Gujarat High Court
Meghabhai Varjangbhai Rudach(Gadhvi) vs State Of Gujarat & on 1 March, 2013
Author: A.J.Desai
Bench: A.J.Desai
MEGHABHAI VARJANGBHAI RUDACH(GADHVI)....Applicant(s)V/SSTATE OF GUJARAT R/CR.MA/17585/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO. 17585 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE A.J.DESAI sd/- ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ MEGHABHAI VARJANGBHAI RUDACH(GADHVI)....Applicant Versus STATE OF GUJARAT & 1....Respondents ================================================================ Appearance: MR ABHAYKUMAR P SHAH, ADVOCATE for the Applicant. MR. BHADRISH S RAJU, ADVOCATE WITH MR JAYPRAKASH UMOT, ADVOCATE for the Respondent No.2. MS HANSA PUNANI, APP for the Respondent No.1. ================================================================ CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 01/03/2013 ORAL JUDGMENT
1. By way of the present application under Section 439(2) of the Code of Criminal Procedure, the petitioner herein - original complainant has challenged the judgment and order dated 07/11/2012 passed by learned Fifth Additional Sessions Judge, Khambhaliya, District: Jamnagar, in Criminal Misc.Application No.456 of 2012, by which, the respondent No.2 herein- original accused has been released on regular bail in his fourth successive regular bail application i.e third successive regular bail application, after filing of the charge-sheet.
2. Brief facts, arise from the record of the case, are as under:
2.1 That the petitioner herein Meghabhai Varjangbhai Rudach lodged a complaint on 14/05/2012 with Kalyanpur Police Station, Jamnagar against seven accused persons including respondent No.2 herein under the provisions of Sections 307, 143, 147, 148, 149, 120-B, 323, 325 and 324 of the Indian Penal Code and Section 135(1) of the Gujarat Police Act. It was alleged in the complaint that when the complainant along with his father were sitting in the house situated at his Farm, all the accused persons having deadly weapons in their hands like sword, dhariya, stick, etc., came at the Farm of the complainant in three vehicles and attacked on both of them. It was alleged that the present respondent No.2 - Bhaya Vershi Luna gave two sword blows to the complainant on his head and another accused namely Ranmal Karsan gave two dhariya blows to the complainant. Pursuant to the attack by these two accused, he fell down and thereafter rest of the accused attacked with sticks, pursuant to which, several injuries were caused to them. Immediately they were shifted to Hospital and F.I.R. was lodged with the Kalyanpur Police Station when the injured was in Hospital.
2.2 Pursuant to the said complaint, all the accused were arrested by the police authority. The present respondent No.2 filed an application u/s.439 of the Code of Criminal Procedure before the learned Additional Sessions Judge, which was rejected by learned Sessions Judge. Said application was filed before completion of the investigation.
2.3 After completion of the investigation, Investigating Agency filed charge-sheet on 28/06/2012. After submission of charge-sheet, the present respondent No.2 along with all other accused filed Criminal Misc.Application No.301 of 2012 in the Court of learned Additional Sessions Judge, Khambhaliya and prayed for releasing them on regular bail. Learned 4th Additional Sessions Judge, Khambhaliya rejected the application vide order dated 13/07/2012. It is pertinent to note at this stage that no application was preferred by the present respondent No.2 before this Court u/s.439 of the Code of Criminal Procedure.
2.4 The present respondent No.2 herein again submitted an application being Criminal Misc. Application No.367 of 2012 in the Court of learned 4th Additional Sessions Judge, Khambhaliya and prayed to release him on regular bail on the ground of his own sickness. Learned Additional Sessions Judge after considering medical papers and considering his own earlier order dated 13/07/2012 did not accept the said application and rejected the same. While rejecting the said application on 05/09/2012, learned Additional Sessions Judge directed the Jail authority to provide medical treatment in case of necessity.
2.5 Though second regular bail application, which was filed after filing of the charge-sheet was dismissed on merits as well as on the ground of his own medical treatment, the respondent No.2 herein again preferred an application u/s.439 of the Code of Criminal Procedure for regular bail being Criminal Misc. Application No.456 of 2012 before the learned 4th Additional Sessions Judge, Khambhaliya and requested that he may be released on regular bail. It was contended in his application that other accused namely Kumbha Vershi and Parbat Ranmal, were granted bail by Hon ble High Court of Gujarat, he may be released on regular bail. It was also contended in his application that in the months of September,2012 and October,2012, he was released on temporary bail by the Hon ble High Court.
