Gujarat High Court
Chaitarbhai Damjibhai Vasava vs State Of Gujarat on 4 December, 2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 21304
of 2023
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CHAITARBHAI DAMJIBHAI VASAVA
Versus
STATE OF GUJARAT
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Appearance:
MR ANSHIN DESAI, SR. ADVOCATE, MR. AUM M KOTWAL(7320) for the
Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR, MR TIRTHRAJ PANDYA, APP
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 04/12/2023
ORAL ORDER
Rule. Learned APP waives service for the Respondent-State.
1. By way of this application, filed under Section 438 of the
Code of Criminal Procedure, 1973 ('the Code', in brief) the
applicant has prayed to grant him pre-arrest bail in connection
with the offence registered as I-CR No. 11823004231271 of
2023, registered with Dediyapapda Police Station, Narmada,
for the offence punishable under Sections 143, 147, 148, 149,
186, 189, 332, 353, 386, 294(b), 506(2) and 34 of the Indian
Penal Code and Section 25(1)(a) of the Arms Act.
2. The brief facts of the case of the prosecution are that a
complaint came to be lodged by the first informant, who has
been discharging duties as a Forester in Narmada Division,
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with Dediyapada Police Station on 02.11.2023, wherein, he
stated that one Dungarji Bhangdabhai Vasava's daughter is
tilling the forest land treating the same as an agricultural land
and therefore, before about five months from the alleged
offence, he had orally warned her not to do so. However,
before about one month when the First Informant went on
patrolling to Fulsar, he found that cotton crop is taken on the
forest land. He, therefore, asked the concerned persons to
remove the same and when the same was not removed, he
along with other forest officials went to the said place on
30.10.2023, at 04:30 a.m. and removed the same.
2.1 It is further stated in the FIR that after the aforesaid
incident, he received a phone call on his cell phone bearing No.
9875173306 from a cell phone bearing No. 9904689019, which
is alleged to be the cell phone number of the present
applicant, and the concerned person told him that the First
Informant may come to his office, as he wanted to have some
talk with regard to removal of the crop. Thereafter, one
Bharatbhai Tadvi also called the First Informant at about 05:00
p.m. and informed him that MLA (i.e. the present applicant)
had called and therefore go and meet him.
2.2 Pursuant to the same, the First Informant along with
other Forest Officials went to the house of the applicant on the
very same day. When he reached at the place, where the
construction of the new house of the applicant is going on, he
found that two daughters of Dungarji Bhangdabhai Vasava,
Rameshbhai Gimbabhai Vasava along with his wife, wife of the
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present applicant and other unknown person were already
present there. Thereafter, the applicant allegedly told them
that they shall have to pay the damage to the concerned
person for removing the crop and at that time, he also grabbed
the collar of the First Informant, slapped him and also abused
him. Therefore, the First Informant lodged the aforesaid FIR.
Hence, the present application.
3. Heard, learned Sr. Advocate, Mr. Desai, assisted by
learned Advocate Mr. Kotwal for the petitioner and learned PP
Mr. Amin, assisted by learned APP Mr. Pandya for the
Respondent-State.
4. Learned Sr. Advocate Mr. Desai would submit that the
present petitioner is falsely implicated in the FIR in question
and that he has played no role, as alleged in the FIR.
4.1 He would further submit that the present petitioner is the
sitting MLA of the constituency from the opposite party, who
had called the Forest Officials at his residence, not for the
purpose of exerting undue influence or pressure on them, but,
to redress the grievance raised by the people of his
constituency, as the concerned Forest Officials had, without
issuing any formal notice to the affected persons, damaged the
crop of cotton standing in the field in the wee hours, i.e. at
around 04:30 a.m.. It was submitted that the affected persons
had been given the right of ploughing the forest land and to
use the same as an agricultural land.
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4.2 He would further submit that the concerned IO has not
found either any firearm, bullet or empty shell of the bullet,
which was allegedly fired by the present petitioner at the time
of commission of the alleged offence, which prima facie would
indicate that the petitioner has not committed any offence, as
provided under Section 25(1)(a) of the Arms Act.
4.3 It was further submitted that the petitioner, who is a
sitting MLA of the opposite party, has neither extorted any
money from the Forest Official nor did he try to do so.
