Gujarat High Court
Jaydeep Dhirajlal Thakkar vs State Of Gujarat on 10 September, 2024
NEUTRAL CITATION
R/SCR.A/10413/2019 JUDGMENT DATED: 10/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO.10413 of 2019
(QUASHING)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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JAYDEEP DHIRAJLAL THAKKAR
Versus
STATE OF GUJARAT
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Appearance:
MR CHETAN K PANDYA(1973) for the Applicant(s) No. 1
MR SOAHAM JOSHI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 10/09/2024
ORAL JUDGMENT
1. Rule. Learned APP waives service of notice of rule
for respondent - State of Gujarat.
2. By filing instant application under Article 226 of
the Constitution of India read with Sections 482
and 483 of the Code of Criminal Procedure, 1973,
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R/SCR.A/10413/2019 JUDGMENT DATED: 10/09/2024
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the applicant has prayed for quashing and setting
aside the order dated 30.11.2019 passed below
Exh.28 by the learned Additional Chief Judicial
Magistrate, Ahmedabad Rural, Court No.8, Ahmedabad
in connection with FIR being C.R. No.I-91/2019
registered with Ghatlodia Police Station.
3. The brief facts in nutshell leading to filing of
the present application are as under,
3.1 An FIR being C.R. No.I-91/2019 came to be
lodged for the offences under Sections 143,
147, 149, 365, 327, 341, 384, 342, 385, 347,
348, 120(B), 323, 294(b) and 506(2) of the
Indian Penal Code against the applicant and
others.
3.2 After registration of the aforesaid FIR, the
applicant had applied for anticipatory bail,
which was eventually allowed by an order
dated 19.11.2019 passed by the Coordinate
Bench of this Court in Criminal Misc.
Application No.17819/2019.
3.3 Pursuant to the aforesaid order, the
applicant had appeared before the concerned
Investigating Officer on 25.11.2019.
3.4 However to the utter shock and surprise of
the concerned IO sought 7 days' remand of the
applicant before the learned Magistrate by
filing remand application on 30.11.2019,
which was considered by the learned 8th
Additional Chief Judicial & Judicial
Magistrate First Class, Ahmedabad (Rural),
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Mirzapur on the very same day and thereby
partly allowed the said application and
granted remand of the applicant upto 9:00
a.m. hours of the date 01.12.2019.
3.5 Immediate after passing of the said
application, the applicant submitted an
application for stay of said order with a
view to challenge the same before higher
forum and the learned Magistrate allowed the
said application by granting 7 day's time.
Therefore, the present application is
preferred.
3.6 It is required to be noted that the applicant
has also preferred quashing petition being
Special Criminal Application No.484/2020
before this Court challenging the impugned
order, wherein the applicant has been
protected by passing an order of no coercive
steps permitting the investigation to carry
out by the IO.
4. Heard learned advocate, Mr. Chetan Pandya
appearing for the applicant and learned APP Mr.
Soaham Joshi for the respondent - State of
Gujarat.
5. Learned advocate submitted that the applicant has
been granted anticipatory bail by the Coordinate
Bench of this Court by an order dated 19.11.2019
while deciding Criminal Misc. Application
No.17819/2019 and as per the liberty granted by
the Coordinate Bench of this Court to seek remand,
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the remand of the applicant was sought for, which
the learned Magistrate has granted, which is
against the settled legal provision of law.
Learned advocate has put recent decision of the
Hon'ble Supreme Court in case of Tusharbhai
Rajnikantbhai Shah Vs. State of Gujarat, reported
in 2024 SCC OnLine SC 1897 and submitted that in
the recent decision of the Hon'ble Supreme Court,
the Hon'ble Supreme Court has considered the same
issued and the case of the applicant is squarely
covered by the said decisions. It is, therefore,
urged that the present application may be allowed
and the impugned order may be quashed and set
aside.
6. On the other hand, learned APP has opposed the
present application with a vehemence and submitted
that there is no dispute about grant of
anticipatory bail by the Coordinate Bench of this
Court but it is also not in dispute that the
Coordinate Bench has reserved liberty to seek
remand in case of necessity and pursuant to the
liberty granted by the Coordinate Bench of this
Court, remand was sought for and, hence, impugned
order granting remand of the applicant is just,
fair and legal and it may not be interfered with.
