Hardik Bharatbhai Patel vs State Of Gujarat
2021 Latest Caselaw 4306 Guj

        R/SCR.A/2060/2020                                         JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 2060 of 2020
                              With
         CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2021
                                In
          R/SPECIAL CRIMINAL APPLICATION NO. 2060 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI                               Sd/-
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1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?                                                   NO

2     To be referred to the Reporter or not ?
                                                                           NO
3     Whether their Lordships wish to see the fair copy of the
      judgment ?                                                           NO

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

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                            HARDIK BHARATBHAI PATEL
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR AJ YAGNIK WITH RAFIK LOKHANDWALA(5590) for the Applicant(s) No.
1
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MS NISHA THAKORE,
APP for the Respondent(s) No. 1
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    CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
                       Date : 17/03/2021
                       ORAL JUDGMENT

Learned Advocate Mr.A.J.Yagnik seeks permission to withdraw

Misc. Civil Application No.1 of 2021.

Permission as prayed for is granted. The present Misc. Civil

Application stands disposed of as withdrawn.

R/SCR.A/2060/2020 JUDGMENT

Main matter being Special Criminal Application is taken up for

final hearing with the consent of the learned advocates appearing for both

the parties.

1. Rule. Ms.Nisha Thakore, learned Additional Public Prosecutor, waives

service of notice of Rule for respondent No.1-State of Gujarat.

2. This petition under Article 226 of the Constitution of India has been

preferred with the prayer to quash and set aside the order dated

11.02.2020 passed by the Judicial Magistrate First Class, Ahmedabad

(Rural) in Criminal Case No.4708 of 2018 and further to quash and set

aside non-bailable warrant issued to the petitioner below Exhibit 16 in

Criminal Case No.4708 of 2018.

3. The brief facts as stated in the petition leading to filing of the

present petition are as under:-

3.1. The petitioner has been arraigned as an accused in connection with

the offence being C.R.No.II-325 of 2017 dated 19.12.217 under Section

188 of the Indian Penal Code, 1860 (for short 'the IPC') registered with

Bopal Police Station, Ahmedabad (Rural) alleging therein by the

complainant namely Ramubhai Dhulabhai Makwana, Circle Officer,

Aslali Division, Mamlatdar Office, Daskroi, District-Ahmedabad, filed

the complaint on the basis of the written order from Mamlatdar, Daskroi

R/SCR.A/2060/2020 JUDGMENT

stating that on 11.12.2017 the permission was sought by the accused

nos.1 and 2 seeking to organize Patidar Samaj Kranti Rally, which was

rejected on 10.12.2017. Despite that the accused organized the rally and

violated the notification of Additional District Magistrate and therefore,

the complainant lodged the complaint alleging therein that on 10.12.2017,

the accused nos.1, 2 and the present applicant along with others gathered

at Khodiar Temple and despite the fact that the Police Inspector, Bopal

apprised them with the fact about non grant of permission the accused

continued with rally and violated the notification of the Additional

District Magistrate.

3.2. The petitioner has been enlarged on bail with respect to the above

offence by the Investigating Officer since the offence being bailable. The

investigation is over and the charge-sheet has also been filed before the

learned Judicial Magistrate First Class, Ahmedabad (Rural) and the said

case is culminated into Criminal Case No.4708 of 2018, which is pending

for recording plea of the accused.

3.3. The petitioner was apprehending his arrest in connection with the

offence being C.R.No.I-164 of 2015 dated 26.08.2015 under Sections

143, 147, 332 and 447 of the IPC registered with Vastrapur Police Station

and therefore, the petitioner filed anticipatory bail application vide

Criminal Misc Application No.560 of 2020 before the City Civil &

R/SCR.A/2060/2020 JUDGMENT

Sessions Court, Ahmedabad, which came to be rejected on 30.01.2020.

Being aggrieved by the said order, the petitioner has filed anticipatory

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

before the High Court, wherein the High Court issued notice to the State

on 05.02.2020. Since the petitioner was apprehending his arrest by the

police in connection with the offence being C.R.No.I-164 of 2015, the

petitioner on 11.02.2020 could not remain present before the 4th

Additional Civil Judge, JMFC, Ahmedabad(Rural) in connection with

Criminal Case No.4708 of 2018. Thereafter, the advocate for the

petitioner filed exemption application before the 4th Additional Civil

Judge, JMFC, Ahmedabad (Rural) on account of his apprehension of

being arrested, which was rejected and issued non bailable warrant

against the petitioner on 11.02.2020.

3.4. An anticipatory bail application filed by the petitioner in

connection with the offence being C.R.No.I-164 of 2015, which came to

be rejected by the order dated 17.02.2020 passed in Criminal Misc.

