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Parity Ground For BAIL
Parity Ground For BAIL
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION No. 1475 of 2011
For Approval and Signature:
HONOURABLE MR.JUSTICE ANANT S. DAVE
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Whether Reporters of Local Papers may be allowed to see the
1
judgment ?
2 To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy of the
3
judgment ?
Whether this case involves a substantial question of law as to
4 the interpretation of the constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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RAMESHBHAI BATUBHAI DHABI Applicant(s)
Versus
STATE OF GUJARAT Respondent(s)
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Appearance :
MR ASIFKHAN I PATHAN for Applicant(s) : 1,
MR AJ DESAI ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1,
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CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE
Date : 11/04/2011
ORAL JUDGMENT
1. Rule. Learned APP, waives service of notice of Rule for respondent
– State.
2. This application is filed under Section 439 of the Code of Criminal
Procedure in connection with first information report registered on
3.3.2011 vide CR No.I16 of 2010 with Bagodra Police Station, for the
CR.MA/1475/2011 2/9 JUDGMENT
offences alleged to have taken place 12 months before and punishable
under Sections 376, 365, 344, 506(2) and 114 of the Indian Penal Code.
3. Brief facts of this case are as under:
That the marriage of the complainant aged about 19 years with
Mahesh Bhopabhai Koli Patel was solemnized as per Hindu customary
rituals on 31.3.2009 at Ahmedabad in the marriage ceremony performed
at Shiv Marriage Point Hall. The complainant and her husband had
given an advertisement in the newspaper about their marriage. The
relevant documents namely marriage certificate and the advertisement
published in the newspaper have been annexed with this application.
Even an affidavit sworn by the complainant that she had left her
husband and without taking valuable articles dated 31.3.2009 is also on
record of this case.
4. The complainant herself filed a complaint against her relatives and
requested for protection from her family members at Bagodra Police
Station on 14.4.2009, in which, it was stated that she received threats
from her relatives. In the above complaint it was stated by her that she
had left her parental place voluntarily and had no grievance with her
husband pursuant to the registration of marriage before the Registrar of
Marriages.
5. For the offences alleged to have taken place before one year or so
a complaint came to be filed on 3.3.2010 against one Prabhat Makwana
and other three persons and the applicant herein is accused No.2.
According to the complainant she was taken by accused No.1 to various
places and at initial stage the accused herein had abetted the crime.
However, according to her, she got married with one Mahesh Bhopabhai
Koli Patel, who later on expired and Prabhat Makwana, accused No.1
CR.MA/1475/2011 3/9 JUDGMENT
threatened her with dire consequences and had administered threat to
her life, she lodged complaint after so many months. However, fact
remains that there are no direct allegations against the present applicant
of commission of crimes punishable under Section 376 read with Section
114 of the I.P.C.
ground of parity by stating the reason that said argument could be
canvassed before the High Court. It is further submitted that learned
Sessions Judge ought to have exercised the powers under Section 439 of
the Code by considering the above two orders passed by this Court
granting and enlarging other coaccused on bail having almost similar
and identical role to the applicant. Learned counsel for the applicant
emphatically submitted that while considering the decision of the Apex
Court in the case of Gudikanti Narasimbulu and Ors. v. Public
Prosecutor, High Court of Andhra Pradesh [AIR 1978 SC 429] learned
Judge has thoroughly failed to apply the ratio laid down therein and
erroneously held that principle of bail is a rule outdated in present
circumstances in view of increasing crime rates. The above declaration
on the part of learned trial Judge is unwarranted, misconceived and
amounts not only dereliction of his duties but willful disobedience and
disregard to the pronouncement and declaration of law by the highest
Court of the country. Such a conduct on the part of learned Sessions
Judge in exercise of judicial powers under Section 439 of the Code
would certainly expose learned Judge for the proceedings to be initiated
under the Contempt of Court Act. It is submitted that it is not open to a
subordinate Court to misconstrue and misread and disregard the
judgment of the Apex Court or any other higher Court and to interpret it
in a different manner on extraneous grounds and such an attempt on the
part of the learned Judge of a subordinate Court would amount to
disobedience of the order of a superior Court. Learned Counsel also
relied on the decision in the case of K. Veerabasappa v. District Judge,
Chitradurga [AIR 1979 Karnataka 40] and a decision in the case of
Shafi Ahmed Khudabux Kazi & Ors. v. Hashmatbi Hujjumiya Mogal
[AIR 1997 Bombay 260] and submitted that an attempt on the part of
learned Sessions Judge in this case to term principle of law on regular
bail as laid down in Gudikanti Narasimbulu (supra) as an outdated is
CR.MA/1475/2011 5/9 JUDGMENT
on oath that the complainant had voluntarily left her parental house
without taking any item or money or jewellery. On 14.4.2009, a
complaint was filed before Bagodara Police Station about threats
received and harassment meeted out by the complainant from her
relatives and to give her protection and finally a statement which was
recorded on 25.10.2009 by the Police SubInspector of Bagodara Police
Station after death of husband of the complainant and no involvement of
the applicant is shown. The complaint, for which, the bail is sought for
is filed after about 12 months from the date of alleged incident. The
investigation is over and now chargesheet is filed. Besides, two co
accused have been granted anticipatory bail and regular bail under
Sections 438 and 439 of the Code respectively. The applicant is not the
principal offender but is alleged to have accompanied the main accused
in the car. The complainant during the intervening period has travelled
and resided with her late husband and had an ample opportunity to
ventilate her grievance and on two different occasions her statement was
recorded by the PSI, Bagodara Police Station and the complainant had
stated about harassment and threats received by her from family
members of the complainant and even after a period of five months
thereafter in another statement also no allegations were levelled against
the applicant or any other accused.
