Gujarat High Court
State Of Gujarat vs Bhagwati Jawaharchand Jain on 17 July, 2014
Author: S.G.Shah
Bench: S.G.Shah
R/CR.MA/2500/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
2500 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
================================================================
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 ?
================================================================
STATE OF GUJARAT....Applicant(s)
Versus
BHAGWATI JAWAHARCHAND JAIN....Respondent(s)
================================================================
Appearance:
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Applicant(s) No. 1
MS SHALINI S MAIR, ADVOCATE for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : ____/07/2014
CAV JUDGMENT
Page 1 of 9
R/CR.MA/2500/2014 CAV JUDGMENT
1. Rule. Learned advocate Mr. R. R. Marshall for learned advocate Ms. Shalini S. Mair waives service of notice of rule for the respondent
2. Heard learned APP Ms. Jirga Jhaveri for the applicant - State and learned advocate Mr. R. R. Marshall for the respondent - accused.
3. Applicant - State is prosecuting agency, whereas respondent is accused with reference to FIR being C. R. No. I - 2/2011 registered with ATS police station, Ahmedabad dated 21.12.2011 under Sections 489 (a)(b)(c) and 120B of the Indian Penal Code.
4. Original complainant is one police inspector Mr. R. D. Dabhi of ATS crime branch, Ahmedabad who had arrested Vasudevbhai Bhailalbhai Patel and Bimalkant Mohan Jahan near Rajpipla Chokdi when they were found with 30 fake currency notes of Rs.500/- each. During investigation the name of the respondent No.2 herein has been cropped up and therefore he was also arrested for committing such offence under Sections 489(a),(b)(c) read with Section 120B of the Indian Penal Code on 29.12.2011 i.e. after 8 days of registration of complaint. After investigation, police has filed charge - sheet and the same was committed before the Sessions Court and thereby Sessions Case No. 68 of 2012 is pending against the respondent, who is shown as accused No.7 in the charge - sheet. After his arrest respondent has preferred several bail applications, but all such bail applications are rejected both, by the Sessions Court as well by the High Court. Thereafter, respondent has preferred Special Leave Petition (Cri.) No. 4229 of 2014 before the Honourable Apex Court but ultimately it was withdrawn by him. In between respondent was released Page 2 of 9 R/CR.MA/2500/2014 CAV JUDGMENT temporarily for one month by this High Court but ultimately his last application for bail being Criminal Misc. Application No. 5228 of 2013 has been rejected by the High Court. It seems that thereafter, accused has filed Criminal Misc. Application 53 of 2013 before the Sessions Court under Section 439 of the Code of Criminal Procedure for releasing him on bail. By impugned judgment and order dated 29.10.2013 such application was allowed and respondent was released on bail. Therefore, investigating agency - State has preferred this application to cancel such bail.
5. On perusal of the impugned judgment granting bail to the respondent, the Sessions Court has observed that respondent is in jail for 22 months and yet charge could not be framed and that there is no possibility of determination of case in near future and thereby accused should not be kept in custody for long time without trial as under trial prisoner. Though Sessions Court has also observed that punishment for offences is for a term of 10 years and though nature of offence is relevant factor, the seriousness of offence and punishment as well as vast interest of society and nation are also relevant factors and these factors should be considered at the time of determination of bail application. Further considering the life of liberty under Article 21 of the Constitution of India, the Sessions Court has allowed the bail application. The Sessions Court and the respondent has relied upon several decisions wherein it is observed that long judicial custody would result into pre - trial conviction, which is not permissible and hence observing that now judicial custody of the applicant is not required after filing of charge- sheet and when there is no possibility of tampering with the evidence and to win over the witnesses of the case and when investigating agency has not brought on record any evidence to show that accused will flee away, there is no reason to Page 3 of 9 R/CR.MA/2500/2014 CAV JUDGMENT continue the custody of the accused. The Sessions Court has also relied upon the case of Sanjay Chandra vs. Central Bureau of Investigation reported in 2012 (1) SCC 40 to consider such case as a fit case for exercising the discretion so as to allow the application and release the applicant on bail on conditions, which are enumerated in the impugned judgment.
