Gujarat High Court
Yashwantkumar Hiralal Patel vs Harshad Ramanbhai Prajapati & on 1 September, 2017
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/14205/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
14205 of 2017
=============================================
YASHWANTKUMAR HIRALAL PATEL....Applicant(s)
Versus
HARSHAD RAMANBHAI PRAJAPATI & 1....Respondent(s)
=============================================
Appearance:
MR AD OZA, ADVOCATE for the Applicant(s) No. 1
MR UM SHASTRI, ADVOCATE for the Respondent(s) No. 1
MR.MITESH AMIN, PP with MR.H.K.PATE, APP for the Respondent(s) No. 2
=============================================
CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 01/09/2017
ORAL ORDER
[1] Rule. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent-State and learned advocate, Mr.U.M.Shastri waives service of notice of Rule on behalf of the respondents No.1.
[2] This application is filed for cancellation of bail under Section 439(2) of the Code of Criminal Procedure against the order dated 06.05.2017 passed by the Sessions Judge, Mahisagar at Lunawada in Criminal Misc. Application No.54 of 2017 by which respondent No. 1 has been enlarged on regular bail in connection with C.R.No.I-36 of 2017 registered with Lunawada Police Station for the offences punishable under Sections 379, 120(B), 201, 409, 114 and 36 of the Indian Penal Code, and Sections 66, 66(E) and 72 of the Information Technology Act, and Section 43 of the Gujarat Secondary Education Act.
[3] In the FIR, the gist of allegations are as under:-
Page 1 of 23HC-NIC Page 1 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER [3.1.] The FIR is registered on 24.03.2017 by the applicant in his capacity as the District Education Officer of Mahisagar District and it is in connection with the examination of the SSC/HSC Board, which commenced on 15.03.2017 all over Gujarat.
[3.2] The entire State is divided in zone and each zone is divided into centers where the actual examination is to be conducted. The question papers are distributed from the Zonal Office to reach the centers for examination under the supervision of the functionaries of the Education Department as well as police personnels.
[3.3.] On 24.03.2017, the examination for SSC of subject of the English was scheduled and the time for examination was 10 AM to 1 PM. While on duty, the informant received information from the Deputy Director of the Board from the capital Gandhinagar informing him about the fact that the English question paper has gone viral on social media of WhatsApp and that such question of paper was widely circulated much prior to the scheduled time of the examination. Upon probing, it was found that the question paper of one Panchsheel High School of Lunawada has been leaked. It is in this circumstance, the FIR came to be filed.
[3.4] The investigation commenced after the filing of the FIR, and by a report dated 18.04.2017 it had surfaced that it was a well planned conspiracy by the employees of the school, which were the centers for conducting the examination. Hence, the relevant Sections of the Indian Penal Code and the Information Technology Act were also invoked. As the investigation progressed, the names of the persons who had committed the offences at their level also Page 2 of 23 HC-NIC Page 2 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER surfaced and subsequent reports on 19.04.2017 and 20.04.2017 were submitted for adding of relevant Sections of the Gujarat Secondary Education Act, and Section 36 of the Indian Penal Code alongwith the names of the accused persons, which surfaced during the course of the investigation.
[3.5] While the investigation was in progress, the respondent No.1 moved an application for regular bail and in response to the application, the Investigating Officer submitted an affidavit objecting to grant of the bail wherein the Investigating Officer in detail brought on record the role of the respondent which is as under:
(1) With the criminal intention to cause harm to career of lakhs of students appearing in SSC examination conducted by the Gujarat Secondary Education Board and to extend benefit to specific number of students, the applicants/ accused persons of this case leaked the question paper of English subject on 24/03/2017 before commencement of examination, obtained the question paper unlawfully, took photo print, clicked photographs on mobile phone and circulated to others through Whatsapp and by way of this criminal conspiracy they have committed offence of tempering with future of deserving intelligent students. This offence will cause serious repercussions on educational fraternity and society and affects lakhs of students and their parents. Therefore, it is not advisable to grant bail to the present accused persons.
