Yayati Hitesh Patel vs State of Gujarat and 3

Honourable Ms. Justice S.G. Gokani

This application has been preferred by the present applicant praying to quash the judgment and order of the learned Sessions Judge, Ahmedabad Rural, dated 7th October, 2011 passed in Criminal Misc. Application No. 1554/2011 in connection with the FIR No. I.223/2011 registered with Ghatlodia Police Station, District: Ahmedabad. The case of the prosecution is that, on 20th September, 2011, in the evening, when the son of the present applicant aged about 4 years and her niece aged about 81/2 years were riding their bicycles on the internal road of their society, a 14 years old boy, named Devarsh Pravinbhai Patel, speedily and rashly drove a BMU-SUV Car on this internal road of the society in such a fashion as may endanger the lives of kids playing there. She stopped that boy and inquired about his age. Having realized that the boy was only 14 years of age and he had come to Bungalow No. 11 to visit his maternal grandpa''s home, she went to the said house to request his parents not to allow this young boy to drive such a big car so that the threat to the lives of other persons could be avoided. There, she found seven ladies (mother of this boy, her five sisters and his maternal grandmother). His mother & her sisters (Aunts) behaved very rudely and defended the act of the young boy. They not only were adamant & egoist in their behavior but they also used abusive language. They also lost their sense and inflicted kick and fist blows to the present applicant. One of them also tried to kill her by throttling her neck. She was also threatened to be killed if she approached the police. Her cousin intervened and rescued her and then, she immediately went to Ghatlodia Police Station to lodge a complaint.

The FIR came to be registered as CR-I 223/2011 for the offences punishable under Sections 279, 143, 149, 147 and 506(1) of the Indian Penal Code.

By way of this application, the applicant has urged that the offences committed by the accused fall under Sections 323, 307, 506 (Part-II) and under other provisions of the Indian Penal Code and also under the provisions of the Bombay Motor Vehicle Act. However, instead of treating her complaint itself as an FIR, the police omitted in reproduction of her complaint sections concerning throttling and attempt to kill.

Therefore, a written compliant dated 22nd September, 2011 was given to the police and letter was addressed to the Commissioner of Ahmedabad City, seeking direction that the concerned police officer may discharge duty impartially.

After lodging a complaint, complainant had gone to the Civil Hospital, Shahibaug and she was admitted as an indoor patient. Even the medical papers reflect the injuries on her neck. She had also filed a separate petition before this Court in which the above referred facts have been narrated.

It is urged further that the Investigating Agency, without producing some of the accused before the Judicial Magistrate, First Class released them on bail. The said action on the part of the police is challenged by the present applicant by preferring separate application.

The accused thereafter preferred an application u/s 436 of the Code of Criminal Procedure in the Court of learned Judicial Magistrate, First Class, Ahmedabad (Rural) on 29th September, 2011. After hearing both the sides, the learned Magistrate vide order dated 1st October, 2011 rejected the application on the ground that the accused had not shown willingness to surrender themselves to the custody of the Court of learned Magistrate.

Thereafter, the accused preferred a revision application being Criminal Misc. Application No. 1554 of 2011 u/s 397 read with Section 436 of the Code before the District and Sessions Court, (Ahmedabad Rural) and they were released on bail vide an order dated 7th October, 2011. Being aggrieved by the above order, the present application has been preferred raising following questions for consideration of this Court:

A. Whether the lower Revisional Court is justified in releasing the accused on bail below an application u/s 436 of the Code of Criminal Procedure, 1973, without remitting the accused to appear before the concerned police station where an FIR is registered for the offences punishable u/s 279, 143, 147, 149 and 506(1) of Indian Penal code, 1860?

B. Whether the lower Revisional Court has powers to grant bail below an application u/s 436 of the Code of Criminal Procedure, 1973 when the accused has preferred an application directly in the court of Judicial Magistrate First Class, circumventing to appear before the concerned police station, where FIR is registered?

C. Whether the lower Revisional Court has jurisdiction to release the accused on bail when the accused has simply appeared and not even attempted to surrender to the custody of the court of the Learned Judicial Magistrate First Class?

D. Whether the lower Revisional Court is justified in disturbing the order of the Learned Magistrate in exercise of the Revisional powers u/s 397 of the Code of Criminal Procedure, 1973 when the Learned magistrate has recorded a specific finding that the accused has simply appeared and not attempted to surrender to the custody of the court of the Learned Magistrate?

E. Whether the lower Revisional Court had powers to grant bail below an application u/s 436 of the Code of Criminal Procedure, 1973 when the private respondents were accused of non-bailable and cognizable offences?

Learned advocate Mr. Shivang Shukla with learned advocate Ms. Trusha Patel appearing for the applicant has urged this Court that, u/s 436 of the Code, an accused, other than the person accused of non bailable offence, is required to offer bail to the officer in charge of the police station and for which the accused has to appear before the concerned officer who is in charge of the police station. If the accused fails to offer bail to such police officer, the accused is required to be produced before the learned Magistrate, where the accused shall have to offer bail. During the pendency of the proceedings, however, the accused may surrender to the custody of the Court of learned Magistrate and offer bail. It is urged that when there are no proceedings pending in the Court of learned Magistrate, the person concerned cannot offer bail to the learned Magistrate without appearing before the concerned police station.

He has relied upon the decision of this Court in the matter of Dinesh Babulal Thakkar Vs. State of Gujarat, and the Court in this decision relied upon the decision in the matter of Rameshbhai Amritlal Chhatral Vs. State and Others, , wherein it is held that the accused has to appear before the officer in charge of the police station and cannot straightway appear and surrender before the learned Magistrate and furnish the bail and request the Magistrate to release him on bail u/s 436 of the Code of Criminal Procedure. It is argued by the learned advocate that even if it is assumed that the proceedings were pending, the requirement to surrender to the custody of the Magistrate is a must. The learned Magistrate also noted in its order that the accused never showed willingness to surrender to the custody of the Court of Magistrate and therefore, manifest error is committed in exercise of revisional jurisdiction.

He further urged that 4 out of 7 accused appeared before the officer in charge of the police station and offered bail. Therefore, there is no reason for the other three accused to straightway approach the revisional court and offer bail. The lower revisional court has given a complete go bye to this vital aspect.

It is further urged that 2 out of 3 accused are residents of Canada and therefore, there is a possibility that they might escape from India and might not be available for the trial. However, the lower Revisional Court did not pay requisite attention to such apprehension while releasing the accused on bail. He further urged that the notification has been issued by the State of Gujarat in super-session to all its earlier notifications, in exercise of powers conferred upon it by Section 10(1) and (2) of the Criminal Law Amendment Act, 1932 that the offence punishable u/s 506 of the Indian Penal Code is declared as non bailable offence. It is further urged by the learned advocate that the offences are punishable under Sections 323, 307 and 506 (part two) and the provisions of Motor Vehicle Act and only because the said sections had not been mentioned in the FIR, the court cannot allow the accused to be released on bail without imposing any condition. Therefore, the request is made to intervene and quash and set aside the order passed in the revision application.

Learned APP Mr. M.G. Nanavati appearing for the State has supported the case of the applicant and has urged that the order passed is contrary to the provisions of law.

Learned advocate Mr. N.D. Gohil appearing for opponent nos. 2 to 4 objected to this application on the ground that no interference is required in the order passed by the Sessions Court where it has dealt with all the issues raised before this Court appropriately. He also urged that the court was conscious of the fact that 2 of the applicants were hailing from Canada. He further urged that the case is dealt with by the Court by relying on the decision in the matter of Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote and Others, , where the Apex Court has held that presence of the accused would amount to willingness to be in the custody of the court and the trial court''s order was interfered with where it did not grant application of bail in favour of the present opponents. The court also relied on the decision in the matter of Pravinkumar Chandrakant Vyas and Another Vs. State of Gujarat and Others, , where accused presented themselves before the Magistrate and they were enlarged on bail. In the case of B. Narayanappa and Others Vs. State of Karnataka, , the above referred ratio has been reiterated. The Court also relied on the decision in the matter of Rasiklal Vs. Kisore Wadhwani, , wherein it is held that, in bailable offence, the court has no option but to grant bail.

Learned advocate Mr. Gohil also urged that all the women accused had presented themselves before the police, however, they sat there from morning till night and they were not granted bail in the bailable offence. So much so that the boy aged about 14 years was not granted bail and he was required to be produced before the Juvenile Court and then, he was released. He further urged that there were disputes between the neighbors and unfortunately, the boy of 14 years of age has already died because of cancer. It was only on account of the harassment of the police that other three ladies, who were falsely involved, presented themselves before the learned Judicial Magistrate, First Class and when he refused to grant bail in bailable offences, the Revisional Court intervened and allowed the bail.

On having heard learned advocates of both the sides and on close perusal of the record, first, it needs to be mentioned that the offence u/s 506 of the Indian Penal Code as per the Gujarat Government Gazette, December 27, 1979, on notification in this behalf for the entire area of State of Gujarat, the Government has declared the same to be non bailable offence. It is a matter of fact that offence registered at Ghatlodia Police Station does not reflect Section 506, part two but it reflects Section 506 part one. However, this notification does not distinguish between Section 506 part one and 506 part two. Other offences are u/s 279, 143, 149 and 147, however, FIR does not include Section 307 or Section 506 part two. Although in the Indian Penal Code, part one of Section 506 is a cognizable offence and part two which concerns the threat of killing a person is non cognizable offence but is made bailable offence.

However, by virtue of this notification, the offence u/s 506 of Indian Penal Code has been made non bailable but it does not distinguish between part one and part two. Admittedly, part one provides for punishment-imprisonment for two years, or fine or both whereas, part two provides imprisonment for 7 years or fine or both. This notification does not distinguish between part one and part two. As noted hereinabove, the offence registered at Ghatlodia Police Station being I.C.R. No. 223/2011 is u/s 506 part one (I) and not part two (II).

At this stage, it would be apt to take into consideration the decision of Dinesh Babubhai (Supra), where the accused was charged for bailable offence and he straightway appeared and surrendered before the Magistrate though no proceedings were pending before the learned Magistrate and he gave bail. In such circumstances, whether the Magistrate was legally bound to release such accused on bail ? Relying on the decision of Ramesh Chhatral (supra), the court did not allow such thing to happen. It was urged by the learned counsel I appearing for the applicant that the controversy I involved is squarely covered by the decision of the Court in the case of Ramesh Chhatral (Supra) and in that case the decision in the matter of Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote and Others, , was also considered.

Yet in another decision in the case of Rasiklal Vs. Kisore Wadhwani, , before the learned Magistrate involving the bailable offence, the accused appeared and surrendered before the Magistrate and furnished the bail. The question was whether the complainant was required to be heard? The Apex Court held that in bailable offence as soon as the accused furnishes bail, the complainant is not required to be heard.

On the basis of the decision given in the case of Dinesh Babubhai (Supra), the Court (Coram: M.R. Shah, J.) noticed that no proceedings since were pending before learned Magistrate, the petitioner straightway cannot appear and surrender before the learned Magistrate and furnish bail and request the Magistrate to release him on bail u/s 436. He has to appear and surrender before the police officer in charge of the police station and furnish the bail as observed in the decision of Ramesh Chhatral (Supra) and as provided u/s 436 on his furnishing bail, the concerned police station is required to release him on bail and therefore, the Court held that "Therefore, petitioner has to first appear before the police officer in charge of the police station, furnish the bail and as soon as it appears that the accused person is prepared to give bail, such police officer is bound to release him on such terms as to bail as may appear to be reasonable." In the case of Dinesh Babulal Thakkar (Supra), the Court also distinguished the facts as were there in the case of Niranjan Singh (Supra). In that case, the controversy was with regard to non bailable offence and question was that when the accused appeared before the Court in non bailable offence and he surrendered before the Court, whether it amounts to the accused being in custody so as to consider the application of the accused for releasing him on bail u/s 436 of the Cr. P.C.? The Supreme Court observed that in such case when the accused appear before the Court and surrender, the same amounted to accused being in custody of the Court. An apprehension was shown before the Court by the petitioner.

