Gujarat High Court
Rameshbhai @ Rajubhai Somabhai Parmar vs State Of Gujarat & 4 on 28 August, 2014
Author: S.G.Shah
Bench: S.G.Shah
R/CR.MA/11398/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
11398 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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RAMESHBHAI @ RAJUBHAI SOMABHAI PARMAR....Applicant(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR G R MANAV, ADVOCATE for the Applicant(s) No. 1
MR ASHISH M DAGLI, ADVOCATE for the Respondent(s) No. 2 - 5
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 28/08/2014
Page 1 of 10
R/CR.MA/11398/2013 CAV JUDGMENT
CAV JUDGMENT
1. Applicant - plaintiff has in para 7(b) of this application prayed as under :
"(b) YOUR LORDSHIP may be pleased to cancel the bail granted to the respondent No.2 to 5 for the ground of breach of conditions imposed by the Hon'ble Court while granting bail in connection with the F.I.R. being I
- Cr. No. 136/2012 registered with Meghaninagar Police Station, Ahmedabad."
2. Pursuant to First Information Report under reference which is filed by the present applicant on 05.07.2012 for the offences under Section 498A, 306, 114 of the Indian Penal Code and Section 3 and 7 of the Dowry Prohibition Act, which registered against respondent Nos. 2 to 5. Respondent No.2 is husband of the victim, respondent No.3 is mother - in - law of the victim and thereby mother of the respondent No.2, whereas respondent Nos. 4 and 5 are sisters of respondent No.2 and thereby sisters - in - law of the victim. Sum and substance of the complaint is to the effect that during married life of 4 to 5 years, respondent Nos. 2 to 5 have claimed dowry and tortured the victim, sisters of the applicant - complainant dragged her out of their house by snatching away the minor child and thereafter visited the maternal house of the victim and demanded dowry. Because of such ill-treatment, victim has repeatedly asked the applicant to obey and to fulfill the demands of respondent Nos. 2 to 5 and ultimately when Page 2 of 10 R/CR.MA/11398/2013 CAV JUDGMENT respondents had demanded dowry by visiting her maternal house, she has no option but to commit the suicide. In the complaint itself, it is stated that nobody was present at the house when incident of suicide was occurred. It is only when somebody has informed the applicant that his house is closed, he came to the house and broke open the door when he found that his sister/victim has committed suicide.
3. Though minute scrutiny of evidence is not warranted at such stage, proper consideration of allegation in First Information Report is must. Question is regarding liberty of the person. Based upon such allegation in the First Information Report, all the accused have preferred bail applications as and when it was comfortable to them and in turn respondent No.2 has preferred Criminal Misc. Application No. 17093 of 2012 before this Court wherein co- ordinate bench (Coram: A. S. Dave, J.) has granted bail to the respondent No.2 - husband by an order dated 13.12.2012. Whereas, respondent No.3, mother of respondent No.2 and mother - in - law of the victim has preferred Criminal Misc. Application No. 2639 of 2012 before the Sessions Court for anticipatory bail which was also allowed by the City Sessions Court No.23, Ahmedabad vide its judgment and order dated 14.08.2012. While respondent No.4 and 5 have preferred Criminal Misc. Application No. 11181 of 2012 before this High Court wherein another co-ordinate bench (Coram: S. G. Gokani, J.) has granted bail vide order dated 06.08.2012. Therefore, there are in all three different orders of bail in favour of respondent Nos. 2, 3 and 4 & 5 by different Courts.
Page 3 of 10 R/CR.MA/11398/2013 CAV JUDGMENT3.1 Therefore, practically it would be appropriate for the applicant to file separate application or at least disclose properly in such application for cancellation of bail whereby pursuant to Circular No. Judicial/08/2010 dated 16.07.2010, in fact cancellation of bail of respondent No.2 as well as 4 & 5 can be entertained by the same Court which has granted such bail and not by this Court.
3.2 Even after disclosing such position at bar, applicant has failed to bifurcate this application and to disclose properly for considering this application only for respondent No.3 who was released on anticipatory bail by the Sessions Court, considering the roster of business assigned to this Court.