(2) The respondent No.2 Ramanbhai of this case is working as a clerk in Sarvoday High School, Page 3 of 23 HC-NIC Page 3 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER Munkhosla since last ten years and during SCC examination of 10th Standard, he was discharging duty as administrative employee of examination center at the above mentioned school. His main duty was to maintain confidentiality of important details of examination of 10th standard. But, he hatched conspiracy of this offence being guided by some main conspirator supporting him and in order to succeed in the conspiracy, he requested Zonal Officer and accused of this case Prahladbhai Rana through Assistant Zonal Officer and accused of this case Babubhai Prajapati of Dahod Zone to appoint accused Hitendra Prajapati respondent No.1 herein as Government Representative of Sarvoday Munkhosla High School where he was working. Thereafter, on the day of examination out of the paper sets received as Government Representative accused Hitendra gave one paper set to accused Harshadbhai Prajapati, who is the son of this respondent No.2 Ramanbhai. He took the paper set to a private place in Zalod and as per preplanned conspiracy, this applicant/ accused broke open the seal of the paper set and took out one question paper. After Harshad, the son of this applicant/ accused clicked photograph of the paper, Kirtikumar, who was involved in this conspiracy, sealed the paper set again and at the behest of this applicant/ accused, he kept the paper set back in Munkhosla School. Thus, instead of maintaining confidentiality of examination as the clerk of the said school and instead of discharging his primary duty, the applicant/ accused hatched a conspiracy and leaked question paper, thereby committed an act causing stigma to Page 4 of 23 HC-NIC Page 4 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER educational domain.
(3) Hitendra Prajapati of this case has done B.Sc. B.Ed. He has joined service as a teacher in Paniya Luhar Faliya Primary School from 10/02/20105 (sic). As part of preplanned conspiracy accused Ramanbhai Prajapati was appointed as representative of Sarvoday Vidhyalay, Munkhosla on the day of English examination of SCC on 24/03/2017 as per conspiracy hatched by Assistant Zonal Officer Babubhai Prajapati and Zonal Officer Prahladbhai Rana. The accused reached Dahod Zone-47 at seven o'clock in the morning on that day and received paper set and other literature of the examination. Out of sealed paper sets, he took out one paper set and gave the same to Harshadbhai Ramanbhai Prajapati - son of his uncle, who was standing outside the strong-room.
Harshadbhai delivered the paper set to his father Ramanbhai at Zalod. As accused Ramanbhai broke open the seal and gave one question paper thereof to accused Harshad, he clicked photograph of the paper. At this time accused Kirtikumar Patel, who was part of the conspiracy, arrived and he sealed the opened cover back in the same condition and the packet was sent to Sarvoday Vidhyalay Munkhosla as per the instruction of accused Ramanbhai. Thus, this accused has played lead role in the conspiracy of this offence.
(4) At present, the investigation of this offence is at primary and sensitive stage and important scientific and physical documentary evidences are yet to be recovered and statements of more witnesses Page 5 of 23 HC-NIC Page 5 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER have to be recorded. Therefore, if these applicants/ accused persons are given bail, serious effect will be caused to the investigation of this case and important evidences which have to be recovered, may get destroyed.
(5) As the respondent persons are the main accused and conspirators of this offence and as they are highly influential and powerful, they can intimidate, allure or threaten the witnesses and cause serious damage to the investigation.
(6) Harshadbhai, son of respondent accused no.(1) of this case, has burnt the mobile phone with which he had clicked photographs. Thus, the son of the accused himself has destroyed the evidences in this offence. This applicant/ accused has become alert and aware about police investigation, therefore if bail is granted, it is possible that he will also destroy other useful evidences of this investigation which will cause serious effect to the investigation.
(7) The respondent persons of this case are government employees and due to instructions given during SCC Board Examination and due to the offence committed by them, they can be dismissed from service. Therefore, they will make all attempts to destroy evidences so that the offence is not proved against them.
