Hardik Bharatbhai Patel vs State Of Gujarat
2021 Latest Caselaw 4012 Guj

        R/SCR.A/5761/2020                                    JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 5761 of 2020
                               With
    CRIMINAL MISC.APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2021
                                In
          R/SPECIAL CRIMINAL APPLICATION NO. 5761 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE            Sd/­
================================================================
1     Whether Reporters of Local Papers may be allowed                No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         No

3     Whether their Lordships wish to see the fair copy               No
      of the judgment ?

4     Whether this case involves a substantial question               No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

================================================================
                            HARDIK BHARATBHAI PATEL
                                     Versus
                               STATE OF GUJARAT
================================================================
Appearance:
MR AJ YAGNIK with MR SM VATSA for the Applicant
MR MITESH AMIN, PUBLIC PROSECUTOR assisted by MR LB DABHI, APP
for the Respondent
================================================================

 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                                 Date : 10/03/2021

                                ORAL JUDGMENT

1. RULE. Learned APP Mr.L.B.Dabhi waives service of

Rule on behalf of the respondent-State.

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2. This petition under Article 226 of the Constitution of

India is filed seeking deletion of condition of bail. By order dated

22.01.2020 in Criminal Misc.Application No.381 of 2020, Additional

Sessions Judge, Court No.15, City Civil & Sessions Court,

Ahmedabad imposed condition No.(v), which reads as under:-

"(v) The applicant shall not leave the local limits of Gujarat without prior permission of this Court."

3. The petitioner moved Criminal Misc.Application

No.3732 of 2020 before the same Court seeking deletion of the

aforesaid condition, which came to be rejected by order dated

30.07.2020. In view of the aforesaid orders being passed, the

present petition is filed seeking quashing of order dated 30.07.2020

in Criminal Misc.Application No.3732 of 2020 seeking deletion of

condition No.(v) in Criminal Misc.Application No.381 of 2020.

4. Learned Advocate for the petitioner submitted that the

petitioner is a political leader, who came into prominence in the

year 2015 by leading "Patidar agitation' seeking reservation for a

particular community. It is during this ongoing agitation that the

petitioner came to be arraigned as an accused in several offences.

One such offence being I-CR No.90 of 2015 with DCB Police

Station, Ahmedabad. In connection with this offence, the petitioner

was enlarged on regular bail by common CAV judgment dated

08.07.2020 in Criminal Misc.Application No.6440 of 2016. The

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petitioner continued to be on bail.

4.1 After investigation, charge sheet came to be filed and

thereafter, in the year 2018, charges were also framed. The case

came to be registered being Sessions Case No.55 of 2015 upon

committal and the trial had commenced. However, on 18.01.2020,

as the petitioner had to attend social function, he filed exemption

application in the Sessions Case, which came to be rejected and at

the same time, non-bailable warrant came to be issued against the

petitioner and the petitioner was arrested. As against this arrest,

the petitioner moved application for bail being Criminal

Misc.Application No.381 of 2020, which came to be allowed by

order dated 22.01.2020, wherein impugned condition was imposed.

4.2 07.02.2020 was the date of trial when the petitioner

again application for exemption on the ground that another CR

No.164 of 2015, which was registered with Vastrapur Police Station

way back in the year 2015 for which case application for

anticipatory bail was pending before the High Court and the said

application being Criminal Misc.Application No.2607 of 2020 was

rejected on 12.02.2020 by the City Sessions Court, against which

application before the High Court was under consideration.

However, the petitioner had a reasonable apprehension of being

arrested and hence, be exempted. On 07.02.2020, the exemption

application also came to be rejected and again non-bailable

warrant was issued, which is the subject matter of challenge before

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the High Court in Special Criminal Application No.1640 of 2020,

wherein by oral direction of the Court, the petitioner has not been

arrested. Thereafter, anticipatory bail application in connection

with I-CR No.164 of 2015, Vastrapur Police Station came to be

rejected by the High Court, against which SLP (Criminal) No.1719

of 2020 is filed and pending, wherein by order dated 06.03.2020,

the Apex Court has directed to not to arrest the petitioner.

