Gujarat High Court
State Of Gujarat vs Ravi Mepa Chavada (Bharwad) on 1 April, 2016
Author: R.M.Chhaya
Bench: R.M.Chhaya
R/CR.MA/9782/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
9782 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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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 or any order made thereunder ?
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STATE OF GUJARAT....Applicant
Versus
RAVI MEPA CHAVADA (BHARWAD)....Respondent
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Appearance:
MR KP RAWAL, ADDITIONAL PUBLIC PROSECUTOR for the Applicant
MR CHETAN B RAVAL, ADVOCATE for the Respondent
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 01/04/2016
ORAL JUDGMENT
1. Heard Mr. K.P. Rawal, learned Additional Public Page 1 of 16 HC-NIC Page 1 of 16 Created On Tue Apr 05 02:01:21 IST 2016 R/CR.MA/9782/2015 JUDGMENT Prosecutor for the applicant and Mr. Chetan B. Raval, learned advocate for the respondent.
2. By this application under Section 482 read with Section 439(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the applicant - State has challenged the order dated 5.1.2015 passed by the learned Additional Sessions Judge, Bhavnagar, whereby the respondent original accused - Ravi Mepa Chavda (Bharwad) was enlarged on bail under Section 438 of the Code.
3. Necessary facts emerging from the record of the petition are as under: That, a complaint came to be registered by Vicky Laxmanbhai Makwana on 24.3.2012 with Bhavnagar "B" Division Police Station for the alleged offence punishable under Sections 363, 364(a), 395, 397, 376(J), 342, 346, 120(b), 201 and 506 of the Indian Penal Code and Section 135 of the Gujarat Police Act. The incident as narrated in the FIR is that on 13.3.2012 at Page 2 of 16 HC-NIC Page 2 of 16 Created On Tue Apr 05 02:01:21 IST 2016 R/CR.MA/9782/2015 JUDGMENT about 05:00 p.m., the complainant received a phone call from the victim girl requesting the complainant to meet her. It is alleged that initially the complainant refused to do so and thereafter, he talked with friend of the victim
- Kajal and thereafter, they decided to meet and he took her on motorcycle bearing RTO registration No. GJ4 BC3011 and went to the area known as Ruvarapvaria and after spending about 10 minutes, both of them went to Sumeru Township. It is alleged that while they were proceeding ahead on the road situated behind GMDC quarters at about 06:00 p.m., 3 motorbikes were noticed, wherein the other accused intervened and it is alleged that the complainant was assaulted with a wooden Dhoka (log) and as the complainant stopped his motorbike, he was assaulted again by these persons. It is further alleged that Pintu forcibly took out Rs.3,070/ (6 currency notes of Rs.500/ denomination each, 1 currency note of Rs.50/ denomination and 2 currency notes of Page 3 of 16 HC-NIC Page 3 of 16 Created On Tue Apr 05 02:01:21 IST 2016 R/CR.MA/9782/2015 JUDGMENT Rs.10/ denomination each) from the pocket of the complainant. It is further stated in the FIR that about 3 women and 3 men, who were passersby, tried to intervene. However, the same was in vain. It is further alleged that one of the accused-Lakha Kama Satiya caught hold of the neck of the victim girl and one Hanu Naga Bharwad forcibly made her seat on the motorbike and all the accused persons left the place. It is further alleged by the complainant that immediately thereafter, the complainant called his friend Karsan @ Bhana Bharwad and he along with his friend proceed to search the victim girl. It is further alleged in the FIR that even though the complainant tried to reach the victim by way of a mobile phone, the complainant did not receive any response from the victim. The complainant alleged that at about 08:30 p.m., the complainant received a phone call instructing him to take away victim girl from the place situated behind GMDC quarters. It is alleged that when the Page 4 of 16 HC-NIC Page 4 of 16 Created On Tue Apr 05 02:01:21 IST 2016 R/CR.MA/9782/2015 JUDGMENT complainant reached there, 6 accused persons in Company with Nilesh and 23 others, came on motorbike and left the victim girl. It is specifically averred by the complainant that Karsan Bharwad knows the unknown persons. The FIR further indicates that thereafter, the victim girl herself narrated traumas under the threat of life and the victim girl was thereafter shifted to Sitaram Hospital and the complainant also informed his father about the incident. The FIR also indicates that thereafter, the Doctor asked to call the police. However, the father of the victim refused to lodge any complaint and left the Hospital. It is alleged that as the accused persons are headstrong persons, the father of the victim girl refused to register any complaint. The complainant has specifically averred that on the next day, he went to the house of the victim and met father and grand father of the victim and in first instance, the father of the victim again refused to lodge any Page 5 of 16 HC-NIC Page 5 of 16 Created On Tue Apr 05 02:01:21 IST 2016 R/CR.MA/9782/2015 JUDGMENT complaint. However, when the relatives of the complainant came to know about the incident, at their instance, a complaint came to be lodged on 24.3.2012. The respondent is not named in the FIR.
