TMI Blog2011 (4) TMI 1550X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 months before and punishable under Sections 376, 365, 344, 506(2) and 114 of the Indian Penal Code. 3. Brief facts of this case are as under: That the marriage of the complainant aged about 19 years with Mahesh Bhopabhai Koli Patel was solemnized as per Hindu customary rituals on 31.3.2009 at Ahmedabad in the marriage ceremony performed at Shiv Marriage Point Hall. The complainant and her husband had given an advertisement in the newspaper about their marriage. The relevant documents namely marriage certificate and the advertisement published in the newspaper have been annexed with this application. Even an affidavit sworn by the complainant that she had left her husband and without taking valuable articles dated 31.3.2009 is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la) was granted anticipatory bail in exercise of powers under Section 438 of the Cr.P.C., 1973 by the co-ordinate Bench of this Court as per order dated 5.8.2010 passed in Cr. Ma. No. 8237 of 2010 (Coram: Hon'ble Mr. Justice Z.K. Saiyed) and Ajitbhai B. Dodiya was enlarged on regular bail in exercise of powers under Section 439 of the Code vide order dated 13.8.2010 in Cr. Ma. No. 9316 of 2010 (Coram: Hon'ble Mr. Justice Z.K. Saiyed). It is, therefore, submitted that the applicant herein against whom also similar allegations have been levelled in a belated complaint filed after about more than 12 months and when the version of the complainant taken as a whole is unbelievable, who got married with one Mahesh Bhopabhai Koli Patel trav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove declaration on the part of learned trial Judge is unwarranted, misconceived and amounts not only dereliction of his duties but willful dis-obedience and disregard to the pronouncement and declaration of law by the highest Court of the country. Such a conduct on the part of learned Sessions Judge in exercise of judicial powers under Section 439 of the Code would certainly expose learned Judge for the proceedings to be initiated under the Contempt of Court Act. It is submitted that it is not open to a sub-ordinate Court to misconstrue and misread and disregard the judgment of the Apex Court or any other higher Court and to interpret it in a different manner on extraneous grounds and such an attempt on the part of the learned Judge of a su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruing and misreading the provisions of law and the decision of the Gudikanti Narasimbulu (supra) and parity, can be urged before High Court only, it is difficult to defend the stand taken by the learned Sessions Judge but on merit it is submitted that allegations are levelled against the applicant of abetting the crime of a serious nature and, therefore, the applicant does not deserve any relief under Section 439 of the Code. 8. Having heard learned Counsels appearing for the parties and considering the factual aspects, prima facie, remain un-controverted. That, the marriage of the complainant with Mahesh Bhopabhai Koli Patel was solemnized on 31.3.2009 as per Hindu customary rituals and was registered accordingly. That, public advertise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egations were levelled against the applicant or any other accused. 9. All the above aspects along with order passed by the coordinate Bench in the case of two co-accused having similar role like the applicant, on 5.8.2010 and 13.8.2010 in Criminal Misc. Application Nos. 8237 of 2010 and 9316 of 2010 were brought to the notice of the learned Sessions Judge by which the co-accused were granted anticipatory and regular bail. Inspite of the above factual scenario, learned Sessions Judge has refused to exercise the powers under Section 439 of the Code on the ground that the applicant was not traceable, while nothing is brought on the record that under what circumstances the applicant was not available or any effort was made by the investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isinterpreting the decision of law by the higher Court and, therefore, in the facts of this case, a casual and cursory remark on the part of the learned Sessions Judge about declaration of principle of law of bail in the case of Gudikanti Narasimbulu (supra) is nothing but an attempt to transgress all basic canons of judicial discipline and it was not open to a subordinate Court to misconstrue and misread a judgment of the Supreme Court and terming a principle of 'bail is a rule and jail is an exception' as an outdated, when no decision either of the Supreme Court or this Court has stated so. 10. The declaration made by the learned Sessions Judge that principle of 'bail is a rule' is outdated and in a case where co-accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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