Gujarat High Court
State Of Gujarat vs Nikunjkumar Rajeshbhai Patel on 22 January, 2024
NEUTRAL CITATION
R/CR.MA/20155/2021 ORDER DATED: 22/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
20155 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 8886 of 2021
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STATE OF GUJARAT
Versus
NIKUNJKUMAR RAJESHBHAI PATEL
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Appearance in Cr.M.A.No.20155 of 2021 :
MR HK PATEL, APP for the Applicant(s) No. 1
MR ADIL R MIRZA(2488) for the Respondent(s) No. 1
Appearance in Cr.M.A.No.8886 of 2021 :
MR HK PATEL, APP for the Applicant(s) No. 1
MR MRUGEN PUROHIT for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 22/01/2024
ORAL ORDER
1. By way of the present petitions under Section 439(2) of the Code of Criminal Procedure, 1973, the petitioner State has prayed to quash and set aside the order dated 01.03.2021 passed by the learned Additional Sessions Judge, Surat in Criminal Misc. Application No.105 of 2021 and order dated 09.03.2021 passed by the learned Additional Sessions Judge, Surat in Criminal Misc. Application No.118 of 2021, whereby the learned Session Judge has granted anticipatory bail to the respondents - original accused.
2. Heard learned APP for the petitioner State and learned advocates for the respondents - accused.
3. Learned APP for the petitioner - State referring to judgment of the Hon'ble Apex Court in the case of Sudhir v/s. State of Maharashtra [(2016) 1 SCC 146] more particularly, para 12 Page 1 of 8 Downloaded on : Tue Jan 23 20:42:53 IST 2024 NEUTRAL CITATION R/CR.MA/20155/2021 ORDER DATED: 22/01/2024 undefined would submit that findings arrived by the learned Trial Court while enlarging accused on anticipatory bail in offence under Prevention of Corruption Act is totally untenable. It is submitted that learned Trial Court has erred in enlarging accused on anticipatory bail on irrelevant consideration. It is submitted that learned Trial Court has come to conclusion that effective investigation is complete and no custodial interrogation is required and moreover, accused is permanent resident of Tapi district and therefore, on irrelevant consideration, granted anticipatory bail. Assailing the impugned orders, learned APP would submit that even if custodial interrogation is not required, it is not ground to grant anticipatory bail in offence under the Prevention of Corruption Act which erodes basic foundation of democracy. It is further submitted that in this case, custodial interrogation is must and because of anticipatory bail, accused evaded and therefore, he submitted to cancel the bail granted to the accused.
4. On the other hand learned advocates for the respondents - accused submit that there is no supervening circumstances establish that accused has breached condition of bail or misused personal liberty granted by impugned orders. They would submit that accused was available before the Investigating Officer when they were called. They would further submit even voice spectrography sample of accused has been taken. In view of this aspect, since there is no supervening circumstances, bail of the accused may not be cancelled.
5. Having heard learned advocates for the parties, let refer Page 2 of 8 Downloaded on : Tue Jan 23 20:42:53 IST 2024 NEUTRAL CITATION R/CR.MA/20155/2021 ORDER DATED: 22/01/2024 undefined para 12 of the judgment of Hon'ble Apex Court in the case of Sudhir (supra) :-
"Having considered the submissions made by learned counsel for the parties, and after considering the gravity of the offence, circumstances of the case, particularly, the allegations of corruption and misappropriation of public funds released for rural development, and further considering the conduct of the appellants and the fact that the investigation is held up as the custodial interrogation of the appellants could not be done due to the anticipatory bail, we are of the opinion that the High Court has rightly cancelled the anticipatory bail granted to the appellants by the Additional Sessions Judge, Jalgaon. Therefore, we are not inclined to disturb the same."
6. It is true that in the present case, learned Trial Court has granted anticipatory bail on consideration that no custodial interrogation is required in the matter. The finding of learned Trial Court is contrary to finding of Hon'ble Apex Court and cannot be consideration for granting bail. Needless to say that claiming bail is not right of the party, it is always discretion of the Court. The finding arrived by the learned Trial Court to grant bail are in para 6 and 7 (page 48 to 50). The findings are in Gujarati, for better understanding they are translated in English, which reads as under :-
"(6) In this case, upon perusing the police investigation papers and the facts of the complaint, the charge of the offence under provisions of sections- 7, 12, 13(2) of the Prevention of Corruption Act, 1988 (Amended in 2018) and section-427 of the IPC is leveled against the applicant. The Complainant had purchased around 225 trees of teak wood from the farm of Rameshbhai Patel. Out of them, earlier around 25-30 trees were cut. But, as aforesaid Page 3 of 8 Downloaded on : Tue Jan 23 20:42:53 IST 2024 NEUTRAL CITATION R/CR.MA/20155/2021 ORDER DATED: 22/01/2024 undefined Rameshbhai had not obtained permission from the Forest Department regarding cutting the trees, the applicant stopped it. Further, the applicant contacted the complainant through the phone call and threatened him to lodge the case against him at sim area of village Rayan and to close down his saw mill. Upon due discussion, he demanded the bribe of Rs.Two Lakh. Out of the said amount, the applicant accepted the bribe amount of Rs.Fifty Thousand. Thereafter, before the trap was laid as per the complaint, the applicant and the co-accused namely, Ripalbhai had already accepted the bribe amount.