(8) As the respondent accused are connected with the educational institution, they hold their places in the society as well as amongst the students. The act Page 6 of 23 HC-NIC Page 6 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER committed by them in the state level examination of standard 10th, wherein lakhs of students appear is a stigma upon the entire education and examination system. If such accused are enlarged on bail, it can leave far-reaching fatal effect on the mind of the students, parents and entire society. Hence, the society and education world expect from the Hon'ble Court not to enlarge such corrupt teachers on bail.
(9) If the respondent persons of the present case are given the bail, other persons will not hesitate in committing such offence and the people will lost their faith from the Judiciary. Hence, it is requested not to grant bail to them.
(10) The respondent persons of the present case have committed white collar crime, wherein the involvement of financial transaction cannot be denied. It is possible that the witnesses can be given temptation of the money acquired through aforesaid financial deal. Hence, it is not advisable to grant bail.
(11) In the present case, on 24/03/2017, prior to examination, i.e. 10:00 AM, the paper of English subject of standard 10th got leaked between strong room and examination center and thousands of students may have been benefited from this act. As a result of that, there is a possibility that after declaration of results, many of them will take admission in different courses on the basis of the marks obtained by them due to leakage of said paper. Thereby, the present applicant / accused persons have Page 7 of 23 HC-NIC Page 7 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER tampered with the future and career of the sincere and hard-working students and as a result of that, there is a full possibility that their parents may file litigation in the Hon'ble Courts in this regard. Hence, an act of granting bail to them may leave an adverse far- reaching effect on all the students, their parents and on entire education world. Therefore, it is prayed not to grant them bail.
(12) In the past, many students have committed suicide after their poor result in standard- 10th and 12th. As a result of the present offence, many weak students who got the benefit of the leakage of the question paper of English subject of standard 10th will score more marks than the clever ones and on that basis, they will get admission in different educational courses. Whereas, the sincere students who have not scored more marks comparing to the weak students will not get admission in their desired courses. Hence, they will be disappointed for not fulfilling the dreams of their parents and such state of disappointment may lead them to commit suicide. Therefore, it is not advisable to grant them bail.
(13) If the bail is granted to the present respondent persons, it may be possible that the education - mafias who are connected with them will create hurdle in the investigation of this offence.
(14) As the present offence affects the entire education world of Gujarat state and result of all the students of standard 10th, it is not advisable to grant Page 8 of 23 HC-NIC Page 8 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER bail to the respondent persons.
[3.6] The application came to be allowed by the impugned order.
[4] Heard Mr.A.D.Oza, learned advocate for the applicant- original complainant and Mr.Mitesh Amin, learned Public Prosecutor with Mr.H.K.Patel, learned Additional Public Prosecutor for the respondent-State as well as Mr.B.Y.Mankad, learned advocate for Mr.U.M.Shastri, learned advocate for the respondent No.1.
[5] Learned advocate for the applicant submitted that the impugned order is against the settled principles of law for exercising the discretion. The Sessions Court while passing the order has not considered the principles of exercising the discretion and the discretion thus exercised is not a judicial exercise of discretion. It is submitted that the impugned order has not referred to the detailed affidavit which brings on record the role played by the applicant. From the affidavit of the Investigating Officer a clear cut role of the respondent is coming on record and the nature of involvement is also of such a gross nature, which is affecting the future of the children of the entire State.
[6] It is submitted that no reasons are assigned for the exercise of the discretion and no circumstances are discussed as to why the Sessions Court was compelled to exercise discretion in favour of the respondent, who is the main kingpin of the offences.
[7] It is submitted that the exercise of discretion is based on thoroughly irrelevant considerations and though simply on the Page 9 of 23 HC-NIC Page 9 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER ground of parity the respondent has been enlarged on bail, there is no discussion worth the name as to how the principle of parity with the other co-accused would apply. In the instant case, the respondent was responsible for removing the seal taking photographs of the question papers containing several pages and immediately forwarding the same to the students from whom he had received payments for leaking such question papers. The seriousness of the offence increases manifold considering the fact that the respondent was given duty at very sensitive posts with all trust and confidence and when he was privy to the question papers, he has abused his posts by taking the photographs and circulated it for his own financial gains. He submits that it was a well designed conspiracy not only for this year and not restricted to only the English question paper, but this practice was rampant in this district for which the respondent was responsible.