6. Learned counsel for the respondent has supported the reasonings of the Sessions Court and by filing an affidavit - in - reply it is further contended that there is no complainant of non- cooperation by the accused during investigation or misuse of liberty after granting bail and that considering the case of Sanjay Chandra (supra), order of bail cannot be quashed and set aside by canceling the bail which is already granted in favour of the respondent. It is further submitted that he does not know anything about the occurrence of offence as alleged in the FIR since he owns a jewelery shop in the name D. J. Jewelers and he is man with family with three children and roots in the city of Surat. He further submitted that even so called fake currency is also to the tune of Rs. 27,000/- only and that there is no possibility of hampering or tampering with evidence by him. Ultimately it is stated that since there is no case against him, order of bail cannot be canceled. He has submitted the registration certificate of his shop.
6.1 So far as decision of the Honourbale Supreme Court is concerned, it is contended that Honourable Supreme Court has not granted bail to the respondent but it is observed that petitioner can approach High Court or trial Court for appropriate relief and therefore, now relief granted under the impugned order is independent of any previous order and, therefore, it cannot be set aside without proper reasons. It is also submitted that bail Page 4 of 9 R/CR.MA/2500/2014 CAV JUDGMENT application of other co-accused namely Kishor @ Munno Rajput is also allowed by the Sessions Court, though bail is not granted in favour of Vasudevbhai Bhailalbhai Patel, from whom fake currency notes were recovered. It is also contended that similarly bail application by Bimalkant Mohan Jha was granted by the High Court by an order dated 13.08.2012 in Criminal Misc. Application No. 5156 of 2012 when no currency notes were recovered from him though he was present with the main accused Vasudevbhai Bhailalbhai Patel at the relevant time. So far as rejection of bail application by High Court is concerned, respondent has pointed out that in fact that Criminal Misc. Application (For Regular Bail) No. 5228 of 2013 was withdrawn, practically liberty was granted to approach on expiry of 6 months if trial does not progress.
6.2 Learned advocate for the respondent - accused has also relied upon following decisions: (1) (1977) 4 SCC 308 between State of Rajasthan vs. Balchand, (2) 2012 Cri.L.J. between Sanjay Chandra vs. Central Bureau of Investigation, (3) 2012 (11) SC 632 between Shiv Mohan Kapoor vs. State of Uttar Pradesh.
7. As against that, it is contended by learned APP for the State that it is a serious crime and, therefore, granting bail by the Sessions Court is not proper. Unfortunately, the grounds taken by the State are seem to be without application of mind, in as much as, once charge-sheet is filed, there is less possibility of hampering or tampering with the evidence, more particularly when offence is with physical offending material like fake currency notes wherein genuineness of notes and its possession and recovery only is to be proved.
Page 5 of 9 R/CR.MA/2500/2014 CAV JUDGMENT8. Therefore, when Sessions Court and High Court has already released all accused except main accused from whom fake currency notes were recovered and when more than two years have lapsed and, if at all trial is not proceeded further, then there is no reason to interfere or disturb such discretionary order at such stage. Since there is no irregularity or illegality; even if some observations and wordings in the impugned order may not be approved for granting bail to such accused, which is only with reference to framing of charge, since it is solely in the control of the Sessions Court and it is not attributed either with the accused or prosecution; in any case, there is no reason to interfere with the impugned order.
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. 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.Page 6 of 9 R/CR.MA/2500/2014 CAV JUDGMENT
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 paragraph 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 7 of 9 R/CR.MA/2500/2014 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. Under the above circumstances, present petition deserves to be dismissed and accordingly dismissed. Rule is discharged.
(S.G.SHAH, J.) Page 8 of 9 R/CR.MA/2500/2014 CAV JUDGMENT drashti Page 9 of 9