Gujarat High Court
Manishaben Kamleshbhai Mehta vs State Of Gujarat & on 18 July, 2014
Author: S.G.Shah
Bench: S.G.Shah
R/CR.MA/9440/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO. 9440 of 2013
With
CRIMINAL MISC.APPLICATION NO. 15929 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH Sd/-
=================================================
1 Whether Reporters of Local Papers may be allowed to see the No judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the No interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No ================================================= MANISHABEN KAMLESHBHAI MEHTA....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================= Appearance:
HCLS COMMITTEE, ADVOCATE for the Applicant No. 1 MR PH BUCH, ADVOCATE for the Applicant No. 1 MR NITIN M AMIN, ADVOCATE for the Respondent No. 2 MS.JIRGA JHAVERI, APP for the Respondent No. 1 ================================================= CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date :18/07/2014 CAV COMMON JUDGMENT
1. This revision application is preferred by the original complainant-victim, challenging the judgment and order dated 18.05.2013 passed by the Additional Sessions Judge, Court No.16 of Ahmedabad City Sessions Court in Criminal Misc. Application No. 1626 of 2013. By such impugned order, Sessions Court has allowed the application for anticipatory bail preferred by the respondent Page 1 of 26 R/CR.MA/9440/2013 CAV JUDGMENT No.2 pursuant to offences registered against him under Sections 506 (2) and 376 of the Indian Penal Code with D.C.B. Police Station vide C.R.No. II - 3009 of 2001. Such impugned order is with several conditions viz; marking presence on specific dates before the concerned Police Station, depositing original passport before the Investigating Officer, not to leave limits of State of Gujarat, furnishing residential address to the I.O. and to intimate the change in address to the concerned I.O. with other regular conditions as provided under the statue for bail, but with a further specific condition that it would be open for the Investigating Agency to apply for police remand stating that for the purpose accused shall be considered in the judicial custody and making it clear that the Magistrate shall consider such an application in accordance with law.
2. The impugned order is also challenged by the State in Criminal Misc. Application No. 15929 of 2013 for cancellation of bail of the same person, therefore, both the applications are heard together and disposed of by this common judgment.
3. It seems that complainant has to run a marathon race for her grievances which continued for last 14 years and, therefore, there is voluminous record of investigation as well as different proceedings before different Courts. However, the most important fact is to the effect that though petitioner has disclosed the commission of an offence on 29.05.2001, the complaint under Section 376 has been Page 2 of 26 R/CR.MA/9440/2013 CAV JUDGMENT registered only after directions of the Hon'ble Supreme Court to submit final report in four weeks, by judgment and order dated 04.02.2013 in SLP(Cr.) No.636 of 2013. Therefore, though the offence is before the year 2001 and though the first complaint filed in the year 2001, at present it cannot be said that now because of passage of time i.e. more than a decade, there is no substance in such application seeking cancellation of bail. Otherwise also the fact is simple that the bail is first time granted by impugned judgment and order dated 18.05.2013 against charges under Section 376 because such charge is added in pending case, since police did not bother to add such charges for long time.
4. I have perused the entire record of the present proceeding and entire record of the police investigation for all these 13 years. From perusal of such bulky record, though some facts may not be relevant at present, it would be appropriate to recollect the following details:-
(i) Petitioner is a house wife, has filed a complaint on 29.05.2001 before the Assistant Police Commissioner of Crime Branch at Gaikwad Hawali Police Station of Ahmedabad City contending that respondent No.2 has committed rape by ravishing by force and threatened her once in his car near Telav village and thereafter, respondent No.2 again threatened the petitioner that if she refuses or complains, then he will convey such fact to her husband and thereby because of such Page 3 of 26 R/CR.MA/9440/2013 CAV JUDGMENT threat or emotional blackmailing, he dragged the petitioner by ravishment and molestation to Ellise Hotel near town hall and entered into physical relationship against her will and taken her nude photograph. It is further alleged that such activity was continued for some time and in addition, he was not only blackmailing the petitioner but defaming her by writing letters to the family members or relatives of the petitioner in unwanted billingsgate language. It is further stated that because of such harassment, petitioner had been to the Jyotisangh, a counseling and guidance center for womens in Ahmedabad City where she has conveyed all such facts in detail about her rape by respondent No.2 and her mental and social agony and when councilors of the Jyotisangh had given her mental support after recording her statement in presence of them, she has dared to lodge a complaint on 29.05.2001 before the Police as stated hereinabove. During preliminary inquiry the police has recorded the statement of councilors of the Jyotisangh, who have not only confirmed the complaint by the petitioner before them but confirmed the inquiry made by them and produced the statement recorded by them before the police which supports the version of the complainant. The complainant has also produced the letters received by her family. Perusal of such letters make it clear that it is not only abusing and in disturbing billingsgate language but it is certainly defamatory and in the form of blackmailing of the Page 4 of 26 R/CR.MA/9440/2013 CAV JUDGMENT petitioner conveying her to obey the demand of the different persons around her. During investigation, police has recorded statement of complainant and councilors and even in the statement before the police, said story has been categorically disclosed by them. For letters under reference, which are available on police record, the police has recorded statement of such several persons who have also confirmed that they are in receipt of such letters and that the contents of letters are derogatory, defamatory and in billingsgate language.
