NEUTRAL CITATION
R/CR.MA/12559/2023 ORDER DATED: 04/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 12559 of 2023
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STATE OF GUJARAT
Versus
PRAVINBHAI KANTIBHAI GAMAR
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Appearance:
MS JIRGA JHAVERI, APP for the Applicant(s) No. 1
MR JANAK D VARDEY(10910) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 04/08/2023
ORAL ORDER
[1] The State has challenged the regular bail order granted on 1.4.2023 passed in Criminal Misc. Application no.119/23 on the ground that the order is illegal, improper and against the provisions of law. The accused is the principal offender and has been mentioned as accused no.1 in the FIR. The main motive of the respondent - accused was to eve tease the witness no.1 and the deceased Vinaybhai Prafulchand Rawal stopped the accused and the co-accused from eve teasing and under the said envy, the accused murdered the deceased. Page 1 of 11 Downloaded on : Sun Sep 17 00:15:44 IST 2023
NEUTRAL CITATION R/CR.MA/12559/2023 ORDER DATED: 04/08/2023 undefined [2] Learned APP submits that the principal offender is involved in the heinous crime and twice the bail application came to be rejected which was never challenged and thus, has become final and without any change of circumstances or fact situation, the learned Sessions Judge has granted the bail. Learned APP stated that the delay in trial is no ground for bail. Relying on the judgment in the cases of Manoj Kumar Khokhar v. State of Rajasthan & Anr., (2022) 3 SCC 501 and Deepak Yadav v. State of U.P. & Anr., (2022) 8 SCC 559, it is stated that there are guiding principles for adjudicating the regular bail application when the Court has to take into consideration several aspects. However, delay in trial has not been considered as a factor to grant bail and stated that the balance has to be maintained to even consider the protection of the victims from the accused. While relying on Puran Shekhar & Anr. v. Page 2 of 11 Downloaded on : Sun Sep 17 00:15:44 IST 2023
NEUTRAL CITATION R/CR.MA/12559/2023 ORDER DATED: 04/08/2023 undefined Rambilas & Anr., reported in (2001) 6 SCC 338, it is submitted that the bail order passed by ignoring the material and evidence on record and without giving reasons, would be perverse and contrary to the principles of law and has also relied upon the decision of State through CBI v. Amaramani Tripathi, reported in (2005) 8 SCC 21 and Mamta Nair v. State of Rajasthan & Anr., reported in (2021) 7 SCC 442 to submit that the factors to be considered for the grant of bail and cancellation of bail have been restated and the circumstances that warrant for the grant of bail on denial of the successive bail application or cancellation of bail on earlier occasions has to be on cogent ground and mere delay in trial or examination of principal eye-witnesses cannot be considered as change in circumstances for the Court to consider successive application of the accused for bail to enlarge him for his liberty.
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NEUTRAL CITATION R/CR.MA/12559/2023 ORDER DATED: 04/08/2023 undefined [3] Mr. Janak Vardey submitted that the applicant-
accused was denied bail in the FIR registered before Danta Police Station, Banaskantha for offence under Section 302, 34, 354 of the IPC which had culminated into Sessions Case no.18/2022. Mr. Janak Vardey has relied upon the Rojnama of the Sessions Case and states that since 15.3.2022, the requisition was sent for the Muddamal and the learned APP had appeared and thereafter, the trial stood adjourned for consecutive 3 adjournments and on 18.5.2022, learned APP produced documentary list vide Mark 5/1 to 5/44 and the matter was adjourned for the hearing of the charge and thereafter too, on 1.6.2022, the matter was adjourned for hearing of the advocates on framing of charge and on 2.7.2022 at Exh.6, charge was framed and vide Exh.7, plea of the accused was noted. The trial was adjourned on 16.7.2022 and on 30.7.2022 on observing that since the witness was not present, the witness Page 4 of 11 Downloaded on : Sun Sep 17 00:15:44 IST 2023 NEUTRAL CITATION R/CR.MA/12559/2023 ORDER DATED: 04/08/2023 undefined summons was issued for the complainant adjourning the matter on 10.8.2022. After 3 adjournments, on 1.10.2022, the bailable warrant was issued against witnesses 1, 3 and
5. On 14.12.2022 at Exh.8, the deposition of the witness Sunilkumar was initiated to be recorded but as the Muddamal had not come, it stood adjourned. Thereafter, the accused had given an application under Exh.9 for Narco test. Learned advocate Mr. Janak Vardey submitted that the matter stood adjourned for 12 adjournments starting from 28.12.2022 to 26.7.2023 only on the ground of producing the Muddamal.
