Gujarat High Court
Mohsinmiya Nabimiya Malek vs State Of Gujarat on 8 August, 2023
NEUTRAL CITATION
R/CR.MA/1907/2020 ORDER DATED: 08/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1907 of 2020
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MOHSINMIYA NABIMIYA MALEK
Versus
STATE OF GUJARAT
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Appearance:
DHRUVIN P BHUPTANI(8295) for the Applicant(s) No. 1
MR. JAY M THAKKAR(6677) for the Applicant(s) No. 1
MR SADIK A ANSARI(5388) for the Respondent(s) No. 2,3
MS MAITHILI MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 08/08/2023
ORAL ORDER
1. This application is preferred under Section 439(2) of the Code of Criminal Procedure, 1973 by the applicant - original complainant for cancellation of bail granted to the respondents - original accused by the learned 3rd Additional Sessions Judge, Anand vide order dated 17.01.2020 passed in Criminal Misc. Application Bail No.53 of 2020 for the offence punishable under Sections 307, 325, 114 etc of the Indian Penal Code and under Section 135 of the Gujarat Police Act in connection with the offence registered being I-C.R. No.64 of 2019 before Tarapur Police Station.
2. Heard Mr.Jay Thakkar, learned advocate appearing for the applicant - original complainant, Ms. Maithili Mehta, learned Additional Public Prosecutor appearing for the respondent - State Page 1 of 7 Downloaded on : Sun Sep 17 00:38:47 IST 2023 NEUTRAL CITATION R/CR.MA/1907/2020 ORDER DATED: 08/08/2023 undefined of Gujarat and Mr.Sadik Ansari, learned advocate appearing for the respondents - accused.
3. Mr.Thakkar, learned advocate for the applicant, submitted that the impugned order is ex facie illegal and arbitrary and that the same is passed without appreciating the facts and circumstances of the case. He submitted that after releasing the respondents - accused on bail, another complaint came to be registered against the respondents - accused being C.R. No. 11215029230171 of 2023 before Tarapur Police Station, Anand. He also submitted that even after granting bail, the respondents accused have committed breach of conditions imposed by the trial court and also not co-operated with the investigation. He submitted that the present application may be allowed and the bail granted to the respondents accused may be cancelled. He submitted the details with regard to the criminal antecedents and other relevant materials and also produced a copy of the FIR filed by the independent person against the present accused on 20.05.2023, which is taken on record.
4. Ms.Mehta, learned Additional Public Prosecutor appearing for the respondent - State of Gujarat, supported the present application and on the information received from the concerned Investigating Officer, who is personally remained present before the Court, she has confirmed that the respondents accused are involved in another offence and they are having another antecedents also. She has submitted that the Court may pass appropriate orders. She has produced the report filed by the Page 2 of 7 Downloaded on : Sun Sep 17 00:38:47 IST 2023 NEUTRAL CITATION R/CR.MA/1907/2020 ORDER DATED: 08/08/2023 undefined concerned Investigating Officer along with the relevant documents and criminal antecedents registered against the respondents - accused.
5. Mr.Ansari, learned advocate appearing for the respondents
- accused submitted that all the complaints are filed for ulterior motive with a view to snatch away the land of the respondents - accused and to protest his right towards the said parcel of land. It is submitted by the learned advocate for the respondents - accused that in response to the subsequent FIR registered by Gautambhai Rameshbhai Rabari, the accused have filed the cross complaint against those persons who have tried to snatch away the lands. He has referred to and relied upon the decision of the Hon'ble Supreme Court in the case of Prabhakar Tewari Vs. State of Uttar Pradesh reported in (2020) 11 SCC 648 and submitted that the Hon'ble Supreme Court has, in similar facts of the case, dismissed the petition for cancellation of bail preferred by the complainant. He has submitted that the present application may not be entertained and the same may be dismissed.