3.3 Therefore, practically this application needs to be dismissed so far as respondent No.2 and 4 & 5 are concerned since application for cancellation of bail against them cannot be dealt with by this Court.
4. In view of such facts and circumstances, now this application remains for consideration of merits only for cancellation of bail of Jashiben in whose favour the Sessions Court has passed an order of bail as recorded herein above.
5. If we peruse the pleadings and material produced on record, though it is stated in the pleadings that respondent Nos. 2 to 5 are threating the applicant to compromise this case, complaint filed for the purpose being Karanj Police Page 4 of 10 R/CR.MA/11398/2013 CAV JUDGMENT Station II - C. R. No. 3183 of 2013 dated 29.04.2013 disclosing that on 26.04.2013 - date of hearing before the trial Court - when applicant has submitted an application before the trial Court for a early commitment of the case, respondents have not only quarreled but beaten the complainant. If we peruse such complaint dated 29.04.2010, it becomes clear that it is wisely drafted and presented by the present applicant in as much as in first part of the factual details, name of all the accused are disclosed though they have given threat to compromise the complaint, in later part, applicant could not disclose the name of respondent Nos. 3 to 5 when it is alleged that respondent No. 2 and his brother - in
- law has beaten him.
6. However, by affidavit - in - reply on behalf of respondent Nos. 2 to 5, respondent No.2 has submitted that in fact present applicant and his brother - in - law has beaten them and, therefore, he has also lodged a First Information Report before the Karnaj Police Station being I - C. R. No. 3177 of 2013 wherein it is stated that brother - in - law of respondent No.2 as well as respondent No.3 has received serious injuries for which he was treated in V. S. Hospital. Thereby it is further submitted that since they have filed First Information Report against him, applicant has lodged false First Information Report being II - C. R. No. 3183 of 2013.
7. So far as ground for cancellation of bail is concerned, when it is alleged that respondent has breached the conditions of bail order, now practically we are concerned with bail order of respondent No.3 only and even after Page 5 of 10 R/CR.MA/11398/2013 CAV JUDGMENT condition, not to enter into any such activity, prima facie there is no evidence on record that whether respondent No.3 has either threatened or beaten the applicant or his brother - in - law. The First Information Report referred by present applicant also does not disclose alleged breach of any condition by respondent No.3 and prima - facie this First Information Report is counter- blast of First Information Report by respondent No.2. In view of such facts and circumstances, when there is no breach of conditions by respondent No.3 and when respondent No.3 is aged lady and when now charge sheet is already filed, I not see any reason to interfere in the order of bail by the Sessions Court on 14.08.2012 in Criminal Misc. Application No. 2639 of 2012. Therefore, there is no substance in the revision application.
8. Following cited cases are relevant to recollect here, which confirm that bail cannot be cancelled in such cases.
(1) Bhuvaneshwar Yadav vs. State of Bihar reported in AIR 2009 SC 1452 wherein Honourable the Apex Court has confirmed that it is necessary for the Courts dealing with the application for bail to consider amongst all other circumstances, following circumstances before granting bail.
1. The nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence,
2. Reasonable apprehension of tempering the evidence or apprehension of threat to the complainant, Page 6 of 10 R/CR.MA/11398/2013 CAV JUDGMENT
3. Prima-facie satisfaction of the Court in support of the charge.
(2) Emmanuel Eric vs. State of Hariyana reported in (20102) 12 SCC 376.
(3) Tarakant Singh vs. State of Bihar reported in (2010) 11 SCC 767 (4) Devendra Kumar vs. State of Hariyana reported in (2010) 6 SCC 753
9. In the present case also, there is no allegation regarding misuse of liberty. Thereby, the cancellation of bail is prayed on merits of the order of bail. However, bail cannot be cancelled only because somebody files an application for cancellation of bail.