[4] Learned advocate Mr. Janak Vardey submitted that during the whole period, the applicant was in jail and the proceedings have been initiated as an under trial prisoner and ultimately the accused had to move the application by filing Criminal Misc. Application no.119 of 2023 making a prayer for Page 5 of 11 Downloaded on : Sun Sep 17 00:15:44 IST 2023 NEUTRAL CITATION R/CR.MA/12559/2023 ORDER DATED: 04/08/2023 undefined bail which came to be granted on 1.4.2023 by the learned 4th Additional Sessions Judge, Banaskantha at Palanpur where the learned Sessions Judge has very specifically noted that after framing of charge, the prosecution had examined only one panch witness and that also remained incomplete as the Muddamal was not produced. The learned Sessions Judge had considered the same as the change of circumstances and found the fault from the side of the prosecution. Considering the fact that since last 16 months, the accused is in judicial custody and the situation is as of pretrial punishment on record and considering the accused as within the age group of 21 to 22, has granted bail. Learned advocate Mr. Janak Vardey has relied upon the judgment in the case of Satender Kumar Antil v. Central Bureau of Investigation & Anr., 2022 Live Law SC 577 to rely upon the provision of Section 309 Cr.P.C. wherein it has been observed that Page 6 of 11 Downloaded on : Sun Sep 17 00:15:44 IST 2023 NEUTRAL CITATION R/CR.MA/12559/2023 ORDER DATED: 04/08/2023 undefined while it is expected of the court to comply with Section 309 Cr.P.C. to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. Mr. Vardey therefore stated that a deliberate attempt was made from the side of the prosecution of not producing Muddamal and prolonging the trial to only see that the applicant remains in jail. Learned advocate further stated that the Muddamal was very much available since the bail was granted on 1.4.2023 and immediately on 21.4.2023, the Muddamal was brought before the Trial Court. Learned advocate also relied upon the judgment in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi) rendered in Criminal Appeal @ Special Leave Petition (Cri) no.915/23 where the grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act, Page 7 of 11 Downloaded on : Sun Sep 17 00:15:44 IST 2023 NEUTRAL CITATION R/CR.MA/12559/2023 ORDER DATED: 04/08/2023 undefined given the imperative of Section 436A which is applicable to the offence under the NDPS Act. Learned advocate submitted that the prosecution has failed to show that the order impugned is illegal and improper to even warrant for cancellation of bail. [5] The whole proceedings of the Rojnama of the sessions trial of the under trial prisoner is placed for perusal of the Court which shows that even after framing of charge, the matter stood adjourned many a times only on the ground of protection of Muddamal. The accused was brought before the Court but the deposition remained incomplete to be recorded since Muddamal was not produced and thereafter, for a long period as observed by the Sessions Judge, the accused was brought before the Court and that there was no progress in the trial. The very observation of the Judge itself shows that the prosecution has failed to proceed with the trial. The Page 8 of 11 Downloaded on : Sun Sep 17 00:15:44 IST 2023 NEUTRAL CITATION R/CR.MA/12559/2023 ORDER DATED: 04/08/2023 undefined facts of the case is that on 4.10.2021 at about 19.00 hrs. in the evening, the deceased Vinaybhai Prafulchandra Raval and the witness both had gone together at the outskirts of village Chhapri and they were sitting near the river pool and it is stated that about 4 unknown persons aged about 20-25 with an intention to commit some offence on her had pulled her hair and thrown her down. The allegations are also of some obscene act and when the witness tried to escape herself, the deceased Vinay had intervened in between to release her so the accused gave knife blows on the back and different parts of his body and has escaped from the place.
[6] Learned APP submitted that the allegation leveled is against unknown person and states that one is arrested while two are still unknown.
[7] The learned Sessions Judge is the head of the Page 9 of 11 Downloaded on : Sun Sep 17 00:15:44 IST 2023 NEUTRAL CITATION R/CR.MA/12559/2023 ORDER DATED: 04/08/2023 undefined trial. He is bound to conduct the proceedings in accordance to the provisions of Section 309 of the Cr.P.C. on day to day basis unless he finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. Here the trial has remained pending for a long period without any progress. The accused was in jail as an under trial prisoner and the learned Sessions Judge found no progress, the record shows that the requisition has been made for production of the Muddamal and only after release of the accused on bail on 1.4.2023, the Muddamal came to be produced during the trial on 21.4.2023. The reasons which are given by the learned Sessions Judge are sound in corroboration with the proceedings as reflected in the Rojnama. This Court does not find any illegality in the order since it is the responsibility of the learned Sessions Judge to follow the proceedings under Section 309 of the Cr.P.C. Page 10 of 11 Downloaded on : Sun Sep 17 00:15:44 IST 2023
NEUTRAL CITATION R/CR.MA/12559/2023 ORDER DATED: 04/08/2023 undefined after framing of charge and if the prosecution fails to cooperate then the accused should have the benefit of the liberty. [8] In the result, the application stands rejected.
(GITA GOPI,J) Maulik Page 11 of 11 Downloaded on : Sun Sep 17 00:15:44 IST 2023