4.4 It was submitted that being sitting MLA, the petitioner
tried to resolve the grievance raised by the people of his
constituency and he has played the role, which he was
required to play as a representative of the people and as such,
he has not committed any offence.
4.5 It was also submitted that considering the allegations
leveled against the present petitioner, there is no need for
seeking his custodial interrogation and thus, it was submitted
that the petitioner be released on bail.
4.6. Learned Sr. Advocate Mr. Desai submitted that the arrest
of the petitioner would add stigma to his reputation and as the
petitioner is the sitting MLA of the opposite party, to excoriate,
him frivolous FIR is filed on the basis of the false allegations.
4.7 Learned Sr. Advocate Mr. Desai also referred to the
provisions of Article 21 of the Constitution of India and
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submitted that the individual liberty is paramount, precious
and needs to be protected from the prowess power of mighty
State.
4.8 By making the above submissions, it was prayed that the
petitioner be released on pre-arrest bail.
5. On the other hand, learned PP Mr. Amin, assisted by
learned APP Mr. Pandya, strongly opposed this application and
would submit that there are as many as 12 offences have
already been registered against the present petitioner and
therefore, he being a habitual offender, there does not arise
any question of attaching stigma to his reputation.
5.1 While taking this Court through the order dated
21.11.2023, passed in Criminal Misc. Application No. 449 of
2023 by the learned Sessions Judge, Narmada at Rajpipla,
learned PP Mr. Amin submitted that in Sessions Case No. 33 of
2022, the concerned trial Court held the applicant guilty and
sentenced him, but he is given the benefit of the provisions of
the Probation of Offenders Act. It was submitted that during
the period of probation, the petitioner has committed the
alleged offence and thereby, has committed the breach of the
conditions of probation and therefore also, he is not entitled to
get pre-arrest bail.
5.2 He would further submit that the petitioner has,
whatsoever no authority, as a sitting MLA, to call the Forest
Officials at his house and coerce them to settle the dispute
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with the affected persons for which he exerted pressure on
them by issuing threats and caused intimidation to them by
firing the firearm possessed by him in the air. It was submitted
that such is not the role, which is expected to be played by a
sitting MLA. It was submitted that no one can threat or
intimidate government officials and prevent them from
discharging their official duties. Argument is also canvassed to
the effect that proceedings under Prevention of Antisocial
Activities Act, 1985, were also taken against the petitioner.
5.3 By making the above submissions, learned PP Mr. Amin
would submit that considering the gravity of the offence and
the role allegedly played by the present petitioner, his
custodial interrogation would be necessary. It was therefore
submitted that the applicant cannot be granted pre-arrest bail.
5.4 Learned PP Mr. Amin also submitted that a warrant under
Section 70 of the Code has already been issued against the
petitioner, as the petitioner is not cooperating with the
investigation and is absconding and therefore, he should not
be granted the relief of pre-arrest bail.
5.4.1 Learned Sr. Advocate Mr. Desai, while replying to
the above submission made by the learned PP Mr. Amin,
submitted that the warrant under Section 70 of the Code is
issued at jet speed, i.e. within the period of 25 days from the
date of filing of the FIR. It was submitted that it is a per-
determined act to tarnish the image of the applicant, who is a
sitting MLA of the rival political party, in connection with an
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FIR, which is filed after the delay of about two days. He, thus,
reiterated the submissions made herein above and prayed that
this application be allowed.
6. Having heard the learned Advocates for the parties, at
the outset, it would be relevant to refer to the antecedents of
the present applicant, which read as under;
SR. NO. FIR / C.R. POLICE STATION SECTIONS
NO.
