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CR.MA/11443/2010 10/ 10 ORDER
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.APPLICATION No. 11443 of 2010
JAKHUBHAI SEDA - Applicant(s)
OF GUJARAT - Respondent(s)
Applicant(s) : 1,
MR RC KODEKAR Ld. APP for Respondent(s) : 1, MR
BY MANKAD for Original
applicant who has been shown as an absconder accused in the charge-sheet filed in connection with FIR being CR No. I-84/2010 registered before the Mundra Police Station for the offence under sec. 325, 307, 504, 506(2) and 114 of IPC, has filed this application under sec. 438 of CrPC to grant him anticipatory bail.
Mr. SV Raju learned senior advocate for the applicant, Mr RC Kodekar learned APP for the State and Mr BY Mankad learned advocate for the complainant.
is submitted by Mr Raju learned senior advocate for the applicant that the applicant has filed this successive anticipatory bail application apprehending his arrest in connection with the offence being CR No. I-84/2010 registered before the Mundra Police Station, Dist. Kutchh. It is also contended by Mr Raju that the allegations made in the aforesaid FIR is to the effect that the applicant along with two accused have assaulted the first informant when he was going to attend a meeting of his caste and discuss some social functions. It is also submitted by Mr Raju learned advocate for the applicant that in so far as the applicant is concerned, it is alleged that the present applicant had given a blow with the sword on the hand of the first informant and it is in the aforesaid background, the applicant is charged under sec. 307 of IPC with other offences. It is pertinent to note that earlier, the applicant has filed Criminal Misc. Application under sec. 438 of CrPC being Criminal Misc. Application No. 7919/2010 before this court for anticipatory bail which was came to be disposed of as withdrawn on 28.7.2010. He has also contended that in this case, the charge-sheet is already filed on 16.8.2010 against other two accused. From the perusal of the charge-sheet, it is apparent that according to the medical certificate given by the Government Hospital, there is only one injury upon the first informant which is attributed to one Vishram Kalyan Mithani, and therefore, now after filing of the charge-sheet, additional material is available with the applicant to prove that the applicant is not involved in the alleged offence. Moreover, the ocular evidence given by the first informant is not supported by the medical evidence and, therefore, the first informant has given false FIR against the present applicant and the applicant is entitled for anticipatory bail. Mr Raju has also contended that the case under sec. 307 of IPC is not made out and other accused Shamra Dhanraj Gadhvi is already released on regular bail by this Court vide order dated 28.7.2010. Therefore, if the accused who had played similar role as that of the applicant, is granted regular bail, then, the present applicant may also be released on anticipatory bail. It is also contended by Mr Raju that the applicant is an old man and is suffering from age related ailments and the applicant had also undergone the kidney transplant operation and, therefore, the applicant is required to be released on anticipatory bail. Mr Raju has also produced a copy of the medical case papers of the applicant. Mr Raju learned advocate has relied upon the decision of the Hon'ble Supreme Court in the case of Sureshchandra Ramanlal vs. State of Gujarat and another, reported in (2008) 7 SCC p. 591. Mr Raju has read para-10 of the said decision and contended that the facts of the said case are applicable to the facts of the present case. Mr Raju has also relied upon the decision of this Court in the case of Jehangir Marazban Patel vs. State of Gujarat, reported in 2003(3) GLH p. 116 and argued that even in the aforesaid decision, though serious offence was committed by the accused, he was released on bail by this Court. Mr Raju has also argued that from the medical certificate, when no case is made out against the applicant as well as from the statements of the witnesses and looking to the old age of the present applicant who is suffering serious health problems, the applicant requires to be released on anticipatory bail.
