MAHENDRAKUMAR HARGOVINDDAS PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) However, the question which arises for consideration in the present case is whether this Court in fact granted the bail of the petitioners or not. Reading the order passed by the learned single Judge of this Court, it is clear beyond any manner of doubt that the learned single Judge had set aside the order of issuance of non-bailable warrant and instead it was directed that the trial Court would issue bailable warrant in the sum of Rs. 25,000. Not only that, relying on the statement of the learned Advocate appearing for the petitioners, the learned single Judge also directed the petitioners to appear before the learned Chief Judicial Magistrate, Godhra on 11-1-1994 and so request the said Court to release them on bail in the sum of Rs. 25,000 with a solvent surety in the like amount and it was also directed that, "the learned Chief Judicial Magistrate shall release the accused on bail and may impose certain other conditions looking to the facts and circumstances of the case". Since the direction to release the petitioners on bail was issued by this Court to the learned Chief Judicial Magistrate, which was complied with, as stated above, there is no manner of doubt that the order dated 10-1-1994 is nothing but an order of bail passed by this Court. If that is so, I am afraid it is not open to this Court to sit in appeal over and examine the legality and validity of the order of this Court, especially when the said order was passed after hearing Mr. B. B. Naik, learned Additional Standing Counsel for the Central Government and Mr. S. R. Divetia, learned Public Prosecutor for the State. The learned Counsel should have persuaded the learned single Judge not to enlarge the petitioners-accused on bail by contending that they are not in custody and, therefore, no order of bail could be passed in their favour. Having not done so, it is now too late to challenge in the present petition the order of bail granted by the learned single Judge.

(2.) A clear direction releasing the petitioners on bail was surprisingly not incorporated in the writ issued by the office of this Court pursuant to the said order of bail and instead a cryptic version is incorporated in the writ. It is ambiguous and difficult to follow. Perusing the contents of the writ, it clearly transpires that the vital averment contained in the order regarding setting aside the issuance of the non-bailable warrant and converting the same into bailable warrant is not incorporated. On the contrary, the learned Magistrate was directed to issue bailable warrant in the sum of Rs. 25,000. The sum and substance of the aforesaid discussion is that the customs officers have not placed before the detaining authority the vital document, viz. the order of bail passed by the learned single Judge of this Court and the detaining authority has also not supplied copy of the said order to the petitioners. In my opinion, therefore, the decision of the Supreme Court in Abdul Sathar - Ibrahim Manik's case (supra) squarely applied to the facts of the present case.