State Of Gujarat vs Pravinbhai Kantibhai Gamar
2023 Latest Caselaw 5655 Guj

                                                                                       NEUTRAL CITATION




   R/CR.MA/12559/2023                                    ORDER DATED: 04/08/2023

                                                                                        undefined




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 12559 of 2023

==========================================================
                             STATE OF GUJARAT
                                   Versus
                        PRAVINBHAI KANTIBHAI GAMAR
==========================================================
Appearance:
MS JIRGA JHAVERI, APP for the Applicant(s) No. 1
MR JANAK D VARDEY(10910) for the Respondent(s) No. 1
==========================================================

 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.

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.

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.

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

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

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

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,

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

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

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.

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