Gujarat High Court
Truptiben D/O Vinodbhai Pasad vs State Of Gujarat on 7 July, 2023
R/CR.MA/15347/2019 ORDER DATED: 07/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15347 of 2019
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TRUPTIBEN D/O VINODBHAI PASAD
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MS. BHAVNA D ACHARYA(6406) for the Applicant(s) No. 1
MR D S GADHVI(11310) for the Respondent(s) No. 2
MR TIRTHRAJ PANDYA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 07/07/2023
ORAL ORDER
1. This application is preferred under Section 439(2) of the Code of Criminal Procedure, 1973 by the applicant - original complainant for cancellation of bail granted to the accused by learned Additional Sessions Judge, Bhuj at Kutch vide order dated 15.7.2019 passed in Criminal Misc. Application No. 557 of 2019 for the offence punishable under Sections 376(1), 495, 506(2) of the Indian Penal Code, Section 3(a), 4, 5(L), 6 and 10 etc. of the Protection of Children Against Sexual Offences Act in connection with the offence registered being I-C.R. No.34 of 2019 before Mandvi Police Station, Kutch.
2. Heard Ms. Bhavna D. Acharya, the learned counsel appearing for the applicant - original complainant, Mr. Page 1 of 7 Downloaded on : Tue Jul 11 20:36:42 IST 2023 R/CR.MA/15347/2019 ORDER DATED: 07/07/2023 D.S. Gadhvi, learned Counsel for the respondent No.2 original accused and Mr. Tirthraj Pandya, the learned APP appearing for the respondent No.1 - State of Gujarat.
3. Ms. Acharya, the learned advocate for the applicant, submitted that the impugned order is ex facie illegal and arbitrary and that the same is passed without appreciating the facts and circumstances of the case. Learned advocate for the applicant submitted that after releasing, the accused had given threat to the complaint to withdraw the complaint filed against the accused by the complainant. He also submitted that the respondent accused is a head strong person of the society and he therefore, urges before the Court that the application may be allowed and the bail granted to the respondent accused may be cancelled.
4. Learned APP Mr. Pandya, appearing for the respondent No.1 - State, has produced the report filed by the concerned Investigating Officer. Learned APP supported the present application and on the information received from the concerned I.O., he has confirmed that the respondent accused is involved in the offence and he is having antecedents also. He has submitted that the Court may pass appropriate orders.
5. Mr. D.S. Gadhvi, learned Counsel for the respondent Page 2 of 7 Downloaded on : Tue Jul 11 20:36:42 IST 2023 R/CR.MA/15347/2019 ORDER DATED: 07/07/2023 has relied upon the decision of the Hon'ble Apex Court in case of Ms. "X" vs. State of Telangana reported in (2018) 16 SCC 511 and submitted that it is a settled principle of law that bail once granted should not be cacelled under a cogent case, based on a supervening event has been made out. Learned Counsel for the respondent has submitted that the applicant has filed other application for cancellation of bail before the learned Trial Court for the same offence, which was rejected by the learned Trial Judge. He further submitted that looking to the facts and circumstances of the case, bail granted to the accused vide order dated 15.7.2019 passed in Criminal Misc. Application No. 557 of 2019 may not be cancelled and present application may not be entertained.
6. I have perused the FIR and the impugned order passed by the Trial Court in the application for bail and the report filed by the concerned Investigating Officer, which is taken on record.
7. I have considered the submissions canvassed by learned advocates appearing on behalf of both the sides and the averments made in the application. The Trial Court while granting bail, vide order dated 15.7.2019 passed in Criminal Misc. Application No. 557 of 2019 imposed certain conditions which read as under :
Page 3 of 7 Downloaded on : Tue Jul 11 20:36:42 IST 2023R/CR.MA/15347/2019 ORDER DATED: 07/07/2023 "(1) Shall co-operate with the investigation and make himself for interrogation whenever required by the investigating officer;
(2) Shall remain present before the Mandvi Police Station on 20.7.2019 between 11.00 a.m. to 05.00 p.m. (3) Shall not tamper investigation in any manner nor shall directly or indirectly make any inducement or promise to any witness so as to dissuade them from disclosing such fact to the Court or to any police officer.
(4) Shall at the time of execution of bond, furnish the address to the investigating officer and shall not change the residence till the final disposal of the case or till further order.
(5) Shall not leave territory of India without the permission of this Court and if he is holding passport, shall surrender the same before the trial Court immediately.
