Gujarat High Court
Merubhai Ramabhai Kodiyatar (Hun) ... vs State Of Gujarat on 24 September, 2020
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/4052/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4052 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MERUBHAI RAMABHAI KODIYATAR (HUN) RABARI
Versus
STATE OF GUJARAT
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Appearance:
VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1
MS NISHA THAKORE APP(2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 24/09/2020
ORAL JUDGMENT
1. Rule. Learned APP waives service of rule on behalf of respondent - State.
2. This petition has been preferred by the petitioner under Article 226/227 of the Constitution of India and under Section Page 1 of 12 Downloaded on : Fri Sep 25 04:07:06 IST 2020 R/SCR.A/4052/2020 JUDGMENT 482 of the Cr.P.C. praying for quashment of the order passed by the Principal District and Sessions Judge, Devbhumi Dwarka at Khambhaliya in Cr.M.A. No.14/2020, dated 07.03.2020, in connection with C.R. No.I-50 of 2018, whereby the learned Sessions Judge has cancelled the bail granted to the applicant vide order dated 01.08.2019 in Criminal Misc. Application No.14630 of 2019. The application for cancellation of bail was filed by the State, as the applicant/accused was found in breach of conditions No.9(a) and 9(e) of the aforesaid order.
3. The short facts, as could be culled out from the memo, order impugned and the papers annexed with the petition, can be summarized as under:
3.1 The petitioner had preferred a bail application before this Court being Criminal Misc. Application No.14630 of 2019 in connection with C.R. No.I-50 of 2018 for the offences punishable under Sections 120B, 177, 193, 465, 467, 468, 471 and 474, registered with Bhanvad Police Station, wherein this Court vide order dated 01.08.2019 granted bail to the petitioner by imposing certain conditions.
3.2 Another FIR being Prohibition C.R. No.266 of 2018 came to be registered with Bhanvad Police Station for the offences punishable under Sections 65(a)(e), 81, 83, 98(2) and 116(b) of the Prohibition Act. For seeking bail in connection of the said FIR, petitioner approached this Court by preferring Criminal Misc. Application No.8016 of 2019, wherein this Court has granted bail to the petitioner vide order dated 24.07.2019 by imposing certain conditions.Page 2 of 12 Downloaded on : Fri Sep 25 04:07:06 IST 2020
R/SCR.A/4052/2020 JUDGMENT 3.3 Thereafter, the State through Police sub-inspector,
Bhanvad Police Station, has filed an application being Cr.M.A. No.14/2020 under Section 439(2) of the Cr.P.C. for cancellation of bail, granted by this Court in Cr.M.A. No.14630 of 2019 on account of breach of conditions being 9(a) and 9(e) and also preferred another application being Cr.M.A. No.1089/2019 for cancellation of bail, granted by this Court in Cr.M.A. No.8016 of 2019 on account of violation of conditions being 8(a) and 8(e).
3.4 The learned Session Judge, Devbhumi Dwarka at Khambhaliya, has allowed the application vide order dated 07.03.2020 being Cr.M.A. No.14/2020 preferred by the State and cancelled the bail granted to the petitioner, by observing that, vide para-10 of the order of this Court, permission was granted to the Session Judge concerned to issue warrant or take appropriate action if breach of any of the condition is committed;
while another application being Cr.M.A. No.1089/2019 was rejected by the Additional Session Judge, Khambhaliya vide order dated 07.02.2020 preferred by the State for cancellation of bail granted to the petitioner by this Court.
3.5 Being aggrieved by the order dated 07.03.2020, passed in Cr.M.A. No.14/2020, the petitioner has preferred this petition.
4. Learned advocate Mr. Vishal K.Anandjiwala for the petitioner submitted that the state has averred in the application, preferred before the learned session Judge, that the three FIRs were registered against the petitioner after he was released on bail and failed to mark presence before the police as per the order, therefore, breached the conditions of bail being Page 3 of 12 Downloaded on : Fri Sep 25 04:07:06 IST 2020 R/SCR.A/4052/2020 JUDGMENT 9(a) and 9(e) granted by this Court. Mr. Anandjiwala submitted that the false FIRs were filed against the petitioner and he has been impleaded as an accused on the information received by the police from their informants and by the statement of the co- accused. There is no evidence, which show that the petitioner was in possession of liquor or was involved in sale of the liquor.