6. I have perused the contents of the FIR and the impugned order passed by the Trial Court in the application for regular bail. I have considered the submissions canvassed by learned advocates appearing on behalf of both the sides and the averments made in the application. It appears that the trial court has observed that the injured was discharged from the hospital and no any serious injury caused to the injured is not endanger Page 3 of 7 Downloaded on : Sun Sep 17 00:38:47 IST 2023 NEUTRAL CITATION R/CR.MA/1907/2020 ORDER DATED: 08/08/2023 undefined to the life of the injured and, therefore, the accused were released on bail. It also appears that though the sufficient materials produced by the Investigating Officer and the complainant as also filed the affidavits to the effect that the respondents having serious criminal antecedents prior to the registration of the FIR, the trial court has granted bail in favour of the accused. Though the Investigating Officer and the complainant have filed the affidavits pointing out the earlier antecedents recorded against the accused, despite of that the trial court has also granted bail in favour of the accused and enlarged on bail on certain conditions more particular condition no.(1) that the accused shall not indulge into any criminal antecedents or misuse their liberty. Despite the said fact, the accused have committed the breach of the said conditions and they have involved in another criminal case lodged by the witness to the incident on 10.10.2021 being C.R.No.11215029210348 of 2021 before the Tarapur Police Station for the offences punishable under Sections 323, 504, 506(2) of the Indian Penal Code and the complaint being C.R.No.11215029230171 of 2023 filed before the Tarapur Police Station for the offences punishable under Sections 323, 307, 504, 506(2), 114 of the Indian Penal Code by Gautambhai, who is an independent person, who is nothing to do with the earlier incident. Though there are criminal antecedents against the accused, the trial court has, without considering all these facts, in casual manner passed the impugned order and released the accused on bail by observing that the informant - injured Page 4 of 7 Downloaded on : Sun Sep 17 00:38:47 IST 2023 NEUTRAL CITATION R/CR.MA/1907/2020 ORDER DATED: 08/08/2023 undefined discharged from the hospital. While exercising the power under Section 439 of the Criminal Procedure Code, the trial court ought to have considered the fact that whether there is any criminal antecedents or any criminal history reported against the accused or not.
7. It was pointed out by the learned advocate for the applicant before this Court that the respondents accused have committed the breach of conditions imposed by the trial court, and even after granting bail, the respondents accused have committed another offence. However, though this fact was brought to the notice of the trial court, the trial court had not considered all these aspects and granted bail to the respondents accused. It is relevant to note that the respondents are involved in the offence relating to the human body and in all FIRs they were granted bail, so every time they have committed the breach of conditions imposed by the trial court while enlarging the accused on bail. This application for cancellation of bail is filed at the behest of the original complainant.
8. The ratio laid down by the Apex Court in the catena of decisions that the accused granted bail and entitled to liberty if they are not co-operating with the investigating agency or not remaining present and flouting the conditions imposed upon them while granting bail, then in that case, they are not entitled for any leniency and in that circumstances, the bail is required to be cancelled. The reported decisions of the Apex Court in this regard are summarized as under :
Page 5 of 7 Downloaded on : Sun Sep 17 00:38:47 IST 2023NEUTRAL CITATION R/CR.MA/1907/2020 ORDER DATED: 08/08/2023 undefined [1] Omprakash Sahni Vs. Jai Shankar Chaudhary and another reported in (2023) 6 SCC 123; [2] CBI versus Santosh Karnani and Anr., reported in 2023 SCC OnLine SC 427;
[3] Deepak Yadav versus State of UP and Anr., reported in [2022] 8 SCC 559;
[4] Kamla Devi versus State of Rajasthan and Anr., reported in [2022] 6 SCC 725;
[5] Manoj Kumar Khokhar versus State of Rajasthan and Anr., reported in [2022] 3 SCC 501; [6] Brijmani Devi versus Pappu Kumar and Anr., reported in [2022] 4 SCC 497;
[7] Supreme Bhiwandi Wada Manor Infrastructure Pvt. Ltd versus State of Maharashtra and Anr., reported in [2021] 8 SCC 753;
[8] Nathu Singh versus State of UP and Ors., reported in [2021] 6 SCC 64;
[9] Jitendra Taneja versus State of UP and ors., reported in [2021] 5 SCC 308; and [9] Union of India versus K.A. Najeeb, reported in [2021] 3 SCC 713.
9. Considering the seriousness of the crime and keeping in mind the criminal antecedents of the accused, the possibility of tampering with the evidence cannot be ruled out which eventually would have a material bearing on the quality of justice. In view of aforesaid facts, request of cancellation of bail Page 6 of 7 Downloaded on : Sun Sep 17 00:38:47 IST 2023 NEUTRAL CITATION R/CR.MA/1907/2020 ORDER DATED: 08/08/2023 undefined granted to the accused is acceded to. Considering the materials on record and the aforesaid decisions and the conduct of the accused, it is not desirable to continue the liberty granted by the trial court to the accused. The trial court has, without considering the said facts and by making simple observation, has exercised the power under Section 439 of the Cr.P.C. and granted bail to the accused. In view of the above, I am of the opinion that the trial court has not considered such aspects and said criminal antecedents. It is noted that now the trial is commenced and it is in progress.
10. For the foregoing reasons and in view of the decisions of the Apex Court as aforesaid, I am of the opinion that the present application deserves to be allowed and it is hereby allowed. The impugned order dated 17.01.2020 passed by the learned 3 rd Additional Sessions Judge, Anand in Criminal Misc. Application Bail No.53 of 2020 is hereby quashed and set aside. The bail stands cancelled. The Investigating Officer is at liberty to approach the concerned Sessions Court for issuance of non- bailable warrant and if warrant is already issued against the accused then the Investigating Officer shall take appropriate action for execution of the warrant issued by the Trial Court in accordance with law. Rule is made absolute. Direct service is permitted.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 7 of 7 Downloaded on : Sun Sep 17 00:38:47 IST 2023