The said third regular bail application was opposed by learned Public Prosecutor on the ground that there were no change of circumstances, which would entitle the respondent No.2 for getting regular bail from the Court. It was submitted that the case has been committed and even the charge is framed against the accused. It was also argued that releasing under-trial prisoner on temporary bail in certain circumstances cannot be treated as change circumstances for considering the case for releasing the person on bail when the same earlier Court had exhaustively dealt with the case of the accused and rejected the bail application.
The learned 4th Additional Sessions Judge, Khambhaliya, who subsequently became 5th Additional Sessions Judge, accepted the application of respondent No.2 herein filed u/s.439 of the Code of Criminal Procedure and released him on regular bail on 07/11/2012.
Hence, the petitioner herein original complainant has preferred the present application u/s.439(2) of the Code of Criminal Procedure for cancellation of bail granted in favour of the respondent No.2- accused.
3. Mr.Abhaykumar Shah, learned advocate appearing for the petitioner herein original complainant has submitted that learned Additional Sessions Court has erred in considering the case of the respondent No.2 only on the ground that when the respondent-accused was released on temporary bail on three to four occasions, he has not committed any offence. He has submitted that learned Sessions Judge has erred in holding that five months are passed from the date of offence, for considering the said regular bail application. It was further argued that learned Sessions Judge has erred in re-appreciating the medical evidence, which was already discussed in the first regular bail application filed by the respondent-accused. He has submitted that learned Sessions Judge erred in considering that the charge is framed against the accused, which otherwise, would go against the accused and not in favour of the accused. He has submitted that learned Sessions Judge has erred in considering that the respondent-accused had to visit the Hospital on the ground of his own treatment, but as per the observation made by learned Sessions Judge himself in the order dated 05/09/2012, that in absence of any opinion from the Doctor with regard to treatment of the accused and when the accused was not referred to any specialized Hospital, learned Judge has committed an error in considering the application being third regular bail application filed by the accused, after filing of the charge-sheet. He has submitted that the respondent-accused miserably failed in establishing any changed circumstances that to substantial one and, therefore, third regular bail application ought not to have been considered by the learned Additional Sessions Judge.
3.1 Mr.Abhaykumar Shah, learned advocate appearing on behalf of the petitioner further submitted that by filing objections by the complainant, an attention was drawn to the learned Additional Sessions Judge that similarly situated accused namely Ranmal Karsan Luna was not released on bail by the High Court, who had filed Criminal Misc. Application No.13638 of 2012 before this Court. Though attention was drawn, learned Judge has not considered the order passed by the High Court, by which, similarly situated person, who has attacked the complainant with Dhariya, was not released by the High Court.
3.2 In support of his submission, he has relied upon the judgment rendered by the Apex Court in the case of State of Maharashtra v. Captain Buddhikota Subha Rao reported in AIR 1989 SC 2292; in the case of Kalyan Chandra Sarkar v. Rajesh Ranja alias Pappu Yadav and another reported in AIR 2004 SC 1866 as well as in the case of Rajubhai Pithabhai Vala v. State of Gujarat and others reported in 2011(2) GLH 42 and submitted that as per these judgments, though an accused is entitled for filing the application for releasing him on bail subject to substantial change in the matter, not merely cosmetic change, which are of little and no consequence. It is submitted that in the case of Kalyan Chandra Sarkar (supra), it was held by the Apex Court that successive bail application cannot be entertained only on the ground that the accused is in custody for a long period.
By making above submissions and relying upon above decisions, it is requested to cancel the regular bail granted to the respondent No.2 herein- original accused.
4. On the other hand, Mr.S.V.Raju, learned Senior Counsel, assisted by Mr.Jayprakash Umot, learned advocate has opposed the present application. He has submitted that the principle laid down by the Apex Court with regard to granting bail and cancelling bail, are different. He has further submitted that once the bail is granted unless any breach is committed or any allegation with regard to tampering with the evidence or threatening the witnesses are there, bail may not be cancelled. It is submitted that main offence registered against the respondent-accused is punishable under section 307 of the Indian Penal Code. He has further submitted that since the injured were discharged from the Hospital, learned Sessions Judge has rightly considered the case of the accused for bail. He has further submitted that when the respondent-accused was released on temporary bail, he has not committed any offence and no complaint has been lodged before the police by the petitioner-original complainant that he was threatened by the accused when the accused was released on bail and, therefore, learned Sessions Court has rightly exercised his power u/s.439 of the Code of Criminal Procedure. It is rightly submitted that when the first regular bail application was submitted in the month of July,2012, only two months had passed. Now he remained in incarceration for 5 months and, therefore, learned Sessions Judge was not wrong in releasing the accused on regular bail. He further submitted that this relevant factor for considering the application for cancellation of bail, would go in favour of the accused.