(ii) Unfortunately, even after such investigation wherein there is a clear disclosure regarding commission of offence of rape by respondent No.2 with the petitioner, the police has registered the FIR only under Section 506(2) of IPC being C.R. No. II- 3009 of 2001 with D.C.B. Police Station of Ahmedabad, thereby it cannot be said that petitioner has lodged the complaint after a decade, when charge under Section 376 was added after a decade i.e. after several interim orders and challenge of such orders till Hon'ble Supreme Court.
(iii) It is also came on record that during the investigation because of such disturbing activities by respondent No.2, petitioner and her family had shifted at Ahmedabad but unfortunately petitioner has continued to disturb her even at Ahmedabad by making phone calls and writing letters in Page 5 of 26 R/CR.MA/9440/2013 CAV JUDGMENT billingsgate language.
5. It is also evident that petitioner has to run marathon for getting her complaint registered as an F.I.R. and more particularly for addition of charge under Section 376. It is also evident that pursuant to complaint dated 29.05.2001, the F.I.R. being C.R.No. II - 3009 of 2001 was registered only under Section 506(2) though there are specific allegation in complain dated 29.5.2001 regarding commission of offence under Section 376 by the respondent on different occasions at different places. For the purpose, petitioner has to chase the matter up to the Hon'ble Supreme Court and charges under Section 376 was added only after the direction by the Additional Chief Metropolitan Magistrate Court No.11, Ahmedabad vide order dated 25.04.2013 below charge-sheet in Criminal Case No.51 of 2001. After disclosing all material facts on record, the Magistrate has, while adding the charge under Section 376 of the Indian Penal Code, directed to cancel the bond of the respondent and to take him in judicial custody. Pursuant to such order based upon police report at Annexure-42 before the Trial Court, the respondent No.2 has applied for suspension of such order on 25.04.2013 at Annexure-44 wherein Trial Court has suspended the impugned order and such suspension is in-force till date.
6. The judgment and order dated 25.04.2013 to take the applicant in judicial custody was challenged before the Sessions Court at Page 6 of 26 R/CR.MA/9440/2013 CAV JUDGMENT Ahmedabad in Criminal Revision Application No.207 of 2013. Such revision was rejected by Sessions Court on 16.08.2013 confirming the order of Magistrate to add the charges under Section 376 and thereby to take the respondent No.2 in judicial custody.
7. The petitioner has also produced on record certain documents to prove that respondent No.2 has committed several breach of order of bail. Petitioner has also contended that respondent No.2 has filed a false criminal case against her husband, who is one of the witness in the present case, for which her husband has to apply for anticipatory bail. It is further stated that respondent No.2 is not disclosing all relevant facts to the Court and continued to file different litigation to harass the petitioner and his family. It is further contended that respondent No.2 has challenged the order of adding of charge under Section 376 of the Indian Penal Code and taking him in judicial custody before the High Court, but even High Court has dismissed his applications and therefore, it is submitted that now when charges under Section 376 are there, anticipatory bail cannot be granted, therefore, she has requested to cancel the anticipatory bail granted in favour of the respondent No.2.