5. Learned Advocate for the petitioner submitted that the

petitioner being action in politics is being targeted and therefore

only, several offences have been registered, for which the petitioner

is kept busy from running one Court to another and therefore,

condition so imposed is causing grave difficulty.

5.1 It is submitted that the condition imposed was not even

the condition which was imposed by the High Court when the

petitioner was enlarged on bail and therefore, the Sessions Court,

while imposing the impugned condition, has travelled beyond its

jurisdiction and imposed a condition, which even the High Court

has not thought it fit to impose.

5.2 It is submitted that the petitioner has not attained

stature of leader of national level and therefore, the petitioner is

frequently required to travel out of the State of Gujarat, like

visiting New Delhi and other States and therefore, imposition of

such a condition is an impediment in the career of the petitioner

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and therefore, can be treated as onerous.

5.3 It is submitted that the condition is imposed while the

petitioner was being enlarged on bail after his arrest on issuance of

non-bailable warrant and therefore, the Sessions Court has

committed an error to treat the bail application as if the Sessions

Court is exercising powers under Section 439 and has therefore,

imposed a condition which may be imposed under Sections 436 or

437 of the Criminal Procedure Code ("the Code", for short).

5.4 It is submitted that during the previous dates of

adjournments, no occasion had arisen to doubt the conduct of the

petitioner that he will not be available for ongoing trial. It was only

on issue of attending a social function that the petitioner was

precluded from attending trial and for one such sporadic incident,

action of issuing non-bailable warrant, arresting the petitioner and

thereafter imposing such a condition is disproportionate.

5.5 It is further submitted that the petitioner is singled out

for such treatment at the hands of the Sessions Court as in case of

co-accused whenever exemption is sought for, immediately,

exemption has been granted and there was no condition imposed to

other co-accused, for not to leave State of Gujarat. During the

course of arguments, learned Advocate drew attention of the Court

to an order in case of co-accused Dineshbhai Bhagwanbhai

Bhambhania and submitted that when this accused was arrested

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against non-bailable warrant, he was forthwith released on bail by

order dated 27.06.2019 in Criminal Misc.Application No.4551 of

2019 and no condition of not to leave State of Gujarat was imposed.

5.6 It is submitted that the petitioner had indicated before

the Court of several petitions filed and pending before the High

Court as well as Apex Court and therefore, there is no question of

doubting that the petitioner may not be available for the purpose of

trial.

5.7 It is submitted that while passing the order, the

Sessions Judge on both occasions has failed to appreciate that even

provisions in the Code regarding grant of bail do not envisage

imposition of a condition which is onerous. The objective for

imposing condition while granting bail is to ensure presence of the

petitioner during the course of trial and in absence of any such

factual matrix, imposition of condition was unwarranted.

5.8 Learned Advocate for the petitioner placed reliance on

the judgment of the Apex Court in case of Puneet Dalmia Vs.

Central Bureau of investigation, Hyderabad, reported in

(2020) 12 SCC, 695, in support of his submission of manner and

circumstances in which personal appearance of the petitioner could

have been dispensed with instead of issuing non-bailable warrant.

5.9 Learned Advocate for the petitioner thereafter relied

upon judgment of the Apex Court in case of Kunal Kumar Tiwari

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alias Kunal Kumar Vs. State of Bihar & Anr., reported in

(2018) 16 SCC, 74, to substantiate his submission that the

Sessions Court while imposing condition at the time of bail, has to

take into consideration good administration of justice and

advancing the trial process. It is submitted that in the instant case,

there is nothing to suggest in the impugned order that in what

manner good administration of justice and advancement of trial is

likely to be affected.

5.10 Learned Advocate for the petitioner next relied upon

judgment of the Apex Court in case of Chandu Lal Chandraker

Vs. Puran Mal & Anr., reported in 1988 (Supp.) SCC, 570, to

emphasis that scheme of the Code takes care of each and every

situation of trial to progress even in absence of accused even at the

stage of recording of statement under Section 313 of the Code.

