Gujarat High Court
Vimalkumar Himmatlal Dholakia vs State Of Gujarat on 9 January, 2024
NEUTRAL CITATION
R/CR.MA/16484/2022 ORDER DATED: 09/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
16484 of 2022
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VIMALKUMAR HIMMATLAL DHOLAKIA
Versus
STATE OF GUJARAT
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Appearance:
MR. KALRAV R PATEL(7041) for the Applicant(s) No. 1
P K NAYAK(7847) for the Applicant(s) No. 1
KUMAR H TRIVEDI(9364) for the Respondent(s) No. 2,3
MEETKUMAR J PANDIT(9479) for the Respondent(s) No. 2,3
MR HK PATEL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 09/01/2024
ORAL ORDER
1. By way of the present petition under Section 438 of the
Code of Criminal Procedure, 1973, the petitioner has prayed to
quash and set aside the order dated 10.08.2022 passed by the
learned 9th Additional District & Sessions Judge, Ahmedabad
Rural in Criminal Misc. Application No.2398 of 2022, whereby
the learned Session Judge has granted anticipatory bail granted
to the respondent nos. 2 and 3 - original accused.
2. Learned Advocate for the petitioner has submitted that the
impugned order suffers from serious illegality and came to be
passed on assumptions and presumptions. He would further
submit that learned Court below instead of verifying the record
and evidence available on record gathered during the
investigation tried to doubt the complainant and it is his version
which prima facie ought to have been relied upon while deciding
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pre-arrest application. He would further submit that there was
ample evidence on record which was suggesting that the private
respondents abducted the petitioner. Not only that the petitioner
was forced to call his accountant and thereby on the spot after
getting cheques, he was forced to sign on 18 cheques and some
agreements. He would further submit that these aspects are part
of the alleged incident and yet the learned Court below has
overlooked this aspect. He would further submit that in such
circumstances the custodial interrogation of the accused is
required and therefore learned Court below ought not to have
exercised the discretion in favour of the accused. He would
further submit that impugned order is passed on some foreign
grounds which are not available under the bail jurisdiction and
therefore the said order is void of reasons. The above argument
is canvassed to allow this petition.
3. On the other hand, learned advocate Mr.P R Nanavaty with
Mr.Pandit, learned advocate for respondents no.2 and 3 would
submit that learned Court below has rightly observed that the
complainant was knowing well in advance about the incident in
question and therefore he has kept upon the devise for recording
which has been rightly observed in the impugned order by the
learned Court below. He would further submit that no malice is
found in the impugned order and it is the complainant who has
designed the entire FIR to counterblast and those18 cheques are
lying with the accused. He would further submit that there is no
breach of any conditions and investigation is over and charge
sheet is filed. He would rely upon the decisions in case of
Bhagirathsingh Jadeja vs. State of Gujarat [AIR 1984 sc 372]
and Mahant Chand Nath Yogi vs. State of Haryana [AIR 2003 SC
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18]. This has been submitted to dismiss the petition.
4. Having heard the learned Advocate for the respective
parties, let refer to paragraph 10 of the impugned order which
reads thus:
"10. From the perusal of record it is apparent that there
have been certain business dealings between the applicant
no.1 and the complainant and all incidents, criminal or
otherwise have arisen there from. It is further apparent
that it is the applicant no.1 who approached the Police for
the said grievance however his complaint was just
registered as an application. Thereafter, the alleged
incident is said to have taken place CA resulting into filing
of the present FIR. That apart, from the audio recordings it
is apparent that unless the complainant apprehended
something like this to happen, he would not have left the
audio and call recording options open on his phone. Even
otherwise, unless some specialised Application is installed,
the said settings cannot be turned on and off easily. That
apart, it was only the complainant who knew that the
incident was being (audio) recorded, he obviously would
have been cautious in speaking certain things out rather
he would instigate and prod the other side to implicate
themselves. In view of the above, the natural questions
that may arises in any prudent mind are that: If he were so
aware, why did he go at all and that too alone? Why did he
not take any back up? Did he stage the entire incident
knowing very well as to how the accused would react? That
apart, the complainant is alleged to have been beaten in an
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open plot near a Pizza outlet a place which cannot be
secluded. Thereafter, he is alleged to have been forced into
the Ertiga Car and taken to the house of another accused.
Therefore, at this stage, the said recordings and the
narration in the FIR pertaining to the incident has to be
taken with a pinch of salt especially taking into
consideration the admitted preceding events. "
5. It is well settled principle of law that normally very cogent
and overwhelming circumstances are necessary for an order
seeking cancellation of bail. The Court while sitting in a
jurisdiction for cancellation of bail should bear in mind that
denial of bail is a different aspect and cancellation of bail cannot
be done in a mechanical manner. It is not the case of the
petitioner that the respondent has breached any conditions of
the bail granted to the petitioner. Learned Advocate for the
petitioner finds fault with the reasoning given in paragraph 10 of
the impugned order by submitting that the Court below finds
conduct of the complainant wrongly and this could not be the
ground for granting bail. To be noted that, learned trial Court
having referred to the record comes to the conclusion that
conduct of the complainant is doubtful as the offence punishable
under Sections 323, 386, 504, 506(2) and 120-B of the IPC.
Ordinarily, the object of cancellation of bail is to protect the fair
trial and secure the justice being done to the society by
preventing the accused who is set to liberty by the bail order
from tampering with the evidence in heinous crime.
6. In Bhagwan Singh v Dilip Kumar @ Deepu @ Depak
reported in 2023 INSC 7613, the Hon'ble Apex Court after
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considering judgment in case of Dolat Ram v State of Haryana,
(1995) 1 SCC 349; Kashmira Singh v Duman Singh, (1996) 4
SCC 693 and X v State of Telangana, (2018) 16 SCC 511, held as
follows:
'13. It is also required to be borne in mind that when a
prayer is made for the cancellation of grant of bail
cogent and overwhelming circumstances must be
present and bail once granted cannot be cancelled in a
mechanical manner without considering whether any
supervening circumstances have rendered it in
conducing to allow fair trial. This proposition draws
support from the Judgment of this Court in Daulat
Ram and others v. State of Haryana reported in (1995)
1 SCC 349, Kashmira Singh v. Duman Singh (1996) 4
SCC 693 and xxx v. State of Telangana (2018) 16 SCC
511.'
7. Before parting with the order, I may also refer the
observations made in the recent decision by the Hon'ble Apex
Court in case of Kekhriesatuo Tep and others Vs.National
Investigating Agency reported in (2023) 6 SCC 58. The relevant
observation made in para 19 reads as under:-
"The Special Judge has himself distinguished cases of the persons
who 이 have indulged into extortion for furthering the activities of
the organisation and red the persons like the present appellants,
who were government servants, and er, compelled to contribute
the amount. Hence, it cannot be said that the prima ell facie
opinion, as expressed by the Special Judge, could be said to be
perverse or impossible."
8. Resultantly, present petition fails and stands dismissed.
Notice discharged.
(J. C. DOSHI,J)
sompura