4. It appears from the record that the charge sheet is filed and from the chargesheet papers which were made available by Mr. K.P. Rawal, learned Additional Public Prosecutor, name of the respondent was revealed by one Mayaben, a witness and as pointed out by Mr. K.P. Rawal, learned Additional Public Prosecutor, the name of the present respondent appears in the fourth chargesheet (challan) which came to be filed before the learned Trial Court. The record indicates that the respondent preferred an application for anticipatory bail on 1.1.2015, which came to be registered as Criminal Misc. Application No.6 of 2015. The learned Sessions Judge, by the order impugned, was pleased to enlarge the respondent on bail under Section 438 of the Code and the present application is Page 6 of 16 HC-NIC Page 6 of 16 Created On Tue Apr 05 02:01:21 IST 2016 R/CR.MA/9782/2015 JUDGMENT filed by the applicant - State challenging the said order, as observed hereinabove.
5. Mr. K.P. Rawal, learned Additional Public Prosecutor for the applicant - State has taken this Court through the FIR as well as the relevant papers of chargesheet and has also taken this Court through the affidavit filed by the Investigating Officer before the learned Sessions Court and the learned Sessions Court has erred in not appreciating the role attributed to the respondent. It is submitted that there is a clear role which comes out from the police papers against the respondent and that is of abetment of commission of such a heinous crime. It is contended the respondent has played an active role in abetment of the commission of a very serious and heinous crime and such fact is not appreciated by the learned Sessions Judge and the investigation has reveled that the applicant is not entitled for any liberty as granted by the learned Sessions Court. It is contended that the learned Page 7 of 16 HC-NIC Page 7 of 16 Created On Tue Apr 05 02:01:21 IST 2016 R/CR.MA/9782/2015 JUDGMENT Sessions Judge has wrongly relied upon the judgment of the Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. reported in [2011] 1 SCC 6941 and has not considered the factors which are laid down by the Apex Court in the said case. It was therefore submitted that this is a fit case for exercise of powers under Section 439(2) of the Code and allow the application as prayed for.
6. Per contra, Mr. Chetan B. Raval, learned advocate for the respondent has supported the impugned order. It is submitted that it is not the case of the respondent that the respondent has, in any manner, committed any breach of the conditions on which the respondent has been granted anticipatory bail. It is further submitted that the circumstances which have weighed with the learned Sessions Court are in accordance with the factors which are germane for exercise of powers under Section 438 of the Code and therefore, no interference is called Page 8 of 16 HC-NIC Page 8 of 16 Created On Tue Apr 05 02:01:21 IST 2016 R/CR.MA/9782/2015 JUDGMENT for and the present application deserves to be dismissed.
7. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.
8. On perusal of the FIR, the police papers as well as the impugned order and so also copy of the affidavit which was filed by the Investigating Officer before the learned Sessions Court, it appears that the learned Sessions Judge has thoroughly considered the role attributed to the respondent. Considering all vital factors, more particularly, statement and further statement of Mayaben who is hearse witness and even the statement given by one Vicky and the statement recorded under Section 164 of the Code and relying upon the ratio laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre (supra), the learned Sessions Judge has considered the role which can be culled out from the chargesheet papers Page 9 of 16 HC-NIC Page 9 of 16 Created On Tue Apr 05 02:01:21 IST 2016 R/CR.MA/9782/2015 JUDGMENT which is quite evident from the order impugned. The learned Sessions Judge has considered following aspects:
(i) Role of the present applicant qua dropping the victim after the commissioning of the crime at filter tank.
