Reshadbhai Bashirbhai Sinjat vs State Of Gujarat
2022 Latest Caselaw 9794 Guj

     R/CR.MA/22275/2022                              ORDER DATED: 06/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 22275 of 2022

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                          RESHADBHAI BASHIRBHAI SINJAT
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR PARTH S TOLIA(5617) for the Applicant(s) No. 1
MR CHINTAN DAVE APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                                 Date : 06/12/2022

                                  ORAL ORDER

1. This is an application by the applicant under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail in the event of his arrest in connection with FIR No.11208044220811 of 2022 registered with Pradyuman Nagar Police Station, Rajkot City for offence punishable under Sections 195-A, 323, 504 and 506(2) etc. of Indian Penal Code and Section 135 of G.P. Act.

2. Heard Mr. Parth S. Tolia, learned Counsel appearing for the applicant and Mr. Chintan Dave, learned APP for the respondent State of Gujarat.

3. Learned Counsel for the applicant has submitted that the applicant has been falsely implicated in the

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alleged offence. He has submitted that the applicant has been enlarged on regular bail by this Court vide order dated 28.7.2022 passed in Criminal Misc. Application No.8628 of 2022. He has further submitted that the place of incident is highly crowed area and there is continuous traffic and movement of pedestrians. Learned Counsel for the applicant has relied upon the decision of the Hon'ble Apex Court in case of Prabhakar Tewari vs. State of U.P. reported in 2020 (11) SCC 648. He, more particularly, relied upon paragraph No.7 of the said decision, which reads as under:-

"7. On considering the submissions of the learned counsel for the parties. Having regard to the circumstances of this case, in our opinion, there has been no wrong or improper exercise of discretion on the part of the High Court in granting bail to the accused. The factors outlined in the case of Mahipal (supra) for testing the legality of an order granting bail are absent in the order impugned. The materials available do not justify arriving at the conclusion that the order impugned suffers from non-application of mind or the reason for granting bail is not borne out from a prima-facie view of the evidence on record. The offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail. The High Court has exercised its discretion in granting bail to the accused Vikram Singh upon considering relevant materials. No ex- facie error in the order has been shown by the appellant which would establish exercise of such discretion to be improper. We accordingly sustain the order of the High Court granting bail. This appeal is dismissed."

4. Learned APP for the respondent State of Gujarat has submitted that looking to the nature of offence which is serious in nature and the involvement of the applicant in

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present offence, this Court may not grant anticipatory bail to the present applicant.

5. I have perused the material available on record of the application and have also taken into account the averements made in the application and the decision of the Hon'ble Apex Court relied upon by the learned Counsel for the applicant.

6. It appears that the decision of the Hon'ble Apex Court relied upon by the learned Counsel for the applicant is under Section 439 of Criminal Procedure Code for regular bail, whereas present application is filed under Section 438 of the Criminal Procedure Code for anticipatory bail. Therefore, there is vast difference of facts between both the cases. The distinction made by the Hon'ble Apex Court in case of Sushila Aggarwal and Ors v. State (NCT of Delhi) & Anr, reported in [2020] 5 SCC 1 reads as under:-

85. Having regard to the above discussion, it is clarified that the court should keep the following points as guiding principles, in dealing with applications under Section 438, Cr. PC:

85.1 As held in Sibbia, when a person apprehends arrest and approaches a court for anticipatory bail, his apprehension (of arrest), has to be based on concrete facts (and not vague or general allegations) relatable a specific offence or particular of offences. Applications

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for anticipatory bail should contain clear and essential facts relating to the offence, and why the applicant reasonably apprehends his or her arrest, as well as his version of the facts. These are important for the court which considering the application, to extent and reasonableness of the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not a necessary condition that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.

85.2 The court, before which an application under Section 438, is filed, depending on the seriousness of the threat (of arrest) as a measure of caution, may issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.

85.3 Section 438 Cr. PC does not compel or oblige courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While weighing and considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified - and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The necessity to impose other restrictive conditions, would have to be weighed on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.

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85.4 Courts ought to be generally guided by the considerations such nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while assessing whether to grant anticipatory bail, or refusing it. Whether to grant or not is a matter of discretion; equally whether, and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.

85.5 Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. Also orders of anticipatory bail should not be "blanket" in the sense that it should not enable the accused to commit further offences and claim relief. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.

85.6 Orders of anticipatory bail do not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail.

85.7 The observations in Sibbia regarding "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that "19....if and when the occasion arises, it may be possible for the prosecution to claim the benefit

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of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya."

85.8 It is open to the police or the investigating agency to move the court concerned, which granted anticipatory bail, in the first instance, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. The court - in this context is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.

85.9 The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam & Etc. Etc vs Ramprasad Vishwanath Gupta & Anr52; Jai Prakash Singh (supra) State through C.B.I. vs. Amarmani Tripathi53 ). This does not amount to "cancellation" in terms of Section 439 (2), Cr. PC.

85.10 The judgment in Mhetre (and other similar decisions) restrictive conditions cannot be imposed at all, at the time of granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin and subsequent decisions (including K.L. Verma, Nirmal Jeet Kaur) which state that such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled."

7. It appears that on earlier occasion, present applicant has been granted bail by this Court vide order dated 28.7.2022 and he has misused the said liberty granted by

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this Court. He has committed breach of the condition imposed by this Court in the said order. Therefore, this Court deems it fit not to grant any sympathy to present applicant. Therefore, present application does not deserves to be entertained.

8. Further, the applicant is also having earlier offence under Section 498 of the Cr.P.C. wherein he was acquitted by the concerned Trial Court but that cannot be be looked into present case, because present case is filed under Section 438 of Criminal Procedure Code for anticipatory bail.

9. In view of the aforesaid observations, present application for anticipatory bail does not deserve to be entertained and same is hereby dismissed.

(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI