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HC-NIC

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ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


CRIMINAL MISC.APPLICATION No. 5054 of 2006
In
CRIMINAL MISC.APPLICATION No. 5054 of 2006
In CRIMINAL MISC.APPLICATION No. 5054 of 2006

=========================================================
AJENDRAPRASAD NARENDRAPRASAD PANDE - Applicant(s)
Versus
STATE OF GUJARAT - Respondent(s)
=========================================================
Appearance :
MR IH SYED for Applicant(s) : 1,
MS MITA PANCHAL Ld. APP for Respondent(s) : 1,
MR ND NANAVATI Ld. Sr. COUNSEL FOR MR HARIN P RAVAL for
Respondent(s) : 1,

=========================================================
CORAM : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA

Date : 21/07/2006

ORAL ORDER

1.

Rule.

2.

The applicant,

sec.

438

of

by filing this application under

Criminal

Procedure

Code

(hereinafter

referred to as Code for short)has sought pre-arrest


bail

as

he

is

apprehending

his

arrest

in

connection with the offence registered as I CR NO.


5/2005

at

DCB

Police

Station,

Ahmedabad

for

the

offences punishable under sec. 292, 294, 295, 420 and


120B

of IPC,

(Prevention)

sec. 5 & 9 of the


Act

and

sec.

67

Immoral Traffic
of

Information

Technology Act.

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ORDER

The facts emerging from

the record of the case,

are as under:

4.

On 15.2.2005, a complaint was lodged by Shri

Bharatkumar

Amrutlal,

before DCB
Bhanubhai
others

PSI,

Crime

Branch,

Police Station, Ahmedabad


@

for

Bhanubhagat
the

Nanjibhai

alleged

Ahmedabad

against one

Patel

commission

of

and

nine

offences

punishable under sec. 292, 294, 295, 120-B and 420


of IPC

and under sec. 5 & 9 of the

(Prevention) Act,

Immoral Traffic

and under sec. 67 of Information

Technology Act alleging that accused persons hatched


a criminal conspiracy for preparation and circulation
of compact Disc (CDs) which exposed the misdeeds of
the

Sadhus

of

Swaminaayan

sect

in

Swaminarayan

temple; that Sadhus have defamed the religion and


exploited
committed

women
by

by

sadhus

Videographing
on

the

pretext

sexual
of

acts

performing

religious ceremonies; that the video CDs have been


prepared

by

the

accused

persons

and

they

have

circulated the same in Ahmedabad and other places for


the public. On the basis of the complaint, offence
was

registered

as

CR

No.

I-5/2005

by

DCB

Police

Station, Ahmedabad against the persons named therein


and the investigation was started.

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ORDER

It is averred by the applicant that

he is not

named in the FIR and he is falsely implicated in the


offence;

that

he

is

the

Acharya

of

Vadtal

Swaminarayan Sect; that another complaint being CR


No.

I-4/2005

Station,

was

Nadiad,

lodged
Dist.

before

Kheda

and

Chaklasi

Police

allegations

made

therein are the same and incidents referred are part


and

parcel

of

investigation

this

with

complaint;
regard

to

therefore,
both

FIRs

the
are

overlapping which is not permissible in law; that a


conspiracy is hatched by some of the Sadhus to rope
the applicant in criminal matter as the applicant may
not take any action against them as he was giving
directions and advises to 'tyagis' and trustees; that
a conspiracy is hatched to remove the applicant from
the post of Acharya and the complaints are filed by
the rival group with a view to see that the applicant
is

unnecessary

harassed

and

defamed;

that

the

applicant is roped in with some oblique motive and


there is no iota of evidence against the applicant
with regard to the offence alleged in the FIR. It is
averred that the applicant is a reputed person in the
society and if he is arrested and sent to judicial
custody, he will suffer mental agony and his social

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ORDER

status will be tarnished; that the charge-sheet has


been filed in the offence; that the
Magistrate,

Ahmedabad

has

Ld. Metropolitan

issued

non-bailable

warrant against him under sec. 70 of the Code; that


the applicant has not tried to conceal his presence
at

any

time

and

is

not

an

absconder;

that

he

undertakes to co-operate with the investigation and


shall make himself available as and when required by
the prosecution and there is no possibility that he
may tamper with the evidence. It is further averred
that the applicant had filed a petition for quashing
this FIR but the same was withdrawn with a permission
to

file

fresh

application

with

subsequent

developments. It is also averred that the applicant


had filed an application to obtain anticipatory bail
before the Sessions Court at Nadiad, but the same was
rejected.

