By way of present application the applicant has prayed to cancel the anticipatory bail granted to respondent No.2 by this Court vide order dated 16th November, 2011 in Criminal Miscellaneous Application No.14448 of 2011.
Heard Mr.Siddharth H. Dave, learned counsel for the applicant, Mr.H.L. Jani, learned Additional Public Prosecutor appearing for respondent No.1-State and Mr.Ashish Dagli, learned counsel for respondent No.2.
Mr.Dave, learned counsel for the applicant, states that by making misrepresentation and by suppressing material facts the respondent No.2 had obtained anticipatory bail from this Court. He has contended that the applicant remained absconding after filing FIR and in the meantime another FIR is also lodged against him. Knowing fully well that another offence is registered against him, the respondent No.2 has suppressed the said fact from the knowledge of this Court while obtaining order of bail from this Court. He has also contended that the applicant had filed quashing petition for quashing of FIR being C.R. No.I-152 of 2011 registered with Tharad Police Station for the offence punishable under Sections 307, 504, 506(2) and 114 of the Indian Penal Code, which ultimately came to be withdrawn by the applicant. The respondent No.2 has suppressed this fact from the knowledge of this Court. It is also contended by Mr.Dave that the applicant had made misleading statement in the application for obtaining bail by stating that he has not made any other application before this Court. The applicant has suppressed the fact of filing of quashing petition before this Court which was withdrawn and by suppressing this fact, has obtained bail. By suppressing all these material facts the applicant has preferred another application for seeking anticipatory bail before this Court wherein applicant has not stated that application is successive one. Thus, at every stage the applicant has suppressed material facts and obtained bail by misrepresentation. Mr.Dave, learned counsel for the applicant has also contended that in the first application for anticipatory bail, which was withdrawn by the applicant, the applicant has not mentioned anything about his medical problem and in the successive application for anticipatory bail, medical problem is one of the main ground for bail. He has also contended that the respondent No.2 is a strong-headed personality. He has also contended that other offences are also registered against the respondent No.2. Mr.Dave is also relied upon three judgments of other High Courts, viz. (I) Rasik Chand Singh Vs Rabinarayan Das and another of Orissa High Court; (ii) Smt.Sharda Vs State of Rajasthan and another of Rajasthan High Court and (iii) Ramavtar Sharm Vs Smt.Santosh of Rajasthan High Court, and contended that respondent No.2 has suppressed material facts from the knowledge of this Court and therefore, bail granted to the respondent No.2 is required to be cancelled. It is, therefore, contended by Mr.Dave that looking to facts brought on record by the applicant, anticipatory bail granted to the respondent No.2 is required to be cancelled.
As against this, Mr.Dagli, learned counsel for the respondent No.2, has contended that neither the respondent No.2 has suppressed any facts from the knowledge of this Court nor has made misrepresentation to obtain bail. He has contended that quashing petition and bail application is altogether a different subject. The respondent No.2 in Criminal Miscellaneous Application No.14448 of 2011 has mentioned that the applicant has not preferred any other application or petition with regard to the subject matter of the present application in any Court of law. Thus, it is very clearly mentioned in the application that respondent No.2 has not preferred any application with regard to subject matter of present application in any Court of law. Thus, there arises no question of suppression of facts from the Court. Mr.Dagli has also contended that so far as question regarding other offence, i.e. C.R. No.II-3187 of 2011 registered with Tharad Police Station for the offence under Sections 504, 506(2) and 114 of the Indian Penal Code is concerned, is prior to the order passed by this Court while granting anticipatory bail. The respondent No.2 has not committed any offence after granting anticipatory bail by this Court. So far as contention of the applicant regarding suppression of fact of successive bail application is concerned, Mr.Dagli stated that the respondent No.2 has mentioned in the application that his previous application for bail was withdrawn and the order of withdrawal is annexed with that application. Thus, there arises no question of suppression of facts of application for bail. The respondent No.2 has no intention to suppress any facts from this Court. He has also contended that the applicant is suffering from HIV since long and his condition is serious. He, therefore, contended that looking to overall facts of the case, present application may kindly be rejected.
Heard Mr.H.L. Jani, learned Additional Public Prosecutor appearing for respondent No.1-State and also perused papers produced before me. It appears from the contents of the application that this application for cancellation of bail is preferred mainly on the ground of suppression of facts and misrepresentation by respondent No.2 while obtaining order of anticipatory bail. I have carefully considered the facts of the case, but I have not found anything that the respondent No.2 has suppressed material facts while obtaining anticipatory bail. The respondent No.2 has mentioned in his application for anticipatory bail about withdrawal of earlier bail application and thus, the contention of the applicant that respondent No.2 has suppressed fact regarding successive bail is not true. So far as contention of applicant that respondent No.2 has not mentioned in the application about his filing and withdrawal of quashing petition is concerned, it is not necessary as quashing and bail is altogether different subject and the respondent No.2 in his application specifically stated that "he has not filed any application with regard to subject matter of the present application before any Court of law." Thus, in my view, respondent No.2 has not suppressed anything from the knowledge of this Court. I have also perused judgments relied upon by learned counsel for the applicant, but the same are not applicable in the present case. The said judgments are on the line of suppression of facts whereas in the present case, nothing is suppressed by the respondent No.2 while obtaining anticipatory bail. Even the Apex Court has in catena of decisions observed that by mechanical way, bail cannot be cancelled.
In view of above, present application deserves to be rejected and is hereby rejected. Rule is discharged.
(Z.
K. Saiyed, J) Anup Top