The Court in the case of Dinesh Babulal (Supra), held that apprehension of the applicant accused that despite his readiness to offer bail, the concerned police authority would not grant him bail and then apply for remand was not well founded. Court also noted other 5-6 co-accused were arrested and as soon as they furnished the bail, they were released on bail by the concerned police officer and there are no allegations of ill-treatment. It is also observed therein that as soon as the accused appears/surrenders before the police officer in charge of the concerned police station and he is prepared to offer the bail in the case bailable offence, the police is bound to release the person on bail and therefore, there is no question of petitioner apprehending that he will be detained for a period of 24 hours before he is produced before the learned Magistrate and/or that he will not be released. On the basis of such apprehension, the procedure which is required to be followed under the provisions of the Code of Criminal Procedure cannot be given a go bye and/or is not required to be deviated. Even in case the accused is ill-treated, in that case also, he has an individual remedy against such an action. Under the circumstances, the Court held on the aforesaid ground of apprehension that no direction can be issued to the learned magistrate before whom no proceedings are pending to release the petitioner on bail in case of bailable offences without first appearing before the concerned police officer in charge of the police station and on offering the bail and without giving an opportunity to the concerned police officer to release the petitioner on bail as per the satisfaction of the concerned police officer which is to be essentially reasonable.

The ratio laid down in this case would apply mutatis mutandis to the case of the present applicant in as much as out of 7 lady accused, 3 chose not present themselves before the police and straightway appeared before the Court of Judicial Magistrate where no proceedings were pending. However, 4 were enlarged on bail as offences were bailable in a case registered before the Police Station. Grievance is ventilated by the original complainant/petitioner that since the offence were alleged to have been committed, the police did not include Section 307 and 506 part two. The offence was registered by the police against the respondent nos. 2 to 4 and they are all bailable offences, giving a complete go by to the procedure laid down u/s 436 of the Cr. P.C. The applicant approached the Judicial Magistrate, First Class who chose not to interfere for two reasons. Firstly, they did not present themselves before the police and secondly, because the court felt that they did not surrender before the Court, their mere presence will not be sufficient to presume their being in the custody of the Court so as to grant the order of bail. The trial Court was right in holding that they ought to have approached the police and if there was any issue with regard to alleged ill-treatment, they had remedy available with them. It, therefore, rightly did not deem it fit to allow them bail. However, as far as his second ground is concerned, the accused presented themselves before the Court. Merely because, they did not mention their willingness to be in custody or if they are not presented by any owner ipso fact cannot allow the court to hold that they have not been in the custody of the Court.

The ratio laid down in the case Niranjan Singh (Supra) shall have to be remembered where in the context of non bailable offence, the court held that the production of the accused before the court would itself amount to court having their custody. Their appearance before the Court in non bailable offence if amounted to their being in custody so as to consider their application for releasing them on bail, in the instant case, the court held that, only in the event of invocation of the provisions of Section 44(2), the power is to be exercised, where the offence is committed in presence of Judicial Magistrate within his local jurisdiction, Magistrate may arrest him or order to arrest the offender and at the time of such arrest, he may also issue warrant. The Court held that, except as provided u/s 44 of Cr. P.C., only on appearance of the offender before him, in case of bailable offence, he cannot be kept in the custody of the Court and therefore, denied him bail in the bailable offence.

