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Judgment
Ashutosh J. Shastri, J
By way of this Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, challenge is made to an
order dated 28.07.2021 passed by the learned Principal Sessions Judge, Kheda in Criminal Misc. Application No. 668 of 2021.
The case in brief placed by the petitioner is that First Information Report was lodged being C.R.No.11204025210141 of 2021 for the offences
punishable under Sections 65(e), 67A, 98(2) and 81 of the Prohibition Act, on 19.04.2021 registered before the Kheda Town Police Station with
respect to an incident which took place on 18.04.2021. Pursuant to the said complaint, the present petitioner was under an apprehension, as a result of
this, he preferred an application for seeking Anticipatory Bail which was registered as Criminal Misc. Application No. 444 of 2021 and the learned
Principal Sessions Judge, by imposing suitable condition was pleased to grant the same vide order dated 04.05.2021. One of the condition contained in
the said order of grant of anticipatory bail is that the petitioner is required to remain present before the investigating officer on 07.05.2021.
2.1. It is the case of the petitioner that on 07.05.2021 his mother was sick and was recipient of symptoms of Covid-19 and under this constrained
circumstance, the petitioner could not remain present on 07.05.2021. The petitioner has then made an attempt to remain present and also submitted an
application through his advocate Mr. J. T. Prajapati who went to give written application for seeking the next date to remain present, but the police
authority denied the said application to be taken and after two days when it was inquired, it was informed that the office concerned is in quarantine
and, therefore, informed the petitioner that later on some date will be given to remain present. However, by that time, the petitioner came to know that
an application for seeking cancellation of bail was presented, but then, the court below was pleased to reject the said application and directed the
petitioner to remain present on 14.06.2021. On 14.06.2021 when the petitioner went to the Police Station, one of the constable standing outside the
Police Station itself went inside for some time who conveyed the petitioner to wait outside since process of police bandobast in going on and according
to the petitioner he waited outside the Police station in his car along with his friend Karansinh Nakum and thereafter, it was informed to approach later
in point of time and said Karansinh Nakum told the petitioner to wait. The petitioner also met one Mr. Paresh Barot who is serving in the Police
Station and conveyed the petitioner to go now and some notice will be given to call at the later point of time to provide bail bond etc. It was in this
bona fide circumstance, though the petitioner was very much present outside the Police Station, was conveyed to wait and later on informed the
petitioner that some date will be conveyed later in point of time. But then surprisingly, the petitioner realized on information that an application for
cancellation of bail which was granted earlier is submitted which was registered as Criminal Misc. Application No. 668 of 2021. The learned advocate
appearing on behalf of the petitioner submitted an application and projected satisfactory explanation as to why bail does not deserves to be cancelled
and the aforesaid circumstances were also projected before the court below, however, the learned Principal Sessions Judge, Nadiad was pleased to
pass an order on 28.07.2021 whereby by exercising jurisdiction under Section 439(2) of the Code of Criminal Procedure, the protection which was
granted by original order dated 04.05.2021 is cancelled, which has given rise to filing of the present Criminal Revision Application, challenging the said
impugned order dated 28.07.2021.
Initially notice was issued on 19.08.2021 whereupon, learned advocate Mr. Kartikkumar G. Barot appearing for the petitioner has submitted that
there was absolutely no intention of not remaining present before the investigating officer and on the contrary, on first occasion, the mother was
seriously affected on account of Covid-19 infection and on subsequent occasion, it was clearly conveyed that he was waiting outside the Police
Station, but was not called upon inside and as such, there is no ill motive on the part of the petitioner to evade the investigation process. On the
contrary, the petitioner was and is now ready and willing to abide by all the terms on which he has been extended protection vide original order dated
04.05.22021. Learned advocate Mr. Barot has submitted that even during the course of cancellation proceedings in Criminal Misc. Application No.
668 of 2021, objections were given in which it was in uncertain terms conveyed that there was no ill intention at all not to remain present and in any
case, even till date the petitioner undertakes before this Court to remain present before the investigating officer on any date, which this Court may
prescribed and would abide by all the conditions of bail which has been already granted to him.
As against this, Mr. J.K. Shah, learned Additional Public Prosecutor appearing for respondent â€" State has submitted that twice opportunity was
given as it seems from the order in question and as such, it is self invited trouble by the petitioner. However, in view of the fact that since the
petitioner has undertaken orally before this Court through learned advocate to remain present on a particular date, Mr. Shah, learned Additional Public
Prosecutor has left it to upon the discretion of the Court without any much resistance.
Having heard the learned advocates appearing for the respective parties and having gone through the aforesaid situation which has been prevailing,
it appears that in connection with the original First Information Report, by a detailed order dated 04.05.2021, the application of the petitioner was
allowed and as a part, one of the condition, precisely, condition no. 2 he was supposed to remain present on 07.05.2021 before the Investigating
Officer at 11:00 o’clock. However, as stated earlier, on account of his mother’s illness and on subsequent occasion on account of serious
misunderstanding, the petitioner could not remain present. However, today, when the matter is taken up for hearing, learned advocate Mr. Barot has
assured on behalf of the petitioner that the petitioner will remain present even tomorrow before the Investigating Officer and there is no ill intention not
to co-operate with the investigating authority.
Considering the aforesaid circumstances, this Court is of the opinion that since on earlier occasion the petitioner has already been released by
imposing appropriate condition and further previous to this impugned order, there was one attempt made for seeking cancellation, which was not
acceded to by the court below, the interest of justice would be met if the petitioner is directed to remain present on 25.08.2021 before the concerned
Investigating Officer between 11:00 am to 1:00 pm without fail and accordingly the impugned order deserves to be set aside.
Hence, the following order would meet the ends of justice.
6.1. The impugned order dated 28.07.2021 passed in Criminal Misc. Application No. 668 of 2021 by learned Principal Sessions Judge, Kheda at
Nadiad is hereby quashed and set aside and as consequence thereof, the petitioner is directed to remain personally present before the Investigating
Officer of concerned Police Station on 25.08.2021 without fail between 11:00 am to 1:00 pm and rest of the conditions of original order dated
04.05.2021 shall remain intact which the petitioner is under an obligation to abide by the same.
6.2. It is made clear that if the petitioner is not remaining present on 25.08.2021, this protection granted shall automatically stand cancelled and it
would be open for the authority to take appropriate measure against the petitioner permissible in law.
With the aforesaid observations and directions, the present Criminal Revision Application stands allowed to the aforesaid extent.
Direct Service today is permitted.