Gujarat High Court
Jagrutiben Dalpatbhai Bhavsar vs State Of Gujarat on 3 September, 2025
NEUTRAL CITATION
R/CR.MA/7057/2022 ORDER DATED: 03/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
7057 of 2022
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JAGRUTIBEN DALPATBHAI BHAVSAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS. ALKA B VANIYA(6945) for the Applicant(s) No. 1
MS RAKSHA S DIKSHIT(5568) for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 03/09/2025
ORAL ORDER
1. By this application under section 483(3) of the Bhartiya Nagrik Suraksha Sanhita, 2023, the applicant-original complainant called in question the legality and validity of the order dated 25.10.2021 passed by the learned 4 th Addl. Sessions Judge, Mehsana at Vishnagar in Criminal Misc. Application No.565 of 2021, whereby the respondent No.2- accused has been ordered to be released on regular bail.
2. Precisely, the issue involved in the present matter is that the present applicant lodged an FIR against the respondent No.2-accused under the provisions of Sections 376, 406 and 420 of the IPC, inter alia, alleging therein that the respondent No.2 used to come to the house of the present applicant- original complainant for some legal work as he was working with one advocate, and that is how, the present applicant came into contact with the respondent-accused, which ultimately resulted in a love affair, and then under the pretext of getting married with her, the respondent-accused developed Page 1 of 12 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 21:54:21 IST 2025 NEUTRAL CITATION R/CR.MA/7057/2022 ORDER DATED: 03/09/2025 undefined a physical relationship with the original complainant at her house, and sometimes made a physical relationship by rendering the original complainant unconscious by giving some sleeping pills in a tea, and once, after entering into physical relationship with the complainant, the respondent-accused also stolen some silver and gold ornaments from the house of the original complainant valued at Rs.3,82,500/-. With this sort of allegations, the FIR came to be lodged.
2.1 After the registration of the FIR, the respondent-accused came to be arrested and sent to the judicial custody.
2.2 Therefore, he preferred regular bail application before charge-sheet before the learned Sessions Court at Visnagar being Criminal Misc. Application No.565 of 2021 on 16.10.2021, which was strongly opposed by the complainant by filing objections on 25.10.2021 as also by the investigating officer by filing an affidavit.
2.3 Thereafter, vide the impugned order dated 25.10.2021, the respondent-accused was enlarged on regular bail by the 4 th Addl. Sessions Judge, Mehsana, being aggrieved with which, the original complainant is here before this Court with the present application, seeking cancellation of bail.
3. Learned advocate Mr. Alka B. Vaniya appearing for the original complainant, submitted that the bail granted to the respondent-accused deserves to be cancelled. She submitted that the Sessions Judge ought not to have exercised its discretion solely on the ground that the complainant was in relationship with the respondent-accused since last 12 years, Page 2 of 12 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 21:54:21 IST 2025 NEUTRAL CITATION R/CR.MA/7057/2022 ORDER DATED: 03/09/2025 undefined and that it was a consensual relationship, but the learned Judge also, while considering the bail application, ought to have taken into consideration the severity of the offence and the punishment prescribed thereunder. She further submitted that the impugned order passed by the Sessions Judge reflects total non-application of mind, as it was being passed without properly appreciating the contentions raised by the investigating officer as well as the present applicant-original complainant in their affidavits. Moreover, the accused is a influential person, which raises a serious concerned about the safety of the applicant, as well as hampering or tampering with the evidence and the investigation as also winning over the witnesses. She also submitted that the learned Sessions Judge has also ignored the aspect of absconding of the accused, likelihood of offence being repeated by the accused, apprehension of witnesses being tampered with and danger of justice being thwarted. Even the learned Sessions Judge ought to have waited for the investigation to be concluded, however, in a very casual manner, in a serious offence like rape, granted regular bail to the respondent-accused, and therefore, the impugned order being illegal, arbitrary, contrary to the established principles of law, deserves to be quashed and set aside. She submitted that the impugned order of bail is almost like a judgment of acquittal ignoring relevant aspects and principles as regards grant of bail in a serious offence like rape. Thus, it has been submitted that the bail granted in favour of the respondent-accused deserves to be cancelled.
