Gujarat High Court
Urveshbhai Baldevabhai Patel vs State Of Gujarat & 3 on 17 September, 2014
Author: S.G.Shah
Bench: S.G.Shah
R/SCR.A/2756/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (CANCELLATION OF BAIL)
NO. 2756 of 2014
With
SPECIAL CRIMINAL APPLICATION NO. 984 of 2014
With
CRIMINAL MISC.APPLICATION NO. 3992 of 2014
With
CRIMINAL MISC.APPLICATION NO. 5027 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 ? ================================================================ URVESHBHAI BALDEVABHAI PATEL....Applicant(s) Versus STATE OF GUJARAT & 3....Respondent(s) ================================================================ Appearance:
MS MANISHA LAVKUMAR, ADVOCATE with MR.ALOK M THAKKAR, ADVOCATE for the Applicant(s) No. 1 MR JV VAGHELA, ADVOCATE for the Respondent(s) No. 2 4 MR RJ GOSWAMI, ADVOCATE for the Respondent(s) No. 2 4 MS JD JHAVERI, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 17/09/2014 COMMON CAV JUDGMENT Page 1 of 50 R/SCR.A/2756/2014 CAV JUDGMENT
1. All these four applications are for similar prayers to cancel the bail granted in favour of private respondents in all the applications. All such private respondents released on either anticipatory bail or regular bail by the Sessions Court of Gandhinagar pursuant to Adalaj police station, M case no.1 of 2013 for the offences under Sections 406, 420, 465, 467, 471, 120(B) and 34 of I.P.C. All the private respondents are facing common inquiry pursuant to complaint filed by the petitioner complainant who is common in all such petitions, therefore, factual details of the complaint as well as, more or less, grounds for cancellation of bail are also common in all the applications, inasmuch as, the major ground is non compliance of the condition of bail granted by the Sessions Court by impugned judgment and order in all applications.
Therefore all applications are heard together though first application being Special Criminal Application no.984 of 2014 was heard on 13.8.2014. For the same set of reasons, all these applications are decided by this common judgment.
2. However, considering the fact that role of the concerned private respondents in different petitions are different in commission of the offences as alleged as well as their personal status would be different, it would be dealt with in different paragraphs after recording basic details of complaint and dispute as well as details of investigation and merits of the case.
3. For the purpose, initially, if we examine the FIR which is Page 2 of 50 R/SCR.A/2756/2014 CAV JUDGMENT registered at Adalaj police station as M case no.1 of 2013 on 31.10.2013, it seems that infact, complaint was filed by the present petitioner as a complainant on 5.4.2013, but it was registered only on 31.10.2013, when Judicial Magistrate First Class, Gandhinagar has directed the Police to lodge the complaint. Therefore, primafacie, there is an evidence and clarity on record that investigating agency was slow in accepting the complaint.
4. On perusal of the complaint, it reveals that the petitioner complainant has alleged in the complaint that he is holding several agriculture lands in the sim of village Koteshwar Taluka of District Gandhinagar being Survey Nos.31, 56, 57/2, 65 and 67 which are acquired by him as ancestral property since his grand father; Kachrabhai Bapubhai Patel expired on 21.8.1978. After the death of his grand father, the properties were mutated in the name of his father Baldevbhai Kachrabhai as successor with his sister Dhuliben Kachrabhai pursuant to entry no.260 dated 4.9.1978 in village record no.6. The father of the petitioner Baldevbhai Kachrabhai, also expired on 15.6.2000 and thereafter, properties were succeeded by the petitioner - complainant and necessary entry to that effect was recorded on 23.1.2001 in Revenue Record, being entry no.599. Thereby, it is contended by the petitioner - complainant that since then above referred agriculture lands are in his possession with other coparcners and Revenue Record confirms their ownership and that he is doing agriculture work on such land for livelihood of his Page 3 of 50 R/SCR.A/2756/2014 CAV JUDGMENT family.
5. As against that, it is alleged that, accused nos.1 to 7, as disclosed in the complaint; though aware about his rights and possession and therefore though they do not have any right, title or interest or even any share on such properties; have executed one power of attorney deed dated 29.5.2009 in favour of accused no.1 Jayantibhai Shamalbhai Patel so as to enable him to deal with the sale and administer of such properties. It is contended that such power of attorney is absolutely bogus since accused nos.1 to 7 does not have any right, title, interest or possession over the such properties, in any manner. It is further contended that based upon such power of attorney deed, appellant no.1 has filed one RTS appeal no. DASU 340/2009 in the office of Prant Officer, Gandhinagar and tried to create their rights. However, Prant Officer, Gandhinagar on recognizing the bad intention of accused persons and considering that appeal is filed after the gap of thirty years, dismissed such appeal by an order dated 1.7.2009. Therefore, it is alleged that these accused have committed an offence by filing a forged and bogus power of attorney deed dated 29.5.2009. It is further contended that accused nos.1 to 7 have also filed one Special Civil Suit no.119 of 2009 through accused no.1 as power of attorney holder by the same power of attorney deed as referred and discussed hereinabove, for declaration and permanent injunction. However, such suit was dismissed for non prosecution on 14.12.2010 because accused being plaintiff in Page 4 of 50 R/SCR.A/2756/2014 CAV JUDGMENT such suit had failed to pay the requisite Court fee stamp even after repeated adjournments granted for the purpose.
6. It is further contended that though previous power of attorney dated 29.5.2009 was not revoked or cancelled which was in favour of respondent no.1, now respondent nos.1 to 7 executed one another power of attorney dated 28.2.2011 appointing respondent no.8, namely; Prakash Ishwarbhai Nai as a fresh power of attorney holder. Therefore, it is alleged that again accused nos.1 to 7 have executed such second power of attorney deed in favour of accused no.8 for the similar purpose to sale and to manage the properties under reference though they have no right, title and possession over such properties. It is further contended that now because of such second power of attorney, respondents are trying to snatch away the possession of the property under reference from the petitioner - complainant with the help of head strong persons by committing the offence of illegal tresspass and pressurizing and threatening the petitioner - complainant to handover the possession to them, else they may kill him. It is further contended that all accused are knowing and fully aware that such power of attorney deed is also bogus and they have joined together to snatch away the rights and title as well as possession of the properties in question from the complainant and thereby, they have committed illegal conspiracy for the purpose. It is further contended that though accused nos.1 to 7 could not proceed further in the previous suit. Now just to make a show that the Page 5 of 50 R/SCR.A/2756/2014 CAV JUDGMENT suit is by some different person, accused no.8 has filed one another suit being Regular Civil Suit no.120 of 2011 before the Court of Principal Senior Civil Judge at Gandhinagar as power of attorney of accused nos.1 to 7 and prayed for same reliefs which were otherwise prayed in the previous suit also. It is disclosed that such suit is pending as on date. However, it is contended by the complainant that since price of land has gone very high in recent past, the accused people have conspired to grab the properties of the complainant by illegal means and by committing offences of cheating, forgering criminal tress pass etc. and when they all have though played different role, common intention to grab the properties in question there was and hence they joint together by issuing power of attorney deed in favour of one person only, there is primafacie case against the accused regarding commission of such offences.
