Gujarat High Court
State Of Gujarat vs Badha Bhora Samala on 21 December, 2017
Author: S.H.Vora
Bench: S.H.Vora
R/CR.MA/29716/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
29716 of 2017
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STATE OF GUJARAT....Applicant(s)
Versus
BADHA BHORA SAMALA....Respondent(s)
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Appearance:
MR. LB DABHI, ADDL. PUBLIC PROSECUTOR for the Applicant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 21/12/2017
ORAL ORDER
1. The State, by way of present application for cancellation of bail filed u/s 439(2) of the Code of Criminal Procedure, 1973, challenges order dated 20.9.2017 passed by the learned Sessions Judge, Porbandar in Criminal Misc. Application No.990 of 2017, whereby respondent accused was granted bail in connection with offences registered before Udhyognagar Police Station being III - C.R. No.194/2016 for the offences punishable u/s 66(1-B), 65-E, 116(B) and 81 of the Prohibition Act.
2. The brief facts leading to filing of the complaint can be stated thus:-
2.1 The police had recovered contraband liquor worth Rs.38,180/- came to be raided and recovered and the present Page 1 of 4 HC-NIC Page 1 of 4 Created On Fri Dec 22 00:09:44 IST 2017 R/CR.MA/29716/2017 ORDER respondent accused was stated to have provided the entire raided goods of prohibited liquor at the scene of offence and was arrested on that basis.
3. In this case, learned Sessions Judge, after considering investigation papers and after submissions of both the sides, released respondent accused on bail by imposing suitable conditions.
4. Learned APP Mr. LB Dabhi for the applicant State states at bar that the learned Sessions Judge, while granting regular bail to the respondent accused, has not considered pendency of 15 offences registered under the provisions of the Prohibition Act against the respondent accused. Therefore, he has prayed to cancel the bail granted to the present respondent accused.
5. Section 438/439 of the Code confers very wide powers upon the Court of Sessions regarding bail. While granting bail, the Court considers the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds.
Each criminal case presents its own factual scenario and keeping in mind the facts of each case, the Court is required to only opine as to whether there exists prima facie case against the respondent accused. Whereas while cancelling the bail under section 439(2) of the Code, the Court will have to address to the points whether the accused is likely to Page 2 of 4 HC-NIC Page 2 of 4 Created On Fri Dec 22 00:09:44 IST 2017 R/CR.MA/29716/2017 ORDER temper with the evidence or attempt to interfere with the course of justice or to evade the due course of justice. Apart from it, in the matter of cancellation, the complainant requires to point out serious infirmities in the order and such infirmities resulted into miscarriage of justice.
6. Having heard learned APP appearing on behalf of the applicant State and considering the relevant materials, it appears that the attention of the learned Sessions Judge has not been drawn by learned APP appearing before the learned trial Court about pendency of 15 offences registered under the provisions of the Prohibition Act against the respondent accused and therefore, there cannot be any fault on the part of the learned Sessions Judge in granting regular bail to the respondent accused.
7. It is 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 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 complainant/prosecution cannot have the bail cancelled on some circumstances, which may have existed before grant of bail. The ground of cancellation of bail and grounds of rejection of bail are two different circumstances and hence, approach of the Court should also be different. At the time of hearing of bail application, the Court looks at possibility of violation of the bail condition and Court has to be more open and flexible, whereas, while hearing the cancellation bail application, the Court has to be more rigid and it has to Page 3 of 4 HC-NIC Page 3 of 4 Created On Fri Dec 22 00:09:44 IST 2017 R/CR.MA/29716/2017 ORDER examine only the possibility of violation whether actual violation has taken place or not. No doubt, the offence with which respondent accused is charged, is serious in nature, but every accused remains innocent until proved guilty beyond reasonable doubt and therefore, every accused person has right to enjoy bail granted to him unless there is an evidence to show the abuse of this right granted to him. It requires to be reiterated here 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 condition of bail or tempered with the the investigation or evidence or not. In case on hand, no any such grievance is ventilated by the learned advocate for the applicant and cancellation is sought on premise, as aforesaid.
8. So looking to the facts of the case before this Court, the Court is not inclined to entertain present application, as learned Judge has not committed any illegality or perversity in passing the impugned order and therefore, present Criminal Misc. Application stands rejected at admission stage.
(S.H.VORA, J.) shekhar Page 4 of 4 HC-NIC Page 4 of 4 Created On Fri Dec 22 00:09:44 IST 2017