10. Recently, in Criminal Case nos.1542 of 2014 and 1766 of 2014 between Ankit Sharma v. State of NCT of Delhi and State of NCT of Delhi v. Gopal Goyal Kanda , Delhi High Court has considered the applications for cancellation of bail in such case of suicide, wherein, facts are more serious than the present case. Inasmuch as, the deceased has left two suicide notes disclosing the name of the accused responsible for compelling her to end her life. The Delhi High Court has after narrating all the relevant factual details taken care of all the judgments cited by both the sides in both the cases, which are as under:
13. Learned counsel for the applicant has relied upon judgments in State of Maharashtra vs. Captain Buddhikota Subha Rao, AIR 1989 SC 2292, Kishore Samrite vs. State of U.P. &Ors., (2013) 2 SCC 398, State through CBI vs. Amarmani Page 7 of 10 R/CR.MA/11398/2013 CAV JUDGMENT Tripathi, VII(2005) SLT 160, Prahlad Singh Bhati vs. NCT of Delhi & Anr., AIR 2001 SC 1444, Gurcharan Singh & Ors. vs. State (Delhi Administration), AIR 1978 SC 179,A.V. Papayya Sastry vs. Govt. of A.P. & Ors., (2007) 4 SCC 221 and Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav &Anr., (2004) 7 SCC 528.
Learned counsel for the respondent has relied upon judgments in Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40, H.B. Chaturvedi vs. CBI, 2010 (171) DLT 223, Avtar Singh vs. State of Punjab, (2010) 15 SCC 529, Laloo Prasad alias Laloo Prasad Yadav vs. State of Jharkhand, (2002) 9 SCC 372,Deepak Shubhashchandra Mehta vs. CBI & Anr., (2012) 4 SCC 134, Dolat Ram & Ors. vs. State of Haryana, (1995) 1SCC 349, Ramcharan vs. State of M.P., (2004) 13 SCC 617, Nityanand Rai vs. State of Bihar & Anr., (2005) 5 SCC 178, Hazari Lal Das vs. State of West Bengal & Anr.,(2009) 10 SCC 652, Jai Kumar vs. Balhari & Anr., II(2011) SLT 302, Rahmita vs. State & Ors., I(2012) VIII AD (Delhi)376, Govind Narain Johari vs. State & Anr., 2013 V AD (Delhi)179 and Suresh Kalmadi vs. CBI, 2012 (187) DLT 575.
11. The Delhi High Court has quoted relevant paragraphs of relevant citations. Therefore, repetition of all such paragraphs are not necessary at present but what is concluded by Delhi High Court in Paragraph nos.23, 24 and 28 are reproduced as under:
23. It is a settled law that bail granted can be cancelled on the ground which has arisen after the bail was granted. It is generally presumed that at the time of hearing of the bail application, the prosecution has raised all possible grounds which could go against the accused in the matter of bail and, therefore, when once bail has been granted to the accused, the prosecution cannot have the bail cancelled on some circumstances which may have Page 8 of 10 R/CR.MA/11398/2013 CAV JUDGMENT existed before the grant of bail.
24. The ground of cancellation of bail and grounds of rejection of bail are two different circumstances and hence the approach of the Court should also be different. At the time of hearing the bail application, the Court looks at the possibilities of the violation of bail conditions and the Court has to be more open and flexible, whereas while hearing the cancellation application, the Court has to be more rigid and it has to examine not only the possibility of violations but whether the actual violation has taken place or not. The Court should be more rigid here and actual proof of violation is required.
28.No doubt, the offence with which respondent/accused is charged is serious in nature, but every accused is presumed innocent until proven guilty beyond reasonable doubt and every accused person has the right to enjoy the bail granted to him unless there is evidence to show the abuse of this right given to him. It is re-
emphasized by this Court that at the time of dealing with the question of cancellation of bail of an accused, the only issue which is germane is whether the accused has misused the conditions of bail or tampered with the investigation or the evidence or not.
2. Moreover, when investigation is over and chargesheet has been filed now after the decision in Siddharam Satlingappa Mhetre v. State of Maharashtra, reported in 2011(1) SCC 694 , there is no reason to cancel the bail.
12. In view of above facts and circumstances, this petition is not entertained and dismissed against respondent Nos. 2 and 4 & 5, whereas dismissed against respondent No.3 on merits. Rule is discharged.
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