Gujarat High Court
Rashilaba Bharatsingh Jadeja vs State Of Gujarat on 15 February, 2024
NEUTRAL CITATION
R/SCR.A/2115/2024 ORDER DATED: 15/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 2115 of 2024
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RASHILABA BHARATSINGH JADEJA & ANR.RASHILABA BHARATSINGH
JADEJA
Versus
STATE OF GUJARATSTATE OF GUJARAT & ORS.
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Appearance:
SHRIRAM K BHARGAW(9436) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2,3
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 15/02/2024
ORAL ORDER
1. The present petition is filed by the petitioner seeking the
following reliefs:
(A) That the Hon'ble Court may be pleased to admit this
Special Criminal Application;
(B) That this Hon'ble court may be pleased to allow this
Special Criminal Application by issue writ of mandamus or
any other appropriate writ or order or direction directing the
respondent's agency to give 15 days prior notice before
effecting his arrest in case the petitioner is sought to be
arrested by the police authorities Naroda Police station
Ahmedabad so as to enable him to have recourse available
under the law in the interest of justice.
(C) That this Hon'ble court may be pleased to allow this
special Criminal Application issuing an appropriate writ,
direction or order, directing the respondent no. 2 and 3 to
scrupulously follow the directions given by the Hon'ble
supreme court in the case of Arnesh Kumar V. State of Bihar
reported in (2014) 8 SCC 273 in the interest of justice.
(D) Grant such other and further relief as deemed just and
proper by this Hon'ble Court in the interest justice.
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2. The learned advocate for the petitioner has submitted that
till date, no complaint has been registered, and the civil dispute
has been given the color of criminality. The police authority
intends to arrest the petitioner, who has received two phone calls
from the Head Constable of Naroda Police Station, instructing
them to remain present. Furthermore, the learned advocate has
cited an oral order passed by the Coordinate Bench of this Court
in the case of Mahesh Hirabhai Chavda v. State of Gujarat,
passed in Special Criminal Application No. 1661 of 2023 on
03.02.2023, and requested that the Hon'ble Court may pass an
order in favor of the petitioner. The advocate seeks protection for
the petitioner in case of arrest, requesting that 15 days' prior
notice be given before effecting the arrest.
3. Learned APP vehemently opposed the application and
submitted that no any offence till date is registered against the
petitioners, and therefor, questions does not arise to passed any
order to protect the petitioners from the arrest.
4. Considering the submissions made by the learned
advocates for the respective parties and consdiering the
documents on record, it appears that the petition is filed under
Articles 226 and 227 of the Constitution of India. The scope of
Article 227 is different; when an alternative statutory remedy is
available, the question does not arise to exercise such power, as
statutory remedy is available under Section 438 of Cr.P.C.
Regarding Article 227 of the Constitution of India, no
subordinate court has passed any order in the absence of
material placed on record to demonstrate any palpable error or
any basis to exercise jurisdiction under Article 227 of the
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R/SCR.A/2115/2024 ORDER DATED: 15/02/2024
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Constitution of India. Moreover, the reliance of the learned
advocate for the petitioner on the order passed by the Coordinate
Bench does not establish precedence.
5. This Court deems it fit to refer to the judgment of the
Hon'ble Apex Court in the case of Parasa Raja Manikyala Rao
And Anr vs State Of A.P reported in AIR 2004 SC 132, wherein it
has been observed and held as under:
"...Each case, more particularly a criminal case depends on
its own facts and a close similarity between one case and
another is not enough to warrant like treatment because a
significant detail may alter the entire aspect. In deciding
such cases, one should avoid the temptation to decide cases
(as said by Cordozo) by matching the colour of one case
against the colour of another. To decide therefore on which
side of the line a case falls, the broad resemblance to
another case is not at all decisive."
6. This Court deems it fit to refer to the judgment passed by
the Hon'ble Apex Court in the case of Vijay Kumar Gopichand
Ramchandani v. Amar Sadhuram Munchandani, reported in
2022 LiveLaw (SC) 1010. In this case, the Hon'ble Court referred
to the judgment in the case of Union of India v. Pada Narain
Aggarwal, reported in (2008) 13 SCC 305, and deprecated the
practice of issuing such directions or blank orders of prior notice
to the accused in anticipation of their arrest by the state.
Additionally, in the case of State of Telangana v. Habi Abdullah
Jeelani, reported in 2017 (2) SCC 779, the Court emphasized
that while dealing with the contours of Section 482 and 438
Cr.P.C., the direction to arrest the accused or not to take
coercive action against them in proceedings under Section 482
Cr.P.C. would amount to an order under Section 428 Cr.P.C.,
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R/SCR.A/2115/2024 ORDER DATED: 15/02/2024
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albeit without satisfaction of the conditions of the said provision,
rendering it legally unaccountable.
7. In view of the above, no case is made out to grant any relief
as sought for. Hence, the present petition stands disposed of at
admission stage. However, it is open for the petitioner to avail
appropriate remedy before the appropriate forum.
8. However, it is clarified that this Court has not gone into the
merits of the case.
(HASMUKH D. SUTHAR,J)
ALI
