Gujarat High Court
State Of Gujarat vs Kamleshbhai Pravinbhai Patel on 29 April, 2022
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
R/CR.MA/18022/2017 ORDER DATED: 29/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18022 of 2017
==================================================
STATE OF GUJARAT
Versus
KAMLESHBHAI PRAVINBHAI PATEL & 1 other(s)
==================================================
Appearance:
MR. HARDIK SONI, APP for the Applicant(s) No. 1
MR JV VAGHELA(5809) for the Respondent(s) No. 1,2
==================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 29/04/2022
ORAL ORDER
[1] The present application is filed under Section 439 (2) read with Section 482 of the Code of Criminal Procedure for cancellation of anticipatory bail granted to the respondents - accused vide order dated 26.05.2017 passed in Criminal Misc. Application No. 635 of 2017 by the Principal Sessions Judge, Gandhinagar.
[2] This application is filed on the premise that a First Information Report being I-C.R. No.64 of 2017 was registered with Adalaj Police Station, Gandhinagar against the present respondents - accused for the offences punishable under Sections 406, 420, 465, 467, 468, 475 and 120-B of the Indian Page 1 of 10 Downloaded on : Fri May 06 20:03:55 IST 2022 R/CR.MA/18022/2017 ORDER DATED: 29/04/2022 Penal Code wherein, the respondents accused being apprehending their arrest had submitted an application for seeking anticipatory bail which was registered as Criminal Misc. Application No. 635 of 2017.
[3] The assertion of the complaint which has been filed on 15.05.2017 by one Shri Dineshbhai Atmarambhai Patel alleging that the respondents accused with other two accused persons hatched a conspiracy in order to proceed with division of land being Revenue Survey No.22 situated at village Khoraj, which is an undivided ancestral property of respondent herein and the complainant, during the year 2014, the respondents accused said to have collected copies of the identity cards and photographs of the complainant and the other witnesses and did not return the same and have been attempted to be utilized for taking over possession of the land in question. The accused persons said to have forged the signature of the complainant and created a duplicate seal of the Late Advocate / Notary Bhalchandra B. Gandhi with a view to sell the land in question or for executing the documents related to the land in question and by utilizing such material, the accused persons said to have Page 2 of 10 Downloaded on : Fri May 06 20:03:55 IST 2022 R/CR.MA/18022/2017 ORDER DATED: 29/04/2022 created a forged power of attorney and on account of this, a complaint came to be lodged before Adalaj Police Station, Gandhinagar.
[4] The respondents accused having apprehended their arrest have submitted an application being Criminal Misc. Application No.635 of 2017 before the learned Principal Sessions Judge, Gandhinagar under Section 438 of the Code of Criminal Procedure seeking anticipatory bail. After due analysis of material then placed before the Principal Sessions Judge by a detailed order dated 26.05.2017 the application submitted by present respondents accused came to be allowed by imposing appropriate conditions, which are very much reflecting in the order in question. It is this order which is made the subject matter of present application seeking cancellation mainly on the premise that the learned court below has granted anticipatory bail by misconstruing the mala fide intent of the complaint. In fact, for that purpose, no documents are presented to the said act. It has also been contended that since the power of attorney has been forged by creating a seal of the Late Advocate / Notary Bhalchandra B. Gandhi a serious attempt is made for selling the Page 3 of 10 Downloaded on : Fri May 06 20:03:55 IST 2022 R/CR.MA/18022/2017 ORDER DATED: 29/04/2022 land in question which was an undivided ancestral property of complainant as well as the accused persons and as such when such an act of forgery is committed, the very conduct ought not to have been ignored while exercising discretion under Section 438 of the Cr.P.C. and as such, the order which has been passed by learned Principal Sessions Judge, Gandhinagar lacks application of mind and as such same be quashed. [5] In respect of this, Mr. Hardik Soni, learned APP has fairly submitted before this Court that the complainant as well as the respondents accused are interrelated persons and during the course of inquiry, it has been found that power of attorney has not been utilized for the purpose of alienating land in question and the land has never changed the hands, the possession whereof has remained with the complainant. On instructions, it has been stated that there appears to be no criminal antecedents and as such the learned APP has requested the Court to pass a suitable order in the interest of justice. It is also asserted that respondents have not misuse the liberty. [6] To meet with the same, Mr. J. V. Vaghela, learned advocate Page 4 of 10 Downloaded on : Fri May 06 20:03:55 IST 2022 R/CR.MA/18022/2017 ORDER DATED: 29/04/2022 appearing for the respondents accused has submitted that there are no criminal antecedents and on account of some misunderstanding which has taken place amongst the relatives, the power of attorney was to be executed but then the same has never been utilized and land has not been transacted at all on the basis of such power of attorney. In fact, he fairly submitted before the Court that the possession has not been taken away from the complainant and it is on account of internal family disputes, the complaint has been filed and as such has submitted that once the due discretion has been exercised by the learned Principal Sessions Judge, no case for cancellation is made out by the applicant. It has further been submitted that it is not the case of the applicant that any condition which has been imposed upon is violated nor any liberty is misused in any form and always respondents have cooperated with the process of investigation and as such that being a situation, the application may not be entertained.
