asked by the Leaned Metropolitan Magistrate to take further action in terms of Section 85 of the Code of Criminal Procedure by holding a public auction of the said properties. In the said order it was wrongly sated that the properties belonged to the appellants and husband of the 3rd respondent, whereas in fact Appellant No.1 alone was the owner thereof.

v) The aforesaid exercise of holding auction shall be completed within a period of five weeks from today.

8. However, the appellant and her husband were not made parties therein. Against the said order, an LPA, which was marked as LPA NO. 1792 of 2005, was filed by the 1st respondent and a Division Bench of the High Court directed that the amount of rent deposited by him with the Mamlatder be deposited in the High Court and the 3rd respondent will be permitted to withdraw the same without prejudice to the rights and contentions of the parties. The said order was passed, purported to be on the premise, that the 3rd respondent had placed reliance on an order dated 13th May, 2005 passed by another Bench of the High Court in First Appeal No. 2626 of 2004 whereby her husband was directed to deposit a sum of Rs.10,000/- per month towards arrears of maintenance and to continue to deposit the same.

9. By an order dated 25th January, 2006 the 1st respondent was asked to deposit a sum of Rs. 4 lakhs (as he expressed his intention to purchase the said property) apart from a sum of Rs.10,000/- per month which was to be deposited with the Registrar by him from 10th February, 2006. It was furthermore directed :-

10. Appellant No.1 made an application to get herself impleaded as a party but her application was dismissed by the High Court on 11.9.2006. On or about 21st November, 2006 the High Court directed the first respondent to pay a sum of Rs.17 lakhs to respondent No.3 in regard to the auction sale of the property in question. Respondent No.2, Mamlatdar, was also directed to execute the deed of conveyance and register the same in the name of the 1st respondent upon full payment.

11. Appellant and her husband returned to India. They filed an application for cancellation of the said Standing Warrants. By an order dated 27th June, 2006 the said application was allowed directing :-

12. Indisputably pursuant to the said order the Passports were deposited on 28th June, 2006 by them.

13. The 3rd respondent filed an application for setting aside the said order by filing a Criminal Miscellaneous Application before the Sessions Judge, Ahmedabad inter alia contending that the Passports had not been deposited by the accused pursuant to the said order of 27th June, 2006. The learned Additional Sessions Judge set aside the said order dated 27th June, 2006 and non-bailable warrants were directed to be issued against the appellants herein. Aggrieved thereby she filed Criminal Misc. Application No. 14340 of 2006 before the High Court on 13th December, 2006 which by reason by of the impugned judgment and order dated 27th December, 2006 has been dismissed.

iv) It is further directed that until the aforesaid reference is made and is decided by the Mamlatdar, the petitioner shall deposit the amount at the rate of Rs.1,500/= per month with the Mamlatdar without prejudice to the proceedings of the reference and the said amount shall remain as deposited with the Mamlatdar. In the event it is found by the competent authority under ULC Act as an outcome of the reference and the inquiry that the possession is unlawful of the petitioner and the transaction is unlawful of the absconder with respondent No.2, the Mamlatdar shall be at liberty to refund the amount. However, in the event it is found that the possession is lawful and there is no breach of the condition of allotment as per the scheme under Section 21 of the ULC Act, the Mamlatdar shall be at liberty to appropriate the amount in accordance with law."

35. It is in the aforementioned context that we may now consider the impugned judgment of the High Court directing cancellation of bail of the appellants.

41. Keeping in view the entirety of the facts and circumstances of the case we are of the opinion that gross injustice has been caused to the appellant. She did not deserve such harsh treatments at the hands of the High Court. Respondent No.3 speaks of her own human rights, forgetting the human rights of the appellant, far less the funadamental right of life and liberty conferred on an accused in terms of Article 21 of the Constitution of India.

Sympathy or sentiment, as is well known, should not allow the Court to have any effect in its decision making process. Sympathy or sentiment can be invoked only in favour a person who is entitled thereto. It should never be taken into consideration as a result whereof the other side would suffer civil or evil consequences.

50. Having regard to the facts and circumstances of this case we are of the opinion that the interest of justice shall be subserved if the impugned judgments are set aside with the following directions :-

51. The appeals are allowed with the aforesaid directions.

I.A. for direction Dismissed.