Gujarat High Court
Jusabbhai Jumabhai Khatri vs State Of Gujarat & 7 on 17 July, 2014
Author: S.G.Shah
Bench: S.G.Shah
R/CR.MA/2202/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
2202 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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JUSABBHAI JUMABHAI KHATRI....Applicant(s)
Versus
STATE OF GUJARAT & 7....Respondent(s)
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Appearance:
MS MANISHA LAVKUMAR with MR VIRAL K SHAH, ADVOCATE for the
Applicant(s) No. 1
MR ASHISH M DAGLI, ADVOCATE for the Respondent(s) No. 2 - 8
MS JD JHAVERI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 17/07/2014
CAV JUDGMENT
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R/CR.MA/2202/2014 CAV JUDGMENT
Rule. Service of rule is waived by Ms. Jhaveri, Ld. APP for respondent no. 1 and Mr. Ashish Dagli, Ld. Advocate for respondent nos. 2 to 8.
2 The petitioner is original complainant before the B Division Police Station, Jamnagar, where on 7/1/2014 he lodged a complaint being C.R. No. I- 03/2014 for the offences punishable under sections 143, 147, 148, 149, 323, 324, 326, 307, 504, 506[2] of the Indian Penal Code [IPC], under section 135[1] of the Gujarat Police Act and section 25[1][a] of the Arms Act. Such complaint is against as many as 10 persons whose names are very well disclosed in column no. 7 of the FIR and amongst them, except accused nos. 1 and 8, are respondents herein since the petitioner has prayed to cancel their bail granted by the Ld. 6 th Addl. Sessions Judge, Jamnagar, on 27/1/2014 in Criminal Misc. Application No. 30/2014.
3 The sum and substance of the complaint is to the effect that on 7/1/2014 when the complainant was at his home in his village and when they have to move for engagement of his grandson, accused no. 1 had some quarrel with the son of the complainant and in short time, he came back with other accused, who are armed with knife, cudgal, pipe, stick and Tamancha. It is stated in the complaint that all of them started to beat the complainant. Amongst them, respondent no. 4 Gulam Osman has given a blow with pipe on the head of the complainant, whereas respondent no. 2 Akbar Husain Page 2 of 12 R/CR.MA/2202/2014 CAV JUDGMENT Ibrahim has given a blow with knife on his right hand, whereas respondent no. 5 Sabbir Osman has given a blow with knife to grandson of the complainant, namely Afjal Gafar; whereas respondent no. 3 Habib has also beat son of the complainant - Afjal Gafar with cudgal and respondent no. 4 Gulam Osman has given blow with pipe on the head of the son of the complainant, namely Habib; whereas respondent no. 7 - Kasam Husain has beaten Habib with stick and respondent no. 8 has thrown stones. All other persons had also abused the complainant and his family and because of such attack, the complainant, his son Habib and grandson Afjal Imran fell down on the ground. It is further stated that all the accused had given threat to kill all of them and at that time respondent no. 8 - Abbas Husain and respondent no. 4 - Gulam Osman were having Tamancha with them, but though they have taken out the Tamancha from some distance, it was not fired. It is further stated that thereafter they all were taken to Jamnagar Hospital, where stitches were taken on his head and bandage was applied on hand. It is further stated that treatment of bandage was also given to Imran Habib, who was having grievous injury on his head and hence he was admitted in the hospital of Dr. Rupereliya. It is further alleged that all the accused had damaged his car at the place of the incident.
4 Out of 10 accused, 7 accused have preferred bail application as referred hereinabove before the Sessions Court, submitting that they are innocent; whereas so far as respondent nos. 4 and 9 are Page 3 of 12 R/CR.MA/2202/2014 CAV JUDGMENT concerned, since the Magistrate has granted their remand, they were in custody at the time of filing such application.
5 It is submitted by the accused before the trial Court that there is a cross complaint and all the victims are out of danger and that complaint was registered after delay of five hours though police station was nearby and that in fact minor child of complainant's family had driven a four wheeler and dashed it with their vehicle. So far as respondent no. 8 Abbas Husain is concerned, who was petitioner no. 7 before the Sessions Court, it is submitted that in fact Abbas was not present at the time of the incident since he was having fracture in his leg. It is also contended that arms were declared by the complainant with a motive to harass them and that there is no injury on the vital part of any of the victims and that in fact they have to lodge one complaint under similar sections being B Division Police Station being C.R. No. I-80/2011 against the complainant and, therefore, they are falsely implicated in such FIR. It is also further stated that in fact there is a matrimonial dispute between the accused no. 9 i.e. petitioner no. 7 before the Sessions Court and respondent no. 8 herein, namely Abbas Husain, with his wife, who is daughter of the complainant's family. Therefore, they were falsely implicated in such incident.