Thereafter,

the

applicant

preferred

anticipatory bail application before this court but


the same was withdrawn with a permission to file a
fresh application as during the course of hearing of
said application prosecution relied on the interim
order passed in the case of Jagtar Singh vs. Satendra
Kaur @ Bhavna Grover and others, reported in 2002
Cri.L.R. (SC) 807 as a warrant under sec. 70 of the

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ORDER

Code was issued against the applicant. It is further


averred that the applicant challenged the order of
issue

of

warrant

judgment

of

in

this

interim

Court.

order

Thereafter,

relied

on

the

by

the

prosecution was converted into criminal appeal and


the

order

of

High

Court

is

set

aside

and,

Criminal

Misc.

therefore, this application is filed.

6.

The

applicant

has

also

filed

Application No. 5053/2006 for anticipatory bail in


connection with the offence registered as CR No. I4/2005 by Chaklasi Police Station, Nadiad. Both the
applications have been heard togather.

7.

have

heard

Ld.

Advocate

Mr.

Saiyed

for

applicant and Ld. APP Ms. Mita Panchal for the State
at length and in great detail.
8.

Ld.

Advocate

Mr.

Saiyed

for

the

applicant

submitted the applicant is not named in the FIR and


has been roped in the offence only with a view to
harass

him.

He

argued

that

there

is

no

direct

evidence against the applicant and he is sought to be


arrested only on the basis of statement made by coaccused which is not admissible in evidence. He also
submitted that the applicant is not likely to abscond

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and

6/19

shall

co-operate

therefore,

ORDER

with

the

investigation

and,

the applicant is required to be granted

anticipatory bail in case of his arrest. Ld. Advocate


for

the

applicant

relied

on

the

decisions

of

Jayendra Saraswati Swamigal Vs. State of State of


T.N. Reported in (2005)2 SCC 13 and in the case of
Bharat Chaudhary and another vs. State of Bihar and
another, reported in AIR 2003 SC 4662.

9.

Ld. Sr. Counsel Mr. ND Nanavati appearing for

Ld.

Advocate Mr.

Harin P.

Raval for

the original

complainant in other application being Criminal Misc.


Application

No.

5053

of

2006

submitted

that

the

applicant has not come to the court with clean hands


and

has

suppressed

certain

facts

proceedings. This court in

the

the

the

applicant

challenging

of

the

court

proceedings filed by
non-bailable

warrant

issued under sec. 70 of the Code had made certain


observations regarding

conduct of the applicant. The

said order was challenged before the Supreme Court


but the Special Leave Petition challenging the said
order was dismissed. Therefore, the observations made
by this Court in the order are final and in view of
these observations the applicant is not entitled for

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ORDER

discretionary relief. He also


applicant

has

not

mentioned

submitted that the


the

fact

about

the

result of the proceedings filed before Supreme Court


challenging the order passed by this Court.

He also

submitted that the applicant has been absconding and


has

not

remained

present

before

the

Investigating

Agency, therefore, he is not entitled for the extra


ordinary relief of

anticipatory bail.

10. Ld. APP Ms. Panchal

appearing for the State

submitted that the applicant has been absconding and


has not cooperated with the investigation despite the
order

passed

by

the

Supreme

Court

rejecting

the

Special Leave Petition challenging the order passed


by this court in respect of the issuance of nonbailable

warrant

applicant

has

Investigating

under
not

Agency

interrogation.

Several

sec.

70

of

the

surrendered
nor

is

attempts

Code.

The

before

the

available

for

have

been

made

to

execute the warrant, but the applicant has evaded the


execution of warrant. In view of this, the applicant
is

not

entitled

application.