(6) It would be open to the Investigating Officer to file an application for remand. It is clarified that the applicant, even in remanded to the police custody upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail application."
8. It appears from the record that after releasing, the accused had committed another offence and for that the FIR came to be registered by the present respondent accused vide C.R. No. 11205031200912 of 2020 before the Mandvi Police Station, Kutch for the offence punishable under Sections 507, 506(2), 114 etc. of the Indian Penal Code.
9. It further appears that the accused, at present is in judicial custody in connection with the offence registered Page 4 of 7 Downloaded on : Tue Jul 11 20:36:42 IST 2023 R/CR.MA/15347/2019 ORDER DATED: 07/07/2023 vide C.R. No. 220 of 2023 under Section 406, 420, 120(B) etc. of the Indian Penal Code before Madhapar Police Station. Further, it also transpires from the record that as many as 7 offences are registered against the accused person. In that view of the matter, it is clear that the accused has committed breach of condition imposed by the Court at time of granting bail to the accused.
10. The ratio laid down by the Apex Court in the catena of decisions that the accused granted bail and entitled to liberty if he is not co-operating with the investigating agency or not remaining present and flouting the conditions imposed upon him while granting bail, then in that case, he is not entitled for any leniency and in that circumstances, the bail is required to be cancelled. The reported decisions of the Apex Court in this regard are summarized as under :
[1] CBI versus Santosh Karnani and Anr., reported in 2023 SCC OnLine SC 427; [2] Deepak Yadav versus State of UP and Anr., reported in [2022] 8 SCC 559;
[3] Kamla Devi versus State of Rajasthan and Anr., reported in [2022] 6 SCC 725; [4] Manoj Kumar Khokhar versus State of Rajasthan and Anr., reported in [2022] 3 SCC 501;
[5] Brijmani Devi versus Pappu Kumar and Page 5 of 7 Downloaded on : Tue Jul 11 20:36:42 IST 2023 R/CR.MA/15347/2019 ORDER DATED: 07/07/2023 Anr., reported in [2022] 4 SCC 497;
[6] Supreme Bhiwandi Wada Manor
Infrastructure Pvt. Ltd versus State of
Maharashtra and Anr., reported in [2021] 8 SCC 753;
[7] Nathu Singh versus State of UP and Ors., reported in [2021] 6 SCC 64;
[8] Jitendra Taneja versus State of UP and ors., reported in [2021] 5 SCC 308; and [9] Union of India versus K.A. Najeeb, reported in [2021] 3 SCC 713.
11. Considering the seriousness of the crime and keeping in mind the criminal antecedents of the accused, the possibility of tampering with the evidence cannot be ruled out which eventually would have a material bearing on the quality of justice. In view of aforesaid facts, request of cancellation of bail granted to the accused is acceded to.
12. The decision of Hon'ble Apex Court in case of Ms. "X" vs. State of Telangana (supra) relied upon by the learned Counsel for the respondent is not helpful to the accused, in view of the fact that the facts of the cited case pertain to 2G Spectrum, whereas the facts of the present case pertain to rape under the provision of POCSO Act.
Page 6 of 7 Downloaded on : Tue Jul 11 20:36:42 IST 2023R/CR.MA/15347/2019 ORDER DATED: 07/07/2023
13. For the foregoing reasons and in view of the decisions of the Apex Court as well as looking to the history of the accused person, I am of the opinion that the present application deserves to be allowed and it is hereby allowed. The impugned order dated 15.7.2019 passed by learned Additional Sessions Judge, Bhuj at Kutch in Criminal Misc. Application No. 557 of 2019 is hereby quashed and set aside. The bail granted to the accused in connection with offence punishable under Sections 376(1), 495, 506(2) of the Indian Penal Code, Section 3(a), 4, 5(L), 6 and 10 etc. of the Protection of Children Against Sexual Offences Act stands cancelled.
14. It is clarified that if the accused is acquitted in other offence, then the accused has to surrender to the concerned Investigating Officer in connection with present offence registered against the accused vide I-C.R. No.34 of 2019 before Mandvi Police Station, Kutch, failing which the Investigating Officer is at liberty to take appropriate action by approaching the concerned Sessions Court for issuance of non-bailable warrant against present accused.
Rule is made absolute.
(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 7 of 7 Downloaded on : Tue Jul 11 20:36:42 IST 2023