6 On perusal of impugned order, it becomes Page 4 of 12 R/CR.MA/2202/2014 CAV JUDGMENT clear that the trial Court has considered rival contentions and objections filed by the complainant as well as affidavit filed by the Investigating Officer [IO] disclosing all the relevant information. On perusal of the entire record of the matter and police papers received from the IO through Ld. AGP, it becomes clear that though there are serious allegations in the complaint against all the accused, the fact remains that there was some dispute pending between the parties since long and so far as allegations regarding unauthorized arms i.e. Tamancha is concerned, the police papers show that though no arms were recovered during the investigation of the present FIR, on 17/2/2014 accused no. 2 was found with one country made Tamancha and one live cartridge, for which second C.R. 47/2014 under section 25 [1][b] of the Arms Act has been registered in the same police station on 17/2/2014 and the District Magistrate, Jamnagar, has accorded sanction to file charge-sheet under the Arms Act against said accused/ respondent no. 4 Gulam Osman. However, so far as said accused no. 4 Gulam Osman is concerned, it is submitted by the Ld. Advocate appearing for accused - respondents that in fact the District Magistrate has externed said Gulam Husain from the districts of Jamnagar, Rajkot, Morbi and Dwarka for one month by order dated 16/4/2014 and, therefore, now there is no reason to detain him further. So far as other accused are concerned, it is submitted by Ld. Advocate Mr. Dagli that the respondents - accused are innocent and there was a simple scuffle between two groups and there is no Page 5 of 12 R/CR.MA/2202/2014 CAV JUDGMENT grievous or serious injury and, therefore, bail cannot be cancelled as prayed for.
7 Whereas the complainant has filed one additional affidavit on 24/2/2014 annexing one FIR being II C.R. No. 39/2014 registered with B Division Police Station, Jamanagar against present accused nos. 2 and 3 other persons for the offences punishable under sections 504, 506 [2], 427 and 114 of the IPC contending that they all again beaten the complainant and Abbas, who is son of present complainant.
8 So far as status of the case is concerned, now charge-sheet is filed before the competent Court. However, the injury certificate of victim confirms that there is fracture of right temporal and parietal bones with fracture of zygomatic cranium with extra- dural hematoma in right temporal region, which is considered as a neurological injuries by the doctor. Whereas another victim suffered simple injuries.
9 So far as cancellation of bail of respondent nos. 2, 3 and 6 to 8 is concerned, I am relying upon the following settled legal position :
10 So far as impugned order is concerned, the Sessions Court has considered all relevant aspects and when there was no prior incidents, Addl. Sessions Court has deemed fit to grant bail.
11 Respondent is relying upon the decision in Page 6 of 12 R/CR.MA/2202/2014 CAV JUDGMENT Jetha Bhaya Odedara v. Ganga Maldebhai Odedara, reported in 2012(1) GLH, 601, wherein, though there was allegation under Sections 302, 324, 147 etc. and though there were death and serious injuries, the Hon'ble Supreme Court has refused to interfere with the order of bail when accused have not misused their liberty by bail order or never tried to tamper with the evidence or to commit any other act which may call for cancellation of bail.
12 In the present case also, there is no allegation regarding misuse of liberty. Thereby, the cancellation of bail is prayed on merits of the order of bail. However bail cannot be cancelled only because somebody files an application for cancellation of bail.
13 Recently, in Criminal Case Nos. 1542 of 2014 and 1766 of 2014 between Ankit Sharma v. State of NCT of Delhi and State of NCT of Delhi v. Gopal Goyal Kanda, Delhi High Court has considered the applications for cancellation of bail in such case of suicide, wherein, facts are more serious than the present case. Inasmuch as, the deceased has left two suicide notes disclosing the name of the accused responsible for compelling her to end her life. The Delhi High Court has after narrating all the relevant factual details taken care of all the judgments cited by both the sides in both the cases, which are as under:
Page 7 of 12 R/CR.MA/2202/2014 CAV JUDGMENT"13. Learned counsel for the petitioner has relied upon judgments in State of Maharashtra vs. Captain Buddhikota Subha Rao, AIR 1989 SC 2292, Kishore Samrite vs. State of U.P. &Ors., (2013) 2 SCC 398, State through CBI vs. Amarmani Tripathi, VII(2005) SLT 160, Prahlad Singh Bhati vs. NCT of Delhi & Anr., AIR 2001 SC 1444, Gurcharan Singh & Ors. vs. State (Delhi Administration), AIR 1978 SC 179,A.V. Papayya Sastry vs. Govt. of A.P. & Ors., (2007) 4 SCC 221 and Kalyan Chandra Sarkar vs. Rajesh Ranjan@ Pappu Yadav &Anr., (2004) 7 SCC 528.
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17 Learned counsel for the respondent has
relied upon judgments in Sanjay Chandra vs. Central Bureau of investigation, (2012) 1 SCC 40, H.B. Chaturvedi vs. CBI, 2010 (171) DLT 223, Avtar Singh vs. State of Punjab, (2010) 15 SCC 529, Laloo Prasad alias Laloo Prasad Yadav vs. State of Jharkhand, (2002) 9 SCC 372,Deepak Shubhashchandra Mehta vs. CBI & Anr., (2012) 4 SCC 134, Dolat Ram & Ors. vs. State of Haryana, (1995) 1SCC 349, Ramcharan vs. State of M.P., (2004) 13 SCC 617, Nityanand Rai vs. State of Bihar & Anr., (2005) 5 SCC 178, Hazari Lal Das vs. State of West Bengal & Anr.,(2009) 10 SCC 652, Jai Kumar vs. Balhari & Anr., II(2011) SLT 302, Rahmita vs. State & Ors., I(2012) VIII AD (Delhi)376, Govind Narain Johari vs. State & Anr., 2013 V AD (Delhi)179 and Suresh Kalmadi vs. CBI, 2012 (187) DLT 575."
