Gujarat High Court
Priya W/O Ashutosh Sureshchandra ... vs State Of Gujarat on 7 February, 2024
NEUTRAL CITATION
R/CR.MA/9593/2019 ORDER DATED: 07/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
9593 of 2019
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PRIYA W/O ASHUTOSH SURESHCHANDRA SHARMA(MEHTA)
Versus
STATE OF GUJARAT
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Appearance:
MR HARI BRAHMBHATT, MR DHAVAL M BAROT(2723) for the Applicant(s)
No. 1
for the Respondent(s) No. 2
MR HK PATEL, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/02/2024
ORAL ORDER
Rule. Learned APP waives service of rule for Respondent No.1- State.
1. By way of this application, filed under Section 439(2) of the Code of Criminal Procedure, 1973 (in brief, 'the Code'), the applicant-first informant seeks to assail the order dated 12.04.2019, passed in CR.M.A. No. 1171 of 2019 by the learned 10th Additional Sessions Judge, Ahmedabad (Rural), granting regular bail to the respondent No.2-accused in connection with the offence registered with the Vejalpur Police Station, District: Ahmedabad City, being CR No. I-43 of 2019 for the offences punishable under Sections 328, 294(B), 323, 506(1) of the Indian Penal Code.
2. Learned Advocate for the applicant would submit that learned trial Court has not taken into consideration the offence under Section 328 of the IPC, while granting bail to the respondent No.2-accused. He would further submit that the Page 1 of 8 Downloaded on : Thu Feb 08 20:44:03 IST 2024 NEUTRAL CITATION R/CR.MA/9593/2019 ORDER DATED: 07/02/2024 undefined trial Court granted bail, by taking into consideration, untenable grounds. It was submitted that the trial Court ought to have taken into consideration the fact that Respondent No.2- accused made the first informant consume phenyl and therefore, prima facie, the offence under Section 307 of the IPC is made out and despite of that the concerned IO has applied Section 328 of the IPC only. He further submitted that the impugned order is an unreasoned order and learned Court below has failed to notice and observe the well settled principles for grant and refusal of bail.
2.1 Learned APP adopted the arguments advanced by the learned Advocate for the applicant and prayed that the appropriate orders may be passed in the facts and circumstances of this case.
3. Having heard the learned Advocates appearing for the respective parties and having perused the impugned order, what appears is that cancellation of bail is sought only on the ground that the trial Court took into consideration the untenable grounds for granting bail. The trial Court, while granting bail to Respondent No.2-accused, has recorded in its order that both the first informant as well as Respondent No.2- accused are adults and they know each other for a long time. It is also recorded that the first informant is also discharged from the hospital.
3.1 It is to be noted that, offence alleged to have been committed by the accused is in regard to Sections 328 of the Page 2 of 8 Downloaded on : Thu Feb 08 20:44:03 IST 2024 NEUTRAL CITATION R/CR.MA/9593/2019 ORDER DATED: 07/02/2024 undefined IPC. Section 328 of the IPC, reads as under;
"328. Causing hurt by means of poison, etc. with intent to commit an offence:- Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt such person, or with intent to commit or to facilitate the commission of an offence or knowing in to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
3.1.1 Thus, prima facie, from the allegations leveled in the FIR, it appears that the concerned IO has committed no error by applying the provisions of Section 328 of the IPC in this case.
3.2 The parameters, for rejecting the bail at an earlier stage and to cancel the bail once granted by a competent Court, are totally different. In the present case, learned advocate for the petitioner failed to point out any supervening circumstances. Even otherwise, it is not the case of the first informant that the accused has misused the liberty, granted by the Court concerned.
5. In the case of 'P. Vs. State of Madhya Pradesh and another', reported in (2022) SCC Online SC 552, the Hon'ble Apex Court has enumerated the circumstances, when bail Page 3 of 8 Downloaded on : Thu Feb 08 20:44:03 IST 2024 NEUTRAL CITATION R/CR.MA/9593/2019 ORDER DATED: 07/02/2024 undefined could be canceled and one of the conditions stated therein is the misuse of the liberty granted to the petitioner by the Court by involving himself in a subsequent crime.
