Gujarat High Court
Urveshbhai Baldevbhai Patel vs State Of Gujarat & on 7 April, 2014
Author: S.G.Shah
Bench: S.G.Shah
R/CR.MA/4081/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
4081 of 2014
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URVESHBHAI BALDEVBHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR HARDIK J JANI, ADVOCATE for the Applicant(s) No. 1
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 07/04/2014
ORAL ORDER
Heard Mr. Hardik J Jani, Ld. Advocate for the applicant and Ms. Jhaveri, Ld. APP for the respondent - State.
2 The petitioner is original complainant, whereas respondent no. 1 - State being Investigating and Prosecuting Agency of criminal cases and respondent no. 2 is one of the accused in the complaint filed by the petitioner - complainant. They are referred in the same capacity in this order also.
3 The complainant has, on 28/10/2013, filed a complaint before the Judicial Magistrate First Class at Gandhinagar alleging that several persons have committed the offences under sections 406, 420, 465, 467 and 120-B as well as Page 1 of 21 R/CR.MA/4081/2014 ORDER 34 of the Indian Penal Code [IPC] by creating false and forged power of attorney deed and by selling and thereby grabbing valuable agricultural land of the complainant. Such complaint was registered as M. Case No. 1/2013 wherein the Ld. Magistrate has directed the police to investigate under section 156 [3] of the Criminal Procedure Code [Cr. P.C.]. Pursuant to such direction, the Adalaj Police Station registered an FIR and started investigation. Pending investigation, one of the accused, present respondent no. 2, namely Babubhai Mohanbhai Patel has filed Criminal Misc. Application No. 699/2013 before the Sessions Court at Gandhinagar under section 438 of the Cr. P.C for anticipatory bail. In such application, it is contended by the accused that he has not committed any offence and that it is not the case of the complainant that power of attorney deed is false, though there is categorical disclosure in the complaint itself that the power of attorney deeds are false and forged. Therefore, there is no substance in the application of the accused that such complaint is filed as a counter-blast of other litigation between the parties.
4 During the hearing of such application, the Investigating Officer has disclosed in detail about the role of the accused that how he has acted to grab the property of the complainant by creating false and forged documents and by filing Page 2 of 21 R/CR.MA/4081/2014 ORDER false civil suit and creating false record.
5 However, the Sessions Court has, after hearing both the parties and after discussing rival contentions, granted the anticipatory bail in favour of the accused considering that the accused is local resident and having properties and permanent abode within the jurisdiction of the Court and there is no possibility of his abscondment and that he will be available during the trial before the Court. It is also stated in one line that there is contradiction in the affidavit filed by the Investigating Officer [IO]. However, such contradiction is referred with the investigation of the accused and, therefore, such contradiction may not be much material.
6 In any case, the trial Court has granted anticipatory bail and directed the police to release the petitioner on furnishing security of only Rs.10,000/-. However, trial Court has imposed several conditions even while allowing the anticipatory bail; and in addition to formal and technical conditions like consideration of such application as final order and thereby not to file fresh bail application; there are several strict conditions. While granting liberty to the Investigating Agency to apply under section 167 of the Cr. P.C, following specific conditions were imposed, which are to be abide by the Page 3 of 21 R/CR.MA/4081/2014 ORDER accused during the period of bail and trial, viz.
i] To cooperate the police in its investigation ii] Not to pressurize, threaten or coerce
the complainant and his witnesses.
iii] To disclose the name and address both before the Investigating Agency as well as before the trial Court and not to change residence without prior permission of the trial Court.
iv] Not to leave territory of Gujarat State without prior permission of the trial Court.
v] To surrender passport within seven days, if holding any or to file an affidavit to that effect, if not holding the passport.
vi] Applicant has to strictly follow such conditions and in case of breach of any such condition, the complainant is entitled to get legal remedy.
7 It seems that after such order dated 18/11/2013, which is challenged herein, the complainant has to move this High Court for transfer of investigation to CID when this High Court [Coram : G.R. Udhwani, J.] has vide order dated 3/12/2013, in Special Criminal Application Page 4 of 21 R/CR.MA/4081/2014 ORDER No. 3642 of 2013, directed the APP to place the copy of this petition with all annexures before the Inspector General of Police, Gandhinagar Range, who will look into the matter and submit the report specifying whether the investigation heeds to be transferred. The Court has considered that huge land grabbing racket is involved and, therefore, directed the I.G. to even summon the complainant for personal hearing, if so necessary.
8 It seems that thereafter some of the accused have committed breach of the order of bail granted in their favour and hence the petitioner has filed this application for cancellation of bail.