4. On the other hand, the present application has been vehemently opposed by learned advocate Ms. Raksha S. Page 3 of 12 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 21:54:21 IST 2025 NEUTRAL CITATION R/CR.MA/7057/2022 ORDER DATED: 03/09/2025 undefined Dikshit appearing for the respondent-accused. She submitted that as per the case of the prosecution, the complainant was in relationship with the respondent-accused since last 12 years, and they had an affair, and they both entered into physical relationship with the consent of the applicant-original complainant. Thus, from the FIR itself, it appears that it was a consensual relationship, and the mother and sister of the applicant-original complainant also knew about the said relationship. Moreover, the present applicant is habitual of filing complaints against different individuals to extort money. He also submitted that the respondent-accused was working as a clerk with the advocate having good reputation in the society, and now is living a retired life. Learned advocate Ms. Dikshit further submitted that the learned Sessions Judge has taken into consideration the fact that the present applicant and the respondent-accused were in relationship since long, and as such, has rightly exercised its discretion in favour of the respondent-accused. Moreover, the respondent-accused has been released on bail on 25.10.2021, and now almost more than three and half years have been passed since the grant of bail, and there is not a single instance being brought to the notice of the Court that the respondent-accused has committed breach of any of the conditions imposed by the trial court while releasing him on bail. Moreover, charge has already been framed and, summons has also been issued to the complainant in the yer 2022, but uptill now, evidence of the complainant is not recorded, as the present applicant has been consistently trying to prolong the trial by filing applications one after another, seeking Narco Analyssis Test of Page 4 of 12 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 21:54:21 IST 2025 NEUTRAL CITATION R/CR.MA/7057/2022 ORDER DATED: 03/09/2025 undefined the respondent-accused or for carrying out Sex Potentiality Test of the accused or for seeking handwriting expert's opinion, and as such, at this stage, after a period of more than three and half years, the impugned order dated 25.10.2021 is not required to be interfered with, and thus, the present application deserves to be rejected.
5. The present application has also been vehemently opposed by learned APP Mr. Hardik Soni, Learned APP Mr. Soni further submitted that no error, not to speak of any error of law could be said to have been committed by the learned Sessions Court while passing the impugned order. He submitted that the charge has already been framed in the present matter and summonses have also been issued to the witnesses. However, it appears that during the trial proceedings, the present applicant-original complainant sought certain adjournments on one ground or the other, and thereby trying to prolong the trial. Not only that, the present applicant also preferred two applications, one for Narco Analysis Test and then another for Sex Potentiality Test of the accused as well as for handwriting expert's opinion, which indicates that under one pretext or the other, the present applicant-original complainant trying to prolong the trial. Under the circumstances, the impugned order, being just, legal and reasonable, does not require any interference.
6. Heard the learned advocates appearing for the respective parties, as also perused the record.
7. The case on hand pertains to cancellation of bail granted to the accused, and according to me, in an application for Page 5 of 12 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 21:54:21 IST 2025 NEUTRAL CITATION R/CR.MA/7057/2022 ORDER DATED: 03/09/2025 undefined cancellation of bail, the conduct subsequent to release on bail and the supervening circumstances are the relevant factors to be kept in mind while deciding the cancellation of bail application. It is no doubt true that the error being committed by the learned trial judge as well as the non-consideration of relevant aspects while setting the accused at liberty are also the relevant factors to be borne in mind at the time of deciding cancellation of bail application, still the same do not have much significance, on the basis of which, the order granting bail to the accused can be reversed, as the same can be taken into consideration and determined during the course of trial. The consideration of cancellation of bail is different from the consideration for grant of bail, and the bail can be cancelled only on existence of cogent and overwhelming circumstances, but not on re- appreciation of the facts of the case. It is a settled law that cancellation of bail should not be by way of punishment even if prima facie case against the accused is established.
8. I have also gone through the order passed by the learned Sessions Judge, and it appears from the same that all the relevant aspects germane to the grant of bail have been considered by the Sessions Judge and, therefore, the discretion exercised could not be said to be perverse or illegal in any manner.
9. I have also gone through the averments made in the application. It appears from the same that, the cancellation is sought for on the ground that some relevant aspects were not taken into consideration by the learned trial judge while Page 6 of 12 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 21:54:21 IST 2025 NEUTRAL CITATION R/CR.MA/7057/2022 ORDER DATED: 03/09/2025 undefined enlarging the accused on bail. It is the case of the complainant that she was being sexually assaulted by the respondent- accused while opposing the bail application before the trial court. However, it appears from the impugned judgment that neither the learned advocate for the complainant nor the investigating officer had brought on record any concrete evidence with regard to substantiate the said claim, and it appears that the learned trial court, after thoroughly examining the materials placed and contentions raised, has passed the impugned order, which does not require any interference at the end of this Court at this stage.
10. Moreover, here, in the case at hand, it is not the case of the complainant that the respondent-accused has breached any of the conditions imposed upon him by the trial court while being released on bail. The respondent-accused is at liberty since October, 2021, i.e. for more than three and half years, and during this period, not a single instance of non-compliance of the order passed by the trial court is reported against the respondent-accused, or brought on record before this Court. Hence, solely on the ground that some relevant aspects claimed to have been not taken into consideration by the trial court, the entire order of granting bail to the respondent- accused cannot be vitiated.
11. Moreover, while considering degree of burden of prove lie upon prosecution or complainant/Informant, when an application for cancellation of bail moved, is not to the extent of proving by a mathematical certainty or beyond reasonable doubt but it must establish its case by showing on a Page 7 of 12 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 21:54:21 IST 2025 NEUTRAL CITATION R/CR.MA/7057/2022 ORDER DATED: 03/09/2025 undefined preponderance of probabilities that accused has attempted or may attempt to or tamper or has tampered with witnesses. It may also be proved by test of balance of probabilities that accused has abused his liberty or it may show that there is reasonable apprehension that he will interfere with course of justice. This Court approved Bombay High Court decision in Madhukar Purshottam Jondkar vs. Talab Haji Hussain 60 Bombay Law Reporter 465 that test adopted by the Court would be, whether material placed before it is such as to lead to the conclusion that there is a strong prima facie case that accused if allowed to be at large he would tamper with prosecution witnesses and impede course of justice. Mere unfounded apprehension or self imagined threat by prosecution or Informant-Complainant would not justify cancellation of bail, granted to accused.