6. In the case of 'Gurcharan Singh and others Vs. State (Delhi Administration), reported in (1978) 1 SCC 118, the Hon'ble Apex Court had an occasion to observe that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of canceling the bail on the ground that the accused has misconducted himself or because of some new facts are requiring such cancellation. In Paragraph-16, the Hon'ble Apex Court has observed as under:-
"16. Section 439 of the new Code confers special powers on High Court or Court of Session regarding bail. This was also the position under Section 498 CrPC of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under sub-section (1) to be arrested and may commit him to custody. In other words, under Section 498(2) of the old Code, a person who had been admitted Page 4 of 8 Downloaded on : Thu Feb 08 20:44:03 IST 2024 NEUTRAL CITATION R/CR.MA/9593/2019 ORDER DATED: 07/02/2024 undefined to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position Page 5 of 8 Downloaded on : Thu Feb 08 20:44:03 IST 2024 NEUTRAL CITATION R/CR.MA/9593/2019 ORDER DATED: 07/02/2024 undefined follows from the subordinate position of the Court of Session vis-a-vis the High Court."
7. The aforesaid observations made by the Hon'ble Apex Court has been reiterated by the Hon'ble Apex Court in the case of 'Puran v. Rambilas and Another', reported in (2001) 6 SCC 338, as well as in case of 'Abdul Basit alias Raju and Ors. v. Mohd. Abdul Kadir Cahudhary and Another', reported in (2014) 10 SCC 754.
8. In the case of 'Ranjit Singh v. State of M.P.', reported in (2013) 16 SCC 797, the Hon'ble Apex Court has held as under
in Paragraph-19:-
"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 Page 6 of 8 Downloaded on : Thu Feb 08 20:44:03 IST 2024 NEUTRAL CITATION R/CR.MA/9593/2019 ORDER DATED: 07/02/2024 undefined 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. [Ranjeet Singh v. State of M.P., MCRC No. 701 of 2013, order dated 1- 2-2013 (MP)] remaining oblivious of the parameters for grant of bail under Section 439 CrPC. 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."
9. At this juncture, the observations made by the Hon'ble Apex Court in case of 'Dolat Ram and Ors. v. State of Haryana', reported in 1995(1) SCC 349, is required to be recollected. It was observed therein that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. The grounds for cancellation of bail though are broad, but 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 Court should satisfy for availability of the grounds for satisfying of the bail or cancellation of the bail and one of the possibility is accused being absconded. The bail once granted, should not be cancelled in a mechanical manner, without considering Page 7 of 8 Downloaded on : Thu Feb 08 20:44:03 IST 2024 NEUTRAL CITATION R/CR.MA/9593/2019 ORDER DATED: 07/02/2024 undefined availability of any grounds or supervening circumstances, which affects the very principle of fair trial.
10. With profit, I may also refer the observations made in the recent decision by the Hon'ble Apex Court in case of 'Kekhriesatuo Tep and others Vs.National Investigating Agency' reported in (2023) 6 SCC 58. The relevant observation made in Paragraph-19 reads as under:-
"The Special Judge has himself distinguished cases of the persons who have indulged into extortion for furthering the activities of the organisation and red the persons like the present appellants, who were government servants, and er, compelled to contribute the amount. Hence, it cannot be said that the prima ell facie opinion, as expressed by the Special Judge, could be said to be perverse or impossible."
11. Thus, the petitioner has failed to make out a case, which permits this Court to interfere with the impugned order granting bail to the accused. No reasons or supervening circumstances or grounds are made out warranting interference with the order of granting bail.
12. In the result, present petitions fail and stands dismissed in limine. Rule is discharged.
(J. C. DOSHI,J) UMESH/-
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