9 It would be relevant here to refer the report dated 30/1/2014 made by the Police Inspector of Adalaj Police Station, who is Investigating Officer of the crime, wherein IO has categorically conveyed to the trial Court that some of the accused were arrested on 9/11/2013, whereas some of the accused are not traceable and could not be arrested by the police since they are absconded; whereas two accused including present accused have been released on anticipatory bail by the Sessions Court. In addition to such basic information, it is categorically stated in such report that till 30/1/2014 the accused, who are released on Page 5 of 21 R/CR.MA/4081/2014 ORDER anticipatory bail, had never come to the police station to furnish their address proof or to arrest them in accordance with law and then to release them pursuant to the impugned order and that even after Court's order, they are not cooperating and have never remained present for investigation. With such report, practically IO has prayed for some more time for filing final report considering the order dated 3/12/2013 in Special Criminal Application No. 3642/2013, which is referred herein above.
10 On 19/2/2014 the IO has again submitted his report with similar fact that accused who are granted anticipatory bail, including present accused, are not cooperating the police in further investigation and that they have never remained present before the police at Adalaj Police Station and that they have not disclosed their address and its proof and that they have committed breach of the conditions of the order of the Sessions Court while granting the bail. Ultimately, since IO is not in a position to complete the investigation and to file final report in absence of the accused, he has requested to extend time for final report and trial Court was pleased to grant further 15 days' time, though 15 days' time was already granted pursuant to the report dated 30/1/2014.
11 The petitioner has also filed an
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intimation received by him under the Right To Information Act from the trial Court wherein it has been disclosed by the Right to Information Officer of the trial Court that present accused has not disclosed his address pursuant to condition no. 8 in order dated 18/11/2013 by which anticipatory bail was granted to him. Similar information is disclosed for other accused also.
12 Pursuant to such position, the petitioner has prayed for cancellation of anticipatory bail granted in favour of the present respondent no. 2. This Court has issued rule by an order dated 29/3/2014 and permitted the petitioner to confirm service upon respondent no. 2 through IO. Considering the averments in petition regarding non-availability of the accused no. 2, IO was directed to file proper report if notice could not be served upon respondent no. 2. Pursuant to such direction, the petitioner has tried to serve the notice upon respondent no. 2 and when he could not find respondent no. 2 at his residence, the petitioner has filed an affidavit of service disclosing that respondent no. 2 was not available at house and his son Bhavesh Babubhai Patel accepted the notice. Whereas pursuant to Court's direction, Mr. K B Ranavat, Police Sub Inspector, Adalaj Police Station has, pursuant to order dated 19/3/2014, filed his report dated 24/3/2014, Page 7 of 21 R/CR.MA/4081/2014 ORDER which is taken on record In such report, it is categorically disclosed that when police has tried to serve notice of this application upon respondent no. 2, one of the accused was not found at his home and his son, namely Bhavesh Babubhai Patel was available, who disclosed that his parents have been on tour for 35 days from 2/3/2014 and they have left for Kathmandu [Nepal] through Brahmani Travels for worshiping Pashupatinath. It is also disclosed that respondent will return only on 7/4/2014 and accepted the notice of this Court. Police Sub Inspector has collected the relevant information of tour programme by such Brahmani Travels and submitted his report.
13 Today, Mr. Samrathdan S Gadhvi, Police Inspector, Adalaj Police Station, has also filed an affidavit repeating the same story as recorded herein above thereby it is confirmed on oath by Investigating Agency that as per their information the accused has gone to Nepal. With such affidavit, statement of Bhavesh Babubhai Patel recorded by Mr. K B Ranavat, P S I, Adajan Police Station and tour programme of 35 days by Brahmani Travels are enclosed.
14 Therefore, there is prima-facie evidence on record that respondent no. 2 has committed not only breach of the impugned order, but in fact has not honoured and obeyed or complied the order Page 8 of 21 R/CR.MA/4081/2014 ORDER by which anticipation bail granted to him as back as in November 2013. Therefore, when respondent no. 2 - accused has not even bothered to either disclose his address before the Investigating Agency or trial Court or to cooperate the Investigating Agency in the trial and left the State of Gujarat without prior permission of the Court and visited Nepal, from which abscondment to any where in the world would be easy, then irrespective of statement of his son regarding tour of respondent no. 2 for pilgrimage purpose, there is no option but to cancel the bail granted in favour of respondent no. 2.