8. At present we are concerned with the impugned order dated 08.05.2013 passed by the Additional Sessions Judge, Court No.16 of Ahmedabad City Civil Court in Criminal Misc. Application No. 1626 of 2013. On perusal of such impugned judgment and order, it transpires Page 7 of 26 R/CR.MA/9440/2013 CAV JUDGMENT that the Sessions Court has granted anticipatory bail to the respondent No.2 for the offences under Section 506(2) and 376 of the Indian Penal Code. For granting anticipatory bail, the Sessions Court assigned only a single reason that application for anticipatory bail is required to be allowed by imposing certain conditions, considering the facts and circumstances of the case. The consideration of facts and circumstances are also in few words, which is to be recollected from the impugned order in the language by the Sessions Court itself. For the purpose para 7 of the impugned order is quoted as under:
"7. Considering the submissions of LAs for the parties, police papers, affidavits and documents produced on record, it appears that as per the provisions of section 438 of Cr.P.C. where any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence he may apply to the high court or the court of session for a direction under this section that in the event of such arrest, he shall be released on bail. Now, in the present case, the applicant was released on bail and thereafter charge sheet has come to be filed. But after the report of the police during the pendency of the case, offence under section 376 was added and after submission of the report, learned Metropolitan Magistrate court has ordered to cancel the bail bond of the applicant and to take the applicant in judicial custody and to commit the case. Therefore, looking to the facts of the case, initially, the applicant was released on bail for the offence u/s 506(2) of the IPC and case was pending. During trial, session triable offence u/s 376 has been added and Ld. Metropolitan Magistrate Court has canceled the bail bond of the applicant. Therefore, the applicant has apprehension that he may be arrested. Considering the facts and circumstances of the case, present application is required to be allowed by imposing certain conditions. Hence, I pass the following order."Page 8 of 26 R/CR.MA/9440/2013 CAV JUDGMENT
Before this para, submission of both the advocates are narrated in brief with list of citation by both the sides.
9. Therefore, prima facie it becomes clear that the Sessions Court has failed to assign proper reasons for granting anticipatory bail to the respondent for the alleged offence under Section 376 of Indian Penal Code.
10. It cannot be ignored that even for registration of offence under Section 376 of Indian Penal Code, complainant has to await for a decade and respondent was able to drag the matter for a decade before her complaint can be registered under proper sections.
11. Therefore, irrespective of possibility of conviction after the full- fledged trial, at the stage of granting bail, Court has to follow the settled principle of law, which simply confirms that in case of a prima facie evidence against the accused regarding commission of particular offence the bail can be granted, if there is lack of prima facie evidence regarding involvement of the accused and thereby commission of the offence by the accused. However, if there is prima facie evidence regarding involvement of the accused in commission of serious offence, even possibility of conviction cannot be looked, without affording a reasonable opportunity to the prosecution to prove its case. There is no doubt that, in general, the principle of bail Page 9 of 26 R/CR.MA/9440/2013 CAV JUDGMENT but not jail pending the trial is to be followed but the fact remains that in case of heinous crime and more particularly against women such principle cannot be applied leniently. It is also certain that though it cannot be argued against the complainant that complaint was not filed at the earliest and that charges could not be leveled against the accused after more than a decade, considering the social set up of the country and increasing crime against the women and thereby barring few exceptions, the general principle would remain in-force that no woman would come forward so as to disclose that she was ravished, because generally it does not only hampers her reputation in the society but it certainly disturbs her personal and married life. Though there may be some cases where some women may have tried to take disadvantage of their status, in general, no woman would come forward with a story of her ravishment and molestation except when there is a necessity to do so, because such disclosure in the family and society creates a set back for such women. In the present case also, the complainant has to disclose the offence before her family members, including minor daughter, that she had been molested by respondent No.2 because, the family has received certain letters regarding her chastity, which not only defame her character but result in to great mental torture. It is also obvious that there is a link between the allegations against the accused and language as well details disclosed in such unwarranted letters received by the family of the complainant. Such letters can be treated as an evidence for causing undue pressure on the applicant to allow Page 10 of 26 R/CR.MA/9440/2013 CAV JUDGMENT the offender to continue the activities and for not filing the complaint. This is nothing but a serious attitude and activity of the offender.
