Gujarat High Court
Virendrasinh Omprakash Bhadoriya vs State Of Gujarat on 31 January, 2024
NEUTRAL CITATION
R/CR.A/134/2024 JUDGMENT DATED: 31/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (FOR QUASHING OF ORDER/STAY) NO. 134 of
2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VIRENDRASINH OMPRAKASH BHADORIYA
Versus
STATE OF GUJARAT
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Appearance:
MR S M SOJATWALA(3499) for the Appellant(s) No. 1
NOTICE SERVED BY DS for the Opponent(s)/Respondent(s) No. 2
MS MONALI BHATT APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 31/01/2024
ORAL JUDGMENT
1. Learned advocate Mr.Kaivan Dastoor states at bar that he
has instructions to appear on behalf of the respondent no.2 -
complainant and he may be permitted to file the vakalatnama.
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2. The Registry is directed to accept the vakalatnama of
learned advocate Mr.Dastoor for respondent no.2.
3. This appeal is filed by the appellant praying for quashing
and setting aside the order dated 04.01.2024 passed below
Exh.7 in Atrocity Case No.33 of 2022 pending before the
learned Sessions Court, Ahmedabad and also praying to
release the appellant on any terms and conditions.
4. It is the case of the appellant that one F.I.R. came to be
lodged against the present appellant on 09.04.2020 being
C.R.No.I-11191035202524/2020 for the offence punishable
under Sections 406 and 420 of the Indian Penal Code and
Section 3(1)(r) of the Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
5. It was alleged in the F.I.R. that in July, 2019, the
complainant went to purchase the flat at Shivukti City Flat at
Sardar Patel Ring Road, Near Hanspura Circle, Ahmedabad. It
was informed by the builder that as he was belonging to the
particular caste, the flat would not be sold to him. The
complainant had contacted the present appellant and paid the
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amount of Rs.9 lacs on assurance that the complainant would
get the flat. Thereafter, as it was not possible to sale the flat to
the complainant, the amount of Rs.3 lacs was returned
however, the appellant did not return the remaining amount of
Rs.6 lacs and abused the complainant with regard to his caste.
6. With the aforesaid allegations, the complaint came to be
lodged before the Naroda police station. At the end of
investigation, the chargesheet was filed before the learned
Special Court and was numbered as Atrocity Case No.33 of
2022. It is the further case of the appellant that on the day,
when the impugned order was passed, the non-bailable
warrant was in existence and on appearing by the appellant,
he was taken into custody and his application for cancellation
of the warrant came to be rejected vide order dated
04.01.2024 and from that day, the appellant is in custody and,
therefore, this appeal was filed challenging the said order.
7. Heard learned advocate Mr.S.M. Sojatwala for the
appellant, learned A.P.P. Ms.Monali Bhatt for the respondent -
State and learned advocate Mr.Kaivan Dastoor for the
respondent no.2 - complainant.
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8. The learned advocate for the appellant submits that
today, his client has taken back the papers as he wants to
engage an another advocate and, therefore, he is not in a
position to make any submissions with regard to the
application.
9. On the other hand, learned advocate Mr.Dastoor for the
complainant states that looking to the record, if the non-
bailable warrant would be cancelled, he would not have any
objection.
10. Considering the submissions, it transpires from the
record that initially, the chargesheet came to be submitted
before the learned Special Court on 14.04.2022. Thereafter,
the summons came to be issued to the complainant vide order
dated 19.04.2022 which was made returnable on 07.06.2022.
On 07.06.2022, the accused remained present and for
production of the list of evidence of the prosecution, the case
came to be adjourned to 02.08.2022. On 02.08.2022, the
accused was present and for the same purpose of production
of the list of evidence, the case came to be adjourned to
12.10.2022. It transpires that upto 01.08.2022, the case came
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to be adjourned for production of the list of evidence. On
11.08.2023, it is observed from the rojkam that the accused
was present and as the case papers are lying with the office of
the Public Prosecutor for production of the same, the next date
was given i.e. 03.10.2023. On 03.10.2023, it transpires from
the rojkam that the accused was present and witness
summons was issued and the case was adjourned to
08.11.2023. On 08.11.2023, the accused remained absent and,
therefore, the case was adjourned to 16.12.2023 by issuing the
non-bailable warrant. On 16.12.2023, the non-bailable warrant
was not executed and, therefore, the case was adjourned to
04.01.2024. On 04.01.2024, the accused himself remained
present however, because of the non-bailable warrant, he was
taken into custody and the application which was filed for
cancellation of the warrant, was dismissed on the ground that
no correct address is provided by the accused.
11. It comes on record that the case was adjourned on
number of occasions for production of the documentary list
and almost on all occasions, the accused remained present. On
the day when the non-bailable warrant was issued i.e. on
08.11.2023 and thereafter, on 16.12.2023, the accused
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remained absent.
12. Instead of passing the impugned order, the learned Court
could have taken the undertaking from the accused with
regard to remaining present or could have warned the
accused, as from the record, it transpires that except two
occasions, the accused was remained present for almost all
the occasions and the case was adjourned because of the non-
production of the list of evidence by the prosecution.
13. The explanation for not remaining present given by the
learned advocate in the application is that the accused was out
of station and because of the unavoidable circumstances, he
could not remain present but, on the day, when the impugned
order was passed i.e. on 04.01.2024, he himself remained
present though the non-bailable warrant was in existence.
Therefore, it is not the case that he had evaded the
proceedings and remained absent and on being arrested by
the police officer, he brought to the Court.
14. By rejecting the application for cancellation of non-
bailable warrant, in the opinion of this Court, the learned Judge
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has committed an error in passing the order and, therefore,
the same is required to be quashed and set aside.
15. In view of the above, the present appeal is allowed. The
impugned order dated 04.01.2024 passed below Exh.7 in
Atrocity Case No.33 of 2022 is quashed and set aside. The
appellant shall be released from the custody forthwith if his
custody would not require for any other case.
16. The learned advocate is also directed to supply the fresh
address of the accused and also file an undertaking before the
learned trial Court that before changing the address, the
accused would inform the learned Court and supply the fresh
address.
Direct service is permitted.
(M. K. THAKKER,J)
Hitesh