9. All the above aspects along with order passed by the coordinate
Bench in the case of two coaccused having similar role like the
applicant, on 5.8.2010 and 13.8.2010 in Criminal Misc. Application
Nos.8237 of 2010 and 9316 of 2010 were brought to the notice of the
learned Sessions Judge by which the coaccused were granted
anticipatory and regular bail. Inspite of the above factual scenario,
learned Sessions Judge has refused to exercise the powers under Section
439 of the Code on the ground that the applicant was not traceable,
CR.MA/1475/2011 7/9 JUDGMENT
while nothing is brought on the record that under what circumstances
the applicant was not available or any effort was made by the
investigating agency to trace him out. Though, two orders granting bail
to coaccused passed by the High Court were brought to the notice of the
learned Sessions Judge, it is held that ground of parity can be claimed by
coaccused only before the High Court. The above approach of the
learned Judge is not only illegal but contrary to settle practice of
considering the order of superior Court in proper perspective. That, in
the set of facts and circumstances almost similar or identical, when
superior courts exercise the powers either under Sections 438 or 439 of
the Code, the subordinate Courts are duty bound to consider the same
and apply if the same sets of facts are in existences and unless there
being any extra ordinary circumstances or striking dissimilarities exist to
deviate from the law of parity, the Courts below should consider the
same in accordance with law.
At the same time the principle of law laid down by the Apex Court
in the case of Gudikanti Narasimbulu (supra) about exercise of
powers under Section 439 of the Code namely that 'bail is a rule and
jail is an exception' is held to be 'outdated' by learned Sessions Judge.
That the above declaration by the learned Judge is contrary to the law
laid down by this Court in the case of Bai Jasud wd/o Kantilal alias
Fulchand Anopchand & Ors. v. Railal Anopchand Shah & Ors.
[1997(2) GLH 493]. In the above decision learned Single Judge has
deprecated the approach of the subordinate Court in misconstruing and
misinterpreting the decision of law by the higher Court and, therefore, in
the facts of this case, a casual and cursory remark on the part of the
learned Sessions Judge about declaration of principle of law of bail in
the case of Gudikanti Narasimbulu (supra) is nothing but an attempt
to transgress all basic canons of judicial discipline and it was not open to
CR.MA/1475/2011 8/9 JUDGMENT
10. The declaration made by the learned Sessions Judge that principle
of 'bail is a rule' is outdated and in a case where coaccused is enlarged
by the High Court parity can be claimed only before the High Court are
held to be illegal and contrary to law and, therefore, the order dated
20.1.2011 passed in Criminal Misc. Application No.60 of 2011 by
learned Sessions Judge, Ahmedabad Rural is held to be illegal and
quashed and set aside.
11. Considering the above aspects, I am of the view that this order
be placed before the Hon'ble the Chief Justice so as to take any
action if deem necessary on administrative side.
12. In view of the facts, prima facie, noticed by this Court and
recorded in earlier paragraphs, I deem it just and proper to extend the
parity to the applicant herein and enlarge him on bail in exercise of
powers under Section 439 of the Code of Criminal Procedure, 1973.
Under the circumstances, the applicant is ordered to be released on bail
in connection with C.R. No.I16 of 2010 with Bagodra Police Station, on
his furnishing bond of Rs. 5000/(Rupees Five Thousand) with one
surety of like amount to the satisfaction of the lower Court and subject to
following conditions :
1. not take undue advantage of his liberty or abuse his liberty;
2. not act in a manner injurious to the interest of the prosecution;
3. maintain law and order;
CR.MA/1475/2011 9/9 JUDGMENT
4. mark his presence before the concerned Police Station on every 1 st
and 15th day of English Calendar month between 11:00 am to 2:00
pm:
5. not leave the State of Gujarat without prior permission of the
Sessions Judge concerned;
6. furnish the address of his residence at the time of execution of the
bond and shall not change the residence without prior permission
of this Court;
7. surrender his passport, if any, to the Lower Court immediately.
14. Bail before the Lower Court having jurisdiction to try the case.
15. Rule is made absolute. Application is disposed of accordingly.
16. Direct service is permitted.
[ANANT S. DAVE, J .]
//smita//