Gujarat High Court
State Of Gujarat vs Rajeshbhai Alias Rajubhai Harilal ... on 10 March, 2014
Author: S.G.Shah
Bench: S.G.Shah
R/CR.MA/15444/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
15444 of 2013
With
CRIMINAL MISC.APPLICATION NO. 11291 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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STATE OF GUJARAT....Applicant(s)
Versus
RAJESHBHAI ALIAS RAJUBHAI HARILAL PANCHANI....Respondent(s)
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Appearance:
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Applicant(s) No. 1
MR VIJAY H NANGESH, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Page 1 of 16
R/CR.MA/15444/2013 JUDGMENT
Date : 10/03/2014
ORAL JUDGMENT
1. Heard learned APP Ms. Jirga Jhaveri for the applicant and learned advocate Mr. Vijay Nagesh for the respondent. Perused the record.
2. It is not disputed that the offence is under Sections 365, 368, 376 and 506 of the Indian Penal Code initially against 6 persons, out which charge-sheet is already filed against 4 persons, whereas investigating agency has not filed charge- sheet against remaining 2 persons relying upon further statement of the victim.
3. Reproduction of minute details from the plaint, charge- sheet and such other evidence would unnecessarily prejudice the mind of anybody, since there is serious allegations of gang rape initially by 4 persons immediately after kidnapping the victim and by 5th person on next day morning while offering some breakfast.
3.1 With reference to such discloser in FIR when in some places, it was discussed that 4 persons were there, there is a discrepancy in number of persons and, therefore, it is submitted that victim is not telling the truth and that she is changing her version.
4. Similarly, victim has called Rameshbhai Sagar, who is Sarpanch of the village, after the incident is concerned, it is argued that victim has not called her real brother, who also Page 2 of 16 R/CR.MA/15444/2013 JUDGMENT has a mobile phone at the material time which fact can be ascertained from the statement of the brother. However, when complainant able to get the mobile, she has called Rameshbhai Sagar being Sarpanch and of her own caste, there is nothing wrong if victim has called somebody, who is able to manage affairs after such an incident more particularly when he is of same caste and holding a post as Sarpanch who is certainly in a better position to call the police and to manage further steps after such an incident. It is also submitted that the victim - complainant has already stated in her complaint that she has kept her mobile phone in silent condition. Such argument is advanced by the learned advocate for the respondent - accused that victim has put the mobile on silent mode during the period, when she was remained abducted. However, proper reading of FIR and statement, makes it clear that in fact mobile phone was taken by the accused and they put it in silent mode and therefore, as and when complainant - victim got the mobile, she called Sarpanch namely, Rameshbhai Sagar to do needful after such incident.
5. It has been also submitted that pursuant to an application under Section 227 of the Code of Criminal Procedure for discharge by some of the accused, the victim has disclosed before the Court that she had a compromise with three accused namely Markhi Laxmanbhai Ravalia, Kishor Babubhai Badhiya and Rajesh Harilal Panchani and therefore she has no objections if they are discharged. However, fact remains that even after such discloser, the trial Court has rejected the application of such accused and that order has not been challenged before the higher Court.
Page 3 of 16R/CR.MA/15444/2013 JUDGMENT 5.1 On the contrary, such discloser by the victim supports
the say of the applicants, if such accused has remained on bail. However, it will be difficult to allow the accused to remain on bail during the trial after committing such serious offence.
6. It is also submitted by the learned advocate for the respondents that at least DNA test of Kishor is negative i.e. samples of DNA available from the victim is not matched with the blood sample of Kishor. Therefore at least his bail cannot be canceled or Court may impose strict conditions. However, so far as accused Rajesh is concerned, the Forensic examination report dated 29.06.2012 categorically confirms that sample collected from the victim during the medical examination is found consistent with blood sample of accused Rajesh. Similar is the situation so far as the accused Markhi Laxmanbhai i.e. his blood sample was also consistent with the DNA profile obtained from the victim. It is obvious that when there is a similar offence, one after another by 4 or 5 persons then naturally blood sample of 1st or 2nd accused may not be easily available and the sample of the last accused may be easily available. Therefore, there cannot be consistency with blood sample of every accused.
7. It is also argued that immediately before the incident, victim has called some of the accused. Therefore, they were in contact with each other and only because one of the accused Bhavesh has refused to marry with the victim, she has made such allegations against all the accused. Again even if for the sake of arguments if it is believed, then complaint may be Page 4 of 16 R/CR.MA/15444/2013 JUDGMENT filed only against Bhavesh and not against another accused.
