Gujarat High Court
Naran @ Hiteshbhai Sagrambhai Khasiya vs State Of Gujarat & 6 on 23 July, 2014
Author: S. G. Shah
Bench: S.G.Shah
R/CR.MA/4744/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
4744 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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NARAN @ HITESHBHAI SAGRAMBHAI KHASIYA....Applicant(s)
Versus
STATE OF GUJARAT & 6....Respondent(s)
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Appearance:
MR K S CHANDRANI, ADVOCATE for the Applicant(s) No. 1
MR ASHISH M DAGLI, ADVOCATE for the Respondent(s) No. 2 - 7
MS JD JHAVERI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 23/07/2014
CAV JUDGMENT
Rule. Service of rule is waived by Ms. Page 1 of 25 R/CR.MA/4744/2013 CAV JUDGMENT Jhaveri, Ld. APP for respondent no. 1 and Mr. Ashish Dagli, Ld. Advocate for respondent nos. 2 to 7.
2 The judgment and order dated 12/2/2013 passed by the Ld. 11th Addl. Sessions Judge, Rajkot in Criminal Misc. Application No. 126/2013 is under challenge. By such impugned judgment, the Sessions Court has granted bail to respondent nos. 2 to 7 herein, who are disclosed as accused in FIR being C.R. No. I-187/2012 registered with Kuvadva Road Police Station, Rajkot, on 27/10/2014 for the offences punishable under sections 143, 147, 148, 149, 323, 324, 302, 452, 504, 506[2] of the Indian Penal Code [IPC] and under section 135[1] of the Gujarat Police Act. In such complaint, in-all six persons are shown as accused. Whereas when charge-sheet was filed on 12/1/2013, it was against seven persons. The additional accused-person in the charge-sheet than the FIR is present respondent no. 2, namely Nathubhai Harjibhai. Whereas so far as accused no. 6 in the FIR, who is numbered as accused no. 7 in the charge-sheet, namely Raghubhai Nathubhai is concerned, he is not the applicant in the impugned judgment and, therefore, he is not joined as respondent in the present application. Though said Raghubhai Nathubhai is one of the main accused, who has also given a fatal blow to the victim Sagrambhai, since he was not released on bail by the trial Court, he has preferred an application before this Court and the Coordinate Bench of this Court has released him on bail by judgment and order dated 15/4/2013 passed in Criminal Misc.
Page 2 of 25 R/CR.MA/4744/2013 CAV JUDGMENTApplication No. 4979/2013. Therefore, at present, we are not concerned with Raghubhai Nathubhai being accused no. 6 in FIR and accused no. 7 in the charge- sheet under reference.
3 Out of the remaining accused, respondent no. 1 Nathubhai Harjibhai was not present at the place of the incident. However, his name was added as cropped up during investigation, as father of the main accused Raghubhai Nathubhai with an allegation that he is the conspirator. Considering the fact that he was not present at the place of incident and that conspiracy can be proved only by cogent circumstantial evidence by complete chain of evidence, when all accused are released on different occasion, in absence of any breach of order of bail and in absence of any specific evidence so as to prove his involvement in conspiracy, there is no reason to interfere with the order of bail of such person.
4 So far as remaining respondent nos. 2 and 7 are concerned, though relevant evidence would be discussed hereinafter, the scrutiny of available record and police papers makes it clear that for the incident which resulted into death of Sagrambhai and grievous injuries to his wife Vaktiben, respondent no. 4 herein Bhanubhai Jadavbhai and respondent no. 7 - Jiteshbhai Karshanbhai were having scythe in their hands; whereas respondent nos. 2 and 3 - Nathubhai and Karshanbhai were having stick and respondent nos. 5 and 6 - Raghavbhai and Rameshbhai Nathubhai were Page 3 of 25 R/CR.MA/4744/2013 CAV JUDGMENT having cudgal and Raghubhai Nathubhai was having iron pipe by which victims were beaten at the relevant time. Therefore, considering the allegations in the FIR and statement of victim Vaktiben, when cause of death is because of injuries by pipe and scythe, there is no reason to interfere with the bail order granted in favour of Nathubhai Harjibhai, Karshanbhai Harjibhai, Raghavbhai Khimjibhai and Rameshbhai Nathubhai i.e. respondent nos. 2, 3, 5 and 6. Thereby considering the following facts and details, the application deserves to be allowed only for respondent nos. 4 and 7. Whereas it is to be dismissed for remaining respondent nos. 2, 3, 5 and 6.
