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2017 Supreme(Guj) 1833

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, J.
Vishalkumar Shyamjibhai Chauhan – Applicant
Versus
State of Gujarat – Respondent
Special Criminal Application (Quashing) No. 2106 of 2017
Decided On : 15-11-2017

Advocates Appeared:
For the Applicant :Mr. Kunal S. Shah, Advocate
For the Respondent: Mr. Dm Devnani, APP.

Headnote:Code of Criminal Procedure, 1973 – Sections 41A and 73 – Information Technology Act, 2000 – Sections 66E, 67 and 67A – Remand of case – When the accused punishable with upto seven years imprisonment are produced before them remands may be granted only after Magistrates satisfy themselves that application for remand by police officer has been made in a bonafide manner and reasons for seeking remand mentioned in case diary are in accordance with requirements of Sections 41(1)(b) and 41A of Cr.P.C. and further there is concrete material in existence to substantiate ground mentioned for seeking remand – Even where accused himself surrenders or where investigation has been completed and Magistrate needs to take accused in judicial custody as provided under Section 170(1) and Section 41(1)(b)(ii) (e) of Cr.P.C, prolonged imprisonment at this initial stage, when accused has not been adjudged guilty, may not be called for and Magistrates and Sessions Courts are to consider bails expeditiously and not to mechanically refuse the same – By routinely mentioning in case diary that a particular condition referred to in Section 41(1)(b) and 41A of Cr.P.C. has been met for seeking police remand, would not provide adequate reason for effecting arrest – Director General of Police directed to circulate present order to all subordinate police officers. (Para 54)

JUDGMENT :

J.B. PARDIWALA, J.

By this application under Article 227 of the Constitution of India, the applicant - original accused has prayed for the following reliefs :

"(A) Your Lordships may be pleased to admit and allow this petition.

(B) Your Lordships may be pleased to issue a writ of certiorari or any other writ, order and/or direction and be pleased to quash and set aside the impugned order dated 19.2.2016 passed by the Ld. Addl. Chief Judicial Magistrate, Court No.11, Ahmedabad upon the application dated 18.2.2016 given by the investigation officer Panna Momaya and also to quash and set aside the impugned judgment order dated 28.7.2016 passed in Criminal Revision Application No.147 of 2016 passed by the Addl. Sessions Judge, City Civil and Sessions Court, Court No.11, Ahmedabad whereby confirmed the order dated 19.2.2016.

(C) Pending hearing and final disposal of this petition, be pleased to stay the execution, implementation and operation of the impugned order dated 19.2.2016 passed by the Ld. Addl. Chief Judicial Magistrate, Court No.11, Ahmedabad upon the application dated 18.2.2016 given by the investigation officer Panna Momaya and also to impugned judgment order dated 28.7.2016 passed in Criminal Revision Application No.147 of 2016 passed by the Addl. Sessions Judge, City Civil and Sessions Court, Court No.11, Ahmedabad whereby confirmed the order dated 19.2.2016.

(D) Pending hearing and final disposal of this petition, direct the respondent authority or his agency not to proceed further or take any action under the provision of Section 70 of Cr.P.C. against the petitioner.

(E) Grant such other and further relief as thought fit, in the interest of justice.

2. This litigation is nothing but an outcome of a serious matrimonial dispute between the parties. The applicant herein got married to one Pratikshaben on 10th December 2009. As the matrimonial disputes cropped up between the husband and the wife, the wife lodged an FIR being CR-I No.186 of 2014 with the Sola Police Station, Ahmedabad, against the husband and his family members for the offences punishable under Sections 294B, 323, 498A read with Section 114 of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act.

3. At the end of the investigation, charge-sheet was filed and the filing of the charge-sheet culminated in the Criminal Case No.6853 of 2014 pending as on date in the Court of the learned Additional Chief Metropolitan Magistrate, Ahmedabad (Rural) at Mirzapur.

4. Thereafter, the wife filed one another FIR against the applicant being CR-II No.3014 of 2015 before the DCB Police Station, Ahmedabad, for the offences punishable under Sections 66E, 67 and 67A of the Information Technology Act.

5. The applicant, apprehending arrest in connection with the above referred FIR, prayed for anticipatory bail before the Sessions Court. The Sessions Court declined to grant anticipatory bail. In such circumstances, the applicant came before this Court by filing the Criminal Misc. Application No.4849 of 2015. This Court, vide order dated 15th June 2015, also declined to grant anticipatory bail. The applicant is absconding. He is evading arrest and is not available for the purpose of interrogation. In such circumstances, the Investigating Officer of the concerned Police Station filed an application before the learned Additional Chief Judicial Magistrate for a warrant under Section 70 of the Code of Criminal Procedure. The court concerned ordered issue of arrest warrant under Section 70 of the Code.

6. The applicant, being dissatisfied with the issue of arrest warrant, preferred a revision application in the Sessions Court. The revision application also came to be rejected by the Sessions Court. In such circumstances, he is here before this Court with this application, seeking the reliefs prayed for in this application.

7. Mr. Kunal S.Shah, the learned counsel appearing for the applicant, submitted that the Additional Chief Judicial Magistrate committed a serious













































































































































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