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Judgment
Heard. Rule. Rule made returnable forthwith forthwith. Heard
finally by consent.
The order dated 1.2.2018 directing the petitioner to remain
present in the Court on 9.2.2018 at 2.45 pm passed by the Additional
Sessions Judge, Gadchiroli is under challenge in the present case.
The contention of the learned counsel for the petitioner is that
the order has been passed by the Additional Sessions Judge without any
application of mind. Learned Additional Public Prosecutor submits that the
jurisdiction has been properly exercised by the Additional Sessions Judge.
On going through the application filed by the State and the
impugned order passed by the Additional Sessions Judge, I find that the order
is the result of non-application of mind on the part of learned Additional
Sessions Judge. The reason being that the application of learned Public
Prosecutor is false and the impugned order simply ignores the false reason
stated in the application.
The application dated 1.2.2013 categorically states to the effect -
"The Hon''ble Court granted ad-interim bail to the applicant but he disobey
the direction issued by this Hon''ble Court. He had not appeared before I. O.
nor cooperate the investigation agency." These statements, particularly the
statement that the petitioner disobeyed the direction issued by the Additional
Sessions Judge, run inconsistent with the order passed by the Additional
Sessions Judge on 15.1.2018. No direction whatsoever and no condition of
any nature has been imposed under the said order. Yet, the application dated
12.2018 states that the direction issued by the Court, has been disobeyed by
the petitioner. It is obvious that the impugned order which does not consider
these facts, has been passed without any application of mind by the
Additional Sessions Judge. Ordinarily, I would not have preferred to make
any interference with the impugned order as the petitioner is already granted
interim bail. But, such protection, as the law goes, as a matter of right would
not be available to the petitioner just in case his bail application is rejected
and in that eventuality, the matter would be within the discretion of learned
Additional Sessions Judge exercising jurisdiction under Section 438 Cr. P. C.
So, there is a possibility of valuable right of the petitioner being prejudicially
affected by the impugned order in the present case and when the root cause
of such possibility has been an order which has been passed without any
application of mind, I would choose to interfere with the impugned order, just
to uphold the valuable rights of the petitioner.
In the result, the writ petition is allowed. The impugned order is
hereby quashed and set aside. Application dated 1.2.2018 filed by the
prosecution is remitted back to the Court of Additional Sessions Judge,
Gadchiroli for its consideration afresh and decision in accordance with law.
The Additional Sessions Judge, after deciding this application in accordance
with law, shall finally dispose of the main application under Section 438 Cr. P.
C. The order be informed to the Additional Sessions Judge by both the sides.
Authenticated copy be supplied to both the parties. Rule made absolute in
above terms.