1 I-17/2014 Dediyapada 147, 148, 149, 323,
354(A), 504, 503 of the
IPC, 135 of the GP Act
2 I-36/2018 Dediyapada 115, 116, 120(B), 147,
148, 149, 395, 427,
450 of the IPC
3 I-16 /2017 Dediyapada 143, 147, 149, 332,
341, 504, 506(2), 135
of the GP Act
4 I-106/2019 Dediyapada 354(A), (1), (4), 506(2)
of the IPC, 67(A) of the
IT Act, 2008
5 11823004200 Dediyapada 188, 120B, 186, 505(1)
429/2020 (B), 114
6 11823004210 Dediyapada 188, 269 of IPC, 51(B)
609/2021 of the Disaster
Management Act,
7 11823004210 Dediyapada 323, 504, 506(2), 143,
651/2021 147, 427, 452, 153(A)
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of IPC, 51(B) of the
Disaster Management
Act, 2005
8 11823004210 Dediyapada 397, 504, 506(2) of
827/2021 IPC, 135 of the GP
Act
9 11823004220 Dediyapada 188 of IPC, 131 of the
473/2022 GP Act
10 11823004220 Dediyapada 306, 506(2) of the IPC
543/2022
11 11823017201 Rajpipla 143, 147, 148, 149,
318/2020, 323, 504, 506(2) of
IPC
12 11823014200 Kevadiya 353, 505(1),(B),
09/2021 506(1), 188, 186, 143,
147, 269, 120B of IPC,
51(B) of the Disaster
Management Act
6.1 Here, it would also be relevant to note that the learned
Sessions Judge, Narmada at Rajpipla, in the order dated
21.11.2023, passed in Criminal Misc. Application No. 449 of
2023 has recorded that the applicant was earlier convicted in
Sessions Case No. 33 of 2022, however, the concerned trial
Court gave him the benefit of the provisions of the Probation of
Offenders Act. Therefore, it seems that by committing the
alleged offence, the applicant has committed the breach of the
order, granting him the benefit under the provisions of the
Probation of the Offenders Act.
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6.2 It was argued by the learned Sr. Advocate Mr. Desai that
the applicant had called the Forest Officials at his home to
redress the grievances of people of his constituency, in view of
the high-handed action on the part of the concerned Forest
Officials. Be that as it may, the applicant, being a sitting MLA,
has no authority either to call any government officials at his
home for redressal of the grievance of the people of his
constituency or to prevent them from discharging their official
duties. If people of the constituency have any grievance that
Forest Officials were acted high highhandedly or illegally
removed cotton crop, they can be advised to raise their
grievance before concerned authority or before Court, but
sitting MLA has no jurisdiction to act like court or run parallel
grievance redressal mechanism. There are clear allegations
made against the present applicant that after calling the Forest
Officials at his home, he not only threatened them but also
fired one round from the firearm allegedly possessed by him,
at the time of commission of the alleged offence. The applicant
is also alleged to have slapped and abused the first informant.
6.3 It may be noted that the Hon'ble Apex Court in the case
of 'C.B.I. v. Anil Sharma', reported in (1997) 7 SCC 187, has
observed that custodial interrogation is qualitatively more
effective in eliciting information compared to questioning a
suspect, protected by a favorable order under Section 438 of
the Code.
6.4 The Hon'ble Apex Court in 'Siddharam Satlingappa
Mhetre V. State Of Maharashtra', reported in AIR 2011 SC
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312, after considering its earlier judgments, laid down certain
factors and parameters to be considered while considering
application for anticipatory bail :
"122. The following factors and parameters can
be taken into consideration while dealing with the
anticipatory bail:
i. The nature and gravity of the accusation and the exact
role of the accused must be properly comprehended
before arrest is made;
ii. The antecedents of the applicant including the fact as
to whether the accused has previously undergone
imprisonment on conviction by a Court in respect of any
cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat
similar or the other offences.
v. Where the accusations have been made only with the
object of injuring or humiliating the applicant by arresting
him or her.
vi. Impact of grant of anticipatory bail particularly
in cases of large magnitude affecting a very large
number of people.
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vii. The courts must evaluate the entire available material
against the accused very carefully. The court must also
clearly comprehend the exact role of the accused in the
case. The cases in which accused is implicated with the
help of sections 34 and 149 of the Indian Penal Code,
the court should consider with even greater care
and caution because overimplication in the cases is a
matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory
bail, a balance has to be struck between two
factors namely, no prejudice should be caused to
the free, fair and full investigation and there
should be prevention of harassment, humiliation and
unjustified detention of the accused;
ix. The court to consider reasonable apprehension of
tampering of the witness or apprehension of threat to the
complainant;
x. Frivolity in prosecution should always be considered
and it is only the element of genuineness that shall have
to be considered in the matter of grant of bail and in
the event of there being some doubt as to the
genuineness of the prosecution, in the normal course of
events, the accused is entitled to an order of bail."
