In the decision of Jagtar Singh vs. Satendra Kaur @ Bhavana Grover & Ors., (supra), the Supreme Court held that when the accused are absconding, there is no question of granting anticipatory bail or regular bail. In view of this decision, as the applicant is absconding and avoiding interrogation, he is not entitled for discretionary relief of anticipatory bail.
Gujarat High Court
Ajendraprasad vs State on 19 January, 2011
The Ld. Advocate for the applicant Mr. Saiyed seeks permission to place on record affidavit-in-rejoinder dated 18.7.2006. Permission as prayed for is granted. The said Affidavit-in-rejoinder is ordered to be taken on record.
2. The
applicant, by filing this application under sec. 438 of Criminal Procedure Code (hereinafter referred to as ?SCode?? for short)has sought pre-arrest bail as he is apprehending his arrest in connection with the offence registered as I CR NO. 4/2005 at Chakalasi Police Station, Nadiad, District Kheda for the offences punishable under sec. 153-A, 153-B, 294, 295(a) & 120B of IPC and sec. 5(1)(a)(b)(d) & 9 of the Immoral Traffic (Prevention) Act.
3. The
facts emerging from the record of the case, are as under:
4.
On 8.1.2005, a complaint was lodged by Shri Dharmapriyadasji of Vadtal Swaminarayan Temple, Vadtal, before Chaklasi Police Station against 5 persons named therein for the alleged commission of offences punishable under sec. 153-A, 153-B, 294, 295(a) & 120-B of IPC and under sec. 5(1)(a)(b)(d) & 9 of the Immoral Traffic (Prevention) Act, alleging that Sadhus of Swaminarayan temple of Gurukul by their illicit sexual act have defamed the sect and exploited women by videographing sexual act. On the basis of the complaint, offence was registered as CR No. I-4/2005 by Chakalasi Police Station against the persons named therein and the investigation was started.
5. It
is averred by the applicant that the applicant is not named in the FIR and he is falsely implicated in the offence; that he is the Acharya of Vadtal Swaminarayan Sect; that another complaint being CR No. I-5/2005 was lodged before the DCB Police Station, Ahmedabad city and allegations made therein are the same and incidents referred are part and parcel of this complaint; therefore, the investigation with regard to both FIRs are overlapping which is not permissible in law; that conspiracy is hatched by some of the Sadhus to fix the applicant in criminal matter as the applicant may not take any action against them as he was giving directions and advises to tyagies and turstees; that a conspiracy is hatched to remove the applicant from the post of Acharya and the complaints are filed by the rival group with a view to see that the applicant is unnecessary harassed and defamed; that the applicant is roped in with some oblique motive and there is no iota of evidence against the applicant with regard to the offence alleged in the FIR. It is averred that the applicant is a reputed person in the society and if he is arrested and sent to judicial custody, he will suffer mental agony and his social status will be tarnished; that the charge-sheet is not filed and Investigating Officer moved an application before the Ld. Judicial Magistrate First Class, Nadiad for issuance of non-bailable warrant against him stating that the applicant is not available and such warrant has been issued but the applicant has not tried to conceal his presence at any time and is not an absconder; that he undertakes to co-operate with the investigation and shall make himself available as and when required by the prosecution and there is no possibility that he may tamper with the evidence. It is further averred that the applicant had filed a petition for quashing this FIR and the same is pending. It is also averred that the applicant had filed an application to obtain anticipatory bail before the Sessions Court at Nadiad, but the same was rejected. Thereafter, the applicant preferred anticipatory bail application before this court but the same was withdrawn with a permission to file a fresh application, as during the course of hearing of said application prosecution relied on the interim order passed in the case of Jagtar Singh vs. Satendra Kaur @ Bhavna Grover and others, reported in 2002 Cri.L.R. (SC) 807 as a warrant under sec. 70 of the Code was issued against the applicant. It is further averred that the applicant challenged the order of issuance of warrant in this Court. Thereafter, the judgment of interim order relied on by the prosecution was converted into criminal appeal and the order of High Court is set aside and, therefore, this application is filed.
6. The
applicant has also filed Criminal Misc. Application No. 5054/2006 for anticipatory bail in connection with the offence registered as CR No. I-5/2005 by DCB Police Station, Ahmedabad. Both the applications were heard togather.
7. I
have heard ld. Advocate Mr. Saiyed for the applicant, Mr. ND Nanavati ld. Sr. Counsel for Mr. Harin P. Raval for the original complainant and Ms. Mita Panchal ld. APP for the State at length and in great detail.
