Gujarat High Court
State Of Gujarat vs Sureshbhai Chunilal Jain on 10 June, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/7790/2018 ORDER DATED: 10/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7790 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 5747 of 2018
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STATE OF GUJARAT
Versus
SURESHBHAI CHUNILAL JAIN & 4 other(s)
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Appearance:
MS MOXA THAKKAR, APP for the Applicant(s) No. 1
MR ADIL R MIRZA(2488) for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 10/06/2022
ORAL ORDER
1. These two petitions are filed challenging the same order passed by the Additional Sessions Judge, Valsad in Criminal Misc.Application No.3003 of 2017 dated 20.02.2018.
2. The Criminal Misc.Application No.3003 of 2017 was filed by the State of Gujarat for cancelling the bail granted to the respondents-accused in connection with an offence registered with Valsad City Police Station being I-C.R.-No.151 of 2017, wherein the accused were ordered to be enlarged on regular bail vide order dated 17.10.2017 passed in Criminal Misc.Application No.2685 of 2017. The ground for filing an application for cancellation of bail was an addition of graver section during the course of investigation.
3. The other application is filed by the original complainant also challenging the same order.
4. Both the applications being arising out of the same order Page 1 of 8 Downloaded on : Sat Dec 24 18:32:00 IST 2022 R/CR.MA/7790/2018 ORDER DATED: 10/06/2022 and arising the same issues, with consent of learned advocates for both the sides, the application is taken up for joint hearing and disposal.
5. Learned APP as well as Mr.Hriday Buch, learned advocate for the original complainant submitted that the intention of the accused was clearly established by their act of causing injuries on the vital part of the body viz. head, which has caused death of the victim and thus, the offence of murder took place. Thus, there is a direct involvement of the accused in the crime in question and in such circumstances the regular bail ought not have been granted by the Court below. It is submitted that the role of the present respondents-accused persons is very specific and clear, and therefore, in such circumstances, the Court below ought not to have granted the regular bail to the accused persons.
5.1 It is submitted that while dealing with the application of cancellation of bail, the Sessions Judge has referred to an irrelevant consideration by giving finding that there is no allegation of the prosecution that the accused have tempered with the witnesses of the prosecution or are in any way not abiding with the conditions of bail.
5.2 It is submitted that such was not the case of the applicant before the Sessions Court when the application for cancellation of bail was filed, but the issue is that after the grant of bail for an offence under Sections 143, 147, 149, 323, 324 & 294(b) of the Indian Penal Code, during the course of investigation and on account of death of the injured witness due to injuries received in the offence, graver Sections being Sections 307 and 302 came to be added for which the respondents-accused could not be said Page 2 of 8 Downloaded on : Sat Dec 24 18:32:00 IST 2022 R/CR.MA/7790/2018 ORDER DATED: 10/06/2022 to be admitted to bail, and therefore, the Court ought to have cancel the bail or at the most considered the case of the respondents-accused afresh for the purpose of bail in connection with the graver sections.
6. Learned APP and learned advocate for the original complainant have relied upon the recent decision of this Court passed in Criminal Misc. Application No.23833 of 2015 dated 04.05.2022 to submit that in case where the graver sections are applied, the bail granted in connection with an offence of inferior sections are required to be cancelled.
7. Learned advocate for the respondents-accused while opposing the grant of application submitted that the respondents-accused have been admitted to bail in connection with the offence with the change in an application of sections of IPC during the course of investigation and filing of the charge- sheet would not change the circumstance in so far as the grant of bail in connection with the offence is concerned.
8. It is submitted that after the addition of sections long time has passed and the respondents-accused have continued to be on regular bail, and therefore, the concerned Sessions Court was justified in observing the status of trial and deem it fit not to cancel the bail granted to the respondents-accused.
9. Having heard the learned advocates appearing for the respective parties and having perused the documents on record, the respondents-accused are arraigned as accused in connection with offence registered with Valsad City Police Station being I- C.R.-No.151 of 2017, which came to be registered on 25.09.2017 for the offence under Sections 143, 147, 149, 323, 324 and Page 3 of 8 Downloaded on : Sat Dec 24 18:32:00 IST 2022 R/CR.MA/7790/2018 ORDER DATED: 10/06/2022 294(b) of the Indian Penal Code read with Section 135(1) of the Gujarat Police Act. The offence came to be registered for an incident which took place on 15.09.2017 where the complainant- Hetalben Soni registered an F.I.R. that the accused having worked together have assaulted the husband of the complainant on vital part of the body with weapons like belt, stick etc. and were using an abusive language, caused grievous injuries.
10. It appears that during the course of investigation considering the nature of injuries, section 307 of the I.P.C came to be added when the respondents filed an application being Criminal Misc. Application No.2685 of 2017 for regular bail. The application for regular bail came to be allowed vide order dated 17.10.2017 and the respondents-accused were admitted to the bail in connection with I-C.R.-No.151 of 2017 for which offences under Sections 143, 147, 149, 323, 324, 294(b), 326, 342 and 307 of the Indian Penal Code read with Section 135(1) of the Gujarat Police Act.