12. Thereby impugned order is not bad on merits alone but the cancellation of bail is warranted because of further illegal activities by the respondent No.2 accused. It has been brought on recored by the complainant that after getting bail for the offences under Section 506(2), the accused No.2 knowing fully well that proceedings to add charges under Section 376 are pending, has filed false complaint and cases against the husband of the petitioner-victim which could certainly be treated as a tampering with the evidence by disturbing the witnesses and, therefore, also accused is not entitled to benefit anticipatory bail.
13. It is also to be recollected hear that by order dated 25.04.2013 when learned Magistrate has directed that the applicant be taken to the judicial custody, the applicant- accused has challenged such an order by filing revision but could not succeed in setting aside the direction to take him in judicial custody and in between he preferred the Criminal Misc. Application No. 1626 of 2013 for anticipatory bail which was granted by the impugned order. Therefore, the impugned order results into setting aside the order dated 25.04.2013 which was otherwise not quashed and set aside by the competent Court.
Page 11 of 26 R/CR.MA/9440/2013 CAV JUDGMENT
14. The record shows that after order dated 25.04.2013 was passed, on request of the learned advocate for the accused before the trial Court, the trial Court has stayed such order till 07.05.2012 (actually it should be 07.05.2013) and when no such stay was there in favour of the accused, on 07.05.2013 complainant has requested the trial Court to issue warrant by Exh. 46. Below Exh. 46 the trial Court has passed an order on the very same day disclosing that accused has though challenged the order dated 25.04.2013, he has withdrawn such application before the appellate court and thereafter, another application was filed. Hence, considering the pendency of such application, the trial Court has restrained itself from issuing warrant.
15. On the same day i.e. on 07.05.2013 accused has filed an application at Exh. 47 before the trial Court seeking stay or committal proceeding and issuance of warrant. However, after considering delay the trial Court has rejected the same.
16. The accused has also challenged such order before this Court but ultimately he could not succeed in getting him released against order dated 25.04.2013 regarding taking him in judicial custody.
17. It is obvious from the record that accused has initiated criminal proceeding against the husband of the complainant however, High Page 12 of 26 R/CR.MA/9440/2013 CAV JUDGMENT Court has quashed such complaint by order dated 09.01.2007. Record also shows that accused has filed complaint under Section 466 of Indian Penal Code against the husband of the complainant on 16.04.2004 before Judicial Magistrate at Sanand. In such case also he was acquitted on 21.04.2004. It is also evident from the record that accused has filed different proceedings from the same set of allegations and that at least in one case the allegations are simple regarding production of xerox of certain documents when Court has to confirm that production of xerox does not constitute any offence. The bulky record shows all details of all such proceedings which certainly confirms that even after releasing on bail under Section 506(2), accused has tried his level best to harass the complainant and her husband.
18. It can be argued that filing of complaint is right of the citizen but filing of repeated complaints based upon same allegations before different authorities would certainly result into harassment of other side and if such complaints are by the accused of any case against complainant and her husband, who has to chase her case up to the Hon'ble Supreme Court, then such repeated complaints could certainly treated as disturbing the complainant and her witnesses because of pending proceedings against such person.
19. It can also be argued that such cross complaints by the accused are prior to the impugned order and anticipatory bail and, Page 13 of 26 R/CR.MA/9440/2013 CAV JUDGMENT therefore, cannot be considered for cancellation of such bail. However, on perusal of entire record, prima facie it becomes clear that though complaint was filed at late stage and though charge was levelled at very late stage, that delay alone cannot be considered in favour of the accused to have a benefit of anticipatory bail in his favour for the offence under Section 376 of Indian Penal Code.
20. For the sake of arguments even it is believed that there is least possibility of conviction, considering the available record it can certainly be said that there is sufficient material against the accused available on record so as to cancel the bail at present.
21. However, before parting with the matter, decisions cited and relied upon by the respondent-accused in his affidavit-in-reply need to be dealt with.
22. There is no substance in the submission that complainant has not adduced her evidence before the Court for 9 years and therefore, her application for adding charge under Section 376 of IPC after 9 years is bad, inasmuch as at present we are dealing with the impugned order of anticipatory bail granted to the respondent- accused and so far as addition of charge is concerned, it is in accordance with judicial orders for which petitioner has to chase the matter till the Hon'ble Supreme Court and at some point of time judicial authority has to record that it was the fault of the concerned Page 14 of 26 R/CR.MA/9440/2013 CAV JUDGMENT Investigating Officer not registering the F.I.R. under Section 376 of IPC. Therefore, no fault can be found with the complainant-petitioner for the delay.
