Gujarat High Court
Bhavik Karsanbhai Khudai Kharva vs State Of Gujarat & 3 on 28 August, 2014
Author: S.G.Shah
Bench: S.G.Shah
R/CR.MA/6332/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
6332 of 2014
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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BHAVIK KARSANBHAI KHUDAI KHARVA....Applicant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR PRATIK Y JASANI, ADVOCATE for the Applicant(s) No. 1
MS JD JHAVERI, APP for the Respondent(s) No. 1
MR PRAVIN GONDALIYA, ADVOCATE for the Respondent(s) No. 2 - 4
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 28/08/2014
CAV JUDGMENT
Rule. Service of rule is waived by Ms. Page 1 of 11 R/CR.MA/6332/2014 CAV JUDGMENT Jhaveri, Ld. APP for the respondent no. 1 - State and Mr. Pravin Gondaliya, Ld. Advocate for the respondent nos. 2 to 4.
2 The petitioner herein is original complainant. He has lodged a complaint for the offences punishable under sections 306, 304[B], 398[A], 504, 506 [2] and 114 of the Indian Penal Code [IPC] and sections 3 and 4 of the Dowry Prohibition Act, on 12/4/2014 before Kamlabaug Police Station, Porbandar, which is registered at C.R. No. I-54/2014 against in-all five persons including the present respondent nos. 2, 3 and 4 being mother-in-law and sisters-in-law of the victim, who is sister of the complainant.
3 In his complaint, the complainant has stated that his sister has married with one Ashwin Harjibhai Khorava on 24/5/2004 i.e. before 10 years and that she was residing separately from the family of her in-laws after three months of their marriage, till then they were residing together in a joint family. It is further alleged in the complaint that as and when his sister is coming to his house, she was narrating about the harassment and cruelty in the form of abusing words and beating with demand of dowry to the tune of Rs.50 lacs by her in-laws including husband, mother-in-law and sisters-in-law.
Page 2 of 11 R/CR.MA/6332/2014 CAV JUDGMENTHowever, on every occasion, they compromised their feelings and asked her to stay with her husband. However, on 19/3/2014 he received an intimation that her sister has committed suicide, he went to the house of her sister where she found dead because of hanging. It is further stated that before a week from the date of suicide when his sister had come to his house, she had left one bag and after the incident, when they verified such bag, they found out two writings on stamp papers of Rs.100/- and Rs.50/- signed by his sister on 7/7/2004 and 18/11/2004 wherein she has narrated harassment and cruelty meted out to her by her in-laws. It is also stated in the complaint that after the incident of suicide, husband of the victim - Ashwin Harjibhai Khotava had threatened him that if he filed a complaint, he may be killed.
4 Pursuant to such complaint, respondent nos. 2 to 4 have preferred one Criminal Misc. Application No. 133/2014 before the Sessions Court at Porbandar. Such application was allowed by the impugned judgment and order dated 19/4/2014, whereby the respondent nos. 2 to 4 were granted regular bail on certain conditions. Therefore, the complainant has filed the present application for cancellation of bail granted to the respondent nos. 2 to 4.
Page 3 of 11 R/CR.MA/6332/2014 CAV JUDGMENT5 I have heard both the Ld. Advocates and called for the police papers. I have scrutinized the police papers and impugned judgment and order as well as considered the submissions made by rival sides.
6 The grievance of the complainant against the impugned order is mainly to the effect that when there is documentary evidence in the form of two evidence which were signed in the year 2004 on the stamp papers, as referred hereinabove, there is no reason for the Sessions Court to grant bail. The petitioner has also cited one judgment rendered in the case of Gordhanbhai Shankerbhai Thaker v. State of Gujarat reported in 1993 [1] G.L.H. 337, wherein anticipatory bail was rejected though complaint was filed after three days. However, considering the facts and circumstances of the present case, such judgment does not help the complainant in as much as only because anticipatory bail is not granted in one case, it does not confirm that no anticipatory bail can be granted to any applicant in the facts and circumstances of the case if so warranted.
7 On perusal of the police papers, it has been found that in addition to two evidence referred hereinabove, police has found out two Page 4 of 11 R/CR.MA/6332/2014 CAV JUDGMENT suicide notes from the place of the incident wherein the victim, seems to have been stated, probably in her own handwriting, by addressing her husband as 'my dear husband Ashwin' that nobody else is responsible for her death and, therefore, she has conveyed sorry and asked to pardon for leaving this world though she was loving him very much and certifying that he [husband] is a gentleman, but she could not give any pleasure to him because of her own inabilities. The record also shows that there was no issue between them even after marriage of 10 years and that because of that, victim was having some depression and she was taking treatment for the same.