7. It is further contended that in addition to above referred two power of attorney deeds, though they are not cancelled or recalled at any point of time, accused nos.1 to 4 have executed one another power of attorney deed on 18.3.2011 in favour of one Vijaybhai Baldevbhai Patel i.e. accused no.9 in the complaint. In turn, such Vijaybhai Baldevbhai Patel - accused no.9 has filed RTS appeal being S.R. No.179 of 2011 before the Collector, Gandhinagar which is pending at present.
8. With above factual details, it is alleged that in view of such Page 6 of 50 R/SCR.A/2756/2014 CAV JUDGMENT activities, wherein, bogus power of attorney deeds are created in favour of accused nos.1, 8 and 9, now they are trying to sale the property in question, through land brokers, though they do not hold any such power of attorney for and on behalf of petitioner - complainant and his coparcners and thereby, accused have committed offences since they have produced such bogus documents before the Revenue Authorities. It is further contended that all the accused and more particularly, accused nos.8 and 9 are trying to grab the properties by criminal tresspass through head strong persons and pressurized the complainant to disposed of the properties in their favour. Therefore, complainant has lodged such complaint.
9. The order of Chief Judicial Magistrate, directing the Adalaj police station to investigate the complaint of the petitioner - complainant under Section 156(3) of the Code of Criminal Procedure is placed at Annexture `A' with the petition, wherein, it is observed that the applicant has addressed the application to the Superintendent of Police, Ahmedabad on 29.4.2013 disclosing the details of his complaint which was forwarded to LCB Branch, where statement of petitioner - complainant was recorded. However, thereafter, no steps have been taken by the police and therefore Court has called for the reports from the LCB and in report of the LCB, it has been disclosed that grand father of the petitioner Kachrabhia Bapubhai Patel has remarried to one Maniben, who came with a son by her previous husband namely; Shamalbhai and Page 7 of 50 R/SCR.A/2756/2014 CAV JUDGMENT present accused are heirs of said Shamalbhai and therefore they are having their legal right as successor in the property under reference for which Civil suit is pending in the Court. However, considering the documents produced by the complainant and after hearing the complainant and Investigating Officer at length, the Court has passed an order to investigate an FIR under Section 156(3) for the alleged offences and with a direction to the PSI to submit his report within thirty days. Such order is dated 28.10.2013 and pursuant to such order, Adalaj police station has registered M case no.1 of 2013 on 31.10.2013. Therefore, within thirty days i.e. on or before 30.11.2013, Investigating Agency has to submit his report before the Court of Chief Judicial Magistrate.
10. It seems that thereafter Investigating Agency was not keen to investigate the matter further and therefore petitioner - complainant herein has preferred one Special Criminal Application (DIRECTIONTO TRANSFER INVESTIGATION TO CID) no.3642 of 2013. By an order dated 3.12.2013, the coordinate bench of this High Court, has while issuing rule considering the nature of the offence and inaction by the Investigating Officer as well as order of anticipatory bail granted by Sessions Court and considering that a huge land grabbing racket is involved, deem it appropriate to request the learned APP to place a copy of such petition with all its annexures before the I.G. (Police), Gandhinagar with further direction that I.G. (Police) will look into the matter and Page 8 of 50 R/SCR.A/2756/2014 CAV JUDGMENT submit the report specifying whether investigation needs to be transferred or not. The I.G. was allowed to summon the complainant for personal hearing. It is disclosed at bar that, such petition is still pending. However probably, IG of (Police), Gandhinagar has not submitted his report.
11. It is alleged and submitted by learned advocate for the petitioner in all the petitions that initially, complainant has tried to lodge a complaint with the concerned police station but local police has failed to register their complaint and therefore they have no option but to lodge a complaint before the Court of Chief Judicial Magistrate at Gandhinagar and police has started the inquiry by registering the FIR, as M case no.1 of 2013 only after Court's direction to lodge a complaint.
12. In above background, now we have to examine the specific case against different accused for different applications:
[I] SPECIAL CRIMINAL APPLICATION NO. 984 OF 2014:
13. Though petitioner has filed a Special Criminal Application, pursuant to order dated 10.6.2014 by the coordinate bench, it seems that matter has been listed before this Court since ultimate prayer is for cancellation of bail.
14. The respondent no.2 herein namely; Nirav Dilip Patel has been released on anticipatory bail by the Additional Sessions Page 9 of 50 R/SCR.A/2756/2014 CAV JUDGMENT Judge, Gandhinagar, vide his judgment and order dated 4.3.2014 in Criminal Misc. Application no.158 of 2014.
15. With the above background, if we peruse the impugned judgment and order granting anticipatory bail in favour of respondent no.2 by Additional Sessions Judge, dated 4.3.2014 (Annexture `G'), it transpires that pursuant to lodging of FIR, as aforesaid, when police has started investigation and searching accused nos.1 to 9 as disclosed in FIR, present respondent no.2 is apprehending his arrest by Adalaj police station for such offences and therefore to avoid illtreatment by police by way of third degree power after arrest and from mental torture and to save his image within the society, if he is arrested and taken with handcuff, he has prayed for anticipatory bail. It is his case that he is residing at Bopal and leaving prestigious life and having huge family and he has not taken any part in the commission of alleged offences and that since anticipatory bail was granted in favour of accused nos.1 to 3 and 9 and brother of accused no.9 - Dilip Baldevbhai, he is also claiming anticipatory bail on the ground of parity.
16. On perusal of the impugned order, it becomes clear that the learned Sessions Judge, has after recording rival submissions, released him on anticipatory bail on several conditions. Though imposing of any such condition is discretion and it may be decided or fixed considering the facts and circumstances of each case, it is alleged by the petitioner that Page 10 of 50 R/SCR.A/2756/2014 CAV JUDGMENT considering the cancellation of bail of one of such accused for breach of the bail condition in Criminal Misc. Application no.4081 of 2014, now Sessions Court has omitted such condition. Though order of such cancellation of bail is dated 7.4.2014 and though impugned judgment is dated 4.3.2014, it is submitted that when application for cancellation of bail for breach of condition of the bail was filed before this High Court on the ground that accused namely; Babubhai Mohanbhai Patel in that matter has jumped the bail by leaving India without prior permission of the Court; now Sessions Court has omitted such condition from the order of the bail. In addition to such issue, on scrutiny of the impugned judgment it is found that practically the Investigating Officer has filed an affidavit before the Sessions Court and in Paragraph 5(D)(3), he has disclosed that now they do not have a necessity of respondent no.2 for further investigation. This may be the one of the reasons for granting anticipatory bail in favour of respondent no.2.