[8] He submitted that the board examination for the year 2017 had conducted examination for 19 lac students all over the States. Because of the sheer magnitude of the examination and number of students, the board could not reverse the situation by identifying the students who benefited from this conspiracy or else the board will have to conduct the re-examination in the entire State such is the effect of the misdeed / offence on the part of respondent. Not only the respondent has caused undue benefit to the students to whom he was able to leak the question papers, at the same time, he has caused huge disadvantage to the other students who had appeared in the examination on the basis of their hard work and now, the students who have taken undue advantage of this malpractice will stand to gain against the students who have appeared genuinely in the examination out of their hard work. He submits that none of the accused persons Page 10 of 23 HC-NIC Page 10 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER who are employees of the grant-in-aid schools have been prosecuted departmentally nor the State Government has taken any action against this school where the paper was leaked, though such school is also a grant-in-aid school. This facts reflects that the respondent is highly influential person and is able to influence the State Government in not taking any action against him departmentally or otherwise.
[9] Learned advocate for the applicant relied upon the decision of the Hon'ble Apex Court in the case of Ram Narain Poply versus Central Bureau of Investigation reported in AIR 2003 SC 2748 to emphasise that where the offence purported is to have a wide scale effect on the public at large, then the Court ought to have been slow in granting regular bail especially when the investigation is at a crucial stage.
[10] Mr.Mitesh Amin, learned Public Prosecutor with Mr.H.K.Patel, learned Additional Public Prosecutor submitted that the spread of the offence was very wide and the Court while passing the impugned order was very much aware of the gravity of the case and the wide spread effect on the innocent students facing examination of the board. The fact that the result of the examination touches the future of the children itself is sufficient to realize the sensitivity of the case, which according to the learned Public Prosecutor, the Court while passing the impugned order has completely given a go-by. He submitted that roles of the accused was categorically stated on an affidavit while opposing the grant of bail. However, the Sessions Court has grossly erred in completely disregarding the contents of the affidavit and not even once discussed the role attributed to the accused.
[11] It is submitted that the investigation in connection with
Page 11 of 23
HC-NIC Page 11 of 23 Created On Sat Sep 09 20:58:24 IST 2017
R/CR.MA/14205/2017 ORDER
the present offence is not a regular kind of investigation but an investigation which requires special skills and technics to be adopted to reach to the roots from where the offences started and it was the right of the investigating agency to carry out deeper investigation so that the real culprits can be brought on record. In the instant case, the Court ought to have balanced the liberty of the accused with the right of the investigation in such a complicated case rather than giving undue weightage to the liberty and freedom of the accused persons who for an oblique motive and small financial gain are ready to hold the future of the students at a ransom.
[12] It is submitted that where the scope of the investigation widens on the basis of severity of the offence, it would be desirable for the Court to go slow in exercising the discretion merely by calculating 10 days of 17 days of custody of the accused person.
[13] Despite the contention before the Court that the on going investigation would be hampered as the accused person was staff of the school and the witnesses who are either the students or parents of the students would not come out boldly against such employees of the schools where their students are studying.
[14] It is submitted that a thoroughly irrelevant consideration is relied upon to exercise discretion by entering into a discussion as to whether Section 409 would be attracted in case of the respondent accused and even when the investigation is still going on, erroneously the Sessions Judge has concluded that Section 409 would not be attracted, and thereafter, considering the maximum sentences for the offences other than Section 409, Page 12 of 23 HC-NIC Page 12 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER the discretion is exercised. It is submitted that in the on going investigation, 30 Mobiles and Laptops were seized and sent for FSL and from the report of the FSL, startling facts have been revealed that the respondent accused was functioning in a well oiled machinery. Since long the question papers were leaked by removing his from the sealed packet, photographs were sent by use of electronic device, even answers were prepared and both such questions and answers of other subjects as well as for the examination of previous years have been retrieved from the electronic device of the respondent accused. It is also coming out from the FSL reports that the time at which such files were created in the electronic device, were all prior to the time of examination and thus made available to the students who were ready to pay for it and putting the future of the other students in jeopardy.