23. It can not be believed that complaint is in vengeance out of business rivalry only. It cannot be ignored that original complaint was filed just within 13 days of commission of an offence under Section 376 of IPC and that fact has been admitted by the respondent- accused in para 11 of his affidavit-in-reply. Unfortunately, though such complaint was disclosing the commission of an offence under Section 376 of IPC, Investigating Officer did not bother to record and register the complaint under Section 376 of IPC and therefore, complainant has to pray for adding the charge under Section 376 of IPC. Thereby, if there is a delay in praying to add the charges, such delay is not attributed to the complainant. It is obvious that, though original complaint by the complainant to the police is disclosing the commission of an offence under Section 376 of IPC, the F.I.R. registered by the police does not disclose such fact and accused is taking disadvantage of such position.
24. Considering the over all circumstances, if we refer the decisions relied upon and cited by the respondent-accused in his reply, it cannot be said that there is no supervening circumstances which so as to result conducive to a fair trial (Para 17 of affidavit-in-reply). Though expression of opinion on merits at the initial stage, while Page 15 of 26 R/CR.MA/9440/2013 CAV JUDGMENT dealing with application for anticipatory bail is not proper, in some such cases when there is need to scrutize, quash and set aside the order of bail, there is no option but to discuss the available record to arrive at some decision. Because, it is obvious that such opinion is based upon prima facie evidence available in the form of record, whereas the trial Court has to decide the fate of the accused relying upon the actual evidence adduced before it after trial. Thereby, the trial Court is free to decide the matter finally, in accordance with law and without being influenced by the observations or opinion in such orders.
25. In the present case, grounds for cancellation of bail are available prior to granting anticipatory bail for commission of an offence under Section 376 of IPC i.e. after regular bail under Section 506(2). Therefore, the ground on which anticipatory bail was granted for offence under Section 506(2) cannot be re-agitated in the present case. The determination to cancel the bail herein does not base only upon allegations made in the application for cancellation of bail, but entire police record is called for and perused by this Court and decision is based upon entire record of the both petitions as well as police papers. Thereby, case of Rajkumar reported in (2004) 10 SCC 612, though referred and relied upon, is not applicable at present.
26. The above discussion makes it clear that there are cogent and Page 16 of 26 R/CR.MA/9440/2013 CAV JUDGMENT overwhelming circumstances to cancel the bail. It is obvious that accused should not be detained by way of punishment but when there would be consideration regarding not only presence of the accused, at the accused for the trial but likelihood of the abuse of the liberty granted to him and thereby, in the present case when accused has taken all steps to harass the complainant, the principle of normal bail would not applicable to the present accused.
27. For coming to such conclusion, this Court has relied upon following decisions:
(A) In the case between Subodh Kumar Yadav v. State of Bihar and Anr. reported in AIR 2010 SC 802, the Apex Court has confirmed the cancellation of bail which was granted for the offences committed u/Ss. 498(A), 384, 307 and 406 of IPC considering that all such application cannot be considered as an application for cancellation of bail for breach of any condition of bail when original order granting bail has been challenged on its propensity and more particularly, when it is found that while granting the bail, the trial Court has taken into consideration totally irrelevant documents and exhibited undue haste in deciding the application for bail and the judicial discretion was also not exercised properly. The Apex Court has considered that observations in several reported judgments which are referred in this cited case were not entitled to restrict the power of the superior Court to cancel the bail in appropriate cases on grounds other than breach of condition of bail order. It is further stated that if a superior Court finds that the Court grating bail had acted in irrelevant material and if there was nonapplication of mind or failure to take note of any statutory Page 17 of 26 R/CR.MA/9440/2013 CAV JUDGMENT bar to grant bail, or if there was manifest impropriety e.g. failure to hear the Public Prosecutor / Complainant where required, an order of cancellation of bail can be made. For arriving at such conclusion, the Apex Court has relied upon several previous decisions also.