8. Ld.
Advocate Mr. Saiyed for the applicant submitted that the applicant is not named in the FIR and has been roped in the offence only with a view to harass him. He argued that there is no direct evidence against the applicant and he is sought to be arrested only on the basis of statement made by co-accused which is not admissible in evidence. He also submitted that the applicant is not likely to abscond and shall co-operate with the investigation and, therefore, the applicant is required to be granted anticipatory bail in case of his arrest. Ld. Advocate for the applicant relied on the decisions of Jayendra Saraswati Swamigal vs. State of T.N., reported in (2005)2 SCC 13 and in the case of Bharat Chaudhary and another vs. State of Bihar and another reported in AIR 2003 SC 4662.
9. Ld.
Sr. Counsel Mr. ND Nanavati appearing for Ld. Advocate Mr. Harin P. Raval for the original complainant submitted that the applicant has not come to the court with clean hands and has suppressed certain facts of the court proceedings. This court in the proceedings filed by the applicant challenging the non-bailable warrant issued under sec. 70 of the Code had made certain observations regarding conduct of the applicant. The said order was challenged before the Supreme Court but the Special Leave Petition challenging the said order was dismissed. Therefore, the observations made by this Court in the order are final and in view of these observations the applicant is not entitled for discretionary relief. He also submitted that the applicant has not mentioned the fact about the result of the proceedings filed before Supreme Court challenging the order passed by this Court. He also submitted that the applicant has been absconding and has not remained present before the Investigating Agency, therefore, he is not entitled for the extra ordinary relief of anticipatory bail.
10. Ld.
APP Ms. Panchal appearing for the State submitted that the applicant has been absconding and has not cooperated with the investigation despite the order passed by the Supreme Court rejecting the Special Leave Petition challenging the order passed by this court in respect of issue of non-bailable warrant under sec. 70 of the Code. The applicant has not surrendered before the Investigating Agency nor is available for interrogation. Several attempts have been made to execute the warrant, but the applicant has evaded the execution of warrant, and therefore, proclamation under sec. 82 of the Code has been issued against the applicant. In view of this, the applicant is not entitled for the relief claimed in the application. Ld. APP relied on the decision of Jayesh G. Ramani Vs. State of Gujarat, reported in 2004(3) GLR P. 270.
11. The
original complainant Swami Dharmapriyadasji has filed affidavit in reply objecting the relief claimed in the application, inter alia, mainly contenting that the applicant has made a false statement that he has not preferred any anticipatory bail application prior this application and has also not stated about the transit bail but the record indicates that he had filed such applications, the applicant has been absconding and is not available for interrogation. A warrant under sec. 70 of the Code is issued against the applicant which could not be executed, therefore, proclamation under sec. 82 of the Code is also issued against him and, therefore, the application is required to be rejected; that the applicant was convicted for criminal contempt under the Contempt of Courts Act by this court; that the applicant had challenged the said order before the Supreme Court by way of filing Criminal Appeal but the same is dismissed; that the applicant is in habit of committing violation of orders of the court, and therefore, not entitled for discretionary relief of anticipatory bail. The complainant has also made other averments but the same are not relevant for the purpose of this application.
12. In
the affidavit-in-rejoinder, the applicant has tried to clarify that he has inadvertently made statement with regard to the fact that earlier he has not preferred any anticipatory bail application and it was a bonafide mistake about not mentioning the fact about transit bail.
13. After
hearing the Ld. Counsels for the parties, this court expressed the view that the court is not inclined to grant relief claimed by the applicant in this application. Therefore, the learned Advocate Mr. Saiyed appearing for the applicant requested the court to pass a reasoned order.
14. It
is settled principle that powers of sec. 438 of the Code are of an extra ordinary character. Such powers must be exercised sparingly and only when an exceptional ground is made out. While exercising the powers under the said provision, the court has to consider various factors like possibility of false implication of the accused, the chances of accused misusing his liberty, the possibility of the accused absconding and thus making him not available at the time of investigation etc. It is also settled principle that at the stage of considering the anticipatory bail application, the court is not concerned as to whether the materials collected by the Investigating Agency are credible or not for the purpose of conviction. The Court must be satisfied that the arrest and detention of the applicant is necessary in the interest of justice and it is not for some ulterior motive and with the object of injuring the reputation of an applicant. At the same time, the court would not grant such discretionary relief merely because it is alleged that the applicant is apprehending the arrest on a false accusation and that such an arrest would cause him disgrace and dishonour. Similarly, the applicant would co-operate with the investigation and shall make himself available for interrogation is also not a ground to enlarge him on anticipatory bail.
