Bombay High Court
Navin Kumar Gupta vs Raja Palaniswamy Devendra And Anr on 15 September, 2021
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
Megha 16_appln_213_2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.213 OF 2017
Digitally
signed by
MEGHA MEGHA S
PARAB
S Date:
PARAB 2021.10.11
11:52:40
+0530
Dr. Navin Kumar Gupta ...Applicant
Versus
Raja Palaniswamy Devendra and
Anr. ...Respondents
....
Mr. Rajeev Kumar with Mr. Aditya Parmar for the Applicant.
Mr. S.V. Gavand, APP for the Respondent -State.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
DATED: 15th SEPTEMBER, 2021.
P.C.:-
This is an application under Section 439(2) of the Code of Criminal Procedure, 1973, for cancellation of bail granted to Respondent No.1 by order dated 05/12/2016.
2. Heard learned counsel for the Applicant and learned APP for the State. Perused the records.
3. The Applicant is a Doctor by profession. He had lodged FIR alleging that on 22/06/2016 at about 19.30 hrs. he was assaulted by four unknown persons with chopper, knives, etc. Pursuant to the said FIR, crime was registered against unknown persons for ofences punishable under Sections 307, 427 and 341 r/w 34 of the IPC. 1/6
Megha 16_appln_213_2017.doc
4. The co-accused, who had allegedly assaulted the Applicant were arrested on 27/06/2016. Respondent No.1 was subsequently arrayed as an accused and was arrested. He applied for bail before the Sessions Judge, Greater Bombay. Learned Judge after considering the accusations in the FIR and the other material on record held that there is no prima facie material to show the involvement of the Respondent No.1 in committing the aforesaid crime and hence ordered to release Respondent No.1 on bail on furnishing bail bonds of Rs.50,000/- with solvent sureties and other conditions specifed in the bail order.
5. The Applicant/frst informant has sought cancellation of bail primarily on the ground that subsequent to the bail order, the Respondent No.1 had threatened him and that NC complaint to that efect has been fled. Learned counsel for the Applicant submits that the learned Judge has not taken into consideration the criminal antecedents of the Respondent No.1. He has urged that the statement of Rajkiran Sharma prima facie indicates that Respondent No.1 had accepted money from the co-accused Sanjay Veera, a builder by profession, to arrange contract killers. He therefore claims that the Respondent No.1 is not entitled to remain on bail. 2/6
Megha 16_appln_213_2017.doc
6. Learned APP states that charge sheet has been fled and that the matter is now pending before the Sessions Court, Mumbai. I have perused the records and considered the submissions advanced by learned counsel for the respective parties.
7. At the outset it may be mentioned that parameters for grant of bail are entirely diferent from cancellation of bail. In Myakala Dharmarajam and Ors. vs. The State of Telangana and Anr. (2020) 2 SCC 743, the Apex Court has observed thus:-
6. The factors to be considered while granting bail have been held by this Court to be 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 feeing from justice and repeating the ofence, the possibility of his tampering with the evidence and witnesses, and obstructing the course of justice etc. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the Court. The court has to only opine as to whether there is prima facie case against the accused. For the purpose of bail, the Court must not undertake meticulous examination of the evidence collected by the police and comment on the same.1
7. In Raghubir Singh v. State of Bihar this Court held that bail can be cancelled where (i) the accused misuses his 3/6 Megha 16_appln_213_2017.doc 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 feeing 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.
8. It is trite law that cancellation of bail can be done in cases where the order granting bail sufers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant material indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail."
8. In the instant case the FIR does not disclose the name of Respondent No.1. The only incriminating material, which has been 4/6 Megha 16_appln_213_2017.doc pointed out by learned counsel for the Applicant, is the statement of Rajkiran Sharma recorded after the order of bail. The statement of witness Rajkiran Sharma indicates that he was working as a security guard for the co-accused-Sanjay Veera. After leaving the service of Sanjay Veera, this witness fled an afdavit before the Court on 06/06/2017 stating that he had heard Respondent No.1 and Sanjay Veera talking about eliminating the Applicant. He also Claims that he had seen Sanjay Veera paying money to Respondent No.1 to hire contract killers. Subsequent thereto his statement was recorded by the police on 19/12/2017 and taken before the Court under section 164 of Cr.P.C.
9. The only material against the Respondent No.1 is the statement of this witness. It is to be noted that the incident is of the year 2016. The witness did not disclose the incident to anyone for almost a year. Surprisingly after leaving the service of Sanjay Veera the witness voluntarily goes before the Court and fles an afdavit alleging that while he was standing outside the cabin, he had heard Sanjay Veera telling the Applicant to arrange for contract killers and seen him paying the money for the said purpose. Considering the delay in divulging the information coupled with the tenor of the statement, it would not be safe to cancel the bail solely on the basis of the said statement. 5/6
Megha 16_appln_213_2017.doc
10. The criminal antecedents referred to by the Applicant relate to the crimes registered against the Respondent in the year 1990, 2001 and 2005. The Applicant has not disclosed whether the Respondent No.1 has been held guilty in all these crimes. Bail granted to Respondent No.1 cannot be cancelled on such old and stale crimes.
11. The Applicant has also alleged that on 05/08/2017, when Respondent No.1 was produced before the Court to attend the hearing, he threatened him by saying - 'last time you had escaped this time we will not leave you'. The Applicant reported this matter to the police on the next date and accordingly NC complaint came to be recorded under Section 155 of Cr.P.C. It is pertinent to note that as on the date of the said incident, Respondent No.1 was in custody. None of the police personnel escorting the Respondent No.1 have complained about this incident. It would therefore not be safe to cancel the bail on mere assertion of alleged threat, moreover when often such allegations are made in a routine manner to nullify the order of bail.
12. In the circumstances, in my considered view, no case is made out for cancellation of bail. Hence, the application is dismissed.
(SMT. ANUJA PRABHUDESSAI, J.) 6/6