11. During the course of investigation, firstly, the report came to be filed on 28.09.2017 for addition of Sections 326 and 342 of the I.P.C., and thereafter, another report came to be filed on 07.10.2017 for addition of an offence under Section 307 of the I.P.C. Lastly, report came to be filed on 24.10.2017 by which an offence under Section 302 of the I.P.C came to be added on account of demise of the injured witness viz. Popatlal Virchand Soni. Therefore, it is apparent from the record that when the respondents-accused were enlarged on regular bail vide order dated 17.10.2017, the order of bail pertaining to offence under Sections 143, 147, 149, 323, 324, 294(b), 326, 342 and 307 of the Indian Penal Code read with Section 135(1) of the Gujarat Page 4 of 8 Downloaded on : Sat Dec 24 18:32:00 IST 2022 R/CR.MA/7790/2018 ORDER DATED: 10/06/2022 Police Act and it was only thereafter on 24.10.2017, an offence under Section 302 of the I.P.C which is graver section was made applicable to the offence. The Apex Court in case of Pradeep Ram Vs. State of Jharkhand & Anr. reported in 2019 (17) SCC 326 had an occasion to deal with the issue with several issues, one of them being enumerated in Paragraph No.7, which reads as under:-
"7. From the submissions of the learned counsel for the parties and the pleadings on the record, following are the issues, which arise for consideration in these appeals:-
(i) Whether in a case where an accused has been bailed out in a criminal case, in which case, subsequently new offences are added, is it necessary that bail earlier granted should be cancelled for taking the accused in custody?..."
12. Answering the aforesaid issue categorically the Apex Court in Paragraph No.27 has discussed the status of the bail on addition of a new section and answering the issue held in Paragraph No.29 as under:-
"29. In view of the foregoing discussions, we arrive at following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:-
(i) The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested.
(ii) The investigating agency can seek order from the court under Section 437(5) or 439(2) of Cr.P.C. for arrest of the accused and his custody.Page 5 of 8 Downloaded on : Sat Dec 24 18:32:00 IST 2022
R/CR.MA/7790/2018 ORDER DATED: 10/06/2022
(iii) The Court, in exercise of power under Section 437(5) or 439(2) of Cr.P.C., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail.
(iv) In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail."
13. This Court in case of Kumari Ruzada Ashikali Gilani vs. State of Gujarat & Ors passed in Criminal Misc. Application No.23833 of 2015 has observed in Paragraph Nos.10, 11 & 12 as under:-
"11. In the present case, it was open for the State to follow the dictum of the Apex Court, as narrated hereinabove to obtain an order for arresting the accused from the same court, which has granted the bail. However, the State authorities had filed an application for cancellation of the bail for the offences, for which, the respondent-accused was already granted regular bail. It is surprising to note that the State did not challenge the impugned order and the complainant was constrained to file the present application. Non-challenge of such order by the State cannot dilute the remedy of the complainant in questioning the impugned order. Thus, the impugned order suffers from illegality and perversity Page 6 of 8 Downloaded on : Sat Dec 24 18:32:00 IST 2022 R/CR.MA/7790/2018 ORDER DATED: 10/06/2022 and hence, the same is required to be quashed and set aside.
12. Thus, looking to the facts and circumstances of the case, this Court, at this stage, is not inclined to cancel the bail of the respondent No.3, who has been granted the same under Section 439 of the Cr.P.C., for the offences punishable under Sections 354A(1), 354D(1), 114 of the Indian Penal Code, 1860, and Sections 11(1) and 11(4) of the Prevention of Children from Sexual Offences Act, 2012.
13. However, at the same time the respondent-accused cannot be allowed to get benefit of the impugned order dated 28.10.2015. Hence, the present application is allowed in part. The impugned order dated 28.10.2015 passed by the Additional Sessions Judge and special POCSO Judge, Ahmedabad (Rural), Ahmedabad, in Criminal Misc. Application No.1860 of 2015 is hereby quashed and set aside. The matter is remanded back to the concerned trial court for deciding the application filed by the State afresh. It will also be open for the State to file appropriate application seeking arrest of the respondent accused for the offence of Section 376 of the IPC. It is clarified that this Court has not opined anything on merits since the same would come in the way of the either of the parties. It will also be open for the respondent No.3-accused to file appropriate proceedings under the law. Rule is made absolute to the aforesaid extent."
However, in Paragraph No.13, in aforesaid matter, this Court has proceeded to issue the directions.
14. In view of aforesaid fact situation, this Court is of the view that even if the trial has proceeded in connection with the charge-sheet filed in entirety, it cannot be said that the Page 7 of 8 Downloaded on : Sat Dec 24 18:32:00 IST 2022 R/CR.MA/7790/2018 ORDER DATED: 10/06/2022 respondents-accused have been admitted to bail for graver offence, which was added by a subsequent report by the Investigating Officer after the order of bail.
15. In view of aforesaid, the impugned order dated 20.02.2018 passed in Criminal Misc. Application No.3003 of 2017 is required to be quashed and set aside leaving it open to the respondents-accused to make an appropriate application before the appropriate Court seeking bail/anticipatory bail in connection with the offence being Section 302 of the I.P.C. and for other sections added by a report subsequent to the order of admitting the resopndents-accused to bail.
16. Considering the status of the trial and the period during which the petitioners have continued to be on bail and considering the request of the respondents-accused to permit them to make an appropriate application before appropriate Court to prevent the accused from being arrested in connection with this offence and in the mean time, the respondents-accused may not be arrested in connection with FIR being I-C.R.-No.151 of 2017 specifically upon addition of Section 302 and for other sections of the I.P.C. added by a subsequent report for a period of 4(Four) weeks from today. Any application that may be made by the respondents-accused be considered on its own merits without being influenced by the outcome of the present application.
17. With aforesaid observations, both the applications are allowed to the aforesaid extent.
(A.Y. KOGJE, J) GIRISH Page 8 of 8 Downloaded on : Sat Dec 24 18:32:00 IST 2022