the other hand, Mr RC Kodekar learned APP has contended that in this matter, the charge-sheet is already filed against the co-accused and the name of the present applicant is shown in col. no. 2 as an absconding accused. He has also contended from the papers that on 26.8.2010, the learned Judicial Magistrate First Class, Mundra has issued warrant under sec. 70 of Code of Criminal Procedure, yet the present applicant is not traceable by the police and is absconding and avoiding police interrogation as well as investigation. Mr. Kodekar learned APP has also read the statements of the witnesses and FIR and argued that prima-facie case is made out against the present applicant and, therefore, looking to the seriousness of the offence, the discretionary powers under sec. 438 of Code of Criminal Procedure cannot be exercised in favour of the present applicant. Mr RC Kodekar learned APP has relied upon the decision of the Hon'ble Supreme Court in the case of Ram Lakhan Singh and others vs. The State of Uttar Pradesh, reported in AIR 1977 SC 1936. Mr Kodekar has read para-23 of the above decision and argued that the present applicant is a law breaker and law breaker has no right to choose short-cut way to enjoy free life. Mr Kodekar has also relied upon the decision of this Court in the case of Jayesh G Ramani vs. State of Gujarat, reported in 2004(3) GLH p. 270 and argued that the successive anticipatory bail application of an absconding accused should not be entertained.
behalf of the original complainant, Mr. BY Mankad learned advocate is also heard. Mr Mankad has filed the affidavit-in-reply of the original complainant. Para nos. 4, 5, 6, 7 and 8 of the said affidavit-in-reply, reads as under:
say that the petitioner is contending that as he is a sick person and therefore anticipatory bail be granted to him, but the facts are that the petitioner was a Sarpanch of village Zarpara from year 2006 for two years and during this tenure, he remained present in most of the meetings convened by the Panchayat. This fact shows that he is not sick and is doing his day to day work in a normal way. I say that after the transplantation of kidney, the person lives normal life because after the operation, the person's both the kidney works satisfactorily and he would not have any difficulty with regard to health. Further, in the year 2008, also the petitioner was a candidate for the post of Sarpanch. He had canvased and addressed meetings and was present at the time of voting. He lost this election. Again, in 2010, the election of Sarpanch was declared. He had filed his form of candidature for the post of Sarpanch and had also filed affidavit-cum-declaration, the same are annexed herewith. The advertisement given by the petitioner requesting to vote for him in the news paper dated 14.5.2010 is also annexed herewith. In the said election, he had applied for permission for loud speaker for the public meeting convened on 16.5.2010 to the Mamlatdar, the Mamlatdar gave him permission for loud-speaker and he also addressed that meeting on 16.8.2010. The application to the Mamlatdar and the permission of the Mamlatdar is annexed herewith. He had also remained present in a public meeting at village Kathada on 18.6.2010. A photo showing his presence is annexed herewith. These all facts shows that the petitioner is not a sick person, he is a healthy person and therefore he is not required to be released on anticipatory bail.
25.3.2010 he threatened one Palu Ladha Gadhavi, President of Zarpara Charan Samaj and the FIR was registered as II-CR No. 3024/2010 in the Mundra Police Station. The petitioner filed Cri. Misc. Application No. 97/2010 on 1.4.2010 and asked for adjournments till 1.6.2010. In the said case, the petitioner was arrested by Mundra Police on 12.5.2010 and was produced before the Court on 12.5.2010. The copy of the production report is annexed herewith. The Court of Ld. JMFC, at Mundra released him on 12.5.2010. Copy of order is annexed herewith. This fact also goes to show that he is fit enough to live normal life to the extent that he can threaten the village people, he can commit offence and he can also intimidate the witnesses. Therefore, he may not be released on anticipatory bail on any ground much less on the ground of sickness.
say that as the petitioner was not arrested by the police and was absconding, I had given an application to the DSP, DGP, and to the Hon'ble Chief Minister on 5.8.2010, 13.8.2010 and on 24.9.2010. Copies thereof are annexed herewith. In the said applications, the complainant i.e. myself had requested the Police Authority to declare him as absconder, to take all his properties in attachment and to take steps to arrest him immediately. I have also stated that the petitioner is residing in his Wadi at Bhujpur at the night time and is also giving threats to the witnesses.