Ld.

for
APP

the

relief

relied

on

claimed
the

in

decision

the
of

Jayesh G. Ramani vs. State of Gujarat, reported in

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ORDER

2004(3) GLH 270.

11. After hearing the Ld. Counsels for the parties,


this court expressed the view that the court is not
inclined to grant relief claimed by the applicant in
this application. Therefore, the learned Advocate Mr.
Saiyed

appearing

for

the

applicant

requested

the

court to pass a reasoned order.

12. It is settled principle that powers of sec. 438


of the Code is of an extra ordinary character. Such
powers must be exercised sparingly and only when an
exceptional ground is made out. While exercising the
powers under the said provision, the court has to
consider various factors like possibility of false
implication of the accused, the chances of accused
misusing his liberty, the possibility of the accused
absconding and thus making him not available at the
time

of

investigation

principle
anticipatory

that
bail

at

the

etc.

It

stage

application,

is

of
the

also

settled

considering
court

is

the
not

concerned as to whether the materials collected by


the Investigating Agency are credible or not for the
purpose of conviction. The Court must be satisfied

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ORDER

that the arrest and detention of the applicant is


necessary in the interest of justice and it is not
for

some

ulterior

motive

and

with

the

object

injuring the reputation of an applicant.

of

At the same

time, the court would not grant such discretionary


relief

merely

applicant

is

because

it

apprehending

is

alleged

the

arrest

that

on

the
false

accusation and that such an arrest would cause him


disgrace
would

and

dishonour.

co-operate

make himself

with

Similarly,

the

the

investigation

applicant
and

shall

available for interrogation is also no

ground to enlarge him on anticipatory bail.

13. It

transpires

from

the

submission

of

Ld.

APP

that by order dated 1.10.2005 of Ld. Sessions Judge,


Thane,

the

applicant

was

granted

transit bail to enable him to approach the competent


court

at

necessary

Nadiad,
relief.

anticipatory
Court,

at

bail
Nadiad

District

Kheda

Therefore,

the

application

before

but

the

same

for

obtaining

applicant
the
was

moved

Sessions
rejected.

Thereafter, the applicant approached this court for


anticipatory bail but the same was withdrawn with a
liberty to file fresh application. It appears that
despite obtaining transit bail from Thane Court on

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1.10.2005,

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the

investigating

applicant

agency

interrogation.

ORDER

did

making

It cannot

not

appear

himself

be said

before

available

that he

for

was not

aware that his presence is required for investigation


in the offence as he had already obtained transit
bail. This conduct of the applicant clearly indicates
that

he

has

not

made

himself

available

for

investigation.

14. It also appears that as the applicant was not


available and was absconding non-bailable warrant was
issued by the ld. Metropolitan

Magistrate Ahmedabad

under sec. 70 of Code against the applicant. The said


order

was

Special

challenged

Criminal

before

Application

this

court

No.

6/2006.

by

filing

The

said

petition was rejected by this court, by order dated


19.4.2006.
Supreme

Therefore,

Court

(Criminal)

No.

by

the

filing

applicant
Special

2745/2006

with

approached

Leave
SLP

to

the

Appeal

(Cri.)

No.

2813/2006. The Supreme court dismissed the petition


by order dated 5.6.2006. Therefore, the order of non
bailable warrant under sec. 70 of the Code passed by
the ld. Metropolitan Magistrate, Ahmedabad, has been
confirmed. It appears that the warrant could not be
executed as the applicant was not traceable.

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stated

11/19

that

offence.

charge-sheet

On

perusal

of

ORDER

has
the

been
copy

filed
of

in

this

charge-sheet

annexed with the application, it transpires that the


applicant is shown as absconding accused.
this, it is clear that the applicant

In view of

has absconded

and is concealing himself so that the warrant cannot


be executed. Therefore, prima-facie, it appears that
the applicant is not available for interrogation and
is absconding. In the decision

of

Jagtar Singh vs.