[7] Having heard learned advocates appearing for the parties and having gone through the material placed on record, it is undisputedly reflected that complainant and the respondents Page 5 of 10 Downloaded on : Fri May 06 20:03:55 IST 2022 R/CR.MA/18022/2017 ORDER DATED: 29/04/2022 accused are interrelated persons and further on account of some family disputes, the misunderstanding has reached to the stage of filing of the complaint. It has further been confirmed by the learned advocates that land has remained with the complainant and has not been transacted at all on the basis of such alleged execution of power of attorney and as such the power of attorney itself has not been utilized and further there are no serious criminal antecedents of respondents and after thorough investigation, even the charge-sheet has also been submitted, hence, this Court is not inclined to exercise the discretion for cancellation of anticipatory bail which has already been granted way back in the month of May, 2017.
[8] It is further the case of the applicant State that after passing of the order, no fresh complaint is lodged against the respondents nor any other circumstances erupted which resulted into violation of condition, which may warrant this Court to exercise discretion to cancel the anticipatory bail. Hence, in the absence of any cogent circumstance or in the absence of any material, the cancellation of anticipatory bail which has already been granted way back in the month of May, 2017, the Court is Page 6 of 10 Downloaded on : Fri May 06 20:03:55 IST 2022 R/CR.MA/18022/2017 ORDER DATED: 29/04/2022 not inclined to entertain the request.
[9] While coming to this conclusion, the proposition on the issue of cancellation of anticipatory bail as well as regular bail which has been propounded by series of decisions since the Court has considered the same following observations, Court deems it proper to reproduce hereunder:-
"(i) In the case of Myakala Dharmarajam & Ors., v. State of Telangana & Anr., reported in (2020) 2 SCC 743, Hon'ble Apex Court in paragraph 8 held as under:
"8. In Raghubir Singh v. State of Bihar2 this Court held that bail can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. The above grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to."
(ii) In the case of X. v State of Telangana & Anr., reported in (2018) 16 SCC 511, Hon'ble Apex Court in paragraphs 14, 15 and 18 held as under:
"14. In a consistent line of precedent this Court has emphasised the distinction between the rejection of bail in Page 7 of 10 Downloaded on : Fri May 06 20:03:55 IST 2022 R/CR.MA/18022/2017 ORDER DATED: 29/04/2022 a non-bailable case at the initial stage and the cancellation of bail after it has been granted. In adverting to the distinction, a Bench of two learned Judges of this Court in Dolatram v State of Haryana observed that:
"4. Rejection of a bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of the bail, already granted, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion of attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.
15. These principles have been reiterated by another two Judge Bench decision in Central Bureau of Investigation, Hyderabad v Subramani Gopalakrishnan5 and more recently in Dataram Singh v State of Uttar Pradesh:
"23. It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.
18. For the above reasons, we hold that the order of the High Court allowing the application for bail cannot be faulted. Moreover, no supervening circumstance has been made out to warrant the cancellation of the bail. There is no Page 8 of 10 Downloaded on : Fri May 06 20:03:55 IST 2022 R/CR.MA/18022/2017 ORDER DATED: 29/04/2022 cogent material to indicate that the accused has been guilty of conduct which would warrant his being deprived of his liberty."
(iii) In the case of Manoj Kumar Khokhar v State of Rajasthan & Anr., reported in (2022) 3 SCC 501, Hon'ble Apex Court in paragraphs 29 and 38 held as under:
"29. Recently in Bhoopendra Singh vs. State of Rajasthan & Anr. (Criminal Appeal No. 1279 of 2021), this Court made observations with respect to the exercise of appellate power to determine whether bail has been granted for valid reasons as distinguished from an application for cancellation of bail. i.e. this Court distinguished between setting aside a perverse order granting bail vis−a−vis cancellation of bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. Quoting Mahipal vs. Rajesh Kumar − (2020) 2 SCC 118, this Court observed as under:
"16. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted."
38. Thus, while elaborate reasons may not be assigned for grant of bail or an extensive discussion of the merits of the case may not be undertaken by the court considering a bail application, an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. In such a case the prosecution or the informant has a right to assail the order before a higher forum. As noted in Gurcharan Singh vs. State (Delhi Admn.) − 1978 CriLJ 129, when bail has been granted to an accused, the State may, if new circumstances have arisen following the grant of such bail, approach the High Court seeking cancellation of bail under section 439 (2) of the CrPC. However, if no new circumstances have cropped up since the grant of bail, the Page 9 of 10 Downloaded on : Fri May 06 20:03:55 IST 2022 R/CR.MA/18022/2017 ORDER DATED: 29/04/2022 State may prefer an appeal against the order granting bail, on the ground that the same is perverse or illegal or has been arrived at by ignoring material aspects which establish a prima−facie case against the accused." [10] In view of aforesaid proposition of law and in view of the circumstances which are discussed hereinabove, no case is made out for entertaining the application. Hence, the application being devoid of merit, same stands dismissed. Notice is discharged.
(ASHUTOSH J. SHASTRI, J.) DHARMENDRA KUMAR Page 10 of 10 Downloaded on : Fri May 06 20:03:55 IST 2022