[15] He relied upon the judgment of the Hon'ble Apex Court in the case of Puran versus Rambilas and anothers reported in (2001) 6 SCC 338 to argue that an order granting bail by ignoring material and evidence on record and without giving reasons would be perverse and contrary to the principles of law and such an order would be thus vulnerable where the exercise of discretion is not justified. He also submitted on the basis of the judgments that even if the merits or demerits of the evidence is not discussed, the order must be a well reasoned order justifying the decision, which in the instant case, the Sessions Court has grossly failed on this count and hence, the bail granted deserves to be cancelled.
[16] As against this, Mr.B.Y.Mankad, learned advocate for Mr.U.M.Shastri, learned advocate for the respondent No.1 has submitted that the para meters for the grant of bail and the cancellation of bail are completely different. It is submitted that Page 13 of 23 HC-NIC Page 13 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER once the discretion is exercised in favour of the respondent and that sufficient care is taken regarding the availability of the accused person for the trial and when there is no report of breach of any of such condition, the bail granted cannot be cancelled.
[17] He submitted that while passing the order in favour of the respondent No.1 herein, the Court had adopted a reasoning of parity where the other co-accused have been enlarged on regular bail. He also submitted that discussion of the evidence is not the requirement for exercise of discretion in the case of bail. He further submitted that merely because the material has surfaced during the course of investigation subsequent to the grant of bail, such material cannot be made the basis for cancellation of bail. Learned advocate for the respondent, thereafter, relied upon the judgment of the Hon'ble Apex Court in the case of Manjit Prakash & Ors. v. Shobha Devi & Anr. reported in 2008 CRI. L. J. 3908, to emphasise that the rejection of bail and cancellation of bail stand on different footings and that the cancellation of bail is a harsh order and it takes away the liberty of the individual. He then relied upon the judgment of the Hon'ble Apex Court in the case of Abdul Basit Alias Raju and Others versus Mohd. Abdul Kadir Chaudhary and another reported in (2014) 10 SCC 754 to substantiate his argument that the bail cannot be cancelled on the ground of new adverse facts which have surfaced after the grant of bail.
[18] He further submitted that now as the bail has been granted by order dated 06.05.2017 and after that almost period of three months has passed and even the statutory period for filing the charge-sheet is also over, yet the charge-sheet has not been filed, and hence, the bail of the respondent accused may not be Page 14 of 23 HC-NIC Page 14 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER cancelled.
[19] Having heard the learned advocates for the rival parties and having perused the documents in support of the application and the investigation case papers which include the report of the FSL, there is no doubt in the mind of the Court that the offence perpetrated is of a great magnitude as the same is affecting the future of lacs of students who attempted the examination. All those students who have appeared in the examination on the basis of their hard work and in fair manner are now put to a great disadvantage as the question paper of subject of the English and not only English but other question papers have been leaked by the accused persons for financial gain and this aspect is still under investigation. The magnitude of the damage already caused cannot be measured by any method and that such damage is irreversible. It is also now on evidence that the accused persons were holding a vital and sensitive post through whom the question papers in sealed covers were to pass from the Education Department to the Zonal Office and from Zonal Office to the concerned centers where the examination was to be held. It is now evident on record that accused persons have removed the question papers from the sealed covers, taken photographs of all the pages of such question papers, placed the question papers back in the sequence in the sealed cover reapplied the seals and then forwarded to the concerned center for distribution amongst the students. After having photographed such question papers, the same was circulated by use of information technology and electronic device. It is also found that the questions from the leaked question papers were answered and even the answers thereafter, have been circulated to the students attempting the examination and all these things have been done prior to the Page 15 of 23 HC-NIC Page 15 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER actual conduct of examination at 10 AM. The evidence in the form of FSL report indicates that the file containing the photographs of the question paper has been generated much prior to the actual time of examination when the question papers were supposed to be released from the sealed cover and these question papers were found in the electronic device belonging to the accused persons.