15 The petitioner is relying on the following decisions :
I Lavesh v. State of Delhi reported in 2012 [8] SCC 730 II State of Gujarat v. Salimbhai Abdulgaffar Shaikh reported in 2003 [8] SCC 50 III Ram Govind Upadhyay v. Sudarshan Singh reported in 2002 [3] SCC 598 IV Dolat Ram v. State of Haryana reported in 1995 [1] SCC 349 V The State through the Delhi Admini. v. Sanjay Gandhi reported in AIR 1978 SC 961
16 However, before determining the issue finally, following citations need to be referred.
Page 9 of 21R/CR.MA/4081/2014 ORDER I In the case between Subodh Kumar Yadav
v. State of Bihar and Anr. reported in AIR 2010 SC 802, the Apex Court has confirmed the cancellation of bail, considering that all such application cannot be considered as an application for cancellation of bail for breach of any condition of bail when original order granting bail has been challenged on its propensity and more particularly, when it is found that while granting the bail, the trial Court has taken into consideration totally irrelevant documents and exhibited undue haste in deciding the application for bail and the judicial discretion was also not exercised properly. The Apex Court has considered that observations in several reported judgments which are referred in this cited case were not entitled to restrict the power of the superior Court to cancel the bail in appropriate cases on grounds other than breach of condition of bail order. It is further stated that if a superior Court finds that the Court grating bail had acted in irrelevant material and if there was non- application of mind or failure to take note of any statutory bar to grant bail, or if there was manifest impropriety e.g. failure to hear the Public Prosecutor / Complainant where required, an order of cancellation of bail can be made. For arriving at such conclusion, the Apex Court has relied upon several previous decisions also.
Page 10 of 21R/CR.MA/4081/2014 ORDER II In AIR 2010 SC 3511, between Pravinbhai
Kashirambhai Patel v. State of Gujarat and Ors., the Apex Court has though confirmed the order of anticipatory bail by rejecting the request for cancellation of such bail, makes it very clear that each case has to be considered on its own merits and no straight-jacket formula can be laid down for universal application. While holding so, the Apex Court has relied upon the judgment in Puran v. Rambilas and Anr., reported in AIR 2001 SC 2023, wherein, the grounds for cancellation of bail u/S.439(2) of Cr.P.C. were considered and it was held that an order granting bail by ignoring material evidence on record and without giving reasons, would be perverse and contrary to the principles of law and such an order would itself provide a ground for moving an application for cancellation of bail. It was further observed that such ground for cancellation of bail would be different from the ground that the accused has misconducted himself or that some new facts called for cancellation of bail. Thereby, the Apex Court has reconfirmed the principles laid down by it in the case of State of Uttar Pradesh v. Amarmani Tripathi reported in AIR 2005 SC 3490 which broadly covers the matters to be considered in an application for grant of bail. However, it was made clear that even then the same may not fully cover the fact situation of each case.
III In Guria, Swayam Sevi Sansthan v. State
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of U.P. Reported in AIR 2010 SC (SUPPL) 440, the
Apex Court has reconfirmed the above view that granting of bail should be considered having regard to the gravity of the offence for which the accused had been charged and with reference to the case of Puran v. Rambilas and Anr. (Supra), it is reconfirmed that one of the grounds for cancellation of bail would be whether material evidence brought on record have been ignored and that too without any reason.
IV In Lokesh Singh v. State of U.P., reported in AIR 2010 SC 94, the Apex Court has though carved out following factors for consideration while dealing with the application for bail, order of bail was set aside when bail was granted without assigning reasons in the case where accused was charged of criminal conspiracy to murder. The relevant Paragraphs need to be reproduced hereunder:
"8 While dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are :
1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;Page 12 of 21
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2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge,
9. Any order dehors such reasons suffers from non-application of mind as was noted by this Court, in Ram Govind Upadhyay v. Sudarshan Singh and Ors. [(2002) 3 SCC 598], Puran etc., v. Rambilas and Anr. Etc. [(2001) 6 SCC
338)] and in Kalvan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr. [JT 2004 (3) SC 442].
10. Though a conclusive finding in regard to the points urged by the parties is not expected of the Court considering the bail application, yet giving reasons is different from discussing merits or demerits. As noted above, 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. But that does not mean that while granting bail some reasons for prima facie concluding why bail was being granted is not required to be indicated. 11. In Kalyan Chandra Sarkar v.
Rajesh Ranjan @ Pappu Yadav and Anr. (2004 (7) SCC 528). In para 11 it was noted as follows :
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted Page 13 of 21 R/CR.MA/4081/2014 ORDER particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are :
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh (2002 (3) SCC
598) and Puran v. Rambilas (2001 (6) SCC
338).
12. It was also noted in the said case that the conditions laid down under Section 437 (1)(i) are sine qua non for granting bail even under Section 439 of the Code.
13. In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was noted as follows :
"11. Further, it is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the ball on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.). In that case the Court observed as under : (SCC p. 124, para 16) "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 Page 14 of 21 R/CR.MA/4081/2014 ORDER 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 existing, 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 follows from the subordinate position of the Court of Session vis-a-vis the High Court."