15. It
transpires from the record of the case that by order dated 1.10.2005 of Ld. Sessions Judge, Thane, the applicant was granted transit bail to enable the applicant to approach the competent court at Nadiad, District Kheda for obtaining necessary relief. Thereafter, the applicant moved anticipatory bail application before the Sessions Court, at Nadiad but the same was rejected. Therefore, the applicant approached this court for anticipatory bail but the same was withdrawn with a liberty to file fresh application. It appears that despite obtaining transit bail from Thane Court on 1.10.2005 the applicant did not appear before investigating agency making himself available for interrogation. It cannot be said that he was not aware that his presence is required for investigating in the offence as he had already obtained transit bail. This conduct of the applicant clearly indicates that he has not made himself available for investigation.
16. It
also appears from the record that as the applicant was not available for interrogation and was absconding non-bailable warrant was issued by the ld. Judicial Magistrate First Class, Nadiad under sec. 70 of Code against the applicant. The said order was challenged before this court by filing Special Criminal Application No. 5/2006. The said petition was rejected by this court, by order dated 19.4.2006. Therefore, the applicant approached the Supreme Court by filing Special Leave to Appeal (Criminal) No. 2745/2006 with SLP (Cri.) No. 2813/2006. The Supreme court dismissed the petition by order dated 5.6.2006. Therefore, the order of non-bailable warrant under sec. 70 of the Code passed by the ld. Judicial Magistrate First Class, Nadiad, District Kheda has been confirmed. It appears that the warrant could not be executed as the applicant was not traceable. It is stated that proclamation under sec. 82 of the Code is published against the applicant. In view of this, it is clear that the applicant has absconded and is concealing himself so that the warrant cannot be executed. Therefore, prima-facie, it appears that the applicant is not available for interrogation and is absconding. In the decision of Jagtar Singh vs. Satendra Kaur @ Bhavana Grover & Ors., (supra), the Supreme Court held that when the accused are absconding, there is no question of granting anticipatory bail or regular bail. In view of this decision, as the applicant is absconding and avoiding interrogation, he is not entitled for discretionary relief of anticipatory bail. It is submitted by ld. Advocate Mr. Saiyed that in the said judgment, it was an interim order and after hearing the parties, the order passed by the High Court was set aside, and therefore, the said judgment cannot be made applicable in the present case. Ld. Advocate Mr. Saiyed has shown me the order dated 30.9.2002 passed in Criminal Appeal No. 1029 of 2002 by the Supreme Court. It appears from the order that the accused was not granted anticipatory bail, but it was kept open for him to approach the trial court or the other forum for grant of regular bail. It also appears from the order that the application for re-calling the interim order passed earlier rejecting relief of anticipatory bail to the applicant as he was absconding was also rejected. In view of this, it cannot be said that even if an accused who is absconding is entitled for anticipatory bail. The interpretation of the decision as made by Ld. Advocate for the applicant is not proper.
17. It
is stated by ld. Advocate for the applicant that the applicant has filed a petition under sec. 482 of Code to quash the present complaint and the same is pending. However, Ld. Sr. Counsel Mr. ND Nanavati for the complainant has disputed this statement stating that according to his instruction no such petition is pending. The applicant has not given any details about the petition. Therefore, it is difficult to accept that such petition is pending. Even if such petition is pending, the applicant cannot be granted the relief of anticipatory bail as he is absconding. The conduct of the applicant indicates that he does not want to co-operate with the investigation. Therefore, he cannot be granted the extra ordinary relief of anticipatory bail.
18. It
is also contended that the name of the applicant is not mentioned in the FIR and is being implicated on the basis of the statement of co-accused which is not admissible in the evidence. In my view, mere fact that the name of the applicant is absent in the FIR is not ground to grant anticipatory bail. Unless the Investigating Agency is permitted to interrogate the applicant, it would not be possible for them to collect the evidence in respect of the involvement of the persons and their role in commission of the alleged offence. As regards the contention that the applicant is being implicated only on the basis of statement of co-accused which is inadmissible in evidence, as discussed earlier, at the time of considering the relief for anticipatory bail, the court is required to consider whether the applicant would be available for interrogation; therefore, this submission cannot be accepted at this stage.
