Gujarat High Court
Rameshji Ravaji Thakor vs State Of Gujarat & on 7 July, 2014
Author: S.G.Shah
Bench: S.G.Shah
R/CR.MA/1214/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
1214 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
================================================================
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 ?
================================================================
RAMESHJI RAVAJI THAKOR....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
================================================================
Appearance:
MR.DIPEN F CHAUDHARI, ADVOCATE for the Applicant(s) No. 1
MR ABHAYKUMAR P SHAH, ADVOCATE for the Respondent(s) No. 2
MS JD JHAVERI, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 07/07/2014
CAV JUDGMENT
Page 1 of 14
R/CR.MA/1214/2014 CAV JUDGMENT
1. Rule. Mr. Shah waive service of notice of rule for respondent no.2 while Ms. Jhaveri waives service of notice of rule for respondent no.1.
2. Petitioner being a complainant of Thara police station, Ist C.R. No.58 of 2013 has challenged the order dated 13.12.2013 granting bail to respondent nos.2 to 6 by the Additional Sessions Judge, Deesa, passed in Criminal Misc. Application No.1052 of 2013 for the offences punishable under Sections 302, 323, 324 etc.
3. The petitioner has, on 7.6.2013 lodged the complaint before the police station disclosing that on 6.6.2013, two persons namely; Kanaksinh C. Vaghela and Jashubha C. Vaghela, probably respondent no.6 herein, had come to his parlor and sat outside his parlor. When complainant asked them about their sitting outside his parlor, it is the say of the complainant that both of them had become angry and stated that complainant is not knowing them. They have further stated that they are Darbars of Thara and when complainant has stated that he does not recognize or know them, though both of them had gone away from them, they have given a threat to the complainant. It is further stated that after half an hour, respondent nos.2 to 6 and Kanaksinh etc. had come at the place of incident with Cudgel, Hockey stick, Sword, Knife and other weapons and at that time when father of the petitioner namely; Ravaji Bhikhaji was coming to his parlor with brothers of the petitioner, Sangramji and Pintu, all these accused have rushed to them and amongst them Kanaksinh has hit blow of a sword on the head and legs of complainant's father. Whereas, Jashubha had given a blow by Hockey stick on hands of the complainant's father.
Page 2 of 14 R/CR.MA/1214/2014 CAV JUDGMENTThereby, complainant's father was fallen down and all of them had beaten him as well as Sangramji and when complainant's father Ravaji and his brother Sangramji Ravaji had fallen down, the accused has rushed towards the complainant and his another brother Pintu, but they both had run away from the place of incident towards toll tax. However, at that time, Kanaksinh has chased them and given a blow on head of the complainant by a sword. At the same time, other accused have beaten the brother of the complainant Pintu by Cudgel, Hockey stick and Knife and because of such incident, complainant and his brothers etc. shouted and cried, which resulted into gathering all other people, who have rescued them and managed to call ambulance by making a phone call on 108. It is further stated that father of the complainant was unconscious and they were transferred to Patan but during the treatment, father of the complainant was died because of the injuries sustained by him.
4. The above story makes it clear that if Kanaksinh C. Vaghela has given a fatal blow to the victim Ravjibhai as well as to the complainant, certainly he cannot be entitled to be released at least till investigation is over and chargesheet is filed considering the gravity of crime and direct involvement and direct specific evidence against him.
5. Considering the facts and circumstances emerging from the available record when it is crystal clear that respondent no.2 has given a fatal blow on the head of the victim by a sword and he had ran away from the place of incident. Second time, within half an hour came with a sword in his hands and with the support of other accused, he is the main conspirator and person responsible Page 3 of 14 R/CR.MA/1214/2014 CAV JUDGMENT for the entire incident, wherein, one innocent person has been killed though his quarrel, if any, was with the complainant and not with his father. Therefore, discussion of available material in detail would result into prejudice the defence and though the same is avoided, it is clear and certain that considering the role of the respondent no.2 in the commission of offence and it results into a death of father of the complainant, it would not be appropriate for trial Court to exercise discretionary power to release such person on bail only because chargesheet is filed. Therefore, this application is allowed. Thereby, impugned order is quashed and set aside restraining respondent no.2 has to surrender to the investigating agency within ten days. If he fails to surrender within ten days, the investigating agency shall arrest him.
6. 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 Page 4 of 14 R/CR.MA/1214/2014 CAV JUDGMENT 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 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 Page 5 of 14 R/CR.MA/1214/2014 CAV JUDGMENT 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 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 nonapplication 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 Page 6 of 14 R/CR.MA/1214/2014 CAV JUDGMENT 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 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 Page 7 of 14 R/CR.MA/1214/2014 CAV JUDGMENT 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 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 Page 8 of 14 R/CR.MA/1214/2014 CAV JUDGMENT 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 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 Page 9 of 14 R/CR.MA/1214/2014 CAV JUDGMENT 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..."
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 Page 10 of 14 R/CR.MA/1214/2014 CAV JUDGMENT 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."[2]
G) In Prasanta Kumar Sarkar v. Ashis Chatterjee , 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 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."Page 11 of 14 R/CR.MA/1214/2014 CAV JUDGMENT
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 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 Page 12 of 14 R/CR.MA/1214/2014 CAV JUDGMENT 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 aforestated authorities..."
Thereby the Apex Court has cancelled the bail.
7. In view of the foregoing facts, circumstances and discussion, these applications are allowed. Thereby, the order dated 13.12.2013 of granting bail to respondent - Rameshji Ravaji Thakor in Criminal Misc. Application 1052/2013, passed by the learned 3rd Additional Sessions Judge, Deesa 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 illegal. Thereby, the application is allowed as aforesaid. Rule is made absolute.
8. Considering the fact that respondent is on bail from last couple of months, it would be appropriate to grant him sufficient time to surrender. Respondents have 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.
9. 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.
10. It is made clear that observations in this order are made purely for adjudicating present application only and trial Court shall not Page 13 of 14 R/CR.MA/1214/2014 CAV JUDGMENT influence by any observations made in this order.
(S.G.SHAH, J.) VATSAL Page 14 of 14