5 If we peruse available record, which is quite bulky, since there is a cross complaint, it becomes clear that there was disturbance between two groups, the accused and the victim and three other persons i.e. deceased Sagrambhai, aged 60 years, his wife Vaktiben, aged 58 years, their son and complainant Naran @ Hitesh and their daughter Bansi. The complainant seems to be aged about 22 years. Whereas it has come on record that his sister Bansi was minor on the date of the incident i.e. 26/10/2012.
6 It is also evident that in the incident between both the sides, father of the complainant, namely Sagrambhai died on the spot, his mother received grievous injuries including fractures and amongst otherside, Raghubhai Nathubhai has also received grievous injuries. So far as incident is Page 4 of 25 R/CR.MA/4744/2013 CAV JUDGMENT concerned, it is admitted fact that there was disturbance regarding right of way and use of water between both the sides for their agricultural fields, which are adjoining to each other and that both the sides have filed several complaints in past. It is also evident from the record that deceased Sagrambhai has filed a detailed complaint before the Police Commissioner of Rajkot disclosing the name of as many as 16 persons, which certainly includes present respondents as accused alleging that they are trying to disturb the possession of the property of the victim and restraining them from using the right of way and usage of water available to their fields. Copy of the said complaint dated 19/12/2011 is at Annexure- H to the petition, wherein father of the complainant has disclosed details of commission of offence by the respondents. Similar complaint was also filed on 17/4/2012 addressing to the Chief Minister and endorsing copy to other authorities with as many as 18 annexures. Pursuant to complaint dated 19/12/2011 the office of the Police Commissioner, Rajkot has initiated a process of filing chapter case under the Mamlatdar Courts Act. Thereby Chapter Case No. 64/2012 was filed against the present respondents and other persons.
It seems that the police has failed to take up the matter seriously even after these two complaints and, therefore, ultimately on 26/10/2012, as narrated in the complaint, there was some exchange of words between two groups and it is narrated in the complaint that on 26/10/2012 Raghubhai Nathubhai and Page 5 of 25 R/CR.MA/4744/2013 CAV JUDGMENT Nathubhai Hirjibhai had threatened them that if they disturb them, they will be killed. Thereupon, it is further stated that the complainant with his sister and parents had been to their field in the evening when at about 8.00 pm respondents have come on two motor cycles, who were identified by the complainant because of the light of moon. Thereupon, it is stated by the complainant that all those persons were holding scythe, gun, etc., and thereupon the complainant was afraid and hence he called police by calling No. 100 on phone and he asked his father to run away from the place under apprehension of those persons. However, when he and his younger sister were able to run away, his father, victim Sagrambhai and his mother Vaktiben could not run away easily and at that point of time, when he was running from the place, he listened the voice of firing and thereupon, he went to the house of his mother's brother Hirabhai Shanabhai and from there they managed to lodge a complaint.
7 Therefore, practically the complainant is not an eye witness. However, for the same incident, Raghubhai Nathubhai has also lodged an FIR being C.R. No. 187/2012 registered with Kuvadva Road Police Station against deceased Sagrasmbhai, his wife Vaktiben, present complainant Hitesh @ Naran and his sister Bansiben. Perusal of such FIRs, makes it clear that the incident had taken place at the place disclosed by the complainant and petitioner herein. However, different version was narrated by Raghubhai when it is stated that when they reached to their Page 6 of 25 R/CR.MA/4744/2013 CAV JUDGMENT agricultural field in the evening of 26/10/2012, present petitioner and his family members, who are disclosed as accused in their FIR and listed hereinabove, had started to abuse him and when he had been to them with Raghavbhai Bhagabhai and Nathubhai, etc., it is his say that deceased Sagrambhai has fired one Tamancha towards him by saying that go away otherwise I will kill you. It is further stated that because of such fire, when he put his hands in front to save himself, he received several injuries on both the hands and chest and deceased Sagrambhai had fired again on his father Nathubhai Hirjibhai, but he was escaped. It is further stated that even thereafter, the family of the deceased was abusing them, but because of injuries, they have called the ambulance from No. 108 and managed to reach Rajkot hospital on motorcycle also.