6.5 Thus, the above parameters for grant of anticipatory bail
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in a serious offence are required to be satisfied. Anticipatory
bail can be granted only in the exceptional circumstances
where the Court is prima facie of the view that the applicant
has been falsely enroped in the crime or the allegations are
politically motivated or are frivolous. So far as the case, on the
hand is concerned, it cannot be said that any
exceptional circumstances have been made out by the
applicant accused for grant of anticipatory bail and there is
prima facie no frivolity in the prosecution.
6.6 The Hon'ble Apex Court in 'Prahlad Singh Bhati Vs.
N.C.T. Delhi & Another', reported in (2001) 4 SCC 280, has
observed that the legislature has used the word "reasonable
grounds for believing" instead of "the evidence", which means
that the court dealing with the grant of bail can only satisfy it,
as to whether there is a genuine case against the accused and
that the prosecution will be able to produce prima facie
evidence in support of the charge or not. The relevant
observations, reads thus;
"The jurisdiction to grant bail has to be exercised on the
basis of well settled principles having regard to the
circumstances of each case and not in an arbitrary
manner. While granting the bail, the court has to keep in
mind the nature of accusations, the nature of evidence in
support thereof, the severity of the punishment which
conviction will entail, the character, behaviour, means
and standing of the accused, circumstances which are
peculiar to the accused, reasonable possibility of
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securing the presence of the accused at the trial,
reasonable apprehension of the witnesses being
tampered with, the larger interests of the public or State
and similar other considerations. It has also to be kept in
mind that for the purposes of granting the bail the
Legislature has used the words "reasonable grounds for
believing" instead of "the evidence" which means the
court dealing with the grant of bail can only satisfy it as to
whether there is a genuine case against the accused and
that the prosecution will be able to produce prima facie
evidence in support of the charge. It is not excepted , at
this stage, to have the evidence establishing the guilt of
the accused beyond reasonable doubt."
6.7 It is also required to be noted at this stage that a warrant
under Section 70 of the IPC has also been issued against the
present petitioner, which would go to indicate that he is not
cooperating with the investigation. In the case of 'Prem
Shankar Prasad vs. State of Bihar', reported in 2021 SCC
OnLine SC 955, the Apex Court, in no unclear terms, has
observed that a person, who is evading arrest, is not entitled to
get the extra-ordinary protection under Section 438 of the
Code. The observations made by the Apex Court at
Paragraphs- 7.2. to 7.3 runs as under;
"7.2 Despite the above observations on merits and
despite the fact that it was brought to the notice of the
High Court that respondent No.2 - accused is
absconding and even the proceedings under sections
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82-83 of Cr.PC have been initiated as far as back on
10.01.2019, the High Court has just ignored the
aforesaid relevant aspects and has granted anticipatory
bail to respondent No.2 - accused by observing that the
nature of accusation is arising out of a business
transaction. The specific allegations of cheating, etc.,
which came to be considered by learned Additional
Sessions Judge has not at all been considered by the
High Court. Even the High Court has just ignored the
factum of initiation of proceedings under sections 82-83
of Cr.PC by simply observing that "be that as it may".
The aforesaid relevant aspect on grant of anticipatory
bail ought not to have been ignored by the High Court
and ought to have been considered by the High Court
very seriously and not casually.
7.3 In the case of State of Madhya Pradesh vs. Pradeep
Sharma (Supra), it is observed and held by this court that
if anyone is declared as an absconder/proclaimed
offender in terms of section 82 of Cr.PC, he is not
entitled to relief of anticipatory bail. In paragraph 14 to
16, it is observed and held as under:
"14. In order to answer the above question, it is
desirable to refer to Section 438 of the Code which
reads as under:
"438. Direction for grant of bail to person
apprehending arrest.--(1) Where any person has
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reason to believe that he may be arrested on
accusation of having committed a non-bailable
offence, he may apply to the High Court or the
Court of Session for a direction under this section
that in the event of such arrest he shall be released
on bail;
and that court may, after taking into consideration,
inter alia, the following factors, namely--
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the
fact as to whether he has previously undergone
imprisonment on conviction by a court in respect of
any cognizable offence;
(iii) the possibility of the applicant to flee from
justice; and
(iv) where the accusation has been made with the
object of injuring or humiliating the applicant by
having him so arrested, either reject the application
forthwith or issue an interim order for the grant of
anticipatory bail:
Provided that, where the High Court or, as the case may
be, the Court of Session, has not passed any interim
order under this sub-section or has rejected the
application for grant of anticipatory bail, it shall be open
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to an officer in charge of a police station to arrest,
without warrant the applicant on the basis of the
accusation apprehended in such application."