17. However, Sessions Court has also recorded the outcome of investigation, whereby, Investigating Officer has submitted that all this conspiracy is the outcome of sharp mind of the present respondent no.2, whereby, he has tried to prove his story that infact, husband of the accused no.4, who was engaged for labour work in the field of the complainant has fallen in love with a daughter of Muslim family, who was also doing labour work in the same field and thereby, they both had ran away and live the life of gypsy after getting married Page 11 of 50 R/SCR.A/2756/2014 CAV JUDGMENT by converting religion and pursuant to that they have issues being nos. 1, 2, 3 and 5, 6, 7. All this story was sixty years back. However, investigating officer has stated that all such story is got up by present respondent no.2 and therefore it is averted by the investigating officer that thereby the story put forward in a suit that grand father of the complainant has married one another lady, who married with grand father of the accused with her son by previous husband can never be the legal heirs and coparcners with the petitioner and therefore all such record and story are got up and concocted one. It is further contended by Investigating Officer before the trial Court that father of respondent no.2 is having modus operandi to grab the valuable land of the complainant which is situated in Koteshwar village and therefore with the help of land grabbers he tried to show one of the labourer Shamalbhai Kachrabhai Patel as step son of grand mother of the complainant and for the purpose created bogus documents.
18. However, the most interesting fact which is disclosed by the Investigating Officer before the trial Court is with reference to noncooperation by the another accused who was released on anticipatory bail by an order passed in Criminal Misc. Application no.717 of 2013.
19. Even thereafter, the learned Sessions Judge has considered that since name of the respondent no.2 is not in FIR and since there is no apprehension of his arrest and since there is no Page 12 of 50 R/SCR.A/2756/2014 CAV JUDGMENT antecedent sofaras respondent no.2 is concerned and that when he is permanent resident of Bopal having properties and family and there is no possibility of abscondment and that he will cooperate the police, considering that he is having responsibility of his family and that practically he has simply signed as a witness in such power of attorney deeds and when his name is not disclosed in the FIR and the bail application is filed simply on apprehension of his arrest, Court has not believed the arguments of the complainant so as to arrest respondent no.2 at such stage and granted anticipatory bail on several conditions with a condition to cooperate in the police investigation and to disclose his residential details both, before the Investigating Officer and before the trial Court and not to change the same without prior permission of the trial Court. The bail order also confirms that respondent no.2 has to strictly follow such conditions.
20. The copy of the affidavit of the Investigating Officer filed before the Court is produced at Annexture `H,' which confirms that in Paragraph 5(D)(A), as recorded by the Sessions Court in Paragraph 6 of the impugned judgment, there is a statement by the Investigating Officer that there is no requirement of respondent no.2 for remaining investigation. Such disclosure is on running page no.80 of the paper book. However, in Paragraph K, thereafter, the Investigating Officer has specifically stated on oath that respondent no.2 herein has signed all such bogus power of Page 13 of 50 R/SCR.A/2756/2014 CAV JUDGMENT attorney deeds as a witness and another accused has flouted the condition of bail and respondent no.2 has helped the accused in filing false suit and therefore requested the Court to reject the application for anticipatory bail.
21. The complainant - petitioner has challenged such an order on several grounds but mainly on the ground that the trial Court has failed to appreciate the fact that coaccused have not complied with the conditions of the bail and therefore there is reason to believe that respondent no.2 may not be available both, for investigation and for trial and therefore, his bail should be cancelled. The petitioner is also relying upon the decision between Gurbarkshsingh Sibbia v. State of Punjab & Haryana reported in 1980(2) SCC 565 and also in the case of Jaswantbhai M. Shah v. Anand V. Nagarshetha reported in 2000(10) SCC 7 as well as case of State of Punjab & Haryana v. Raninder Singh reported in AIR 2008 SC 609 and Shanavas Muhammed v. State of Kerala, reported in 2007 CR.L.J. 2048.
22. Since there are four petitions and in some cases, such citations are repeated by the concerned litigant, it would be taken care of after discussing factual details of all the four matters.
23. In background of all above facts and circumstances, the other reason for seeking cancellation of bail by present application Page 14 of 50 R/SCR.A/2756/2014 CAV JUDGMENT is mainly attitude of the respondent no.2 even after getting anticipatory bail and during pendency of this petition. Thereby, petitioner has filed a further affidavit on 28.4.2014, after an order to issue Notice on 13.3.2014 by coordinate bench. With such affidavit, now petitioner has produce as Annexture `R1,' a report by the Police Inspector of Adalaj police station, namely: Mr.S.S. Gadhavi before the Sessions Court, Gandhinagar. On scrutiny of such report dated 16.4.2014, now it becomes clear that even after the impugned order granting anticipatory bail to respondent no.2 by order dated 4.3.2014, till 16.4.2014 respondent no.2 has not complied with the condition nos.6, 8 and 9 of the bail order, whereby, he was directed to cooperate investigation and to disclose his residential details both, before the trial Court and before the Investigating Officer. It is categorically stated in such report dated 16.4.2014 which is after forty days from the date of impugned judgment granting anticipatory bail that even after such an order, respondent no.2 Nirav Dilipbhai Patel has never bothered to remain present before the police station so as to furnish the bail and he has never cooperated the investigation and they have never disclosed their address proof. The investigating officer has filed such report before the Magistrate's Court seeking extension of time for submitting his report pursuant to Court's order dated 28.10.2013 to furnish report in thirty days.
24. Therefore, the fact remains clear and obvious that in a Page 15 of 50 R/SCR.A/2756/2014 CAV JUDGMENT complaint filed before the police on 29.4.2013 when no action was taken by police, complainant has to file a complaint before the Court of Magistrate who has directed to investigate the complaint under Section 156(3) of the Code of Criminal Procedure and to file report within thirty days by an order dated 28.10.2013. Thereby, the report is to be submitted on or before 30.11.2013, but in between some of the accused were released in the month of November, 2013 and present respondent no.2 in the month of February, 2014 and thereafter as it would be discussed with reference to other petitions, when present respondent no.2 Nirav Dilipbhai Patel has never bothered to comply with the order of anticipatory bail regarding cooperation to the Investigating Officer to complete the investigation so as to enable him to file a report in time and to disclose fresh whereabouts even after an impugned order with direction, Investigating Officer is not in a position to file a report and seeking extension of time for one more month by a report dated 16.4.2014.