12. In Raghubir Singh vs. State of Bihar (1986) 4 SCC 481, the Court held that grounds for cancellation of bail under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or Section 439(1) can be cancelled where
(i) 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. Page 8 of 12 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 21:54:21 IST 2025 NEUTRAL CITATION R/CR.MA/7057/2022 ORDER DATED: 03/09/2025 undefined
13. It was also held that above grounds are illustrative and not exhaustive. Rejection of bail stands on one footing but cancellation of bail is a harsh order since it interferes with liberty of individual and must not be lightly resorted to.
14 In Dolat Ram and others vs. State of Haryana (1995) 1 SCC 349, the Court held that rejection of bail in a non-bailable case at initial stage and cancellation of bail so granted, has to be dealt with and considered on different basis. Very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail, already granted. Court further said that generally speaking grounds of cancellation of bail, broadly i.e. illustrative and not exhaustive are : (i) interference or attempt to interfere with the due course of administration of justice; (ii) evasion or attempt to evade due course of justice;
(iii) abuse of the concession granted to the accused in any manner; (iv) Satisfaction of Court, on the basis of material placed on record of possibility of accused absconding.
15. Court also reminded that 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 concession of bail during trial.
16. In CBI, Hyderabad vs. Subramani Gopalakrishnan and others (2011) 5 SCC 296, in para 23, Court said :
"....that there is difference between yardstick 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 Page 9 of 12 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 21:54:21 IST 2025 NEUTRAL CITATION R/CR.MA/7057/2022 ORDER DATED: 03/09/2025 undefined 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."
17. Position, influence and resources of accused have also been held relevant factors to adjudge whether accused is likely to interfere with administration of justice, trial or tamper with witness or evidence.
18. Considerations and relevant aspects by a Court while granting a bail are different than those when an application for cancellation of bail has come up before the Court and this aspect has been considered by a three-Judges Bench of Supreme Court in State (Delhi Administration) vs. Sanjay Gandhi (1978) 2 SCC 411 wherein the Bench had an occasion to consider an order dated 11.04.1978 passed by Delhi High Court rejecting Delhi Administration's application for cancellation of bail of respondent Sanjay Gandhi. The Court observed that rejection of bail, when bail applied is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily Page 10 of 12 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 21:54:21 IST 2025 NEUTRAL CITATION R/CR.MA/7057/2022 ORDER DATED: 03/09/2025 undefined involves review of a decision already made and can, by and large, be permitted only, if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow accused to retain his freedom during the trial.
19. In X vs. The State of Telangana and Ors. (2018)16 SCC 511, accused, a Film Producer, based in Mumbai, was charged of offences under Sections 376, 342, 493, 506, 354(C) of IPC. Accused got anticipatory bail from Sessions Judge on 13.01.2017 and had advantage of that order for about eight months. The said order was cancelled by Sessions Judge on the ground that accused has not disclosed that he was also accused in 2G Spectrum case. This cancellation order was affirmed by High Court and also by Supreme Court. Thereafter accused moved a bail application under Section 439 Cr.P.C., which was allowed by High Court and accused was released on bail. This order was challenged in appeal before Supreme Court. Upholding the said order, Court said that bail once granted should not be cancelled unless a cogent case, based on supervening event has been made out.
20. In Seema Singh vs. Central Bureau of Investigation and Ors. (2018) 16 SCC 10 bail granted to accused by High Court in the case registered under Sections 498-A, 302, 120-B IPC was challenged in appeal before Supreme Court. The Court noticed that accused-2's bail application was rejected by Special Judicial Magistrate, CBI, Ghaziabad and thereafter bail was granted by High Court. The Court said that gravity of offence is a relevant factor but not the sole ground to deny bail if there are other overwhelming circumstances justifying grant of bail.
Page 11 of 12 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 21:54:21 IST 2025NEUTRAL CITATION R/CR.MA/7057/2022 ORDER DATED: 03/09/2025 undefined Noticing special feature, Court upheld order of High Court granting bail.
21. Thus, the broad principles, which are to be considered by this Court while granting bail and when bail is already granted but an application for cancellation has come up for consideration, as discussed above, show that there is no thumb rule in both the situations. However, it is true that factors relevant for grant of bail are different and approach required to be adopted while considering application for cancellation of bail is different.
22. Looking to above exposition of law as also the fact and circumstances of the case, I find that there is no material available on record to show any justification for cancellation of bail after more than five months and, therefore, order of cancellation of bail cannot be justified at this stage.
23. In the result, the present application fails and is hereby rejected. Notice stands discharged.
(DIVYESH A. JOSHI,J) VAHID Page 12 of 12 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 21:54:21 IST 2025