8 In view of such facts, though it can be said that this may be reason for torture by the in-laws, it cannot be ignored that there is an admission by the complainant that husband and wife were residing separately from the in-laws just after three months of marriage in a separate house and there is no evidence of cruelty of any kind immediately before the incident. Therefore, only because of the reason that victim has sworn something in the year 2004 i.e. before 10 years and immediately after the marriage regarding ill- treatment, cruelty and demand of dowry, but thereafter, when there is no incident or allegation or complain about any ill-treatment Page 5 of 11 R/CR.MA/6332/2014 CAV JUDGMENT for the last 9 years, there is no reason to keep the respondent nos. 2, 3 and 4 being mother-in- law and sisters-in-law in custody pending trial. Amongst respondent nos. 3 and 4, one is husband's sister and respondent no. 4 is wife of husband's brother. Thereby the respondent no. 3 is certainly not residing with the victim's family being married daughter.
9 The police papers also confirm that relevant documents are forwarded for verification and scrutiny by handwriting expert and by FSL so as to ascertain that out of two sets of disclosure made by the victim, which one is genuine, since both sets of documents have altogether different story to say. For the purpose, police has seized several other documents from the house of the victim so as to compare the admitted handwriting and signature of the victim with the handwriting and signature in documents regarding cruelty and ill-treatment or cause of suicide as referred hereinabove. Police has also seized several other relevant documents to verify the reason for suicide. The record also shows that investigation is now over and charge- sheet is filed. It is also evident that at present, we are not dealing with the husband of the victim, who was residing with the victim at the relevant time, but in-laws of the victim who Page 6 of 11 R/CR.MA/6332/2014 CAV JUDGMENT were not residing with the victim.
10 If we peruse the impugned judgment, it becomes clear and certain that the Sessions Court has taken care of the submissions of both the sides including the complainant since they were allowed to file affidavit and to submit their case before the trial Court. The Sessions Court has also taken care of all available material and decisions cited by the complainant before coming to the conclusion regarding bail in favour of respondent nos. 2 to 4. Therefore, I do not find any irregularity or illegality or arbitrariness in the impugned judgment and order so as to interfere at this stage when now charge-sheet is filed and there is nothing remains to be investigated, more particularly because the respondent nos. 2, 3 and 4 are ladies.
11 However, Ld. Advocate for the petitioner has strongly emphasized and argued against the impugned judgment and order contending that in such a crime the persons who are responsible for ill-treatment and demand of dowry should not be released on bail. However, considering settled legal position, when there is no breach of any of the conditions of the bail and when there is no evidence to prove immediate cruelty or ill- treatment, at-least by respondent nos. 2 to 4 and Page 7 of 11 R/CR.MA/6332/2014 CAV JUDGMENT when charge-sheet is already filed, I do not see any reason or substance so as to cancel the bail of the respondent nos. 2 to 4.
12 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.
13 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 cases, which are as under:
14 Learned counsel for the petitioner has relied upon judgments in State of Maharashtra vs. Captain Buddhikota Subha Rao, AIR 1989 SC 2292, Page 8 of 11 R/CR.MA/6332/2014 CAV JUDGMENT Kishore Samrite vs. State of U.P., (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 vs. State (Delhi Administration), AIR 1978 SC 179,A.V. Papayya Sastry vs. Govt. of A.P., (2007) 4 SCC 221 and Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav, (2004) 7 SCC 528. 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, (2012) 4 SCC 134, Dolat Ram vs. State of Haryana, (1995) 1SCC 349, Ramcharan vs. State of M.P., (2004) 13 SCC 617, Nityanand Rai vs. State of Bihar, (2005) 5 SCC 178, Hazari Lal Das vs. State of West Bengal,(2009) 10 SCC 652, Jai Kumar vs. Balhari, II(2011) SLT 302, Rahmita vs. State I(2012) VIII AD (Delhi)376, Govind Narain Johari vs. State, 2013 V AD (Delhi)179 and Suresh Kalmadi vs. CBI, 2012 (187) DLT 575.
15 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 Page 9 of 11 R/CR.MA/6332/2014 CAV JUDGMENT 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.
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 Page 10 of 11 R/CR.MA/6332/2014 CAV JUDGMENT 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 proved 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 re-emphasized 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."
16 Moreover, when investigation is over and charge-sheet 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 application deserves to be dismissed and accordingly dismissed. Rule is discharged.
(S.G.SHAH, J.) * Pansala Page 11 of 11