The above provision makes it clear that the power
exercisable under Section 438 of the Code is somewhat
extraordinary in character and it is to be exercised only in
exceptional cases where it appears that the person may
be falsely implicated or where there are reasonable
grounds for holding that a person accused of an offence
is not likely to otherwise misuse his liberty.
15. In Adri Dharan Das v. State of W.B. [(2005) 4 SCC
303] this Court considered the scope of Section 438 of
the Code as under : (SCC pp. 31112, para 16) "16.
Section 438 is a procedural provision which is concerned
with the personal liberty of an individual who is entitled to
plead innocence, since he is not on the date of
application for exercise of power under Section 438 of
the Code convicted for the offence in respect of which he
seeks bail. The applicant must show that he has 'reason
to believe' that he may be arrested in a non-bailable
offence. Use of the expression 'reason to believe' shows
that the belief that the applicant may be arrested must be
founded on reasonable grounds. Mere 'fear' is not 'belief'
for which reason it is not enough for the applicant to
show that he has some sort of vague apprehension that
someone is going to make an accusation against him in
pursuance of which he may be arrested. Grounds on
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which the belief of the applicant is based that he may be
arrested in non-bailable offence must be capable of
being examined. If an application is made to the High
Court or the Court of Session, it is for the court
concerned to decide whether a case has been made out
for granting of the relief sought. The provisions cannot be
invoked after arrest of the accused. A blanket order
should not be generally passed. It flows from the very
language of the section which requires the applicant to
show that he has reason to believe that he may be
arrested. A belief can be said to be founded on
reasonable grounds only if there is something tangible to
go by on the basis of which it can be said that the
applicant's apprehension that he may be arrested is
genuine. Normally a direction should not issue to the
effect that the applicant shall be released on bail
'whenever arrested for whichever offence whatsoever'.
Such 'blanket order' should not be passed as it would
serve as a blanket to cover or protect any and every kind
of allegedly unlawful activity. An order under Section 438
is a device to secure the individual's liberty, it is neither a
passport to the commission of crimes nor a shield
against any and all kinds of accusations likely or unlikely.
On the facts of the case, considered in the background
of the legal position set out above, this does not prima
facie appear to be a case where any order in terms of
Section 438 of the Code can be passed."
16. Recently, in Lavesh v. State (NCT of Delhi) [(2012) 8
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SCC 730] , this Court (of which both of us were parties)
considered the scope of granting relief under Section
438 visàvis a person who was declared as an absconder
or proclaimed offender in terms of Section 82 of the
Code. In para 12, this Court held as under : (SCC p. 733)
"12. From these materials and information, it is clear
that the present appellant was not available for
interrogation and investigation and was declared as
'absconder'. Normally, when the accused is
'absconding' and declared as a 'proclaimed offender',
there is no question of granting anticipatory bail. We
reiterate that when a person against whom a warrant
had been issued and is absconding or concealing
himself in order to avoid execution of warrant and
declared as a proclaimed offender in terms of Section
82 of the Code he is not entitled to the relief of
anticipatory bail."
It is clear from the above decision that if anyone is
declared as an absconder/proclaimed offender in
terms of Section 82 of the Code, he is not entitled to
the relief of anticipatory bail."
Thus the High court has committed an error in granting
anticipatory bail to respondent No.2 - accused ignoring
the proceedings under Section 82-83 of Cr.PC.."
6.8 On the aforesaid premise, this application does not
deserve consideration, as from the allegations leveled in the
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FIR in question as well as the role attributed to the present
applicant, the prima facie involvement of the applicant in the
alleged offence is made out. In view of the above petitioner
has failed to make out a case to get extra-ordinary relief of
pre-arrest bail.
7. Resultantly, this application fails and is REJECTED in
limine. Rule is discharged.
(J. C. DOSHI,J)
UMESH/-
