Gujarat High Court
Vishal Budhisagar Tripathi vs State Of Gujarat & on 7 July, 2014
Author: S.G.Shah
Bench: S.G.Shah
R/CR.MA/9549/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
9549 of 2013
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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VISHAL BUDHISAGAR TRIPATHI....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR HIREN R SHARMA, ADVOCATE for the Applicant(s) No. 1
MS. SEJAL A DAVE, ADVOCATE for the Applicant(s) No. 1
MR VIMAL A PUROHIT, ADVOCATE for the Respondent(s) No. 2
MS JD JHAVERI, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 07/07/2014
CAV JUDGMENT
Page 1 of 6
R/CR.MA/9549/2013 CAV JUDGMENT
1. Rule. Ms. Jhaveri waive service of notice of rule for respondent no.1 while Mr. Purohit waives service of notice of rule for respondent no.2.
2. The order of anticipatory bail in favour of respondent no.2 by judgment and order dated 11.6.2013 in Criminal Misc. Application No.2239 of 2013 by the City Civil and Sessions Court no.16 is under challenge.
3. Petitioner herein has lodged complaint before Meghaninagar police station on 15.5.2013 being Ist C.R. No.112 of 2013 complaining that four persons including present respondent no.2 had friendly relation and his father has lent some money to all such persons, but when his father had asked to refund such money, they all had abused and threatened his father with un parliamentary language, because of which his father has consumed poison and committed suicide. It is further stated in the complaint that present accused has sent several threats through SMS. Though Mobile Number and print out of such SMS is also annexed with the petition, which discloses some unprerogative language and threats, and though some SMS are not in good words, the threats are also not of such a nature so as to consider it as a threat to disturb or harass or to kill or to instigate someone to get himself killed by committing suicide. In other words, though the texts of SMS are unwanted, at the most, it may give rise to complaint before the Police and civil action for damages but it cannot be said that such SMS are enough for a person to commit suicide. It is also clear that in some of the SMS, there is a threat to kill father of the complainant.
4. I have called for the police papers and perused the record of Page 2 of 6 R/CR.MA/9549/2013 CAV JUDGMENT investigation, wherein, except call details, which confirms that few calls and SMS are exchanged between the victim and the petitioner, there is no other evidence so as to confirm that petitioner has given threat to the victim or abetted commission of suicide by the victim. At this stage, detailed discussion and total outcome of scrutiny of police paper is unnecessarily prejudice the trial and, therefore, the same has been avoided. However, prima facie, it can be said that though there is a death of one person, only because of death, it cannot be said that the persons whose names are disclosed in the complaint have abetted suicide committed by the victim. It cannot be ignored that victim is a Doctor and he has consumed poison on his own. It can also not be ignored that at the relevant time, respondent no.2 was not nearby the victim so as to instigate him to commit a suicide. It can also not be ignored that complaint is filed after 45 days and initially Police has registered the case of accidental death only.
5. Moreover, there is one material contradiction in so far as story of money transaction is concerned. Inasmuch as, if father of the petitioner i.e. victim was lending money to the accused, then accused may not have to give threats to recover money, whereas, allegations are to the effect that accused have given a threat and demanded money back. It further transpires from the complaint that petitioner - complainant has tried to prove that such situation was there since long time. If it is so, victim being a Doctor i.e. an educated person, he should have immediately lodged a complaint or at least intimate the Police. However, nobody from the victim's family has ever conveyed the Police about their problems or threats by the accused, if any, at any earlier point of time. As against that, respondent no.2 has explained his position in his Page 3 of 6 R/CR.MA/9549/2013 CAV JUDGMENT affidavitinreply that there is no reason for anybody to abet the suicide by the victim.
6. So far as impugned order is concerned, the Sessions Court has considered all relevant aspects and when there was no prior incidents, Sessions Court has deemed fit to grant anticipatory bail.
7. Respondent is relying upon the decision in 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.
8. 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.
9. 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 Page 4 of 6 R/CR.MA/9549/2013 CAV JUDGMENT 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.
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."
10. 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 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.Page 5 of 6 R/CR.MA/9549/2013 CAV JUDGMENT
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 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."
11. 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 petition deserves to be dismissed and accordingly dismissed. Rule is discharged.
(S.G.SHAH, J.) VATSAL Page 6 of 6