RABIKABEN GEORGEBHAI PILLAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr.Macwan, learned counsel appearing for the petitioner, Mr.M.M. Tirmizi, learned counsel appearing for the respondent no.2 and Mr.L.R. Pujari, ld.APP, appearing on behalf of the respondent-State. Rule. The formal service of Rule is waived by Mr.M.M. Tirmizi on behalf of respondent no.2 and Mr.L.R. Pujari, ld.APP, on behalf of the respondent-State. The Rule is fixed forthwith on consent. The petitioner is a lady aged about 62 to 63 years of age and she is a retired teacher and because of some disputes with her daughter-in-law, she is facing a civil litigation, a Civil Suit pending before the Civil Court at Anand. The petitioner along with other accused persons are being now prosecuted for the offence punishable under Sections 467, 468, 471 and 420 of the Indian Penal Code, on account of a private complaint filed by Nayanaben-daughter-in-law of the present petitioner. At present the police is investigating the crime under Section 156(3) of the Code of Criminal Procedure, in compliance of the order passed by the ld.JMFC, Anand. Apprehending arrest all the accused persons applied for advance bail u/s.438 of the Code of Criminal Procedure and got anticipatory bail vide order dated 14th July, 2005. All the accused persons came to be arrested by the Investigating Officer and then were enlarged, as per the order, on anticipatory bail and thereafter all the accused have been granted regular bail by the competent Court. While enlarging the petitioner on bail, the Court imposed certain conditions and the present Revision Application is in reference to a subsequent order deleting one of the bail conditions i.e. Condition no.6 passed by the very Presiding Judge qua the present petitioner.

(2.) It is not a matter of dispute that while enlarging the accused persons on bail on certain conditions one of the conditions i.e. Condition no.6, imposed by the Court is that the applicant-accused shall not enter the residential area in question i.e 3, Alpesh Society, Block No.16, Padhariya, Tal.& Dist.Anand, without prior permission of the Court. The petitioner-orig.accused no.1 approached the ld.Sessions Judge praying that Condition No.6 is causing serious prejudice to her right qua the very property; so at least Condition No.6 requires to be deleted qua her. A copy of the application praying deletion of the said Condition is available on record and alternative prayer was also made by the petitioner. The first prayer in the application was that the Condition No.6 imposed by the Court may be ordered to be deleted or in the alternative she may be specifically permitted to enter into the abovesaid property.

(3.) These two distinct alternative prayers were prayed for and the Court decided to grant first part of the prayer. I am afraid whether bail Court could have legally granted the alternative prayer in view of limited jurisdiction of the bail Court. So vide the impugned order, the trial Court has held that the petitioner is exempted from complying with the said Condition no.6 i.e. prohibitory condition. But while granting this relief the Court tried to make one clarification. This clarification is neither happily worded nor it is within the compass of powers vested with the bail Court and this has resulted into a jurisdictional error, is the basic argument of the Mr.Macwan for the petitioner because it nullifies the effect of the main prayer granted by the Court. It is true that any attempt to enter into the house by the present petitioner may cause disturbance in the area or at least in the family. But the fact remains that order of deletion of Condition no.6 has been challenged by the complainant or the State and the operative part of the order under challenge, if read then the same is found inconsistent to the main relief granted. So this type of order can be said to be have been passed without application of mind and assessing legal effect of it. If the first relief granted is found affected adversely by the subsequent portion of the order, then such mistake can be rectified by omitting such part of the order. This can be done exercising revisional jurisdiction.