In support of his submission, he has relied upon the decision rendered in the case of Bhausaheb Nagu Dhavare v. State of Maharashtra & Anr. reported in 2001(3) Crimes 410. By relying upon the aforesaid decision, it is submitted that the Apex Court has considered the case of the accused in successive bail application, which was charged for the same offence punishable u/s.307 of the Indian Penal Code. It is held that when the victim survived and there is no prospect of the offence being escalated to higher counts, it was considered by the Hon ble Apex Court and similarly in the present case when injured persons are discharged from the Hospital, learned Sessions Judge was right in releasing the accused on regular bail.
Mr.S.V.Raju, learned Senior Counsel appearing for the respondent No.2- accused further argued that the accused had also filed/registered an FIR for the same incident on 15/05/2012 against the original complainants under the provisions of Sections 323, 504, 506(2) and 114 of the Indian Penal Code and, therefore, learned Sessions Judge has rightly released the accused on bail. In support of his submission, he has relied upon the judgement in the case of Jetha Bhaya Odedara v. Ganga Maldebhai Odedara reported in 2012(1) GLH 601 delivered by the Apex Court. By relying upon the certain part of Para-6, he has submitted that since the accused has not committed any breach of the conditions imposed by the High Court while releasing him on temporary bail, no interference is required by this Court under the provisions of Section 439(2) of the Code of Criminal Procedure.
5. Ms.Hansa Punani, learned Additional Public Prosecutor has supported the arguments advanced by Mr.Shah for the original complainant and submitted that from the papers of investigation, it is clear that there were no substantial changes in case which would have been entitled the accused for bail in third successive bail application, after filing of the charge-sheet.
6. I have heard learned advocate appearing on behalf of the respective parties. As per the principles laid down by the Apex Court with regard to exercising the powers u/s.439(2) of the Code of Criminal Procedure, in catana of decisions, it has been held that very cogent and convincing reasons are necessary for cancellation of bail, which are already granted. It is true that the respondent-accused was released on temporary bail by this Court on three occasions, he did not commit any offence. It is apparent from the order that the respondent-accused was released on temporary bail for the ailment of his minor daughter, who was suffering from Falciparam malaria. It was the case of the respondent No.2 accused before the learned Sessions Judge that he was released on temporary bail by this Court for his own treatment and he has not committed any breach of conditions imposed by this Court.
7. In my opinion, learned Additional Sessions Judge did not consider the case of the respondent-accused for regular bail on two occasions after filing of charge-sheet and after perusing the entire record, which was before him in the month of July,2012 as well as in the month of September,2012. In absence of any discussion with regard to merits in third regular bail order, by which, the respondent-accused was released on regular bail, I do not find any discussion on merits i.e. role played by the accused, sword used him and part of the body on which he aimed i.e. head of the injured. Since the charge is framed, it is not desirable to discuss the role played by the accused, which may go against the accused and particularly when he has been released not on merits.
Though in the cases of Rambilas reported in (2001)6 SCC 388; Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and another reported in 2004(7) SCC 528 as well as in the case of Gobarbhai Naranbbhai Singala v. State of Gujarat and others reported in (2008)3 SCC 775, empowers the Higher Court to cancel the bail if the order is found to be perverse and is granted by the learned Lower Court without giving any reasons. This application is being considered only on the ground of illegality committed by learned Sessions Court while entertaining third successive bail application, after-filing of the charge-sheet. It is apparent from the order dated 13/07/2012 passed by learned Additional Sessions Judge that he has considered the case of respondent-accused in detail in which, it was held that the accused is not only person, who attacked the injured but came along with other six persons at the Farm, which belongs to the injured person. It is observed that each person is named in the FIR and prima facie it was observed that there were enmity between two groups and by making unlawful assembly, they attacked on the injured persons with deadly weapons pursuant to which, two persons sustained injuries including fractures, haemorrhage and ultimately dismissed the application. It was also observed in the order dated 05/09/2012 passed by learned 4th Additional Sessions Judge in second successive bail application after charge-sheet that the petitioner was not entitled for regular bail on the ground of his own sickness. Contention raised by the accused in the said application with regard to enlargement of the other co-accused by the High Court was also considered by the Court and ultimately rejected the said application. It is a well settled principle of law that when the successive application comes before the Court, the Court would be very conscious while considering the successive bail application.