(B) In Guria, Swayam Sevi Sansthan v. State of U.P. And Ors. Reported in AIR 2010 SC (SUPPL) 440, the Apex Court has reconfirmed the above view that granting of bail should be considered having regard to the gravity of the offence for which the accused had been charged and with reference to the case of Puran v. Rambilas and Anr.(Supra), it is reconfirmed that one of the grounds for cancellation of bail would be whether material evidence brought on record have been ignored and that too without any reason.
(C) In Lokesh Singh v. State of U.P., reported in AIR 2010 SC 94, the Apex Court has though carved out following factors for consideration while dealing with the application for bail, order of bail was set aside when bail was granted without assigning reasons in the case where accused was charged of criminal conspiracy to murder. The relevant Paragraphs need to be reproduced hereunder:
"8. While dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are :
1. The nature of accusation and the severity of punishment Page 18 of 26 R/CR.MA/9440/2013 CAV JUDGMENT in case of conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge,
9. Any order dehors such reasons suffers from non- application of mind as was noted by this Court, in Ram Govind Upadhyay v. Sudarshan Singh and Ors. [(2002) 3 SCC 598], Puran etc., v. Rambilas and Anr. Etc. [(2001) 6 SCC 338)] and in Kalvan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr. [JT 2004 (3) SC 442].
10. Though a conclusive finding in regard to the points urged by the parties is not expected of the Court considering the bail application, yet giving reasons is different from discussing merits or demerits. As noted above, at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. But that does not mean that while granting bail some reasons for prima facie concluding why bail was being granted is not required to be indicated. 11. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. (2004 (7) SCC
528). In para 11 it was noted as follows :
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed Page 19 of 26 R/CR.MA/9440/2013 CAV JUDGMENT a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are :
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh (2002 (3) SCC
598) and Puran v. Rambilas (2001 (6) SCC 338).
12. It was also noted in the said case that the conditions laid down under Section 437 (1)(i) are sine qua non for granting bail even under Section 439 of the Code.
13. In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was noted as follows :
"11. Further, it is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the ball on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.). In that case the Court observed as under : (SCC p. 124, para 16) "If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by Page 20 of 26 R/CR.MA/9440/2013 CAV JUDGMENT the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session visavis the High Court."
Above being the position, we are of the view that the High Court was not justified in granting bail to respondent No.2. The order granting bail is set aside. The respondent No.2 who was released on bail shall surrender to custody forthwith. We make it clear that we have not expressed any opinion on merits of the case..."
(D) In most of the citations, case of Puran v. Rambilas and Anr., reported in AIR 2001 SC 2023 has been relied upon and therefore it would be appropriate to scrutinize said judgment. In such reported case, when Sessions Court has granted bail to the accused and when High Court has cancelled such bail, the Apex Court has confirmed the cancellation of bail u/S.437 read with Section 439 of Cr.P.C. holding that concept of setting aside order of bail is different from concept of cancelling order of bail on the ground that accused has misconducted himself or because of the fact that new facts have been arisen. It is also made clear that it is not necessary to go into merits or demerits of the matter and only primafacie evidence is to be looked into. This decision is followed in AIR 2007 SC 3064 as well as AIR 2009 SC 1452. The material part of the judgment would be necessary to reproduce, which reads as under:
"8. The High Court has correctly not gone into merits or demerits of the matter. The High Court has noted that evidence Page 21 of 26 R/CR.MA/9440/2013 CAV JUDGMENT prima facie indicated demand of dowry. The High Court has briefly indicated the evidence on record and what was found at the scene of the offence. The High Court has indicated that evidence prima facie indicated that a demand for Rs. 1 lac was made just a month prior to the incident in question. The High Court has stated that the material on record suggested that the offences under Sections 498A and 304A were prima facie disclosed. The High Court has concluded that the material on record, the nature of injuries, demand for Rs. 1 lac and the other circumstances were such that this was not a fit case granting bail. Thus the High Court has given very cogent reasons why bail should not have been granted and why this unjustified erroneous Order granting bail should be cancelled.
9. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the Society. Therefore, an arbitrary and wrong exercise of discretion by the trial Court has to be corrected.