25. Therefore, though otherwise law of bail is liberal and though recent trend is to see that there may not be an arrest if it is not required at all and thereby custody of the accused pending trial is to be avoided, the fact remains that when accused does not obey the Court's order and does not cooperate the investigating agency to complete the investigation, such defence is to be dealt with strictly and thereby even if personal presence of respondent no.2 may not require by investigation, atleast for limited period of Page 16 of 50 R/SCR.A/2756/2014 CAV JUDGMENT compliance of impugned judgment and for confirming even technical arrest of respondent no.2, now, there is need that he must be arrested by directing him to surrender and if he fails to surrender, allowing the investigating officer to arrest him and to complete the investigation so as to enable him to file a report at the earliest.
26. If at all, respondent no.2, as argued by him, is not involved in commission of any offence and if there is no role played by him in commission of main offence of cheating, forgery etc. then, practically, he does not have to be worried for remaining present before the Investigating Officer to record a statement and to disclose his residential details to the Investigating Agency.
27. Whereas, respondent no.2 has filed a detailed affidavitin reply contending that he has not abused or misused the bail and therefore when there was no role played by him in commission of offence, anticipatory bail in his favour should not be interfered. It is further contended in detail that Civil proceedings and Revenue proceedings are pending before the parties and thereby it is a Civil dispute and therefore also, there is no reason to detain him in a custody. It is further stated that when impugned order is passed by the Court after careful consideration of relevant material and when it is a reasoned order, considering the catena of decision of the Hon'ble Supreme Court, order of bail cannot be interfered with. He has further stated that allegations in FIR do not Page 17 of 50 R/SCR.A/2756/2014 CAV JUDGMENT constitute any offence even accepted at a face value and that applicant is trying to harass accused so as to get benefit in a civil matter and that he is law abiding citizen and would never dare to commit a breach of Court's order but infact, investigating agency had never bothered to call them and therefore fault cannot be found with him for noncompliance of impugned order. It is thus submitted that therefore present application is not maintainable.
28. In response to such submission, petitioner has filed an affidavit on 30.6.2014 annexing one another similar report of Investigating Officer dated 23.5.2014, which is in a verbatim to its previous report dated 16.4.2014 but more particularly, reconfirming that even till 23.5.2014, respondent no.2 herein had never approached the police station to disclose his address proof and to furnish a bail pursuant to anticipatory bail granted in his favour. Thereby, again Investigating Officer has seek an extension of time for further fifteen days. The record shows that though on such report dated 16.4.2014, time was extended to file a report for further fifteen days, such report was filed only on 23.5.2014 and thereupon, the Court has issued notice to both accused and respondent no.2 making it returnable on 30.5.2014. There is no confirmation of outcome of such notice thereafter.
29. Therefore, irrespective of factual details with reference to the allegations regarding commission of offences in FIR including who are successors of the original land owner namely;
Page 18 of 50 R/SCR.A/2756/2014 CAV JUDGMENTKachrabhia Bapubhai Patel who expired in the year 1978, the fact remains that at present, the allegation is also regarding creation of forge document and / or to utilize such documents for filing different litigations by making a show that accused are legal heirs of the Kachrabhia Bapubhai Patel, when Court has granted anticipatory bail with certain conditions including a condition to disclose the residential address both before the trial Court and before the Investigating Officer and to cooperate investigation with an observation that breach of any of such conditions, would result into initiate legal remedy against the respondent - accused; and thereafter, when there is a specific evidence by Investigating Officer on record after 4.3.2014, atleast till 23.5.2014 that respondent no.2 has not abide by such terms and conditions and more particularly, when such facts are very much disclosed before the lower Courts, even if, law relating to confirming the bail may be liberal and law relating to cancellation of bail requires specific grounds for cancellation of bail, when there is clear cut evidence on record regarding flouting of two conditions continuously for couple of months, who were otherwise not disturbing respondent no.2 in any manner, it would be appropriate to cancel the bail of respondent no.2 so as to confirm the rule of law. Otherwise, every accused will consider such conditions as a simple condition on papers and may not abide by the Court's order, which would result into lawlessness and it cannot be tolerated.
Page 19 of 50 R/SCR.A/2756/2014 CAV JUDGMENT30. It is evident that in the present case, even after an order, accused is not available for further investigation. More particularly, when offence is pertaining to execution of some documents and therefore it cannot be said that the Court cannot cancel the bail on such ground. To that extent, even submission by respondent no.2 that he was never called by investigating officer by issuing summons under Section 161 and that he is only a witness in the documents and that power of attorney are not for sale transaction but for legal proceedings, all such issues on merits are less material when there is clear evidence that respondent no.2 has failed to comply with the Court's order as aforesaid. On the contrary, it goes against respondent no.2. If at all, he is not involved in the commission of offence and if he is certain that he is innocent and when anticipatory bail is granted in his favour, there is no reason for him to disobey the Court's order by not complying the impugned order and thereby not disclosing his whereabouts to both the police and investigating agency as directed by the Court. Needless to say that it can be done even by forwarding a letter or by submitting Pursis before the trial Court.
31. However, it seems that, as it would be discussed with details for other accused hereinafter, now a days people are taking Court's order lightly and do not bother to comply with the Court's order, may be on their own wisdom or by some advise and therefore to avoid repetition of such situation, which we will witness while examining remaining petitions, Page 20 of 50 R/SCR.A/2756/2014 CAV JUDGMENT whereby practically all the accused have never bothered to comply with the Court's directions, it is necessary to cancel the bail of such accused even for temporary period so as to make it clear that nobody is allowed to take the legal order lightly and that noncompliance of Court's order would certainly be a serious matter.
32. For the purpose, the application needs to be allowed.
However, considering the facts and circumstances as narrated hereinabove, it would be appropriate for respondent no.2 to immediately apply for bail after surrendering and in that case, such bail application is to be decided by the trial Court or the concerned Sessions Court immediately, but in any case within five working days, without fail. It is to be recorded that though petitioner has disclosed noncompliance of certain conditions in this petition, even thereafter, respondent no.2 has not bothered to comply with such condition by appropriate mode even by sending a letter to the Investigating Agency about his details and offering his presence, both for submitting security of bail and for recording his statement.
33. As already stated hereinabove, citations of both the sides would be dealt with in common after discussing details and remaining three petitions to avoid repetition of same citations again and again.