Above being the position, we are of the view that the High Court was not justified in granting bail to respondent No.2. The order granting bail is set aside. The respondent No.2 who was released on bail shall surrender to custody forthwith. We make it clear that we have not expressed any opinion on merits of the case..."
V In Brij Nandan Jaiswal v. Munna Jaiswal and Anr., reported in AIR 2009 SC 1021, while dealing with the order of bail, the Apex Court has categorically confirmed that complainant had challenged the order of bail on merits and that misuse of bail order is not only way out for cancellation of bail. If any order of bail is passed without undertaking reasons, it is liable to be set aside.
VI In all above judgments, case of Puran v. Rambilas, reported in AIR 2001 SC 2023 has been Page 15 of 21 R/CR.MA/4081/2014 ORDER relied upon and therefore it would be appropriate to scrutinize said judgment. In said judgment, the issue before the Apex Court was almost similar to the present case inasmuch as, in such reported case also in a case of bride burning, when Sessions Court has granted bail to the accused and when High Court has cancelled such bail, the Apex Court has confirmed the cancellation of bail u/S.437 read with Section 439 of Cr. P.C. holding that concept of setting aside order of bail is different from concept of cancelling order of bail on the ground that accused has misconducted himself or because of the fact that new facts have been arisen. It is also made clear that it is not necessary to go into merits or demerits of the matter and only prima-facie evidence is to be looked into. This decision is followed in AIR 2007 SC 3064 as well as AIR 2009 SC 1452. The material part of the judgment would be necessary to reproduce, which reads as under:
"8... The High Court has correctly not gone into merits or demerits of the matter. The High Court has noted that evidence 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 evidence 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 Page 16 of 21 R/CR.MA/4081/2014 ORDER that the offences under Sections 498A and 304A 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 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.
9. 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.
10. Further, it is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation..."
VII Even in the latest judgment between Ranjit Singh v. State of M.P. And Ors. in Criminal Appeal no.1545 of 2013 on 27.9.2013, the Apex Court has reconfirmed the above position of Page 17 of 21 R/CR.MA/4081/2014 ORDER law. After referring several previous judgments, the Apex Court has held as under:
"21. In Chaman Lal v. State of U.P.[1], this Court, while dealing with an application for bail, has stated that certain factors are to be borne in mind and they are:
".... (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge."
VIII In Prasanta Kumar Sarkar v. Ashis Chatterjee [2], this Court, while emphasizing on the exercise of discretionary power generally has to be done in strict compliance with the basic principles laid down in plethora of decisions of this Court, has observed as follows:
"9... among other circumstances, the factors which are to be borne in mind while considering an application for bail are:
i) whether there is any prima facie or reasonable ground to be believed that the accused had committed the offence;
ii) nature and gravity of the accusation;
iii) severity of the punishment in the event of conviction;
iv) danger of the accused absconding or fleeing, if released on bail;
v) character, behavior, means, position and standing of the accused;
vi) likelihood of the offence being repeated;Page 18 of 21
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vii) reasonable apprehension of the witnesses being influenced; and
viii) danger, of course, of justice being thwarted by grant of bail."
IX The said principles have been reiterated in Ash Mohammad v. Shiv Raj Singh alias Lalla Babu and another [3].
X In this context, we may refer with profit to the recent pronouncement in Central Bureau of Investigation v. V. Vijay Sai Reddy[4] wherein the learned Judges have expressed thus:
"28. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/ State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."
We repeat at the cost of repetition that the Page 19 of 21 R/CR.MA/4081/2014 ORDER aforesaid aspects have not been kept in view by the learned Additional Sessions Judge and, therefore, we are obliged in law to set aside the order passed by him and we so do.
In view of the extinction of the order granting bail, the appellant shall surrender forthwith to custody failing which he shall be taken to custody as per law. Liberty is granted to the appellant to move an application for grant of regular bail. Needless to say, on such application being moved, the same shall be considered on its own merits regard being had to the parameters which have been laid down in afore-stated authorities..."
Thereby the Apex Court has cancelled the bail.
17 In view of the above facts and circumstances, the petition is allowed. Thereby the anticipatory bail granted in favour of respondent no. 2 by order dated 18/11/2013 by the Sessions Court, Gandhinagar, in Criminal Misc. Application No. 699/2013 is hereby cancelled. Thus, Investigating Agency is free to arrest the respondent no. 2. For the purpose, since charge- sheet is yet not submitted, it would be appropriate for the Investigating Agency to issue red-corner notice also so as to catch the respondent no. 2 from anywhere, because it has been disclosed that he has gone to Nepal.
Rule made absolute to aforesaid extent. Direct service permitted.
(S.G.SHAH, J.)
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* Pansala.
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