8 The investigation papers show that there is an allegation against the respondent no. 2 herein that he is ex-army man and some relatives of him and Raghubhai were serving in the police department and, therefore, they have managed to control not only the investigation but to lodge cross complaint against victim and complainant by making false allegations. Though such allegations and arguments can be easily made, the fact remains that well before the present complaint when deceased Sagrambhai has filed complaint before Police Commissioner on 19/12/2011, it is stated that the respondents herein are openly stating about their friendship and relation with the police and Page 7 of 25 R/CR.MA/4744/2013 CAV JUDGMENT threatened to kill them. Even in complaint dated 17/4/2012 to the Chief Minister, deceased Sagrambhai and his son - complainant Naran have disclosed the activity of the police while investigating their previous complaint stating that during investigation, police party and other people had been to the house of Nathubhai Harjibhai for tea, etc. However, the most interesting and surprising fact is in the form of statement of victim Vaktiben Sagrambhai when police had recorded in her statement that Tamancha was brought at the place of incident by his husband and his husband had fired two rounds. Such story cannot be believed for several reasons, but glaring reason is to the effect that when it is stated in the statement that after the incident, Tamancha was lying at the place of incident because of the grievous injuries to the deceased and victim Vaktiben, police could not find out such weapon either from the place of incident or from any other place and ultimately said Vaktiben filed an affidavit before this Court categorically stating that the police has not recorded her statement as per her say and has fabricated and developed the statement in her name disclosing certain things which were never narrated by her. It is further alleged that IO has developed her statement contradictory to the complaint filed by her son as well as to the statement of her daughter Bansi in such a way that it would help to the present respondents and thereby IO has tried to weaken the case of the prosecution. Now the victim has come forward with the name of the person who is known to the respondents and serving in the police Page 8 of 25 R/CR.MA/4744/2013 CAV JUDGMENT department, stating that Dhanjibhai Khimajibhai is serving in the police department, who seems to be brother of respondent no. 5 - Raghavbhai Khimajibhai. It is further alleged by Vaktiben that the IO has not investigated the offence fairly and impartially and have tried to help the present respondents.
9 However, affidavit of the IO being Police Sub Inspector of Kuvadva Road Police Station, namely Mr. KP Joshi before the Sessions Court, categorically confirms that all the respondents herein have beaten Sagrambhai in such a fashion that Sagrambhai has died on the spot and Vaktiben has received grievous injuries with fractures on both the hands as well as legs. The police papers also confirm the presence of deadly weapons like Dhariya and pipes with some of the respondents as stated hereinabove and injuries upon victim and deceased also confirm that such injuries are possible by such weapons.
10 Therefore, it is clear and certain that the respondents had been at the place with deadly weapons and when it was alleged that they were having the fire arms in their hands, it is certain that the statement of Vaktiben seems to be got up one so far as it speaks about presence of Tamancha with her husband - deceased Sagrambhai.
11 Therefore, though Raghubhai Nathubhai has been released by Coordinate Bench of this Court, considering the facts and circumstances emerging from Page 9 of 25 R/CR.MA/4744/2013 CAV JUDGMENT the record, which is scrutinized for the purpose of deciding this application, when it becomes clear that some of the respondents have given fatal blows to both, deceased Sagrambhai and victim Vaktiben, impugned order releasing all the accused on bail needs to be scrutinized so as to verify its propriety. Unfortunately, the Sessions Court has relied upon more on the statement of Vaktiben and cross complaint and most disturbing or unfortunate point is to the effect that the Sessions Court has considered the anticipatory bail in favour of the complainant and his sister and his victim mother Vaktiben stating that when accused of cross complaint were released on anticipatory bail, these accused were also released on bail. Thereby though trial Court has observed that Raghubhai Nathubhai, Bhanubhai Jadavbhai and Jiteshbhai Karshanbhai had given fatal blows, the trial Court has deemed it proper and fit to release all of them on bail. It is settled legal position that in serious crime against the person, actual culprit who has given fatal blow or material blow for serious injuries, should not be released in regular manner without considering the available material and prima-facie evidence on record. Discussion and determination of all other evidence would unnecessarily prejudice the cross complaint, it is required to be avoided at this stage and, therefore, what is discussed hereinabove is solely for the purpose of deciding this application. Therefore, only because Coordinate Bench has released one of the accused, it cannot be said that the order of the Page 10 of 25 R/CR.MA/4744/2013 CAV JUDGMENT Sessions Court is just and proper when the Sessions Court has released all the accused irrespective of their role in the offence.
12 Ld. Advocate for the petitioner has relied upon the following decisions, which are taken into consideration :
A Puran v/s. Rambilas reported in AIR 2001 SC 2023 or 2001 [6] SCC 338 B Gobarbhai Naranbhai Singala v/s. State of Gujarat reported in AIR 2008 SC 1134 C Dinesh M.N [S.P.] v/s. State of Gujarat reported in AIR 2008 SC 2318 D Kanwar Singh Meena v/s. State of Rajasthan reported in AIR 2013 SC 296 E Gopal v/s. State of Rajasthan reported in [2013] 2 SCC 188 or [2013] 1 SCC [Cri] 913 F Ram Vishambhar & others reported in [2013] 2 SCC 71 or [2013] 1 SCC [Cri.] 833.