[II] SPECIAL CRIMINAL APPLICATION NO.2756 OF 2014:
Page 21 of 50 R/SCR.A/2756/2014 CAV JUDGMENT34. This application is also arising from the same FIR. As stated above, petitioner is common, whereas, respondent nos.3, 4 and 5 are original accused nos.1 to 3. Since factual details are already explained and discussed hereinabove, the same is now not reproduced except for the additional details concerning present respondents.
35. The glaring irregularity by the concerned Additional Sessions Judge, Gandhinagar is now in the form of impugned judgment and order dated 4.7.2014 below Criminal Misc. Application no.489 of 2014. Such application was preferred by the complainant for cancellation of bail against respondent nos.2 to 4 pursuant to similar breach of bail order by the same Sessions Court in Criminal Misc. Application no.718 of 2013. In impugned judgment, the learned Sessions Court has referred Special Criminal Application no.3642 of 2013 filed by the petitioner before this Court.
36. While dealing with the application for cancellation of bail on the ground of noncooperation and noncompliance of Court's order, when Sessions Court has recorded such incidents of noncompliance instead of emphasizing on it, taking advantage of the pendency of Special Criminal Application no.3642 of 2013 for transferring of investigation, preferred by the complainant before the High Court, a lenient view was taken by the Sessions Court relying upon the submissions of the accused that they are cooperating with the investigation Page 22 of 50 R/SCR.A/2756/2014 CAV JUDGMENT and they have appeared before the police as and when they have been called upon and that they had been harassed by the Investigating Officer. Unfortunately, though Investigating Officer has already filed his report seeking extension of time to submit report because investigation could not be completed due to absence of respondents, which are referred hereinabove, the trial Court has observed that it was duty of the Investigating Officer to remain present before the trial Court at the time of hearing of such application and, therefore, to secure the presence of Investigating Officer, initially, some directions were issued. However, when Investigating Officer has remained present and submitted before the Court, that respondent nos.2 to 4 remained absent even after issuance of summons under Section 160 of the Code of Criminal Procedure, the Sessions Court has determined that;
"looking to the facts and circumstances, and considering the rival contentions of both the parties, this Court adjudicated the regular bail application, filed by respondent nos.2 to 4 being Criminal Misc. Application no.718 of 2013 under the proviso of Section 439(2) of the Code of Criminal Procedure, whereby the Court passed the order after hearing learned advocate for the parties and allowed that application with certain conditions, as under:
* Applicantsaccused shall give cooperation to the Investigating Agency and other conditions."
And thereafter, the trial Court has further recorded in the name of Investigating Officer that submission of Investigating Officer indicates that he is busy with the other work till 15.7.2014 and then after, if the respondent nos.2 to 4 are Page 23 of 50 R/SCR.A/2756/2014 CAV JUDGMENT present before him, it would be convenient for him to investigate the said offence.
37. I do not find any such submission by the Investigating Officer on record, more particularly, when he has categorically filed his report and affidavit contending that respondents are not cooperating in investigation and not remaining present before him and have not complied with the directions of the bail order.
38. However, unfortunately, based upon such unwarranted narration and submission in the name of the Investigating Officer, the learned Additional Sessions Judge has deemed it appropriate to issue a direction to respondent nos.2 to 4 as just and proper and in the interest of justice, directed to remain present before the Investigating Officer at Adalaj police station on 16.7.2014, and shall cooperate police investigation and whenever requires their presence before the Investigating Officer, they shall comply the instructions of the Investigating Officer for the presence of respondent nos.2 to 4 before the Investigating Officer. It is surprised to note that how and why Additional Sessions Judge shall say that presence of respondent nos.2 to 4 are to be complied with. Thereby, instead of deciding the issue regarding continuity of bail that whether it is to be cancelled or not, the application for cancellation of bail has been disposed of only with above direction.
Page 24 of 50 R/SCR.A/2756/2014 CAV JUDGMENT39. However, surprisingly and as vehemently argued and submitted by the learned advocate for the petitioner, it seems that the concerned Additional Sessions Judge has traveled beyond his jurisdiction. Inasmuch as when he has disposed of such application on 4.7.2014 and when advocate for the applicant and advocate for respondent nos.2 to 4 before the Sessions Court has endorsed such order as "seen" by them on the same day and when learned advocate for respondent nos.2 to 4 has made additional endorsement that he has noted the directions on behalf of respondent nos.2 to 4, surprisingly, there is another endorsement on next day i.e. on 5.7.2014 below the signature of the Presiding Officer, but now by original respondent nos.2 to 4 on their own hands that they have been conveyed the outcome of the order. Surprisingly, with such endorsement they have put their signature in vernacular with date i.e. 5.7.2014. Therefore, learned advocate for the petitioner is right in submitting that the concerned learned Additional Sessions Judge has taken personal interest in conveying such order to the respondents even after his power and jurisdiction has come to an end on 4.7.2014, when he has passed certain directions in such application in the form of impugned order and though he has no authority whatsoever to deal with any issue in such application on any other day, after the date of its disposal on 4.7.2014. However, on 5.7.2014, the Additional Sessions Judge, it seems that not only call upon the accused but get their endorsement on the order so as to confirm that accused shall remain present before the police and their bail cannot Page 25 of 50 R/SCR.A/2756/2014 CAV JUDGMENT be cancelled. This issue is required to be dealt with seriously but separately and hence it is not further elaborated here.
40. Applicant has produced relevant documents hereinabove, with reference to dispute between the parties so far as properties are concerned i.e. power of attorney, plaint, etc. However, at present, we do not have to decide that Civil dispute and therefore though it is argued at length, with details, and though such details are taken into consideration, its scrutiny and details are not required to be elaborated here so as to avoid prejudice on such factual aspects between the parties in appropriate proceedings either Civil or Criminal. However, it cannot be ignored that the same learned Additional Sessions Judge, has while granting bail to respondent nos.2 to 4 on 22.11.2013 in Criminal Misc. Application no.718 of 2013 observed that father of respondent nos.2 to 4 was not actual son of grand father of the applicant but he came with his biological mother who married with the grand father of the petitioner and thereby said Shamalbhai is not biological son of Kachrabhai Bapubhai and even such story is neither admitted but controversial and therefore it is clear and obvious that the creation of documents as referred hereinabove for civil litigation are certainly with some ulterior motive.