[20] The Sessions Court has also committed an error in disregarding the objection in the form of affidavit filed of the Investigating Officer, which clearly devout a specific role played by the respondent accused and mentioned in the preceding paras disregarding objections and not referring to the role of the accused in the offence amount to non application of mind. Therefore, the discretion exercised upon such non application is a discretion not exercised judiciously.
[21] The Court also finds that while passing the impugned order not only has the Court not attributed any reasons, but appears to have disregarded the relevant considerations like the gravity of the offence, stage of investigation, effect of grant of bail on the on going investigation. As against this, the only justification given by the Sessions Court is that the respondent is not having any criminal history. The respondent is the son of main accused Ramanbhai, who is working as Clerk in the Sarvodaya High School. The respondent received the question paper of English before time of the examination, he made a copy of such question paper, then took photograph in his Mobile and circulated the same amongst the students apparently from whom he received or was to receive payment. During investigation, it was found that he had burnt/destroyed his mobile which is sent to FSL and enough incriminating material is retrieved.
Page 16 of 23
HC-NIC Page 16 of 23 Created On Sat Sep 09 20:58:24 IST 2017
R/CR.MA/14205/2017 ORDER
[22] This Court also finds that even on merits considering
the role played by the respondent accused, the gravity of the offence, the spread and reach of the offence and the stage at which the investigation was pending when the bail was granted requires this Court to interfere with the order of bail on merits. The Hon'ble Apex Court in case of Puran (Supra) has held as under:
"8. He submitted that in view of these observations the learned Additional Sessions Judge did not given reasons whilst granting bail. He submitted that in these circumstances the Additional Sessions Judge cannot be faulted. He submitted that the High Court could not cancel bail on this ground. We see no substance in this contention. Giving reasons is different from discussing merits or demerits. 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. What the Additional Sessions Judge had done, in the Order dated 11th September, 2000 was to discuss the merits and de-merits of the evidence. That was what was deprecated. That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated.
9. Mr. Lalit next submitted that the High Court has itself not given reasons but has mechanically set aside the order of the bail. We see no substance in this submission. The High Court has correctly not gone into merits or demerits of the matter. The High Court has noted that evidance 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 evidance 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 498-A and 304-A 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 for 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.
Page 17 of 23
HC-NIC Page 17 of 23 Created On Sat Sep 09 20:58:24 IST 2017
R/CR.MA/14205/2017 ORDER
10. Mr. Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. In support of this submission he relies upon the authority in the case of Dolat Ram & Ors. vs. State of Haryana reported in 1995 (1) S.C.C. 349. In this case it has been held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly 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. 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.
14. Mr. Lalit next submitted that a third party cannot move a Petition for cancellation of the bail. He submitted that in this case the Prosecution has not moved for cancellation of the bail. He pointed out that the father of the deceased had moved for cancellation of the bail. He relied upon the cases of Simranjit Singh Mann vs. Union of India and another reported in AIR 1993 S.C. 280 and Janata Dal, etc. etc. vs. H.S. Chowdhary and others, etc. reported in 1991 (3) S.C.C.