19. On
perusal of the Investigation Papers, it appears that some incriminating evidence is found from the residence of the applicant, however, ld. Advocate for the applicant submitted that the manner in which such evidence is kept, it is no evidence in eye of law. But at this stage, this court cannot consider the legality of the evidence collected during the investigation, and therefore, this submission cannot be accepted at this stage.
20. The
original complainant has opposed this application on the ground that there is suppression of fact, as the applicant has in the application stated that no other application for anticipatory bail was ever filed before this court. The applicant has by his affidavit-in-rejoinder dated 18.7.2006 has clarified that the applicant has made averments about the filing of the anticipatory bail application before this court. On perusal of the memo of application, it appears that in para-4 the applicant has made averments about the filing of earlier anticipatory bail application. Therefore, in my view, the statement made in para-6 of the application appears to be an inadvertent mistake and the explanation is required to be accepted. But as regards the non-mention of transit bail is concerned, the applicant has tried to clarify that it was a bonafide mistake. But considering the conduct of the applicant, in my view, this explanation cannot be accepted.
21. As
regards the non-discloser of facts regarding proceedings under sec. 70 of Code filed before this court and the Supreme Court, the applicant has made an averments with regard to the proceedings before this court, however, there is no mention of the decision rendered by this court. It appears from the copy of the order passed in Special Criminal Application NO. 5/2006 dated 19.4.2006 that the judgment was delivered on 19.4.2006. The present application has been filed on 4.5.2006. Therefore, it is clear that the applicant has not mentioned about the fact of decision in the said proceedings, but, in my view, that cannot be considered to be suppression of fact. It is true that the applicant ought to have brought this fact to the notice of the court, however, that cannot taken as suppression of material fact.
22. It
is also contended by the applicant that he is reputed person in the society and has been falsely implicated in the offence with a view to harass him by his rival group. In view of settled principles mentioned earlier such ground cannot be considered to be exceptional ground for exercise of power under sec. 438 of the Code as such power has to be exercised sparingly. It also appears from the documents annexed with the affidavit in reply filed by the original complainant that the applicant was prosecuted for contempt of court by the Division Bench of this Court (Coram: KR Vyas & Akshay H. Mehta, JJ) and by order dated 5.10.2005 in Criminal Misc. Application No. 5342/2005 the applicant was sentenced to suffer simple imprisonment till rising of the Court and to pay a fine of Rs. 2000/-. In view of this, it is clear that when the applicant has no regards for the court, it would be difficult to believe that he would co-operate with the investigation and would make himself available for interrogation as and when required by the Investigating Agency.
23. Ld.
Advocate appearing for the applicant relied on the decision of Jayendra Saraswathi Swamigal (supra), in support of the contention that statement made by co-accused is not admissible under sec. 10 of the Evidence Act against the applicant. The said decision was in respect of bail under sec. 437 and 439 of the Code. In this case, the investigation is still incomplete qua this applicant, and therefore, the said decision is not applicable to the facts of this case at this stage.
24. Ld.
Advocate Mr. Saiyed also relied on the decision of Bharat Chaudhary and another (supra), with regard to grant of the anticipatory bail in non-bailable offence. There cannot be any dispute with regard to the principles laid down in the said decision, however, in the fact of this case, the applicant is not entitled for relief of anticipatory bail.
25. Ld.
APP Ms. Panchal relied on the decision of Jayesh G. Ramani (supra), wherein, this court has held that when the petitioner is found absconding and the petitioner has not presented himself for interrogation before the police, the application for anticipatory bail cannot be entertained. In view of this decision as the applicant has been absconding and not traceable as well as he has not presented himself for interrogation before the Investigating agency, he cannot be granted discretionary relief of anticipatory bail.
26. As
regards the contention that the other complaint for the same offence has been filed, and therefore, the applicant should be granted anticipatory bail, the issue whether the complaints are filed for the same offence cannot be decided in this proceeding and this court cannot grant the relief assuming that complaints are filed for the same offence.
27.
The applicant has failed to establish that the prosecution launched against him is malafide. Therefore, the applicant is not entitled for the relief claimed in the application.
28. In
view of above discussion, the applicant has failed to point out that learned Sessions Judge committed error in rejecting his anticipatory bail application, and exceptional grounds exist for grant of extraordinary relief of anticipatory bail.
29. In
view of the above, the applicant has not made out any exceptional ground for grant of relief of anticipatory bail. Hence, this application cannot be entertained. Therefore, the application fails and stands dismissed. Rule is discharged.
(BANKIM
N. MEHTA, J.)
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