41. So far as report of Police Inspector, Adalaj police station is concerned, the factual details of all such reports are identical and common, wherein, it is stated that though called upon, Page 26 of 50 R/SCR.A/2756/2014 CAV JUDGMENT the concerned accused have never remained present before the Investigating Officer and they have never complied with the conditions of the bail and even simple condition of disclosure of their addresses before the Investigating Officer as well as trial Court. For present respondent nos.2 to 4, such report dated 14.3.2014 is at Annexture `H,' on page no. 118, which is in detail and wherein, Investigating Officer has categorically conveyed the Court to take necessary steps to cancel the bail. The similar report of the Investigating Officer regarding noncompliance of anticipatory bail order in favour of respondent nos.2 to 4 is also on record at Annexture `D' which is dated 31.1.2014. Affidavit filed by the Investigating Officer in Criminal Misc. Application no.489 of 2014 for cancellation of bail is also produced on record, which confirms the misdeeds and noncompliance of order of bail by respondent nos.2 to 4. The perusal of affidavitinreply and relevant documents therewith does not prove anything else in favour of the respondent nos.2 to 4 so as to believe their defence that either there was benefit on their part in not remaining present before the Investigating Officer or that in fact Investigating Officer has harassed them as and when they remain present or that Investigating Officer has never called upon them. The fact remains that, as discussed hereinabove, the condition regarding disclosure of residential proof and remaining present before the Investigating Officer has never been complied by the respondents and though it can be confirmed even by addressing a letter, which is not done by respondent nos.2 to 4 even after an application for Page 27 of 50 R/SCR.A/2756/2014 CAV JUDGMENT cancellation of bail before the Sessions Court.
42. Since factual details are common, it is not necessary to reproduce all the details which are otherwise discussed hereinabove in paragraph nos.3 to 11 and 24.
43. In view of above facts and circumstances, for the reasons as discussed hereinabove, the application needs to be allowed. However, considering the facts and circumstances as narrated hereinabove, it would be appropriate for respondent no.2 to immediately apply for bail after surrendering and in that case, such bail application is to be decided by the trial Court or the concerned Sessions Court immediately, but in any case within five working days, without fail. It is to be recorded that though petitioner has disclosed noncompliance of certain conditions in this petition, even thereafter, respondent no.2 has not bothered to comply with such condition by appropriate mode even by sending a letter to the Investigating Agency about his details and offering his presence, both for submitting security of bail and for recording his statement.
[III] CRIMINAL MISC.APPLICATION NO.3992 OF 2014:
44. Respondent nos.2 to 4 here are original accused nos.5, 6 and
7. The factual details are similar to previous two matters. Inasmuch as, these accused are failed to comply with the previous order of bail. To prove such facts, petitioner has, at Page 28 of 50 R/SCR.A/2756/2014 CAV JUDGMENT Annexture `D' filed a letter by the Public Information of the Civil Court, Gandhinagar confirming that respondent nos.2 to 4 do not disclose their address pursuant to anticipatory bail granted in their favour by order dated 22.11.2013 by the second Additional Sessions Judge in Criminal Misc. Application no.717 of 2013. Therefore, there is clear cut breach of order of anticipatory bail by respondent nos.2 to 4 being original accused nos.5 to 7. Therefore, on the ground of parity though it can be said that their bail needs to be cancelled. However, considering the fact that respondent nos.2 to 4 being sisters of original accused nos.1 to 3 and probably they are the real culprit only because they are women, I do not want to interfere in anticipatory bail granted to them by directing them to comply with the order dated 22.11.2013 regarding anticipatory bail granted in their favour by Sessions Court, Gandhinagar in Criminal Misc. Application no.717 of 2013 within seven days, without fail. It is made clear that if respondent nos.2 to 4 fails to comply with above directions within seven days, the Investigating Agency shall be free to arrest them and for that purpose, bail shall stand cancelled after seven days.
[IV] CRIMINAL MISC.APPLICATION NO.5027 OF 2014:
45. Name of respondent no.2 herein is not disclosed in FIR as an accused. However, he also, like respondent no.2 in Special Criminal Application No.984 of 2014, apprehends his arrest because he is junior advocate of an advocate who has filed Page 29 of 50 R/SCR.A/2756/2014 CAV JUDGMENT Civil litigation on behalf of the accused whose names are disclosed in FIR. Therefore, initially, Sessions Court has granted anticipatory bail in his favour on 29.3.2014 in Criminal Misc. Application no.196 of 2014. However, there was similar conditions in such order that respondent no.2 has to cooperate with the Investigating Agency and that he has to disclose his residential details both, before the trial Court as well as before the Investigating Officer. However, respondent no.2 herein though claimed to be a practicing advocate has failed to comply with such simple direction of disclosing his whereabouts to the Investigating Officer as well as before the trial Court. Factum regarding noncompliance has been reported by the Investigating Officer to the trial Court by his reports dated 30.1.2014, 19.2.2014 and 13.3.2014.
Therefore, it becomes clear and obvious that, continuously for couple of months, even after specific report by the Investigating Officer that respondent is not complying with the directions of the Court, instead of initiating an action for cancellation of bail of such accused, the trial Court has continued to extend the period for filing the report by the Investigating Officer. Last such order is below similar report dated 16.4.2014, which confirms that none of the accused have ever bothered to cooperate the investigation and trial Court has also failed to initiate appropriate steps against the accused when Investigating Officer has repeatedly submitted a report that none of the accused are cooperating with the investigation.
Page 30 of 50 R/SCR.A/2756/2014 CAV JUDGMENT46. As against that, respondent no.2 has tried to convince the Court that he has already addressed a letter to the Investigating Officer by RPAD on 14.5.2014 and produced its copy at Annexture `I'. Surprisingly such letter does not disclose the date, nor even signature. Thereby it is simple typed copy as if it is addressed by respondent no.2 and forwarded to the Investigating Officer. So far as date of such letter is concerned, respondent no.2 is relying on slip of RPAD which is dated 14.5.2014. However, it would be possible that no such letter has been posted to any Officer when there is no clarity and confirmation that these receipts are of the same letter when letter does not have any date or signature. Moreover, such letter is only after filing of present application and therefore, it cannot be considered as an appropriate compliance of order of bail which is sought to be cancelled in this application.
47. As against that, infact, petitioner was able to show that respondent no.2 was never an advocate of original accused either in Civil or Criminal matter but he is master mind and acting as a consultant and creator of all such litigation and therefore he should not be extended any benefit only because he is an advocate. It has been pointed out by the petitioner that even before the trial Court, the accused no.2 has pleaded several false facts. Inasmuch as, when he is pleaded the anticipatory bail on parity by saying that the Sessions Judge has already granted anticipatory bail to his wife, practically, it is very much clear on record that wife of respondent no.2 is Page 31 of 50 R/SCR.A/2756/2014 CAV JUDGMENT nowhere concerned in this litigation and therefore, there is some substance in submission by the petitioner, when respondent no.2 has tried to get advantage of his profession as an advocate and thereafter misguiding the Court that his wife has already been granted anticipatory bail. Such fact is disclosed in application by respondent no.2 himself before the Sessions Court in his Criminal Misc. Application no.196 of 2014 in ground `G' (Page no.111 of the record). Similarly, it has been pointed out that though the case is not relying to publication of any album or song, some irrelevant facts are disclosed in ground `D' to show that petitioner herein is acting with some ulterior motive and therefore trying to misguide the Court by different kind of pleadings.
