2004 Supreme(Guj) 653

Gujarat High Court
Judgename :R.P.Dholakia
STATE OF GUJARAT - Appellant
Versus
KANAKSINH MOHANSINH MANGROLA - Respondent
ADMIRALITY SUIT567 of 2004
Decided On : 10/11/2004

Headnote:(a) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sections 397/401 and 438 - Anticipatory bail - Acceptance of - Revision against order - Maintainability - A person accused/complainant cannot be allowed to take recourse to revision against interlocutory order since it may amount to circumstantial of the provision of Sections 397(3) and 397(2) of the Code - But when examination of the record, Court finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice High Court is preserved with inherent power to exercise in appropriate case even revisional powers under the provisions - In the present case there is grave miscarriage of justice or abuse of process of the Court it is held that this revision is maintainable.

       This Court is vested with inherent power and even revisional power under Section 397(1) read with Section 401 of the Code to entertain the present revision when it is found that there is grave miscarriage of justice or abuse of process of the Court. Court is of the opinion that this revision is maintainable.

       (b) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sections 70, 82 & 438 - Anticipatory bail - Successive bail application - Same grounds for - Maintainability - Facts remains that although complaint was lodged in the month of January 2003 and name of respondent No. 1 was disclosed during investigation - Proceedings for his absconding were initiated and his name was shown in column not of charge-sheet filed qua other accused - He remained absonding till this date and has not made himself available for interrogation - His name does not appear in FIR but it is of no consequence because his name has cropup as accused during investigation - Court found that there is cogent prima facie documentary evidence on record which Court below has ignored without giving opportunity to I.O. to interrogate in the matter - It is surprising that on the one hand Court below is not providing opportunity to the prosecution to interrogate the accused and on the other hand see whether any new development or evidence is gathered against respondent No. 1 - Successive bail application is maintainable only on the point of charge in circumstances - In absence of balance tilted in favour of respondent No. 1 not sustainable - As a result impugned order of lower Court granting anticipatory bail to respondent No. 1 is quashed and set aside.

       It was a well planned and well designed typed FIR prepared by the then Chairman of the Bank submitted to the Commissioner of Police, Surat, for the purpose of diverting the whole investigation for the purpose of saving real culprits as is conspicuous from para 14 of the complaint. Instead of going into the same, it has been used in favour of the accused which is totally unwarranted. Learned Sessions Judge has also ignored the fact that charge-sheet submitted was qua other accused against whom investigation was completed and, therefore, most of the evidence appearing in that charge-sheet will be connecting the accused shown there and not the accused shown in column No. 2 of the charge-sheet (summary sheet) as absconding accused. It is thus clear that the accused is not making himself available for investigation by filing various proceedings and is evading investigation to be done qua him. Still, however, he is seeking benefit on the ground that there are no evidence connecting him with the crime in question in the charge-sheet which is contrary to the settled law. Learned Sessions Judge has neglected the basic fact leading to the only conclusion of rejecting the second successive application that the accused is not available for interrogation for a period of more than one year and for the purpose of securing his presence, prosecution has taken sufficient care by obtaining non-bailable warrant from the learned C.J.M., and initiating proceedings under Sections 70 and 82 of the Code. Instead of taking into consideration all these aspects, learned Sessions Judge has interfered with the points which have become final between the parties.

       Court is of the opinion that the impugned order passed by the learned Sessions Judge, Surat, is perverse in view of the settled law warranting interference by this Court. The said order is therefore required to be quashed and set aside.

       Cases Referred :

       Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & Anr., 2004 (3) Crimes 63 (SC);; Krishnan & Anr. vs. Krishnaveni & Anr., 1997 (1) Supreme 628;; Jagdishbhai Dharamsi Thakore vs. State of Gujarat, 1997 (2) GLR 1553.-Relied on

       Dolatram & Ors. vs. State of Haryana, 1995 (1) SCC 349;; Subhendu Mishra vs. Subrat Kumar Mishra & Anr., AIR 1999 SC 3026;; Ghanchi Rubina Salimbhai vs. Metubha Diwansingh Solanki, 2003 (7) SCC 183;; Mahant Chand Nath Yogi vs. State of Haryana, AIR 2003 SC 18;; State of Gujarat vs. Ashokbhai Nanjibhai Vaghani, 2004 (2) GLH 64.