8. As held by the Apex Court in the State of Maharashtra v. Captain Buddhikota Subha Rao (supra) that successive bail application can be entertained by the Court when substantial change is established by the accused, which would entitle him for getting bail in successive bail application. The Court should not pass the order of releasing him on bail in successive bail application merely establishing some cosmetic change between time gap of two applications. There should be drastic change during the period between two applications, which would entitle the accused for bail.
9. In case of Kalyan Chandra Sarkar (supra), the Hon ble Apex Court has held that the Court before entertaining such successive bail application must consider the reasons and grounds on which the earlier bail applications were rejected. When a successive bail application comes before the Court, it is the duty of the Court to record that what are the fresh grounds, which persuade it to take a view different from the one taken in the earlier application.
In the case of Rajubhai Pithabhai Vala (supra), this Court by relying upon the numerous judgements rendered by the Apex Court, has held that successive bail application must be considered with care and caution and not in all cases. The discretion should be exercised in very good and deserving cases quite sparingly and not as a matter of course.
10. In the present case, I have considered that learned Additional Sessions Judge has not at all examined the reasons given by himself while rejecting the earlier bail application filed by the accused. The only consideration, which learned Sessions Judge has kept in mind is that during the period of temporary release of accused by this Court, he has not committed any offence. In my opinion, learned Additional Sessions Judge ought to have considered the order dated 8/10/2012 passed by this Court in Criminal Misc. Application No.13638 of 2012, which was passed prior to decide the present bail application and particularly it was brought to the notice that bail application of the similarly situated accused is refused. When same learned Sessions Judge had on two occasions, after considering all the material of charge-sheet papers, rejected the application by sound reasoning, he has failed in carved out any substantial change of facts, circumstances, etc. at the time of passing the impugned order. In my opinion, submission made by Mr.Raju that the accused is in jail since last more than five months, cannot be considered the ground while deciding the third bail application, without any substantial change in the matter.
11. In the case of Bhausaheb Nagu Dhavare (supra), the question of successive bail application was not under consideration. In the case of Jetha Bhaya Odedara (supra), Hon ble Apex Court while considering the petition u/s.439 (2) of the Code of Criminal Procedure for cancelling the bail granted by High Court in the year 2010, it was held that since last two years, no untoward incident has been recorded and considered the case on the ground that the accused did not commit breach of the conditions imposed by the High Court, thought it fit not to exercise it s power. The facts of the present case are not comparable with the facts of the said application and, therefore, the same is not applicable.
12. Learned advocate Mr.Shah has placed an order of this Court qua co-accused namely Ranmal Karsan, by which his second successive bail application is rejected. Similarly respondent-accused has also placed an order of another differently placed co-accused whose successive bail is accepted by this Court. I have not taken into consideration either of two, since both the orders are passed subsequent to order, impugned in this application.
Mr.Raju, learned Senior Counsel appearing for the respondent-accused could not established any type of substantial change in the merits of the matter between the time gap from the month of July to November, which had weighed with learned Sessions Judge to reconsider the case.
13. Before concluding, I would like to observe that in the case of State of Gujarat V/s. Sushilaben, this Court has deprecated the conduct of the learned Session Court, who entertained the successive bail application without any substantial change. After considering the entire case on record, this High Court recommended the departmental inquiry against the concerned Judge, who in absence of substantial change, entertained the successive bail application and released the accused on bail. In the present case, learned Additional Sessions Judge, who himself had rejected the application of the accused on merits, has considered the case of the accused after about five months, I would not like to recommend any departmental inquiry against the concerned Judge. However, as stated by the Apex Court as well as this Court and other High Courts, a Judge should be very conscious while dealing with the successive bail application when earlier bail application was dismissed on merits.
14. Considering the above facts and circumstances of the case, the present application is allowed only on the ground that learned Additional Sessions Judge has entertained third regular bail application after filing of the charge-sheet without any substantial change in the matter.
15. In view of the above, the present application is allowed. The impugned order dated 07/11/2012 passed by learned Fifth Additional Sessions Judge, Khambhaliya, District: Jamnagar, in Criminal Misc.Application No.456 of 2012 is hereby quashed and set aside. Bail bond stands cancelled forthwith. Rule is made absolute accordingly.
16. An oral request made by learned advocate appearing for the respondent No.2 original accused to stay the implementation, execution and operation of the present order, is hereby refused.
[A.J.DESAI, J.] *dipti Page 14 of 14