(ii) There is no direct or indirect involvement or allegations qua physical abuse by the victim.
(iii) Further statement dated 31.03.2013 given by the victim as well as her father before the 'B' Division Police Station in presence of independent persons.
(iv) Statement under provisions of Section 164of the Code of Criminal Procedure by the victim wherein the name of the present accused is not disclosed anywhere.
(v) Order passed by this Court granting bail to similarly situated accused namely Nilesh Bhopabhai Chavda who was released Page 10 of 16 HC-NIC Page 10 of 16 Created On Tue Apr 05 02:01:21 IST 2016 R/CR.MA/9782/2015 JUDGMENT on bail in Criminal Misc. Application No.612 of 2013 dated 01.11.2013.
(vi) Order passed by the Hon'ble High Court of Gujarat in Criminal Misc. Application No.14076 of 2013 dated 18.09.2013.
9. Considering the aforesaid, the learned Sessions Court has exercised discretion in favour of the respondent herein. The learned Additional Public Prosecutor for the applicant-State has also not been able to point out that there is breach of conditions by the respondent. Except the role which is discussed hereinabove and as rightly considered by the learned Sessions Court while exercising discretionary powers under Section 438 of the Code, it cannot be said that the learned Sessions Judge has not taken into consideration the relevant factors as well as the material placed before it while exercising discretionary powers under Section 438 of the Code, as laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre Page 11 of 16 HC-NIC Page 11 of 16 Created On Tue Apr 05 02:01:21 IST 2016 R/CR.MA/9782/2015 JUDGMENT (supra).
10. At this juncture, it would be appropriate to refer to the judgment of the Apex Court in the case of Bhagirathsinh Judeja Vs. State of Gujarat, reported in AIR 1984 SC 372, wherein the Apex Court has observed thus: "6. In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be, granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances all necessary for an order seeking cancellation of the bail. And the trend today is towards granting bail because it is now wellsettled by a catena of Page 12 of 16 HC-NIC Page 12 of 16 Created On Tue Apr 05 02:01:21 IST 2016 R/CR.MA/9782/2015 JUDGMENT decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. The order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the order made by the High Court."
11. It would also be profitable to refer to the case of Dolat Ram & Ors. Vs. State of Haryana, reported in (1995) 1 SCC 349, wherein the principles are laid down for exercise of powers under Section 439(2) of the Code and the Apex Court has observed thus: "4. Rejection of 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 bail, Page 13 of 16 HC-NIC Page 13 of 16 Created On Tue Apr 05 02:01:21 IST 2016 R/CR.MA/9782/2015 JUDGMENT broadly (illustrative and not exhaustive) 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 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. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a nonbailable case in the first instance and the cancellation of bail already granted."
12. The Apex Court, recently in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat & Anr., reported in (2016) 1 SCC 152, has reiterated the principles of grant of anticipatory bail and observed that the gravity of charge and exact role of the accused must be properly comprehended. In opinion of this Page 14 of 16 HC-NIC Page 14 of 16 Created On Tue Apr 05 02:01:21 IST 2016 R/CR.MA/9782/2015 JUDGMENT Court, the learned Sessions Judge has rightly exercised the discretion and following the ratio laid down by the Apex Court in the case of Bhagirathsinh Judeja (supra) and Dolat Ram (supra), the present application is misconceived.
13. It is not the case of the applicant - State that the respondent has misused the liberty granted by the learned Sessions Court. Considering the aforesaid facts therefore, the discretion exercised by the learned Sessions Court cannot be termed as erroneous.
14. In the aforesaid facts and circumstances of the case therefore, in opinion of this Court, no interference is called for by this Court in exercise of its powers under Section 482 read with Section 439(2) of the Code. The application therefore deserves to be dismissed and is hereby dismissed. Rule discharged.
(R.M.CHHAYA, J.)
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