5.11 Learned Advocate for the petitioner thereafter relied

upon judgment of the Apex Court in case of Srichand P.Hinduja

Vs. State through CBI, New Delhi, reported in AIR 2002 SC,

401, to emphasis that the trial Court is required to take a broad

and lenient view while considering conditions to be imposed for

bail. In this case, the Apex Court has even provided for benefit of

permitting accused persons to travel out of country.

5.12          Learned Advocate for the petitioner lastly relied upon

judgment      of   the     Apex   Court    in     case   of    Ankita        Kailash







          R/SCR.A/5761/2020                                   JUDGMENT

Khandelwal & Ors. Vs. State of Maharashtra & Ors., reported

in (2020) 10 SCC, 670, on the point of personal liberty.

6. As against this, learned Public Prosecutor at the outset

submitted that the petition is not against refusal of the exemption

from attending trial. The petitioner has therefore not challenged

the very foundation of rejection of exemption and if rejection of

exemption is not under challenge and is sustained then as a

necessary corollary, the trial Court is required to issue an arrest

warrant to ensure presence of the accused person before the trial

Court. The petitioner has not even challenged the order of

issuance of non-bailable warrant and has only challenged the

imposition of condition while enlarging the petition on bail.

6.1 It is submitted that imposition of condition is always at

the discretion of the trial Court and the condition impugned is not a

complete bar on travel of the petitioner, but only requires a

permission from the trial Court. Moreover, in past also, the trial

Court has been benevolent enough to impose only such conditions

which will not affect right of the petitioner and at the same time,

will also not hamper the ongoing trial.

6.2 Learned Public Prosecutor drew attention of the Court

to the report submitted by the Investigating Agency to the Court

with regard to conduct of the petitioner during the course of trial,

wherein it is suggested that the conduct of the petitioner towards

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trial is very casual. Neither the petitioner himself nor his family

members were available at the addresses provided to the trial

Court / Investigating Agency as a condition of bail and in fact,

statements recorded of the persons found at these addresses go on

to suggest that deliberately an address was given which was a

place where parents of the petitioner used to make flying visits.

This conduct itself suggests that the petitioner is not forthcoming.

By referring to judgment of the Apex Court in case of Kunal

Kumar Tiwari (supra), it is submitted that the condition of not to

leave State of Gujarat without permission of the Court is in fact in

the direction of good administration of justice and advancing of

trial process and therefore, covered under phrase "interests of

justice" as it appears in Section 437(3).

7. In rejoinder, learned Advocate for the petitioner

submitted that overall conduct of the petitioner in the years 2016,

2017, 2018 and 2019 is not such so as to give an opportunity to the

Sessions Court to impose such a condition and now that the trial

has begun, the trial will be governed by the provisions of the Code,

particularly Section 309. The Code itself provides for the stages of

trial and right of the accused as well as prosecution during the

course of trial and in case, the trial is delayed on account of

absence of the petitioner, options are available with the trial Court

to either close stage at which trial is pending and hampered due to

absence of the petitioner like in the instant case when the stage

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was of evidence of witnesses, right to cross-examination of the

petitioner to the witnesses in box could have been closed, leaving it

for the petitioner to resort to the remedy then available. However,

it is not a case for issuing warrant to arrest the petitioner.

7.1 It is submitted that prior to the order of bail imposing

conditions, the prosecution had filed application for issuing warrant

to the surety, which also was rejected by the Court and therefore,

there was no occasion to impose the condition.

8. Having heard learned Advocates for the parties and

having perused documents on record, it appears that petitioner

herein came to be arrested on 23.10.2015 and thereafter, on

27.10.2015, a quashing petition was preferred by the petitioner

being Special Criminal Application No.6330 of 2020. The said

petition was listed for hearing on 29.10.2015, which was finally

heard along with allied matters on 01.12.2015. After hearing both

the sides as well as considering the legal submissions, this Hon'ble

Court vide CAV Judgment dated 01.12.2015, was pleased to partly

allow the said petition thereby quashing and setting aside the FIR

for the offences punishable under section 121, 153(A), 153(B) of

Indian Penal Code, at the same time prima facie observing in para-

47, that upon recapitulating the allegations, more than prima facie

case for rioting at large scale is made out and thus, refused to

quash the FIR for the offences punishable under section 121(A),

124(A) and 120(B) of IPC. The petitioner herein has preferred SLP

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before the Apex Court being SLP no. 10606-10610 of 2015, which

