Gujarat High Court
State Of Gujarat vs Imaran @ Imaran Bharwad Mohmadbhai ... on 29 April, 2022
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
R/CR.MA/14414/2017 ORDER DATED: 29/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 14414 of 2017
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STATE OF GUJARAT
Versus
IMARAN @ IMARAN BHARWAD MOHMADBHAI SAIYED
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Appearance:
MR.HARDIK SONI, APP for the Applicant(s) No. 1
MR KUNAL S SHAH(5282) for the Respondent(s) No. 1
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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 regular bail granted to the respondent accused vide order dated 08.03.2017 passed in Criminal Misc. Application No.3149 of 2016 by the learned 5 th Additional Sessions Judge, Surat.
[2] The background of fact of present application is that one complaint came to be filed at the instance of one Mr. Maheshbhai Jadavbhai Raghadiya before Varachha Police Station for the offences punishable under sections 302, 307, 323, 504, 201, 120(B) of Indian Penal Code read with section Page 1 of 8 Downloaded on : Sat Dec 24 15:53:10 IST 2022 R/CR.MA/14414/2017 ORDER DATED: 29/04/2022 135 of G.P. Act. The allegation in the complaint is that one Gautam @ Golden and other three accused persons came to the office of deceased Balubhai Hirani and keeping in view the earlier animosity assaulted and out of such incident, the complainant was assulted by one unknown person aged about 25 - 30 years with knife and and Gautam @ Golden and other unknown persons have also given knife blow to Babubhai Hirani, Bharatbhai Togadiya and Ashokbhai Kikani and killed the persons. Pursuant to said incident, the FIR which was registered as C.R. No. I-109 of 2016 for the offences as stated hereinabove and after thorough investigation charge-sheet came to be filed on 11.08.2016 against total seven accused persons. One of the chargesheeted accused namely Imaran @ Imaran Bharwad Mohmadbhai Saiyed was also arraigned as an accused persons in one complaint for which Criminal Misc. Application No. 3149 of 2016 was filed and the request of bail was considered vide order dated 08.03.2017 which is made the subject matter of the present application for cancellation of bail by raising multiple contentions.
[3] When the matter is taken up for hearing, Mr. Hardik Soni, learned APP has submitted that in such kind of serious offence, Page 2 of 8 Downloaded on : Sat Dec 24 15:53:10 IST 2022 R/CR.MA/14414/2017 ORDER DATED: 29/04/2022 the discretion ought not to have been exercised in a routine manner without examining the detail circumstances and the allegation which led to commission of crime. Here the learned 5th Additional Sessions Judge has granted bail to the accused person and thereto without assigning proper reasons and as such in the absence of any examination at length, the order of bail deserves to be quashed.
[4] As against this, learned advocate Mr. Kunal Shah appearing for the respondent - accused has submitted that there are no serious criminal antecedents of the present accused and the order which has been questioned would clearly indicate that the same has been passed not only in due discharge of the discretion but after proper examination of relevant papers and assigning of reason and as such when there appears to be a proper application of mind by the court concerned while exercising due discretion and further several years have been passed, the said discretion may not be interfered with. Further, it has been contended that in another complaint which is said to have arraigned present respondent accused has already been tried in which by a detailed order on 31.08.2021 an order of acquittal came to be passed insofar as it Page 3 of 8 Downloaded on : Sat Dec 24 15:53:10 IST 2022 R/CR.MA/14414/2017 ORDER DATED: 29/04/2022 relates to present respondent. Hence, in the absence of any serious criminal antecedents, the exercise which has been undertaken way back in March, 2017 may not be disturbed. In any case now the trial has already been commenced and it is not the case of applicant that there is any violation of any conditions of bail by respondent accused nor it is a case that he misused his liberty in any form and as such considering the circumstances and the proposition of law on the issue of cancellation of bail, the Hon'ble Court may not interfere and this fact of no misuse of liberty or violation of the conditions of bail is fairly confirmed by the learned APP and has stated that it is not the case of State about such.
[5] Having heard learned advocates appearing for the respective parties and having gone through the material on record, it appears that the order in question dated 08.03.2017 is a well reasoned discretion which has been exercised and after careful consideration and by putting appropriate condition, the discretion is exercised by the court below and as such in the absence of any misuse of liberty or in absence of any other supervening circumstance, which may warrant cancellation of bail, this Court is of the opinion that in the absence thereof, the Page 4 of 8 Downloaded on : Sat Dec 24 15:53:10 IST 2022 R/CR.MA/14414/2017 ORDER DATED: 29/04/2022 discretion which has been exercised way back in March, 2017 does not deserve to be interfered with.
[6] As held by series of decisions, the grant of bail and cancellation thereof stand on a different footing and the law on the issue which has been propounded by series of decisions since the Court has considered the same following observations, 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:
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R/CR.MA/14414/2017 ORDER DATED: 29/04/2022 "14. In a consistent line of precedent this Court has emphasised the distinction between the rejection of bail in 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 Page 6 of 8 Downloaded on : Sat Dec 24 15:53:10 IST 2022 R/CR.MA/14414/2017 ORDER DATED: 29/04/2022 faulted. Moreover, no supervening circumstance has been made out to warrant the cancellation of the bail. There is no 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 Page 7 of 8 Downloaded on : Sat Dec 24 15:53:10 IST 2022 R/CR.MA/14414/2017 ORDER DATED: 29/04/2022 section 439 (2) of the CrPC. However, if no new circumstances have cropped up since the grant of bail, the 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." [7] In view of aforesaid proposition of law and in view of the circumstances stated hereinabove, more particularly, when the case is not of any misuse of liberty or violation of conditions by the respondent accused, Court deems it proper not to disturb the discretion which has been exercised way back in the month of March, 2017 particularly when the trial is undisputedly reached to a final destination. Hence, the present application being devoid of merits, same stands dismissed. Notice is discharged.
(ASHUTOSH J. SHASTRI, J.) DHARMENDRA KUMAR Page 8 of 8 Downloaded on : Sat Dec 24 15:53:10 IST 2022