Satendra Kaur @ Bhavana Grover & Ors., (supra, the


Supreme

Court

absconding,

held

there

that
is

no

when

the

question

accused
of

are

granting

anticipatory bail or regular bail. In view of this


decision, as the applicant is absconding and avoiding
interrogation, he is not entitled for discretionary
relief of anticipatory bail. It is submitted by ld.
Advocate Mr. Saiyed that in the said judgment, it was
an interim order and after hearing the parties, the
order passed by the High Court was set aside, and,
therefore,
applicable

the
in

said

the

judgment

present

case.

cannot
Ld.

be

made

Advocate

Mr.

Saiyed has shown me the order dated 30.9.2002 passed


in Criminal Appeal No. 1029 of 2002 by the Supreme
Court.

It appears from the order that the accused

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ORDER

was not granted anticipatory bail, but it was kept


open for him to approach the trial court or the other
forum for grant of regular bail. It also appears from
the order that the application for re-calling the
interim

order

anticipatory

passed
bail

earlier

to

the

applicant

absconding was also rejected.


cannot

be

said

that

even

of

the

relief
as

he

of
was

In view of this, it

if

absconding is entitled for


interpretation

rejecting

an

accused

who

is

anticipatory bail. The

decision

as

made

by

Ld.

Advocate for applicant is not proper.


15. It is stated by ld. Advocate for the applicant
that the applicant had filed a

petition under sec.

482 of Code for quashing this complaint but the same


is

withdrawn

with

permission

to

file

fresh

application with new developments. Ld. Advocate for


the applicant has stated that the applicant has filed
a fresh petition. However, Ld. Sr. Counsel Mr. ND
Nanavati

for

the

complainant

in

other

application

has disputed this statement stating that according to


his

instruction

applicant

has

no
not

such
given

petition
any

is

details

filed.

The

about

the

petition. Therefore, it is difficult to accept that


such

petition is

filed. Even

if such

petition is

filed, the applicant cannot be granted the relief of

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ORDER

anticipatory bail as he is absconding. The

conduct

of the applicant indicates that he does not want to


co-operate

with

cannot

granted

be

the

investigation.
the

extra

Therefore,

ordinary

relief

he
of

anticipatory bail.
16. It

is

also

contended

that

the

name

of

the

applicant is not mentioned in the FIR and is being


implicated

on

the

basis

of

the

statement

of

co-

accused which is not admissible in the evidence. In


my view, mere fact that the name of the applicant is
absent

in

the

FIR

is

not

ground

to

grant

anticipatory bail. Unless the Investigating Agency is


permitted to interrogate the applicant, it would not
be

possible

for

them

to

collect

the

evidence

in

respect of the involvement of the persons and their


role in commission of the alleged offence. As regards
the contention that the applicant is being implicated
only on the basis of statement of co-accused, which
is inadmissible in evidence, as discussed earlier,
at

the

time

of

considering

anticipatory bail, the court is


whether

the

applicant

would

the

relief

for

required to consider
be

available

for

interrogation, therefore, this submission cannot be


accepted at this stage.

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17. On

perusal

appears

that

of

some

the

ORDER

Investigation

incriminating

Papers,

evidence

is

it

found

from the residence of the applicant. However, ld.


Advocate for the applicant submitted that the manner
in which such evidence is kept, it

is no

evidence

in eye of law. But at this stage, this court cannot


consider the legality
during

the

of the

investigation,

evidence
and

collected

therefore,

this

submission cannot be accepted at this stage.

18. This application is also opposed

on the ground

that there is suppression of fact as the applicant


has

in

the

application

application

for

stated

anticipatory

bail

that

no

other

was

ever

filed

before this court. Ld. Advocate for the applicant has


stated that the applicant has made averments about
the

filing

before

of

this

court.

application,
applicant

the

has

it
made

anticipatory

bail

On

of

perusal

appears

that

averments

the

in

about

application
memo

para-4,
the

filing

of
the
of

earlier anticipatory bail application. Therefore, in


my

view,

the

statement

made

in

para-6

of

the

application appears to be an inadvertent mistake and


the explanation is required to be accepted. But as
regards the non-mention of transit bail is concerned,

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ORDER

the applicant has tried to clarify that it was a


bonafide mistake. But considering the conduct of the
applicant, in my view, this explanation cannot be
accepted.