5. Learned advocate for the petitioner further submitted that the learned Sessions Judge erred to appreciate the fact that in subsequent FIR being Prohibition C.R. No.227 of 2019 registered before the Jamjodhpur Police Station, the petitioner has been granted bail by Fourth Additional Sessions Judge vide order dated 18.02.2020, and another FIRs being Prohibition C.R. No.449 of 2019 and Prohibition C.R. No.450 of 2019 both registered at Ranavav Police Station, the petitioner has been granted bail in both the cases vide order dated 29.02.2020 by the Judicial Magistrate, First Class, Ranavav. He submitted that all the subsequent FIRs, on which the petitioner had been granted bail, were prior to the impugned order dated 07.03.2020, and bail came to be cancelled without hearing the present petitioner, hence, order was passed ex parte.
6. Learned advocate Mr. Anandjiwala for the petitioner submitted that as the subsequent FIRs were filed against the petitioner, he approached this Court by preferring quashing petition, which came to be withdrawn and therefore he surrendered and preferred bail application in all the subsequent offences registered against him. Mr. Anandjiwala stated that due to fear of arrest in the subsequent FIRs, the petitioner could not mark his presence before the police station.
Page 4 of 12 Downloaded on : Fri Sep 25 04:07:06 IST 2020R/SCR.A/4052/2020 JUDGMENT
7. Ms. Nisha Thakore, learned APP for the respondent - State submitted that the petitioner has breached conditions imposed by this Court while granting bail to the petitioner being 9(a) not take undue advantage of liberty or misuse liberty and 9(e) mark presence before the concerned police station between 1 st to 10th day of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m. Despite these conditions, the petitioner did not remain present for marking his presence as directed by this Court, which is clear from police report. The petitioner has marked his presence only for the month of September and October, 2019. She submitted that there were subsequent offences registered against the petitioner under the provisions of the Prohibition Act. Learned APP submitted that this is nothing but clear abuse of liberty granted to the petitioner and hence the impugned order passed by the learned Sessions Judge is just and proper and this Court may not exercise the discretion to quash the impugned order. Referring to the report of the Police Head Constable of Bhanvad Police Station, Ms. Thakore stated that when the notice for the hearing of cancellation of bail application was processed to be served, the brother of the petitioner reported of his abscondence owing to the prohibition cases registered at Jamjodpur and Ranavav Police station, hence the order cannot be termed as ex parte.
8. Heard learned advocates for both the sides and perused the material on record. It appears that while cancelling the bail on the application preferred by the State on ground of violation of condition nos.9(a) and 9(e), granted by this Court to the petitioner in Criminal Misc. Application No.14630 of 2019 in connection with C.R. No.I-50 of 2018, the learned Sessions Page 5 of 12 Downloaded on : Fri Sep 25 04:07:06 IST 2020 R/SCR.A/4052/2020 JUDGMENT Judge has considered three aspects viz. (i) three other offences registered against the petitioner under Prohibition Act (ii) violation of condition of marking presence before the police, as directed by this Court and (iii) statement of the brother of the petitioner dated 14.01.2020 suggesting that petitioner was absconding on account of other cases of liquor registered against him.
9. It appears that the learned Sessions Judge has failed to consider the facts and circumstances and the materials placed before him for analysis, one application being Cr.M.A. No.1089/2019 filed by the State before the Additional Sessions Judge, Khambhaliya for cancellation of bail, granted by this Court in Cr.M.A. No.8016 of 2019 on ground of violation of conditions being 8(a) and 8(e), which were the same conditions imposed by this Court in Cr.M.A. No.14630 of 2019, the same was rejected by the learned Additional Sessions Judge vide order dated 07.02.2020.
9.1 Secondly, as per the report of the Police-sub-inspector, the charge-sheet had been filed against the applicant-accused as the case being C.C. No.458/2019 in C.R. No.I-50 of 2018 before the Court of Judicial Magistrate.
9.2 Thirdly, the learned Sessions Judge has not considered the fact, which were on record, that in other prohibition cases registered against the petitioner being Cr.No.III-449/2019 and Cr.No.III-450/2019, both at Ranavav Police Station, bail was granted by the Judicial Magistrate, First Class, Ranavav on 29.02.2020 and in Cr.No.III-227/2019 of Jamjodpur Police Page 6 of 12 Downloaded on : Fri Sep 25 04:07:06 IST 2020 R/SCR.A/4052/2020 JUDGMENT Station, bail was granted by Fourth Additional Sessions Judge, Jamnagar on 18.02.2020. Meaning thereby, in all the cases the petitioner was granted bail prior to the order impugned dated 07.03.2020.
9.3 The learned Sessions Judge also failed to consider that in charge-sheet filed before the concerned trial court, no grievance has been raised that the accused was not attending the trial court. The police in his application filed before the learned Sessions Judge, stated that the accused had marked his presence before the police station in the month of September and October, 2019, which was also recorded by the learned Sessions Judge in its order, therefore, it can be deduced that it was unintentional on the part of the accused to disregard the order of this Court.