13 So far as cancellation of bail of respondent nos. 2, 3, 5 and 7 is concerned, I am relying upon the following settled legal position :
14 So far as impugned order is concerned, the Sessions Court has considered all relevant aspects and when there was no prior incidents, Addl. Sessions Court has deemed fit to grant bail.
15 Respondent is relying upon the decision in Page 11 of 25 R/CR.MA/4744/2013 CAV JUDGMENT Jetha Bhaya Odedara v. Ganga Maldebhai Odedara, reported in 2012(1) GLH, 601, wherein, though there was allegation under Sections 302, 324, 147 etc. and though there were death and serious injuries, the Hon'ble Supreme Court has refused to interfere with the order of bail when accused have not misused their liberty by bail order or never tried to tamper with the evidence or to commit any other act which may call for cancellation of bail.
16 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.
17 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 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:
Page 12 of 25 R/CR.MA/4744/2013 CAV JUDGMENT"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.
xxx xxx xxx xxx xxx
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."
18 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 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 Page 13 of 25 R/CR.MA/4744/2013 CAV JUDGMENT 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 andit 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.
Xxx xxx xxx xxx xxx
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."
19 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 petition deserves to be dismissed qua respondent nos. 2, 3 and 6 to 8 are concerned. Rule is discharged qua them.
Page 14 of 25 R/CR.MA/4744/2013 CAV JUDGMENT20 So far as cancellation of bail of respondent nos. 4 and 6 is concerned, I am relying upon the following settled legal position :
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 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 inappropriate 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 Page 15 of 25 R/CR.MA/4744/2013 CAV JUDGMENT Anr.(Supra), it is reconfirmed that one 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 natureof 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, 21 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 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].
Page 16 of 25 R/CR.MA/4744/2013 CAV JUDGMENT22 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.
23 In para 11 of judgment rendered in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. (2004 (7) SCC 528) 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 notbe 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 nonapplication 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 supporting evidence.
(b) Reasonable apprehension of tampering with Page 17 of 25 R/CR.MA/4744/2013 CAV JUDGMENT 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.
24 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.
25 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, illegalor 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 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 vis-a-vis the High Court."Page 18 of 25 R/CR.MA/4744/2013 CAV JUDGMENT
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 prima- facie 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 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 Page 19 of 25 R/CR.MA/4744/2013 CAV JUDGMENT reasons why bail should not have been granted and why this unjustified erroneous Order granting bail should be cancelled.
26 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.
27 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 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 Page 20 of 25 R/CR.MA/4744/2013 CAV JUDGMENT 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 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;Page 21 of 25 R/CR.MA/4744/2013 CAV JUDGMENT
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].
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 keepin 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 Page 22 of 25 R/CR.MA/4744/2013 CAV JUDGMENT 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 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 aforestated authorities..."
Thereby the Apex Court has cancelled the bail.
28 Therefore, I indent to allow the application partly against respondent nos. 4 and 6, who have played major role in the incident, which resulted into death of one person and multiple fractures to his wife Vaktiben. Whereas so far as respondent nos. 2, 3, 5 and 7 are concerned, though they were present at the relevant time, considering their role in the incident, application against them needs to be rejected.
29 In view of the foregoing facts, circumstances and discussion, the application is allowed so far as respondent nos. 4 and 6 are concerned. Thereby, the order dated 12/2/2013 of granting bail to respondent nos. 4 and 6 in Criminal Misc. Application 126/2013 passed by the learned 11th Additional Sessions Judge, Rajkot, is hereby quashed and set aside qua them, both for misusing the order of bail after its grant and also on the ground that order Page 23 of 25 R/CR.MA/4744/2013 CAV JUDGMENT of bail itself was improper and illegal. Thereby, the application is partly allowed, as aforesaid, so far as respondent nos. 4 and 6 are concerned.
30 Considering the fact that respondent nos. 4 and 6 are on bail since last one and half years, it would be appropriate to grant them sufficient time to surrender. Respondents have to surrender before the Investigating Officer within three weeks from today. If respondents fail to surrender before such period, the Sessions Court shall issue necessary warrant against them.
31 Thereby, when the respondents will be under- trial prisoners, the 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 evidence.
32 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.
33 Thereby bail of respondent nos. 4 and 6 is cancelled. They shall surrender before the trial Court within three weeks from the date of this order.
34 In the result, application is partly allowed. Rule is made absolute qua respondent nos. 4 Page 24 of 25 R/CR.MA/4744/2013 CAV JUDGMENT and 6. Whereas application is dismissed so far as respondent nos. 2, 3, 5 and 7 are concerned. Rule is discharged qua them. Direct service is permitted.
(S. G. SHAH, J. ) * Pansala.
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