1. The petitioners are aggrieved by the order dated April 28, 2016 passed by the learned Additional Civil Judge and Judicial Magistrate, First Class, Morbi, in Criminal Case No.2661 of 2015, whereby though he was released on bail, the learned Magistrate directed to take the petitioners in custody on the ground that the learned advocate for the petitioners did not remain present for crossexamination of the original complainant therein.
2. It is the case of the petitioners that the Page 1 of 5 HC-NIC Page 1 of 5 Created On Thu May 05 03:19:54 IST 2016 R/SCR.A/2948/2016 ORDER petitioners are arraigned as accused in a first information report being IC.R.No.83 of 2015 registered with Morbi City Police Station for the offences punishable under sections 504, 323, 324, 365, 394 and 114 of the Indian Penal Code and section 135 of the Gujarat Police Act. They have been enlarged on bail vide order dated July 30, 2015 passed by this Court while dealing with Criminal Miscellaneous Application No.13366 of 2015.
3. It is urged that the charges have been framed on August 18, 2015 qua Criminal Case No.2661 of 2015 which has been tried and conducted by the learned Judicial Magistrate, First Class, Morbi. The crossexamination of the complainant was fixed on April 28, 2016. The learned advocate for the petitioners could not remain present to cross examine the complainant and sought for a day's time as his junior advocate for present on his behalf. The Court on the ground that the complainant had already remained present on February 25, 2016 and March 17, 2016, had differed the crossexamination for one day and Page 2 of 5 HC-NIC Page 2 of 5 Created On Thu May 05 03:19:54 IST 2016 R/SCR.A/2948/2016 ORDER directed the petitioners to be taken into custody.
4. By way of present petition, it is urged that the Court cannot be so harsh nor can it indirectly cancel the order of grant of regular bail by directing to take the petitioners in custody, as no undue advantage of the liberty had been taken by the petitioners.
5. Having considered the rival submissions and having gone through the material on record, it is to be noted that the petitioners at the time of their enlargement on bail were expected not to take any undue advantage of their liberty or abuse the liberty. Even if there is no explicit condition, they are to cooperate with the trial and not to hamper the same in any manner. It is ensured for and on behalf of the petitioners by their learned advocate Shri H.S. Tolia that there shall be no attempt on the part of the petitioners which would amount to derailing the trial. It transpires that the Court concerned may have got agitated by the fact that the Page 3 of 5 HC-NIC Page 3 of 5 Created On Thu May 05 03:19:54 IST 2016 R/SCR.A/2948/2016 ORDER complainant had to come for more than once, but to curtail the liberty of the petitioners on such a ground and to take them into custody, is too harsh an order, which deserves interference.
6. For the foregoing reasons, the present petition succeeds and the same is, accordingly, allowed. The order impugned is quashed and set aside. The petitioners are ordered to be released on bail on each of them furnishing a solvent surety of Rs.10,000/ (Rupees Ten Thousand only) and a surety of the like amount, on the conditions on which they were released on bail by this Court vide order dated July 30, 2015.
Bail before the trial Court having jurisdiction to try the case.
It is further directed that the petitioners henceforth shall cooperate with the trial and no adjournment shall be asked for when the witness is summoned and present in the Court. Any attempt to thwart the trial shall permit the trial Court to take necessary action which may include curtailing the liberty by assigning appropriate reasons.