is pending hearing. Thereafter, on 16.01.2016, charge sheet was

filed against the applicant for the aforesaid offences, punishable

under sections 121(A), 124(A) and 120(B) of IPC, whereby Session

Case No. 55 of 2016 is registered and is pending trial before the

Additional City Session Judge, Ahmedabad. The petitioner had

preferred regular bail application after filing of charge sheet before

this Court being Criminal Miscellaneous Application No.6440 of

2016 wherein pursuant to the undertaking given by the present

applicant, this Court, being satisfied about the same was pleased to

exercise its discretion under Section 439 of Code of Criminal

Procedure thereby granting regular bail with the conditions

mentioned therein, vide common CAV Judgment dated 08.07.2016.

This Court, while granting regular bail, in its order dated

08.07.2016, has recorded the undertaking filed by the applicant

herein in the said application. The charge has been framed against

the present petitioner and other co-accused by the Additional City

Session Judge, Ahmedabad in pending Session Case No.55 of 2016.

It is therefore humbly stated and submitted that prima facie the

Court has accepted the charge sheet submitted by the I.O. in

respect of the F.I.R. in question against the present applicant and

other co-accused and therefore it would be incorrect to say that a

false complaint has been registered against the present petitioner

and co-accused. In fact, Prosecution has also started leading

evidence in the aforesaid Criminal case.

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9. From the 'rojkam', the progress in trial on the relevant

dates is recorded as under:-

"(a) On 15.02.2017, the list of documents was presented by the prosecution vide Exhibit-48 and on 14.03.2017 draft charge was placed on record, whereby the Learned Additional City Session Judge, Ahmedabad had kept the matter for framing of charge on 17.03.2017. The applicant herein came up with application for discharge vide Exhibit-106 on 25.09.2017, which came to be rejected by the Learned Additional City Session Judge, Ahmedabad by order dated 21.02.2018.

(b) The applicant herein preferred exemption application on the same day on the ground of he being occupied in social work, is unable to attend Court proceedings.

         (c)    On 21.03.2018, the applicant herein had remained
                absent      and    once      again    submitted        exemption

application, which came to be allowed by the Learned Additional City Session Judge recording that for framing of charge the presence of applicant is necessary and therefore on condition that the applicant shall remain present on the next date, the application seeking exemption is allowed.

(d) On the next date of hearing which was scheduled on 04.04.2018, the applicant had not remained present and therefore the prosecution was constrained to submit application vide Exhibit-138 with a prayer to issue warrant against the applicant herein as trial was getting delayed because of absence of the

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applicant. The Hon'ble Court was pleased to allow the said application preferred by prosecution, issuing bailable warrant of Rs.15,000/- against the applicant.

(e) On the next date of hearing which was fixed on 25.04.2018, in spite of the fact that the bailable warrant issued upon the applicant was served, the advocate on record for the applicant had tender application vide Exhibit-142 praying for exemption on the ground that the applicant is engaged in social work. The Hon'ble Court below had passed an order directing the applicant herein to remain present on the next date.

(f) On the next date which was fixed on 19.05.2018, it was submitted on behalf of the applicant that the revision application is preferred against the aforesaid order of the Hon'ble Court and has thereby prayed for adjournment of the proceedings after 15.06.2018. The Learned Additional City Session Judge was pleased to pass an order the directing the applicant to place on record the order of the Hon'ble High Court to clarify with regard to further hearing of the trial on such condition that the applicant shall remain present to attend the trial, the adjournment was granted fixing the next date of trial on 29.06.2018.