7. Having heard learned advocates for the parties and
having gone through the documents produced on
record, it is found out that an FIR has been
registered against the applicant and others,
wherein the applicant has been granted
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anticipatory bail on certain terms and conditions
mentioned in the said order and as per the said
order, remand was sought for, which was granted
and being aggrieved by the said order, the present
application is preferred. It is also required to
be noted that the applicant has also filed
quashing petition challenging the impugned order,
wherein an order of no coercive steps against the
applicant has been passed permitting the
investigation to carry out by the concerned IO but
it was also directed not to file chargesheet
without prior permission of the Hon'ble Court.
8. However at this stage, I would like to put
reliance upon the recent decision of the Hon'ble
Supreme Court in case of Tusharbhai Rajnikantbhai
Shah (supra) upon which reliance has been put by
learned advocate for the applicant, wherein the
Hon'ble Supreme Court has observed in Paragraph
No.58 as under,
"58. Thus, the power to grant anticipatory bail is
not to be exercised in a routine manner and
the Courts are expected to use this provision
with a great degree of circumspection. Once,
a Court bearing in mind the strict parameters
applicable to grant of anticipatory bail
exercises such power, then in such a
situation, giving a handle to the
Investigating Officer to seek police custody
remand of the accused, would virtually negate
and frustrate the very purpose behind the
order of anticipatory bail. Hence, we have no
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hesitation in holding that the practice
prevalent in the State of Gujarat that the
Courts while dealing with the anticipatory
bail application routinely impose the
restrictive condition whereby, the
Investigating Officers are granted blanket
permission to seek police custody remand of
the accused, in whose favour the order of
anticipatory bail is passed, is in direct
contravention to the ratio of the
Constitution Bench judgment of this Court in
the case of Sushila Agarwal(supra). The
Division Bench judgment of the Gujarat High
Court in the case of Sunilbhai Sudhirbhai
Kothari(supra) does not hold good in law as
the same runs contrary to the ratio of
Sushila Agarwal (supra) and thus, the same
stands impliedly overruled."
9. Thus on careful examination of the aforesaid
decision of the Hon'ble Supreme Court, it is found
out that the Hon'ble Supreme Court has
specifically observed that the power to grant
anticipatory bail is not to be exercised in a
routine manner and the Courts are expected to use
this provision with a great degree of
circumspection. It is also observed that while
considering bail application for anticipatory
bail, the Court bearing in mind the strict
parameters applicable to grant of anticipatory
bail exercises such power, then in such a
situation, giving a handle to the Investigating
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Officer to seek police custody remand of the
accused, would virtually negate and frustrate the
very purpose behind the order of anticipatory
bail. Thus after observing, it is held that the
practice adopted by the State of Gujarat is in
contravention to the ratio of the Constitution
Bench judgment of this Court in the case of
Sushila Aggarwal Vs. State (NCT of Delhi),
reported in (2020) 5 SCC 1.
10. Coming back to the case on hand, it is found out
that the applicant has been granted anticipatory
bail in connection with the FIR registered against
him by the Coordinate Bench of this Court with
certain terms and conditions and also condition of
remand to be sought for by the concerned IO in
case of necessity and pursuant to the liberty
granted by the Coordinate Bench of this Court, an
application for remand was filed, which was
considered by the learned Magistrate concerned,
which led to filing of the present application.
However as per the aforesaid decision of the
Hon'ble Supreme Court, the impugned order cannot
be said to be just, fair and proper and it can be
said that the impugned order is against the
settled proposition of law as held by the Hon'ble
Supreme Court in case of Tusharbhai Rajnikantbhai
Shah (supra) as also against the Constitutional
Bench judgment of the Hon'ble Supreme Court in
case of Sushila Aggarwal (supra). Therefore, the
present application deserves to be allowed.
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11. In the result, the present application is hereby
allowed. The order dated 30.11.2019 passed below
Exh.28 by the learned Additional Chief Judicial
Magistrate, Ahmedabad Rural, Court No.8, Ahmedabad
in connection with FIR being C.R. No.I-91/2019
registered with Ghatlodia Police Station is hereby
quashed and set aside. Rule is made absolute to
the aforesaid extent. Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