10. Further, it is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation..."Page 22 of 26 R/CR.MA/9440/2013 CAV JUDGMENT
(E) Recently, in the case of Kunwar Singh Meena v. State of Rajasthan and Anr., reported in AIR 2013 SC 296, the Apex Court has reconfirmed that Court has not to undertake meticulous example while granting or refusing bail. However, when statement of witnesses before the Police confirms the prima facie involvement of the accused in crime and when brother of the accused, an IPS Officer, bail granted to accused was cancelled by the Apex Court considering that propensity of accused to tamper with evidence and to interfere with the due course of justice and to flee from justice are not only the considerations to cancel the bail but it can be cancelled even if order of granting bail is legally infirm leading to miscarriage of justice.
(F) Even in the latest judgment between Ranjit Singh v. State of M.P. And Ors. in Criminal Appeal no.1545 of 2013 on 27.9.2013, the Apex Court has reconfirmed the above position of law. After referring several previous judgments, the Apex Court has held as under:
"... 21. In Chaman Lal v. State of U.P.[1], this Court, while dealing with an application for bail, has stated that certain factors are to be borne in mind and they are:
".... (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge."
(G) In Prasanta Kumar Sarkar v. Ashis Chatterjee [2], this Court, while emphasizing on the exercise of discretionary power generally has to be done in strict compliance with the basic principles laid down in plethora of decisions of this Court, has observed as Page 23 of 26 R/CR.MA/9440/2013 CAV JUDGMENT follows: "
9... among other circumstances, the factors which are to be borne in mind while considering an application for bail are:
i) whether there is any prima facie or reasonable ground to be believed that the accused had committed the offence;
ii) nature and gravity of the accusation;
iii) severity of the punishment in the event of conviction;
iv) danger of the accused absconding or fleeing, if released on bail;
v) character, behavior, means, position and standing of the accused;
vi) likelihood of the offence being repeated;
vii) reasonable apprehension of the witnesses being influenced; and
viii) danger, of course, of justice being thwarted by grant of bail."
(H) The said principles have been reiterated in Ash Mohammad v. Shiv Raj Singh alias Lalla Babu and another [3].
I) In this context, we may refer with profit to the recent pronouncement in Central Bureau of Investigation v. V. Vijay Sai Reddy [4] wherein the learned Judges have expressed thus:
"28. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension Page 24 of 26 R/CR.MA/9440/2013 CAV JUDGMENT of the witnesses being tampered with, the larger interests of the public/ State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."
We repeat at the cost of repetition that the aforesaid aspects have not been kept in view by the learned Additional Sessions udge and, therefore, we are obliged in law to set aside the order passed by him and we so do. In view of the extinction of the order granting bail, the appellant shall surrender forthwith to custody failing which he shall be taken to custody as per law. Liberty is granted to the appellant to move an application for grant of regular bail. Needless to say, on such application being moved, the same shall be considered on its own merits regard being had to the parameters which have been laid down in afore-stated authorities..."
Thereby the Apex Court has cancelled the bail.
28. In view of the foregoing facts, circumstances and discussion, these applications are allowed. Thereby, the order dated 18.05.2013 of granting bail to respondent No.2 - Bhadresh Bipinchandra Sheth in Criminal Misc. Application 1626/2013, passed by the Additional Sessions Judge Court No.16 of Ahmedabad City Sessions Court is hereby quashed and set aside, not for misusing the order of bail after its grant, but on the ground that order of bail itself was improper and Page 25 of 26 R/CR.MA/9440/2013 CAV JUDGMENT illegal. Thereby, the applications are allowed as aforesaid. Rule is made absolute.
29. Considering the fact that respondent is on bail, it would be appropriate to grant him sufficient time to surrender. Respondent has to surrender before the Investigating Officer within three weeks from today. If respondent fails to surrender before such period, the Sessions Court shall issue necessary warrant against him.
30. However, respondent is under trial prisoner and the Sessions Case is pending against him. Therefore, Sessions Court is directed to conduct the trial on day to day basis. For the purpose investigating agency is directed to keep all the witnesses available before the Court on dates fixed by the trial Court for their evidences.
31. It is made clear that observations in this order are made purely for adjudicating present application only and trial Court shall not influence by any observations made in this order.
Sd/-
(S.G.SHAH, J.) dharmendra Page 26 of 26