(g) The answering respondent herein would like to referred to various dates as emerges from the Rojkam of the aforesaid Session Case No.55 of 2016, whereby the applicant has remained absent i.e. 14.03.2017, 24.03.2017, 06.04.2017, 02.05.2017, 11.05.2017, 13.06.2017, 15.06.2017, 17.06.2017, 27.06.2017, 27.07.2017, 20.09.2017, 25.09.2017,

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28.09.2017, 06.10.2017, 26.10.2017, 06.11.2017, 13.11.2017, 20.11.2017, 29.11.2017, 16.01.2018, 23.01.2018, etc."

10. From the aforesaid proceedings in the 'rojkam', it

appears that framing of charge took almost two years. This Court

while enlarging the petitioner on regular bail by CAV judgment

dated 08.07.2020 in Criminal Misc.Application No.6440 of 2016

had taken into consideration the undertaking which was filed by

the petitioner. The undertaking was reproduced by this Court in

para-16 of its order.

11. The Sessions Court was in midst of trial of Sessions

Court No.55 of 2016 and has given reasonings that, "In my view,

while deciding bail application under such peculiar circumstances,

the Court should bear in mind the Constitutional Right of applicant-

accused. So, taking into account the Undertaking filed by the

applicant (Exh.6) and apology extended by his Ld. Advocate, in my

opinion, it would be appropriate to allow this application with

stringent conditions". With this background, while imposing 12

conditions, the Sessions Court has imposed condition No.(v) that

the applicant shall not leave local limits of Gujarat without prior

permission of that Court.

12. It appears that an undertaking to that effect is given by

the petitioner on 21.01.2020 in vernacular. The undertaking given

by the petitioner to the trial Court reads as under:-

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"1. No act causing delay in the trial before court shall be performed by me in the above mentioned case.

2. I shall fully cooperate with the court during trial.

3. I shall never seek adjournment causing delay in the case.

4. I shall comply with all the conditions which may be laid down by Hon'ble Court."

13. In view of the undertaking given therefore, the

petitioner has undertaken to comply with each and every condition

of bail scrupulously. Despite this position, the petitioner has

immediately filed an application for deleting the condition, which

also came to be rejected by a reasoned order dated 30.07.2020.

The Court has perused the aforesaid two orders and finds that in

both the orders, the Sessions Court has given cogent reasonings for

imposing the condition as well as rejecting the application for

deletion of such condition.

14. So far as contention raised by learned Advocate for the

petitioner regarding error committed by the Sessions Court in

imposing such condition as if the Court is exercising jurisdiction

under Section 439 of the Code though the petitioner was arrested

by issuing arrest warrant under the provisions of Chapter-VI of the

Code is concerned, it would be relevant to refer to Section 437 of

the Code as the same falls under Chapter-XXXIII of the Code,

meant for provisions as to bail and bonds. Therefore, regardless of

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the petitioner being brought before the trial Court under any

provision of the Code, the parameters governing release of the

petitioner on bail will still fall under Chapter-XXXIII and more

particularly Section 437. The relevant provision for the purpose of

this case would be Section 437(3). Section 437 has seen an

amendment under Act 25 of 2005 with effect from 23.06.2006,

which would now read to mean that the Court shall impose the

conditions which are prescribed under sub-clauses (a), (b) and (c)

and over and above, may also impose such other conditions as it

considers necessary in the interests of justice. The words,

"interests of justice" has been interpreted in case of Kunal Kumar

Tiwari (supra) and the Apex Court cautioned the Courts that

Section 437(3) - clause-(c) allows the Court to impose any

condition in the interests of justice which is capable of being given

broad meaning, but such condition cannot be arbitrary, fanciful or

extend beyond ends of provision. The phrase "interest of justice"

was interpreted to mean "good administration of justice' or

"advancing the trial process". In the facts of the present case,

when the Sessions Court on two occasions has taken into

consideration the conduct of the petitioner and progress in the trial

and also impediment caused on account of absence of the

petitioner during the course of trial, has thought it fit to impose the

impugned condition. In the opinion of the Court, the condition is

an appropriate condition to ensure progress in trial.

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15. Ultimately, conduct of trial is in exclusive domain of the

trial Court and therefore, it will always be open for the trial Court

to impose a reasonable condition guided by the judgments

pronounced from time to time by the Apex Court in this connection.

