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Gujarat High Court

Abhabhai Punjabhai Parmar (Mer) vs State Of Gujarat & 2 on 26 August, 2014

Author: S.G.Shah

Bench: S.G.Shah

       R/CR.MA/1428/2014                                           CAV ORDER



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

  CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
                               1428 of 2014

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ABHABHAI PUNJABHAI PARMAR (MER)....Applicant(s) Versus STATE OF GUJARAT & 2....Respondent(s) ================================================================ Appearance:

MR K S CHANDRANI, ADVOCATE for the Applicant(s) No. 1 MR ASHISH M DAGLI, ADVOCATE for the Respondent(s) No. 2 - 3 MS JIRGA JHAVERI, APP for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 26/08/2014 CAV ORDER The petitioner is complainant who has challenged the order dated 12.11.2013 by Addl.Sessions Judge of Junagadh in Criminal Misc.Application No.591 of 2013 whereby respondents No.2 and 3 were released on anticipatory bail for the offences u/ss.306 and 114 of the Indian Penal Code read with Sections 3 and 4 of the Dowry Prohibition Act registered with Junagadh 'C' Division Police Station I-C.R.No.26 of 2013 on 8.11.2013. Petitioner being complainant has narrated the incident in his complaint stating that he is brother of the victim who got married with brother of respondent No.2 and that in-laws of the victim, including her husband were harassing the victim and demanding dowry and because of such harassment and cruelty and demand of dowry, his sister has committed suicide on 6.11.2013 at her matrimonial home. A complaint was filed against all five persons viz.husband, father-in-law, mother-in-law of the victim as well as brother and brother-in-law of the victim's husband.

R/CR.MA/1428/2014 CAV ORDER

2. The sum and substance of the respondents No.2 and 3, whose bail are sought to be cancelled in the present application before the trial Court is to the effect that in fact the respondents No.2 and 3 herein being husband and wife are residing at Ranakandorna, Taluka Ranavav, District Porbandar, where respondent No.2 Ashokbhai Nathabhai Odedara is serving with one Dilip Trading Company as a Manager since last 14 years and, therefore, they are residing far away from the place of incident being Junagadh. To confirm such fact, they have produced certain documents on the record of the trial Court, which is referred in the impugned judgment in paragraphs 3 and 5 and appreciated in paragraph 7 by the trial Court confirming that when there is no medical evidence regarding any ill-treatment or cruelty and when respondents No.2 and 3 are residing at the distance and having a child of 2-1/2 years, there is no reason to ask them to remain in custody during the trial since husband and father-in-law as well as mother-in-law of the victim are not requesting for such relief at the relevant time. Therefore, the Sessions Court has granted anticipatory bail in favour of respondents No.2 and 3 with certain conditions including the condition to remain present before the investigating officer and to surrender the passport etc.

3. While challenging such order, the petitioner herein being complainant has narrated the entire complaint and history of litigation, but his main grievance is to the effect that in such cases, the Sessions Court should not grant anticipatory bail. It is also alleged that the service in Dilip Trading Company is afterthought inasmuch as Dilip Trading Company is owned by uncle of respondent No.2, who is financially as well as politically strong person and under whose pressure Talati-cum-

Mantri has issued certificate of residence of respondent No.2 at Ranakandorna. It is further submitted that pursuant to the judgment in the case of Rajbir Vs.State of Haryana reported in (2010)15 SCC 116, the Court should consider the charge u/s.302 as well as u/s.304(B) of the IPC Page 2 of 7 R/CR.MA/1428/2014 CAV ORDER in the case falling under Section 306 of the IPC so that death sentence can be imposed in such heinous and barbaric crimes against women.

4. However, the fact remains that the same Sessions Judge has rejected the bail application by father-in-law of the victim being Criminal Misc.Application No.645 of 2013 by judgment and order dated 12.12.2013, but so far as present respondents No.2 and 3 are concerned, only because of the allegation that they are also residing together in joint family, it cannot be said that they have also abetted the crime inasmuch as they are able to show prima facie that they are not residing together and serving at Ranakandorna.

5. So far as reference of the case of Rajbir (supra) is concerned, it cannot be ignored that the same judgment has been thereafter clarified by the Hon'ble Supreme Court in the case of Jasvinder Saini Vs. State (Government of NCT of Delhi) reported in (2013)7 SCC 256 confirming that the direction issued in Rajbir's case (supra) was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. The Supreme Court in Rajbir case meant to say that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 of IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section Page 3 of 7 R/CR.MA/1428/2014 CAV ORDER 304B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial Court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir case (supra).

6. In view of above facts and circumstances, when trial Court has considered all material evidence on record and considered rival submissions and more particularly when there is no medical evidence regarding ill-treatment or immediate cruelty upon the victim by any of the accused and more particularly when respondents No.2 and 3 are staying at far away place from the place of incident, I do not see any substance in this application so as to cancel the bail granted in favour of respondents No.2 and 3. For coming to such conclusion, I have called for the police papers and scrutinized the same. It cannot be ignored that ultimately mother-in-law was also granted bail by this Hon'ble Court being Criminal Misc.Application (for Regular Bail) No.1707 of 2014 by judgment and order dated 12.2.2014. Similarly, when bail was granted to father-in-law by the Sessions Court in Criminal Misc.Application No.851 of 2013 on 12.9.2013, was refused to be cancelled by this High Court in Criminal Misc.Application (Cancellation of bail) No.14093 of 2013 by judgment and order dated 13.2.2014. Moreover, at present, now chargesheet is already filed and accepted. The fact that respondents No.2 and 3 are brother-in-law and husband of the victim, there is no other evidence which can compel this Court to cancel their bail.

7. 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.

R/CR.MA/1428/2014 CAV ORDER

8. 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:

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.

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.

9. 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, Page 5 of 7 R/CR.MA/1428/2014 CAV ORDER 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 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 and it 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.

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 re-emphasized 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.

10. Moreover, when investigation is over and chargesheet 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 and accordingly dismissed. Rule is discharged.

         R/CR.MA/1428/2014                 CAV ORDER



                                           (S.G.SHAH, J.)
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