356. Both these cases dealt with Petitions under Article 32 of the Constitution of India whereunder a total stranger challenged the conviction and sentence of the accused. This Court held that neither under the provisions of the Criminal Procedure Code nor under any other statute is a third party stranger permitted to question the correctness of the conviction and sentence imposed by the Court after a regular trial. It was held that the Petitioner, who was a total stranger, had no 'locus standi' to challenge the conviction and the sentence awarded to the convicts in a Petition under Article 32. The principle laid down in these cases have no application to the facts of the present case. In this Page 18 of 23 HC-NIC Page 18 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER case the application for cancellation of bail is not by a total stranger but it is by the father of the deceased. In this behalf the ratio laid down in the case of R. Rathinam vs. State by DSP, District Crime Branch, Madurai District, Madurai and anr. reported in 2000 (2) S.C.C. 391, needs to be seen. In this case Bail had been granted to certain persons. A group of practising advocates presented petitions before Chief Justice of the High Court seeking initiation of suo motu proceedings for cancellation of bail. The Chief Justice placed the petitions before a Division Bench. The Division Bench refused to exercise the suo motu powers on the ground that the petition submitted by the advocates was not maintainable. This Court held that the frame of sub-section (2) of Section 439 indicates that it is a power conferred on the Courts mentioned therein. It was held that there was nothing to indicate that the said power can be exercised only if the State or investigating agency or a Public Prosecutor moves by a petition. It was held that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. It was held that the said power could also be exercised suo motu by the High Court. It was held that, therefore, any member of the public, whether he belongs to any particular profession or otherwise could move the High Court to remind it of the need to exercise its power suo motu. It was held that there was no barrier either in Section 439 of the Criminal Procedure Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. It was held that if the High Court considered that there was no need to cancel the bail then it could dismiss the Petition. It was held that it was always open to the High Court to cancel the bail if it felt that there were sufficient enough reasons for doing so."
[23] The judgment relied upon by the learned advocate for the respondent in case of Manjit Prakash (Supra) lays down the well recognized principles that the cancellation of bail is a harsh order as it takes away the liberty of an individual and such cancellation is not to be likely resorted to. In the case before the Hon'ble Apex Court it was pertaining to an offence arising out of the matrimonial dispute where the bail granted in favour of the husband was in question and the High Court without indicating any reasons had directed the cancellation of bail. The Hon'ble Apex Court however, in this very judgment infact referred to and relied Page 19 of 23 HC-NIC Page 19 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER upon the judgment in the case of Puran (Supra).
[24] The judgment cited in case of Abdul Basit Alias Raju (Supra) may not be applicable to the facts of the case as the Hon'ble Apex Court in the said judgment was considering the effect of Section 362 of the Cr.P.C. in the wake of new or adverse facts having surfaced during the course of investigation, but after the grant of bail. In the said judgment, the Hon'ble Apex Court however, recognized the power of the superior Court to cancel the bail on the ground of legality and perversity of the order of bail.
[25] This Court can draw support from the judgment of the Hon'ble Apex Court in the case of Gulabrao Baburao Deokar versus State of Maharashtra reported in (2003) 16 SCC 190, wherein it is held as under:-
"The Sessions judge had not complied with the mandatory proviso to Section 439(1) Cr.P.C. This proviso lays down that before granting bail to a person who is accused of an offence which is punishable with imprisonment for life, and which is exclusively triable by the Court of Session, it shall give a notice of the application for bail to the Public Prosecutor. In the instant case, the facts reveal that the appellant appeared before the Sessions Judge on 21-5-2012, when his application for bail was taken up for consideration. The Sessions Judge passed an order "IO to say". The matter was taken up there and then. The Prosecutor applied for remand of at least 2 days which was declined. The notice under the proviso to Section 439(1) Cr.P.C. implies a proper and full opportunity to the Prosecutor to point out as to why bail should not be granted. The initial charge-sheet in the instant case was itself running into more than 268 pages. The Sessions Judge ought to have granted adequate time to the Prosecutor to reply on the basis of this charge-sheet, for him to pass a considered order. Consequently the order of bail does not reflect upon the contents of the charge- sheet.