8. It is further submitted that now charge - sheet is already filed and even Sessions Court has forwarded its report that matter is now on active hearing. However only for that reason it cannot be said that accused will not tamper with the evidence and will not disturb the witnesses so as to confirm their acquittal in such a heinous crime. Therefore there is a serious lacuna in released such accused on bail. The trial Court has simply release the accused by stating that as they remained behind the bar approximately for 8 months and police has yet to file charge sheet against remaining 2 persons there is no need to keeping the accused behind the bar when they have properties in the surrounding area. Only condition imposed was that accused shall remain out of place during the trial. However, it goes without saying that they have to approach the district Court at the time of trial and there cannot be any machinery, which can confirm that accused will not misuse their liberty by tampering with the evidence and threatening the witnesses. Therefore, there is no substance in the impugned orders and the same are required to be quashed and set aside.
9. For coming to such conclusion, this Court has relied upon following decisions:
A) 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 which was granted for the offences committed u/Ss. 498(A), 384, 307 and 406 of IPC considering that all such Page 5 of 16 R/CR.MA/15444/2013 JUDGMENT 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.
B) In Guria, Swayam Sevi Sansthan v. State of U.P. and Ors. 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 Page 6 of 16 R/CR.MA/15444/2013 JUDGMENT of the grounds for cancellation of bail would be whether material evidence brought on record have been ignored and that too without any reason.
C) 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;
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 Page 7 of 16 R/CR.MA/15444/2013 JUDGMENT 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 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 Page 8 of 16 R/CR.MA/15444/2013 JUDGMENT 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 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 Page 9 of 16 R/CR.MA/15444/2013 JUDGMENT 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 visavis 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..."
D) In most of the citations, case of Puran v. Rambilas and Anr., reported in AIR 2001 SC 2023 has been relied upon and therefore it would be appropriate to scrutinize said judgment. In such reported case, 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 primafacie 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 Page 10 of 16 R/CR.MA/15444/2013 JUDGMENT 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 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 Page 11 of 16 R/CR.MA/15444/2013 JUDGMENT 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..."
E) Recently, in the case of Kunwar Singh Meena v. State of Rajasthan and Anr., reported in AIR 2013 SC 296, the Apex Court has reconfirmed that Court has not to undertake meticulous example while granting or refusing bail. However, when statement of witnesses before the Police confirms the prima facie involvement of the accused in crime and when brother of the accused, an IPS Officer, bail granted to accused was cancelled by the Apex Court considering that propensity of accused to tamper with evidence and to interfere with the due course of justice and to flee from justice are not only the considerations to cancel the bail but it can be cancelled even if order of granting bail is legally infirm leading to miscarriage of justice.
F) 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 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 Page 12 of 16 R/CR.MA/15444/2013 JUDGMENT the complainant, and (iii) prima facie satisfaction of the court in support of the charge."
G) 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;
vii) reasonable apprehension of the witnesses being influenced;
and
viii) danger, of course, of justice being thwarted by grant of bail."
H) The said principles have been reiterated in Ash Mohammad v. Shiv Raj Singh alias Lalla Babu and another [3].
Page 13 of 16R/CR.MA/15444/2013 JUDGMENT I) 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 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 Page 14 of 16 R/CR.MA/15444/2013 JUDGMENT 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.
10. In view of the foregoing facts, circumstances and discussion, these applications are allowed. Thereby, (1) order dated 11.10.2012 of granting bail to respondent - Rajeshbhai @ Rajubhai Harilal Panchani in Criminal Misc. Application No.397 of 2012 by the learned 4th Additional Sessions Judge, Khambhalia, Dist; Jamnagar and (2) order dated 02.02.2013 of granting bail to respondent - Kishorbhai Babubhai Badhiya in Criminal Misc. Application No. 19 of 2013 by the 5 th Additional Sessions Judge, Khambhalia, Dist; Jamnagar are hereby quashed and set aside, not for misusing the order of bail after its grant, but on the ground that order of bail itself was improper and illegal. Thereby, the applications are allowed as aforesaid. Rule is made absolute.
11. Considering the fact that respondents are on bail from last couple of months, it would be appropriate to grant him sufficient time to surrender. Respondents have to surrender before the Investigating Officer on or before 21.03.2014. If respondents fail to surrender before such date, the Sessions Court shall issue necessary warrant against him.
Page 15 of 16R/CR.MA/15444/2013 JUDGMENT
12. However, respondents are under trial prisoners and the sessions case is pending against them. Therefore, Sessions Court is directed to conduct the trial on day to day basis. For the purpose investigating agency is directed to keep all the witnesses available before the Court on dates fixed by the trial Court for their evidences. The trial Court is further directed to complete the trial as early as possible but in any case on or before 30.04.2014.
13. 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.
(S.G.SHAH, J.) drashti Page 16 of 16