10. It is mandatorily provided under Section 173 of the Cr.P.C., for the Police Officer to inform the Court, whether report after completion of investigation has been filed or not? whether the accused has been released on bond and, if so, whether with or without sureties.
11. The condition of marking presence before the police station for a certain period, is a condition which a court may impose in the interest of justice. Such conditions are generally imposed to secure the presence of the accused for the trial and to prevent him from fleeing the course of justice and such condition becomes necessary so as to prevent him from tampering with evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before Page 7 of 12 Downloaded on : Fri Sep 25 04:07:06 IST 2020 R/SCR.A/4052/2020 JUDGMENT the police or court; and sometimes to restraint the movement of the accused in a particular area or locality or to maintain law and order. There may be further consideration in the mind of the court while imposing the condition of marking presence before the concerned police station; generally, this condition bears importance till the filing of charge-sheet, as and when the charge-sheet is forwarded to the Magisterial Court empowered to take cognizance of the offence on the police report, the same accused is under the control of the court.
12. The order of the High Court permitted the Sessions Judge to issue warrant or take appropriate action in the matter, if there is any breach of any of the condition of bail laid down on the accused. At the same time, the same order permits the concerned court to delete, modify and/or relax any of the above conditions, in accordance with law. The learned Sessions Judge failed to consider the difference between the application for bail and application for cancellation of bail.
13. The object of bail has been laid down in case of Sanjay Chandra Vs. CBI, reported in (2012) 1 SCC 40, wherein in para-14, the Hon'ble Supreme Court held as under:
Para-14:- In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly Page 8 of 12 Downloaded on : Fri Sep 25 04:07:06 IST 2020 R/SCR.A/4052/2020 JUDGMENT tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson."
14. The Hon'ble Supreme Court in case of Gurcharan Singh & Ors. Vs. State (Delhi Administration), reported in (1978) 1 SCC 118, held two paramount considerations, while considering petition for grant of bail in a non-bailable offence, apart from the seriousness of the offence, there is likelihood of the accused fleeing from justice and his tampering with prosecution witnesses. Both of them relate to ensure a fair trial of the case.
14.1 Therefore, to ensure a fair trial, all considerations are explored while granting bail. Thus, when the question is raised on the power to cancel bail, the same has to be exercised with great care and circumspection. Cogent and overwhelming Page 9 of 12 Downloaded on : Fri Sep 25 04:07:06 IST 2020 R/SCR.A/4052/2020 JUDGMENT circumstances are necessary for an order seeking cancellation of bail.
15. In case of Dolat Ram Vs. State of Haryana, reported in (1995) 1 SCC 349, the Hon'ble Supreme Court in para-4 held as under:
"4. Rejection of 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 bail, broadly (illustrative and not exhaustive) 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 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. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted."
16. Thus in Dolat Ram's case, it has been held that 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 Page 10 of 12 Downloaded on : Fri Sep 25 04:07:06 IST 2020 R/SCR.A/4052/2020 JUDGMENT during the trial. In the case of X Vs. State of Telangana, reported in 2018 (16) SCC 511, the Apex Court has held that bail once granted should not be cancelled unless a cogent case based on a supervening event has been made out. It has been observed that second FIR is not a supervening circumstance of such a nature, as would warrant the cancellation of bail, which was granted by the High Court. In the present case, the petitioner was pursuing legal recourse, though he was not marking his presence before the police he was before the Courts seeking bail in the subsequent FIRs that came to be registered against him. He was granted bail by the concerned Court. The police report itself suggests that the matter in which the bail was sought to be cancelled, charge-sheet was already filed, which makes the petitioner answerable to the trial Court.
16.1 The grounds for cancellation of bail and grounds of rejection of bail are two different circumstances and hence the consideration of the court on the issue also becomes different, while hearing the application for cancellation of bail, the court has to be more rigid, as it has to examine not only the possibility of violation, but also the possible consequences. The power of cancellation of bail must be exercised with care and circumspection keeping in mind the urgent and overwhelming circumstances. The bail already granted should not be cancelled on a routine manner, as it jeopardizes the personal liberty of the person. In the present case, the respondent - State has not been able to show any supervening circumstances, which would reflect that the liberty, granted to the accused, was misused, and no longer conducive to a fair trial.
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17. In view of the above discussions and observations, this Court is inclined to exercise discretion in favour of the petitioner. Hence, the petition is allowed. The order dated 07.03.2020 passed by the Principal District and Sessions Judge, Debhumi Dwarka at Khambhaliya in Cr.M.A. No.14 of 2020 is quashed and set aside. Rule is made absolute.
(GITA GOPI,J) Pallavi Page 12 of 12 Downloaded on : Fri Sep 25 04:07:06 IST 2020