The condition impugned, in the opinion of the Court, does not

appear to be arbitrary or fanciful or it extends beyond the ends of

provision. In fact, the condition is reasonable condition and does

not bar completely the petitioner from travelling, but only to seek

permission of the Court if he has to travel beyond the jurisdiction of

the State, meaning thereby when the petitioner desires to travel

out of Gujarat, the trial Court would be able to assess the stage of

trial and then consider urgency in the petitioner's case for

travellling out of Gujarat and then pass necessary orders which will

ensure control of the trial Court for the progress in the trial.

Therefore, in the opinion of the Court, the impugned condition is a

reasonable condition and does not warrant any interference.

16. The petitioner had also preferred Special Criminal

Application No.6330 of 2015 for quashing of the FIR. That petition

came to be partly allowed by order dated 01.12.2015 deleting

certain Sections from the offence and the investigation was

permitted to proceed for Sections 121A and 124A of the Indian

Penal Code.

17. In case of Srichand P.Hinduja (supra), the Apex

Court, in the facts of that case, particularly the stage at which trial

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was pending, which required examination of 91 witnesses and

direction to conduct trial in day-today manner, as an interim

measure against execution of a huge bond in the sum of Rs.15

crores and on assurance of the Counsel to remain present on each

date of posting, two brothers out of three were permitted to travel

out of India. This would be applicable in the facts of that case

where the petitioners therein had acquired British and Swiss

nationalities. Such are not the facts of the present case.

18. The case of Chandu Lal Chandraker (supra), in the

opinion of the Court is on the point of stage of recording further

statement under Section 313, which is a stage provided for in the

course of trial at the fag end. The case of the petitioner on merits

has not crossed that stage and therefore, the judgment is of no

help.

19. The judgment in case of Ankita Kailash Khandelwal

& Ors. (supra) is based on the fundamental philosophy of

presumption of innocence until proved guilty and in that regard,

entitlement to relaxation /modification of condition to effectuate

right to personal liberty, at the same time ensuring that criminal

proceedings are not hampered in any way. In this case, where the

prosecution was with regard to ragging of students, the bail

conditions came to be modified, but imposing stringent conditions

so as to ensure smooth conduct and progress of criminal trial, at

the same time to see that the petitioners, who were students, their

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careers may also not be endangered.

20. The Apex Court in case of Parvez Noordin

Lokhandwalla Vs. State of Maharashtra & Anr., reported in

(2020) 10 SCC, 77 has summarized the situations for imposing

conditions. The emphasis is made for imposing conditions keeping

in view the proportional relationship between the condition

imposed and the purpose for imposing the condition. In the

present case, the trial Court, having considered the progress of

trial and conduct of the petitioner, to ensure smooth progress in

trial, has deemed it fit to impose the impugned condition. From the

record, it appears to the Court that the sole object of imposing such

a condition by the trial Court was only to ensure availability of the

petitioner at crucial stage of trial and at the same time, when the

petitioner desires to travel beyond the State of Gujarat, the

purpose of his travel and the stage at which trial is pending at the

relevant time, both could be scrutinized by the trial Court while

considering the application that may be made in future pending

trial.

21. So far as submission of learned Advocate for the

petitioner drawing analogy with the co-accused orders when

exemption application when rejected, was immediately granted bail

is concerned, the case in question is that of co-accused Dineshbhai

Bhagwanbhai Bhambhania, wherein the Court, while granting bail

when the applicant came to be arrested under an arrest warrant,

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has taken into consideration the ground which precluded such

applicant from attending the Court. Such ground being that the

applicant had to accompany his son for securing admission at Delhi

and at such time, warrant was issued.

22. In view of the aforesaid, no interference is called for.

The petition deserves to be and is hereby dismissed. Rule is

discharged.

23. In view of the order passed in the main petition,

Criminal Misc.Application No.1 of 2021 does not survive. Disposed

of accordingly.

Sd/­ (A.Y. KOGJE, J) SHITOLE