19. Ld.

APP

also

stated

that

the

applicant

has

suppressed the facts about the decision of this court


and Supreme Court in the proceedings of challenge to
the

issue

of

warrant

by

the

ld.

Metropolitan

Magistrage, Ahmedabad. As regards these proceedings,


the applicant has made an averments with regard to
the proceedings before this court, however, there is
no mention of the decision rendered by this court. It
appears from the copy of the order passed in Special
Criminal Application NO. 6/2006 dated 19.4.2006

that

the judgment was delivered on 19.4.2006. The present


application has been filed
it

is clear

that the

on 4.5.2006. Therefore,

applicant has

not mentioned

about the fact of decision in the said proceedings,


but, in my view, that cannot be considered to be
suppression of fact. It is true that the applicant
ought to have brought this fact to the notice of the
court, however, that cannot be taken as suppression
of material fact.

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ORDER

20. It is also contended by the applicant that he is


reputed person in the society and has been falsely
implicated in the offence with a view to harass him
by his rival group. In

view of settled principles

mentioned earlier such grounds cannot be considered


to be exceptional grounds for exercise of power under
sec.

438

of

the

Code,

as

such

power

has

to

be

exercised sparingly. It is stated by Ld. APP that the


applicant was prosecuted for contempt of court by the
Division Bench of this Court (Coram: KR Vyas & Akshay
H.

Mehta,

JJ)

Criminal

Misc.

applicant

was

and

by

order

Application

dated
No.

sentenced

5.10.2005

5342/2005,

to

suffer

in
the

simple

imprisonment till rising of the Court and to pay a


fine of Rs. 2000/-. In view of this, it is clear that
when the applicant has no regards for the court, it
would

be

difficult

to

believe

that

he

would

co-

operate with the investigation and would make himself


available for interrogation as and when required by
the Investigating Agency.

21. Ld. Advocate appearing for the applicant


on

the

decision

of

Jayendra

Saraswathi

relied
Swamigal

(supra), in support of the contention that statement

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made by co-accused

ORDER

is not admissible under sec. 10

of the Evidence Act against the applicant.

The said

decision was in respect of bail under sec. 437 and


439 of the Code. In this case, the investigation is
still incomplete qua this applicant, and therefore,
the said decision is not applicable to the facts of
this case at this stage.

22. Ld. Advocate Mr. Saiyed has also relied on the


decision

of Bharat Chaudhary and another (supra),

with regard to grant of the anticipatory bail in nonbailable offence. There cannot be any dispute with
regard

to

the

principles

laid

down

in

the

said

decision, however, in the facts of this case, the


applicant is not entitled for

relief of anticipatory

bail.

23. Ld. APP Ms. Panchal

relied on the decision of

Jayesh G. Ramani (supra), wherein, this court

has

held that when the petitioner is found absconding and


the

petitioner

has

not

presented

himself

for

interrogation before the police, the application for


anticipatory bail cannot be entertained. In view of
this decision

as the applicant has been absconding

and not traceable as well as he has not presented

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himself

18/19

for

interrogation

ORDER

before

the

Investigating

agency, he cannot be granted discretionary relief of


anticipatory bail.

24. As

regards

the

contention

that

the

other

complaints for the same offence have been filed, and


therefore,

the

applicant

should

be

granted

anticipatory bail, the issue whether the complaints


are filed for the same offence cannot be decided in
this

proceeding

and

this

court

cannot

grant

the

relief assuming that complaints are filed for the


same offence.

25.

The applicant has failed to establish that the

prosecution
Therefore,

launched
the

against

applicant

is

him

not

is

malafide.

entitled

for

the

relief claimed in the application.

26. In view of the above discussion the applicant


has failed to point out that learned Sessions Judge
committed error in rejecting his anticipatory bail
application and exceptional grounds exist for grant
of extraordinary relief of anticipatory bail.

27. In view of the above, the applicant has not made

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ORDER

out any exceptional ground for grant of relief of


anticipatory bail. Hence, this application cannot be
entertained.

Therefore,

stands dismissed.

the

application

fails

and

Rule is discharged.

(BANKIM N. MEHTA, J.)


mandora/

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