LAXMIBEN C SOLANKI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) LEAVE to amend. Rule. Ms. Archana Raval learned a. P. P. , waives service of rule on behalf of the opponent State.

(2.) THE applicant has been detained in judicial custody since 27th July, 2007. Her detention is in connection with the offence registered at C. R. No. I-258/2007 with fatehgunj Police Station, Vadodara. The allegation against her is that she abetted her son Amit who is also an accused of this case in enticing away the daughter of the informant. Thereby they committed offence which are made punishable under Sections 363, 366 etc. , of the Indian Penal Code.

(3.) I have heard Ms. Shalini Mair learned advocate for the applicant and Ms. Archana raval learned A. P. P. , for the opponent state. I have also perused the record of this application. The only allegation against the applicant is that she went with sister of accused no. 1, to village Nisraya and advised accused no. 1 to stay at Nisraya to avoid arrest and further assured him that she would secure legal assistance to him. Thereby she has aided and abetted original accused no. 1. These allegations even if they are taken to be true, by no stretch of imagination, it can be said that she aided and abetted accused no. 1 in abducting the girl. She is a lady aged about 67 years. The learned Presiding Officer, Fast Track Court, vadodara while passing the order of rejection dated 24th August, 2007, has arrived at a conclusion that she has committed serious offence. It is very strange that even in such cases, the learned Judge does not exercise the discretion and powers vested in him in favour of the accused, on the ground that she has been involved in serious case. The learned Judge has completely overlooked the fact that the lady is aged about 67 years and she had been in custody for almost three months by now. The only role which is alleged to have played by her is that she went and assured her son that she would secure legal assistance to him. Any mother in her place, would do the same thing. By no stretch of imagination, it can be said that she has aided and abetted the main accused in kidnapping the girl. More than often, this court has come across cases wherein, the trial Court could have without any difficulty granted bail, strictly in accordance with the merits of the case. But that has not been done. The reason is not far to seek. A plain reading of such order together with the material on record would show that despite ample merits existing in favour of the accused, the application under Section 439 of the Criminal Procedure Code is rejected holding that such accused is involved in a serious case. This is despite the fact that there is either very scanty or no material at all to substantiate such finding. Such attitude is being adopted by the concerned judicial officer with a view to shirk his responsibilities in the matter of deciding the bail application and throwing the burden on this Court. When the sub-ordinate Court is vested with adequate powers under Criminal Procedure Code to grant bail for non-bailable cases, such powers are required to be exercised on sound judicial principles and the Court should not refuse to exercise powers simply under fear that there may be some criticism from the higher Court. Time and again, the subordinate judiciary has been impressed upon in the meeting of the judicial officers or seminars that they should exercise such powers, in accordance with the merits of the case and sound judicial principles without entertaining any fear of criticism. But that has not been done and always attitude of throwing responsibility of granting bail on this Court is adopted, which is not at all healthy lor the institution. It is high time for the judicial officers of the subordinate judiciary to shed away this tear and start taking decision in accordance with the merits of the case.