Page 20 of 23
HC-NIC Page 20 of 23 Created On Sat Sep 09 20:58:24 IST 2017
R/CR.MA/14205/2017 ORDER
As pointed out by the Deputy SP in his affidavit that although the matter was heard there and then, the Prosecutor did make a detailed argument pointing out the prima facie case against the appellant. The past conduct of the appellant after the registration of the present crime was also pointed out in detail as well as his criminal antecedents with proof, and also the fact that the bail applications of three of the main accused had been rejected by another Sessions Judge by the order dated 17-5-2012 and 19-5-2012. That there was a wrongful loss of about Rs. 169 crores to Municipal Council was also brought to the notice of the court. The counsel for the State has therefore rightly submitted that the order passed by the Sessions Judge was a perverse order since none of these factors were considered by the Sessions Judge."
[26] In the case of R. Rathinam versus State reported in (2000) 2 SCC 391, wherein the Hon'ble Apex Court has held as under:-
"The frame of sub-section (2) of Section 439 indicates that it is a power conferred on the said courts. Exercise of that power is not banned on the premise that bail was earlier granted by the High Court on judicial consideration. In fact that power can be exercised only in respect of a person who was released on bail by an order already passed. There is nothing to indicate that the said power can be exercised only if the State or investigating agency or even a Public Prosecutor moves for it by a petition. The power so vested in the High Court can be invoked either by the State or by any aggrieved party. The said power can also be exercised suo motu by the High Court. If so, any member of the public, whether he belongs to any particular profession or otherwise, who has a concern in the matter can move the High Court to remind it of the need to invoke the said power suo motu. There is no barrier either in Section 439 of the code or in any other law which inhibits a person for moving the High Court to have such powers exercised suo motu. If the High Court considers that there is no need to cancel the bail for the reasons stated in such petition, after making such considerations it is open to the High Court to dismiss the petition If that is the position, it is also open to the High Court to cancel the bail if the High Court feels that the reasons stated in the petition are sufficient enough for doing so. It is, therefore, improper to refuse to look into the matter on the premise that such a petition is not maintainable in law."Page 21 of 23
HC-NIC Page 21 of 23 Created On Sat Sep 09 20:58:24 IST 2017 R/CR.MA/14205/2017 ORDER [27] The Hon'ble Apex Court in the judgment of Ranjit Singh versus State of Madhya Pradesh and others reported in (2013) 16 SCC 797, wherein the Hon'ble Apex Court in para 19 has held as under:
"19. It needs no special emphasis to state that there is distinction between the parameters for grant of bail and cancellation of bail. There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court. We have already referred to various paragraphs of the order passed by the High Court. We have already held that the learned trial Judge has misconstrued the order passed by the High Court. However, we may hasten to add that the learned Single Judge has taken note of certain supervening circumstances to cancel the bail, but we are of the opinion that in the obtaining factual matrix the said exercise was not necessary as the grant of bail was absolutely illegal and unjustified as the court below had enlarged the accused on bail on the strength of the order passed in Ranjeet Singh v. State of M.P. remaining oblivious of the parameters for grant of bail under Section 439 Cr.P.C. It is well settled in law that grant of bail though involves exercise of discretionary power of the court, yet the said exercise has to be made in a judicious manner and not as a matter of course."
[28] In view of the foregoing discussion, the impugned order dated 24.05.2017 passed by the Sessions Judge, Mahisagar at Lunawada in Criminal Misc. Application No.54 of 2017 is ordered to be quashed. The bail granted to the respondents No.1 is hereby cancelled. The respondent is directed to surrender in connection with offence being C.R.No.I-36 of 2017 registered with Lunawada Police Station.
[29] Learned advocate, Mr.Mankad for the respondent accused at this stage prays for stay of this order for a period of three weeks.
Page 22 of 23
HC-NIC Page 22 of 23 Created On Sat Sep 09 20:58:24 IST 2017
R/CR.MA/14205/2017 ORDER
[30] Considering the gravity of the offence and the stage at
which the investigation is pending staying the order would frustrate the very purpose of this order and hence the prayer is declined.
[31] With the aforesaid observations, the application is allowed. Rule is made absolute.
(A.Y. KOGJE, J.) dharmendra Page 23 of 23 HC-NIC Page 23 of 23 Created On Sat Sep 09 20:58:24 IST 2017