48. I have perused the entire record and finds some substance in the version of the petitioner and therefore, there is no reason to deviate from the decision which is for other respondents except for women and therefore, the application needs to be allowed.
49. However, considering the facts and circumstances as narrated hereinabove, it would be appropriate for respondent no.2 to immediately apply for bail after surrendering and in that case, such bail application is to be decided by the trial Court or the concerned Sessions Court immediately, but in any case within five working days, without fail. It is to be recorded that though petitioner has disclosed noncompliance of certain conditions in this petition, even thereafter, respondent Page 32 of 50 R/SCR.A/2756/2014 CAV JUDGMENT no.2 has not bothered to comply with such condition by appropriate mode even by sending a letter to the Investigating Agency about his detailed and offering his presence, both for submitting security of bail and for recording his statement.
50. Both the sides have relied upon several decisions of the Apex Court. Though, now the law regarding bail and cancellation of bail is well settled, it cannot be ignored that amongst all the accused because of similar position of noncompliance of order of bail, petitioner has filed Criminal Misc. Application for cancellation of bail being application no.4081 of 2014, which was allowed by judgment and order dated 7.4.2014 so far as accused Babubhai Mohanbhai Patel is concerned and, thereafter, such accused has to surrender but ultimately he is released on bail.
51. Petitioner in all applications is relying upon following decisions:
[a] 2003(8) SCC 50 State of Gujarat v. Salimbhai Abdulgaffar Shaikh [b] 2002(3) SCC 598 Ram Govind Upadhyay v. Sudarshan Singh [c] 1995(1) SCC 349 Dolat Ram v. State of Haryana [d] AIR 1978 SC 961 The State through the Delhi Admini. v. Sanjay Gandhi However, I am not dealing it with separately considering the discussion on law herein after wherein most of above citations are either covered or atleast referred in one or more Page 33 of 50 R/SCR.A/2756/2014 CAV JUDGMENT of such decision which are discussed.
52. Whereas, respondent/s - accused are relying upon following citations:
[a] 1995(1) SCC 349 - Dolatram [b] 2003(1) SCC 326 Mahant Chandnath Yogi [c] 2005(4) SCC 178 Nityanand Rai [d] 2004(11) SCC 165 Samerendra Nath Bhatacharjee [e] 2006(1) GLH 758 Babubhai Somabhai Gamit [f] 1994(1) GLH (UJ) 7 [g] 2007(7) SCC 341 Vashishta Rambhau [h] AIR 1984 SC 372 Bhagirathsinh Jadeja [I] AIR 1978 SC 961 Sanjay Gandhi [j] 2003 CRLR (GUJ) 144 Vohra Abdul Razak Fazalbhai However, I am not dealing it with separately considering the discussion on law herein after wherein most of above citations are either covered or atleast referred in one or more of such decision which are discussed.
53. However, so far as possibility of commission of an offence by accused are concerned, respondent - accused are relying upon the decision between Mohammed Ibrahim v. State of Bihar, reported in 2010(1) GLH 184 and with such judgment, respondents have produced a bunch of documents from several litigation between the parties to confirm that it is a civil dispute between them and therefore when they have not committed any offence at all, there is no question of disobedience of Court's order. Needless to say that the case of Mohammed (Supra) is certainly dealing with the nature of offence and confirming that if document is neither forged or Page 34 of 50 R/SCR.A/2756/2014 CAV JUDGMENT false, there cannot be a complaint or cheating. The Hon'ble Supreme Court has enumerated as many as thirteen criteria that how fraud, cheating and forgery can be considered. However, it is quite clear and obvious that at present, this Court is not considering the application for quashing of complaint by the accused and therefore when the issue before this Court is simply regarding noncompliance of bail order and there is noncompliance of simple condition of disclosing whereabout of the accused both, before the trial Court and before the Investigating Officer and when there is clear documentary evidence on record to prove such non compliance, whereby, none of the accused have bothered for couple of months to disclose their whereabouts with residential address both, before the trial Court and before the Investigating Officer and failed to appear before the Investigating Officer even after Notice under Section 160 of the Code of Criminal Procedure, nonaction in such a situation would result into lawlessness in the area and hence such applications are required to be strictly dealt with.
54. The law relating bail and cancellation of bail can be summarized by following decisions:
1. Dolat Ram & Ors. Vs. State of Haryana reported in 1995 SCC (Cri.) 237
2. Azhar Sah Vs. State of Bihar & Ors. reported in (2008)5 SCC 82
3. Savitri Agarwal & Ors. Vs. State of Maharashtra & Page 35 of 50 R/SCR.A/2756/2014 CAV JUDGMENT Anr. reported in (2009)8 SCC 325
55. On perusal of above judgments, it becomes clear that only because of some observation in those judgments, it cannot be said that bail cannot be cancelled in any case.
56. In the cases of Dolatram (supra) and Savitri Agarwal (supra), though there was death of a human being, the factual details are altogether different and based upon such factual details, Hon'ble Supreme Court has observed certain things, it cannot be read separately from the factual details and without context of the other materials and discussion on record of that case. Otherwise also, from any citation only few sentence cannot be read and relied upon as a binding decision. Therefore, when Supreme Court has in case of Dolatram (supra) stated that bail can be cancelled only if there is any supervening circumstances that have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial, practically, it was considering the statement in FIR that appellants are parents and brother of the husband, in whose favour such observation is made, were living separately from the deceased and her husband and when factum of separate residence was also supported by documentary evidence on record. In view of such factual details, it was stated that these circumstances were relevant for grant of bail. Similarly, in the case of Savitri Agarwal (supra), it is evident from reading the entire judgment that Page 36 of 50 R/SCR.A/2756/2014 CAV JUDGMENT the deceased had given two dying declarations, both recorded by Executive Magistrate, out of which one immediately after the incident and second was when it was confirmed that she may not survive and in both such dying declarations, amongst which second declaration was in presence of the complainant and parents of the victim, she has categorically stated that she had got burnt accidentally. Therefore, the Supreme Court has recorded that the High Court has failed to appreciate the factual background of the case that particularly in both the dying declarations the deceased had not levelled any allegations against the appellant for demanding any dowry or for torturing her for any other purpose. In view of such fact, if Supreme Court observed something, such observation cannot be treated as a thumbrule in all the cases without considering the facts and circumstances of each case on its own merits.