say that as the petitioner is absconding, the investigating officer gave one application under sec. 70 of CrPC to the Court of JMFC, at Mundra on 12.8.2010 and requested the Court to issue a warrant of arrest against him. The Court, after considering the seriousness of the case and the conduct of the petitioner, was pleased to issue a warrant under sec. 70 of CrPC on 26.8.2010. Copy of the application by the police and the order dated 26.8.2010 thereon is annexed herewith. I say that in view of various judicial pronouncement in this regard, once the warrant of arrest is issued by the competent court, the accused cannot be released on anticipatory bail.
say that once the application for anticipatory bail have been rejected by this High Court and when no new changed circumstances are shown to the satisfaction of this Court, the petitioner cannot be granted anticipatory bail. The ground of sickness was presented twice before the trial court and once before the High court, and inspite of that, these anticipatory bail applications were rejected by the concerned Courts. Therefore, the petitioner cannot press this reason of sickness for being enlarged on anticipatory bail. Therefore, I pray to this Court not to entertain this application.
Mankad learned advocate appearing on behalf of the original complainant has also relied upon the decision of the Rajsthan High Court in the case of Pankaj vs. State of Rajsthan, reported in 1996 Cri.L.J., 3265 and argued that the present applicant-accused who has avoided due process of law or evaded arrest in pursuance of non-bailable warrant issued by the competent court, has no right for anticipatory bail. Mr Mankad has also relied upon the decision of Orissa High Court in the case of Shri Ashok Kumar & Ors., vs. State of Orissa, reported in 2000 Cri. L.J., 1975 and argued that when the cognizance of the case is taken by the Court and warrant is issued against the accused, the application under sec. 438 of CrPC would not be maintainable. Mr Mankad learned advocate also relied upon the decision in the case of Dr. Sidhartha Patra vs. Republic of India, reported in 2002 Cri.L.J., 2354 and submitted that when the charge-sheet in the case is already submitted and non-bailable warrant of arrest is issued against the accused, anticipatory bail cannot be granted.
the learned advocates appearing for the parties and perused the papers as well as statements of witnesses and medical papers with regard to the sickness of the applicant-accused. It is true that the present applicant has taken treatment of kidney transplant and as per his say, he is old man and facing health problems. I have perused the charge-sheet, wherein, in col. no. 2, the name of the present applicant-accused is shown as an absconding accused. I have also perused the order of the learned Magistrate, who has issued the warrant under sec. 70 of CrPC. It is true that it is the case of the applicant that other co-accused are released on bail and he has a reason to say that question of parity can be applicable in his case also, but from the papers, I have found that during the whole investigation, the present applicant was absconding and police could not trace him and due to the absence of the present applicant-accused, the charge-sheet has been filed before the learned Magistrate and while taking cognizance, the warrant under sec. 70 of CrPC was issued against the applicant-accused and the said issue has been considered by the Apex Court in the case of Sureshchandra Ramanlal vs. State of Gujarat & Anr., reported in (2008)7 SCC 591, but in the present case, the applicant has taken treatment of kidney transplant and now he is not facing any problem of kidney disease. From the perusal of statements of witnesses, it appears that it is true that if the present applicant is released on anticipatory bail, then, he can tamper with the evidence of prosecution. From the perusal of charge-sheet papers, it appears that it is prima-facie established that the applicant is a law breaker and I am of the opinion that if a person who is intentionally avoiding arrest or interrogation, then powers under sec. 438 of CrPC cannot be exercised in favour of such accused. Further, the ground of sickness as narrated above is also not available to the applicant accused, nor he can claim any parity with other accused, released on bail.
view of the above discussion, I am of the opinion that the prosecution has made out prima-facie case against the present applicant and, therefore, anticipatory bail cannot be granted to the present applicant. Hence, this application deserves to be dismissed and it is dismissed. Rule is discharged.