The question, therefore, arises as to whether the trial Court was incorrect and wrong in denying the bail to the applicant which required interference by the Revisional Court. The trial court was right in holding that, in bailable offence as held by this Court in the case of Ramesh Chhatral (Supra) and reiterated in the case of Dinesh Babulal (Supra), the offender shall have to present himself before the concerned police officer and when he is ready to offer bail, the police officer shall have to release him on bail. He cannot straightway approach the Court where there are no proceedings pending. If the court has been shown the reasons of non grant of bail by the police officer despite readiness on the part of offender concerned, his presence before the Court in such circumstances should be sufficiently construed as his being in the custody and the court cannot then deny him bail only on technical ground in absence of custody or by invoking Section 44 of the Cr. P.C.

First and foremost, therefore would be the requirement of the accused to approach the police officer in the case of bailable offence and offer him bail and it would be incumbent upon the officer to grant him or release him on the bail in the bailable offence. However, in the event of the police officer denying him the bail after his having approached the concerned officer and the applicant concerned if approaches the Court showing sufficient grounds, the Court cannot deny him bail by putting forward the technical ground of his not being in the custody if otherwise he chose to appear himself. In that case, his appearance itself would amount to his willingness to be in the custody of the Court.

The revisional court, in the instant case, chose to interfere with the order of the learned Chief Judicial Magistrate and grant bail to the respondents herein. This act, in light of the discussion held hereinabove, needs to be construed as contrary to the ratio laid down by this Court in the case of Ramesh Chhatral (Supra) as well as in the case of Dinesh Babulal Thakkar (Supra), wherein the Court also chose to follow the ratio of the Supreme Court rendered in the case of Niranjan Singh (Supra).

Three of the women accused who did not present themselves before the police, went straight to the court of Judicial Magistrate, requesting for grant of bail on lodgment of the complaint even though when no proceedings were pending. The learned Judicial Magistrate was right in not entertaining their plea as they had bypassed the mandate of law and instead of approaching the police officer concerned for grant of bail in a complaint containing bailable offences. The trial court, however, was in error as far as its raising second ground, where it insisted upon the surrendering of the accused before it. Such technical interpretation was unwarranted in view of fulfillment of need of the substantive justice and therefore, that part is not required to be upheld.

However, as far as the revisional court is concerned, on the first ground itself, since the order of the trial court as discussed elaborately hereinabove was sustainable, the revisional court ought to have insisted upon the accused to follow the mandate of law by presenting themselves before the concerned police authority. However, instead, the revisional court on entertaining such revision, allowed the same.

The order of the learned Judicial Magistrate since is not assailable on the first ground itself, there was no need to interfere with such an order. The sustainability of such an order was apparent from the variety of the decisions on the subject and therefore, the order of the revisional court would certainly require interference. The petitioners are right in objecting to the grant of bail by the revisional court and such challenge requires to be upheld.

One of the major contentions is non-addition of some of the sections which are cognizable & non bailable and jurisdiction of the authorities concerned. Admittedly, all offences under the FIR are non cognizable & bailable & therefore, that was not the stage for the court of ld. Magistrate to enter into the debate of inclusion or omission and those challenges have scope at an appropriate time. Hence, it is not possible to sustain the contention in light of the facts of the instant case that despite absence of explicit provisions which fall under the category of non bailable cognizable in the FIR, revisional court ought not to have entertained the application for bail.

However, on practical side, if one considers scenario, much time has elapsed and all the offences being bailable offences, a request is made to this court not to relegate those respondents accused to the police authority for getting their order of bail. This being an order based on legal error, the consequence ordinarily shall need to follow. All the questions raised, in view of the discussion above, needs to be answered as under:

Questions A & B in negation. Questions C & D in affirmation. As far as Question E is concerned, the same does not arise in this case in view of the discussion above.

This petition succeeds in above terms.