Application No.2607 of 2020. The petitioner challenged the said order

before the Apex Court by filing Special Leave Petition (Cri) No.1719 of

2020, wherein he has been protected for not being arrested till the next

date of hearing i.e. 06.03.2020 in connection with the offence being

C.R.No.I-164 of 2015. Thereafter, on 06.03.2020, the Apex Court had

R/SCR.A/2060/2020 JUDGMENT

extended the interim relief granted to the petitioner and posted the matter

on 20.03.2020. On 20.03.2020, the interim relief granted earlier was

ordered to be continued. Under such circumstances, the petitioner has

prayed for quashing of non-bailable warrant.

4. Learned advocate Mr.A.J.Yagnik appearing for the petitioner has

submitted that against the non bailable warrant, the petitioner has filed

exemption application, wherein the advocate for the petitioner had

specifically stated that the Court may proceed with the matter even in the

absence of the petitioner. He has submitted that the learned Magistrate

rejected the exemption application only on the ground that the papers of

pending proceedings in the High Court were not produced. He has

submitted that as the difficulty of the petitioner was genuine and if the

application would have been allowed by the learned Magistrate, no

prejudice would have caused to the case of the prosecution on account of

his absence. He has also submitted that petitioner is ready and willing to

give an undertaking that he would remain present before the Trial Court

during the trial.

5. Per contra, learned Public Prosecutor Mr.Mitesh Amin has

submitted that despite the service of summons upon the petitioner in

Criminal Case No.4708 of 2018, he remained absent before the trial court

on 31.07.2018 and even no exemption application was submitted on his

R/SCR.A/2060/2020 JUDGMENT

behalf, the Judicial Magistrate First Class, Ahmedabad (Rural) issued

bailable warrant on 03.08.2018 against the petitioner. He has submitted

that thereafter an exemption application was filed by the petitioner at

Exh.9, wherein it is stated that since the petitioner was out of station, he

be exempted and the Magistrate passed an order granting last opportunity

and on the next date of hearing i.e. 24.12.2018 neither the petitioner nor

his advocate remained present before the trial court.

5.1. Learned Public Prosecutor Mr.Mitesh Amin has further submitted

that thereafter again bailable warrant was issued against the petitioner on

16.01.2019.

5.2. He has further submitted that bailable warrants were issued against

the petitioner on different dates in the year 2019 by the trial court,

however, he was not remained present. He has further submitted that on

03.12.2019, the trial court issued bailable warrant in the sum of

Rs.5,000/- against the petitioner and the petitioner submitted bail bond

before the Investigating Officer, Bopal Police Station, however on the

next date of hearing petitioner did not remain present and submitted an

application seeking exemption through his advocate stating that as he was

gone to Rajasthan for some social work, and exemption be granted. He

has further submitted that on 11.02.2020 the trial court fixed the matter

for hearing, however the petitioner remained absent. Lastly, he has

R/SCR.A/2060/2020 JUDGMENT

submitted that time and again the petitioner is making incorrect and

wrong statements and therefore, his exemption application could not be

considered and the warrant is issued. He has submitted that the advocate

for the petitioner submitted that the petitioner is ready to give undertaking

and assurance that on the next date of hearing he shall remain present.

6. Having heard the learned advocates appearing for the respective

parties and perused the averments made in the petition and other material

on record.

7. Admittedly, the non-bailable warrant was issued to the petitioner

due to his absence on successive dates of hearing. Earlier, bailable

warrants were issued to the petitioner. When the petitioner did not remain

present, a non-bailable warrant came to be issued. As such the conduct of

the petitioner is required to be assessed with a strict view in view of the

fact that the court below granted several opportunities to the petitioner to

honour the orders passed by the court from time to time.

8. In view of the submissions and assurance given by the learned

advocate Mr.A.J.Yagnik appearing on behalf of the petitioner showing

readiness and willingness and further assuring to file an undertaking

before this Court to the effect that the petitioner would remain present

before the trial court on every date of hearing, unless exempted by the

R/SCR.A/2060/2020 JUDGMENT

trial court, this Court is inclined to exercise its discretion under Article 226

and 227 of the Constitution of India. The impugned order dated 11.02.2020

passed below Exhibit 16 is modified with the following directions:-

(a) It is directed that the petitioner shall file an undertaking before registry

of this Court on or before 31.03.2021 assuring his presence on 09.04.2021

before the trial court and to the effect that he shall remain present before the

trial court on every date of hearing, unless exempted by the trial court.

(b) Upon filing of such undertaking, the non-bailable warrant issued by

the order dated 11.02.2020, is directed to be converted into a bailable

warrant.

(c) The petitioner shall execute a bail bond in the sum of Rs.1,000/-

before the trial court on 09.04.2021.

9. With the aforesaid directions, the present petition is partly allowed.

Rule is made absolute to the aforesaid extent.

10. A cost of Rs.2,000/- shall be deposited by the learned advocate for

the petitioner before Gujarat High Court Legal Service Committee within a

period of 10 days and the receipt to that effect shall be submitted to the

registry of this Court.

Sd/-

(VAIBHAVI D. NANAVATI,J) ABHISHEK