57. Whereas in the case of Azhar Sah (supra), though there was brutal killing of five persons in similar scuffle as evident in present case, again the fact remains that so far as appellant before the Supreme Court is concerned, there was specific evidence during the investigation that he was serving in the bank as Manager and posted at another place and was not present at the place and time of occurrence. Thereby, though other accused persons have been refused bail, the Supreme Court has confirmed bail of a person, who was not available at the material time. Therefore, such judgment would not help the respondent herein when he admits his presence by Page 37 of 50 R/SCR.A/2756/2014 CAV JUDGMENT alleging that he was injured in the same incident.
58. Respondent/s is/are also relying upon the judgment between State of Gujarat Vs.Salimibhai Abdulgaffar Shaikh & Ors. reported in (2003)3 GLH 369 contending that at the time of cancellation of bail, the Court should not examine the merits of the order of granting bail. However, in the same judgment, it is also stated that in exceptional cases where the grant of bail is vitiated by serious infirmity, it becomes necessary to interfere with the discretion exercised in granting the bail. Therefore, it cannot be said that Court is not empowered to examine the merits at this stage and in that reported case, Supreme Court has cancelled the bail.
59. As against that, petitioner is relying upon the decision between State of Gujarat Vs. Dinesh M.N. (S.P.) reported in (2008)3 GLR 2173 Page 9 of 18 wherein this High Court has confirmed that if bail was granted on consideration of irrelevant material then it should be cancelled.
60. In Gobarbhai Naranbhai Singala Vs. State of Gujarat & Ors. reported in 2008(3) GLR 2192 wherein the Hon'ble Supreme Court has confirmed that in heinous crime of commission of murder, when bail was granted ignoring the general principles and for untenable reasons, it should be cancelled, while reiterating the principle of deciding bail application.
Page 38 of 50 R/SCR.A/2756/2014 CAV JUDGMENT61. In view of above facts and circumstances, this applications deserve to be allowed by cancelling the bail granted to concern respondent in each application. Thereby, impugned orders are quashed and set aside directing the respondents accused to surrender before the investigating agency within four weeks. If he fails to surrender within four weeks, the investigating agency shall arrest them.
62. For coming to such conclusion, this Court has relied upon following decisions:
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 in appropriate Page 39 of 50 R/SCR.A/2756/2014 CAV JUDGMENT 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 nonapplication 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 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:
Page 40 of 50 R/SCR.A/2756/2014 CAV JUDGMENT8. 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 nature of 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,
9. 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. [JT2004 (3) SC 442].
10. 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.
11. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. (2004 (7) SCC 528). In para 11 it was noted as follows :
Page 41 of 50 R/SCR.A/2756/2014 CAV JUDGMENT"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 not be 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 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).
12. 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.
13. 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, illegal or perverse order is Page 42 of 50 R/SCR.A/2756/2014 CAV JUDGMENT 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 visavis the High Court."
14. 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 Page 43 of 50 R/SCR.A/2756/2014 CAV JUDGMENT 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 primafacie 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 reasons why bail should not have been granted and why this unjustified erroneous Order granting bail should be cancelled.
9. 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 Page 44 of 50 R/SCR.A/2756/2014 CAV JUDGMENT 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.
10. 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 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, Page 45 of 50 R/SCR.A/2756/2014 CAV JUDGMENT 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 -
AIR 2011 SC 274, 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;
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 Page 46 of 50 R/SCR.A/2756/2014 CAV JUDGMENT 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 2012 CRI.LJ. 4670.
I) In this context, we may refer with profit to the recent pronouncement in Central Bureau of Investigation v. V. Vijay Sai Reddy AIR 2013 SC 2216 wherein the learned Judges have expressed thus:
28. While granting bail, the court has to keep in 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 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 udge and, therefore, we are obliged Page 47 of 50 R/SCR.A/2756/2014 CAV JUDGMENT 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.
J) In State of Punjab Vs. Raninder Singh AIR 2008 SC 609, Hon'ble Supreme Court has confirmed that whenever accused though called for interrogation or for certain investigation, fails to appear before the investigating officer, then, it will be open for the State to move for cancellation of bail when bail order laid down a condition that accused shall make himself available for interrogation as and when required.
K) In Narendra K.Amin Vs. State of Gujarat - (2008)13 SCC 584, bench of three Judges of Hon'ble Supreme Court make it clear that once it is found that bail was granted on untenable grounds, the same can be cancelled and that absence of supervening circumstances has no relevance in such cases. The larger bench has considered all the judgments which are referred by the accused and, thereafter, when larger bench has confirmed order of cancellation of bail of the accused by this High Court, it is clear and certain that only because of the judgments cited by the accused, it cannot be Page 48 of 50 R/SCR.A/2756/2014 CAV JUDGMENT said that bail can never be cancelled in such cases.
L) In Lavesh Vs. State of Delhi - (2012)8 SCC 780, Hon'ble Supreme Court has reconfirmed that if accused do not cooperate with police investigation and do not visit the police station when called for, such conduct would disentitle him of the benefit of anticipatory bail.
However, it is made clear that observation made herein are for the purpose of deciding this application for cancellation of bail on the basis of available material. Therefore, the trial Court is free to decide the trial based on the evidence, which may be produced on record during the course of the trial.
63. 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 judgment.
64. In view of above facts and circumstances, Special Criminal Application nos.984 of 2014 and 2756 of 2014 and Criminal Misc. Application no.5027 of 2014 are allowed. Thereby, bail granted in favour of private respondent/s in such application/s are hereby quashed and set aside. Thereby, these respondents are required to be surrendered before the Police within four weeks', without fail and to comply with the respective order of bail in their favour, without fail, within Page 49 of 50 R/SCR.A/2756/2014 CAV JUDGMENT seven days. Whereas, Criminal Misc. Application no.3992 of 2014 is dismissed only on the ground that private respondents therein are ladies. However, with specific direction that they must comply with the respective bail order within their favour, within seven days, without fail. Respondent/s in all above matters are at liberty to apply afresh for their bail immediately on their surrender and the trial Court has to decide such application within five working days, without fail.
65. However, considering the fact that private respondents in all above matters are on bail for couple of months, it would be appropriate to provide sufficient time before surrender. Therefore, they have to surrender before the Sessions Court within four weeks' from the date of such judgment.
(S.G.SHAH, J.) VATSAL Page 50 of 50