14 The Delhi High Court has quoted relevant paragraphs of relevant citations. Therefore, repetition of all such paragraphs are not necessary at present but what is concluded by Delhi High Court in Paragraph nos.23, 24 and 28 are reproduced as under:
"23. It is a settled law that bail granted can be cancelled on the ground which has arisen after the bail was granted. It is generally presumed that at the time of hearing of the bail application, the prosecution has raised all Page 8 of 12 R/CR.MA/2202/2014 CAV JUDGMENT possible grounds which could go against the accused in the matter of bail and, therefore, when once bail has been granted to the accused, the prosecution cannot have the bail cancelled on some circumstances which may have existed before the grant of bail.
24. The ground of cancellation of bail and grounds of rejection of bail are two different circumstances and hence the approach of the Court should also be different. At the time of hearing the bail application, the Court looks at the possibilities of the violation of bail conditions and the Court has to be more open and flexible, whereas while hearing the cancellation application, the Court has to be more rigid andit has to examine not only the possibility of violations but whether the actual violation has taken place or not. The Court should be more rigid here and actual proof of violation is required.
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28. No doubt, the offence with which
respondent/accused is charged is serious in nature, but every accused is presumed innocent until proven guilty beyond reasonable doubt and every accused person has the right to enjoy the bail granted to him unless there is evidence to show the abuse of this right given to him. It is reemphasized by this Court that at the time of dealing with the question of cancellation of bail of an accused, the only issue which is germane is whether the accused has misused the conditions of bail or tampered with the investigation or the evidence or not."
15 Moreover, when investigation is over and charge-sheet has been filed, now after the decision in Siddharam Satlingappa Mhetre v. State of Maharashtra, reported in 2011(1) SCC 694, there is no reason to cancel the bail. Hence, the present application deserves to be dismissed qua respondent nos. 2, 3 and 6 to 8 are concerned.
Page 9 of 12 R/CR.MA/2202/2014 CAV JUDGMENT16 Considering the entire police papers and record available at present, since there is cross complaint, it would not be appropriate to scrutinize the evidence minutely so as to arrive at specific conclusion which would unnecessarily prejudice the final trial. However, considering the overall facts and circumstances and police papers, when grievous injury is inflicted by the original accused no. 4 alone, who is respondent no. 4 herein and who was having fire arms, there is no reason to disturb the order of bail so far as respondent nos. 2, 3 and 6 to 8 are concerned. Whereas for the aforesaid reason, when respondent no. 4 Gulam Osman and respondent no. 5
- Sabbir Osman have given serious blow which resulted into fracture of frontal bone of Habib, son of the complainant and when fire arms recovered from Gulam, it would not be appropriate to allow said respondents/accused - Gulam and Sabbir to move freely in the District where the incident has taken place and, therefore, application is partly allowed so far as respondent no. 4 Gulam Osman and respondent no. 5 - Sabbir Osman is concerned.
17 Considering the facts and circumstances as narrated hereinabove, more particularly when the respondent no. 4 was externed by the District Magistrate for couple of weeks only and now the respondent nos. 4 and 5 are on bail for long time, instead of cancelling their bail at this stage, it would be appropriate to modify the impugned order so far as respondent nos. 4 and 5 are concerned, by Page 10 of 12 R/CR.MA/2202/2014 CAV JUDGMENT adding one more condition to the effect that the respondent nos. 4 and 5 shall not reside, stay and remain in entire District of Jamnagar till final decision of the Sessions Case under reference. However, they are certainly entitled to attend the Court on the date of actual hearing of such Sessions Case. For the purpose, they are permitted to enter into the district only to remain present before the Sessions Court for hearing/trial of the case and not on any day and for any other reason.
18 In view of the foregoing facts, circumstances and discussion, the application is partly allowed, as aforesaid, so far as respondent nos. 4 and 5 are concerned. Thereby, the order dated 27/1/2014 of granting bail to respondent nos. 4 and 5 in Criminal Misc. Application 30/2014 passed by the learned 6th Additional Sessions Judge, Jamnagar is hereby modified. Rule is made absolute qua them. Whereas application is dismissed so far as respondent nos. 2, 3 and 6 to 8 are concerned. Rule is discharged qua them.
19 It is made clear that observations in this order are made purely for adjudicating present application only and trial Court shall not influence by any observations made in this order.
20 In the result, application is partly allowed accordingly. Rule is made absolute qua respondent nos. 4 and 5 to the aforesaid extent. Whereas the Page 11 of 12 R/CR.MA/2202/2014 CAV JUDGMENT application is dismissed qua respondent nos. 2, 3 and 6 to 8 are concerned. Rule is discharged qua them. Direct service is permitted.
(S.G.SHAH, J.) * Pansala.
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