Thereafter, during the trap for the bribe on 27/01/2021, the applicant and co-accused namely, Ripal Chaudhari talked on the telephone through the witness namely, Shreyas and called him near PS Pizza Centre located on Baben-Mota Road and the applicant was present there. As he had a doubt, the applicant drove his Baleno car, dashed the car of the complainant and escaped with the accused persons by not accepting the bribe amount.
(7) In this case, the complainant had purchased the teak wood from the witness Rameshbhai. But, looking to the complaint of the complainant, prima facie it appears Rameshbhai had not obtained permission of Forest Department for cutting the trees. Thus, prima facie it appears from the records that the witness Rameshbhai had not obtained permission from Forest Department to cut the teak wood trees. The charge appears to have been leveled against the applicant for collecting the bribe amount from the complainant. Further, on having doubt during the trap, he escaped from there by taking the car and thereby committed offence. But, there is no charge of the offence against the applicant / accused with provision of life imprisonment or death sentence. Effective investigation is over regarding the case of the aforesaid offence. Looking to the nature of offence, there does not appear any need of custodial interrogation of the applicant. The applicant / accused is a permanent resident of village in District Delvada. Therefore, in connection with further investigation and during the trial, he will be easily availability and he may not be absconding. Present applicant is serving as a Forester in the Forest Department since last eleven years. If the applicant is released on Page 4 of 8 Downloaded on : Tue Jan 23 20:42:53 IST 2024 NEUTRAL CITATION R/CR.MA/20155/2021 ORDER DATED: 22/01/2024 undefined anticipatory bail, there does not appear possibility to temper with the evidences. If the investigation officer in this case finds the custody of the applicant necessary, in such case, allowing present application may adversely affect the investigation of offence. Thus, upon considering entire facts as above, the alleged offence against the accused, gravity of the offence, role played by the accused in the offence, etc. and the principles established in the case of 2011(1) GLH, Page No.11 Siddhram Mhetre Vs. State of Maharashtra, it appears just and proper to extend the anticipatory bail to present applicant."
7. Let refer the judgment of Hon'ble Apex Court in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat reported in AIR 2015 SC 3090, wherein, the Hon'ble Apex Court delineated the following factors and parameters that needs to be taken into consideration while dealing with the anticipatory bail.
"(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(c) The possibility of the applicant to flee from justice;
(d) The possibility of the accused's likelihood to repeat similar or other offences;
(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;Page 5 of 8 Downloaded on : Tue Jan 23 20:42:53 IST 2024
NEUTRAL CITATION R/CR.MA/20155/2021 ORDER DATED: 22/01/2024 undefined
(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern;
(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail."
8. This Court does not approve findings arrived by the learned Trial Court to grant bail. Yet the fact remains that respondents accused are enlarged on anticipatory bail on 01.03.2021 and 09.03.2021. They are set to personal liberty since then subject to conditions. It is not the case of the prosecution that the respondents - accused breached condition or misused personal liberty nor any supervening circumstances are brought on record. Pursuant to order dated 03.01.2024, learned Trial Court has forwarded report. It indicates that charge sheet is not filed Page 6 of 8 Downloaded on : Tue Jan 23 20:42:53 IST 2024 NEUTRAL CITATION R/CR.MA/20155/2021 ORDER DATED: 22/01/2024 undefined till 12.01.2024. Qua this aspect, learned APP has submitted that permission for prosecution is awaited and therefore, charge- sheet is not filed, otherwise draft charge-sheet is placed before superior officer. What appears from the record that no supervening circumstances appear to cancel the bail. Refusing to grant anticipatory bail and bail already granted are on different consideration. Ordinarily, bail granted earlier should not be cancelled, unless specific case is made. Though this Court does not approve finding recorded by the learned Trial Court in enlarging accused on anticipatory bail but in view of the fact that accused have not misused liberty since 01.03.2021 and 09.03.2021, this Court is not inclined to interfere with the impugned orders.
9. In Bhagwan Singh v Dilip Kumar @ Deepu @ Depak reported in 2023 INSC 7613, the Apex Court after considering judgment in case of Dolat Ram v State of Haryana, (1995) 1 SCC 349; Kashmira Singh v Duman Singh, (1996) 4 SCC 693 and X v State of Telangana, (2018) 16 SCC 511, held as follows:
'13. It is also required to be borne in mind that when a prayer is made for the cancellation of grant of bail cogent and overwhelming circumstances must be present and bail once granted cannot be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it in conducing to allow fair trial. This proposition draws support from the Judgment of this Court in Daulat Ram and others v. State of Haryana reported in (1995) 1 SCC 349, Kashmira Singh v. Duman Singh (1996) 4 SCC 693 and xxx v. State of Telangana (2018) 16 SCC
511.' Page 7 of 8 Downloaded on : Tue Jan 23 20:42:53 IST 2024 NEUTRAL CITATION R/CR.MA/20155/2021 ORDER DATED: 22/01/2024 undefined
10. Before parting with the order, I may also refer the observations made in the recent decision by the Hon'ble Apex Court in case of Kekhriesatuo Tep and others Vs.National Investigating Agency reported in (2023) 6 SCC 58. The relevant observation made in para 20 reads as under:-
"20. An interference by an Appellate Court and particularly in a matter when liberty granted to a citizen was being taken away would be warranted only in the event the view taken by the Trial Court was either perverse or impossible. On this limited ground, we find that the appeals deserve to be allowed."
11. Resultantly, present petitions fail and stands dismissed.
(J. C. DOSHI,J) SATISH Page 8 of 8 Downloaded on : Tue Jan 23 20:42:53 IST 2024