Gujarat High Court
Mansukhbhai Gandubhai Vasoya (Patel) vs State Of Gujarat on 6 March, 2024
NEUTRAL CITATION
R/CR.MA/18227/2022 CAV JUDGMENT DATED: 06/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
18227 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MANSUKHBHAI GANDUBHAI VASOYA (PATEL)
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR ASHISH M DAGLI(2203) for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 06/03/2024
CAV JUDGMENT
1. By way of the present petition under Section 439(2) of the Code of Criminal Procedure, 1973, the petitioner has prayed to quash and set aside the order dated 03.09.2022 passed by the Page 1 of 19 Downloaded on : Thu Mar 07 20:44:44 IST 2024 NEUTRAL CITATION R/CR.MA/18227/2022 CAV JUDGMENT DATED: 06/03/2024 undefined learned Additional Sessions Judge, Gondal, District - Rajkot in Criminal Misc. Application No.382 of 2022, whereby the learned Sessions Judge has granted anticipatory bail to the respondent - original accused.
2. Facts of the case are as under :-
2.1. The applicant is the original complainant who has filed FIR being CR No.11213030220338 of 2022 registered with Lodhika Police Station, Rajkot for the offences punishable under Sections 465, 467, 468, 471 and 120(B) of the Indian Penal Code, 1860, FIR being CR.No.11213030220338 of 2022 registered with Lodhika Police Station, Rajkot. It is relevant to mention that forged, fabricated and concocted documents dated 27.07.2018 have been created concerning valuable land of the present applicant value of which is in crores of rupees and the said document indicates that the present applicant had agreed to sell such valuable land at the rate of Rs.11,51,000/-. Based on the said forged and concocted document, a civil suit was filed before the competent Court being Regular Civil Suit No.68/2022. It is in connection with the said civil suit, the applicant herein came in the knowledge of the fact that such forged and concocted Banakhat has been executed and therefore, appropriate complaint was filed before the concerned Investigating Officer. It is submitted that the applicant herein will demonstrate that a syndicate is operating in the District Rajkot whereby such Banakhats pertaining to valuable lands are executed and the lands are put into dispute and thereafter the parties are pressurized since the accused in connection with the said offences are having serious criminal charges and antecedents Page 2 of 19 Downloaded on : Thu Mar 07 20:44:44 IST 2024 NEUTRAL CITATION R/CR.MA/18227/2022 CAV JUDGMENT DATED: 06/03/2024 undefined and finally the matters are being settled. This modus operandi is not unknown in the land transactions.
2.2. In the present case the investigation revealed that the accused i.e. the private opponent herein was the main conspirator in the alleged offence. That, the private opponent herein is the main conspirator behind such transaction. It is submitted that in past also, similar offences were committed by the private opponent herein and the applicant herein will demonstrate in detail as to how the private opponent herein has checkered history of criminal cases to his credit. The private opponent herein is the one who has got the document executed through one Chandrapal G. Khuman, Advocate. The said advocate in the statement has revealed that the private opponent herein has came with the papers of the Agreement in question and thereafter, signatures etc. were put by the said advocate.
Thus, the private opponent herein was fulcrum of the entire transaction and the main conspirator who has participated in act of making forged document. It is submitted that the private opponent herein was initially protected by way of an interim order dated 29.08.2022. That, the application of bail was preferred by private opponent herein on 25.08.2022 and since the affidavit was not filed by the concerned Investigating Officer by that time, an order granting interim protection was passed on 29.08.2022 without perusing any material merely on the assertion of private opponent that police is approaching his residence now and then. The applicant submits that the offence is serious in nature. The transactions are totally bogus and sham which have been done only with a view to usurp valuable land of the present applicant and put the land in dispute.
Page 3 of 19 Downloaded on : Thu Mar 07 20:44:44 IST 2024NEUTRAL CITATION R/CR.MA/18227/2022 CAV JUDGMENT DATED: 06/03/2024 undefined Though the land is situated at Rajkot and stamp paper is purchased from Rajkot, the document is notarized at Upleta where neither of the parties resides. To the knowledge and information of the applicant herein, the Notary at Upleta has also similar offences to his credit. The Aadhar card which has been used to notarized the document is of the year 2018 while there is another Aadhar card which is already not in existence.
2.3. The applicant submits that the accused in the present case are operating as part of syndicate and many antecedents are registered against the the private opponent. Thus, it is submitted to cancel bail granted to respondent no.2.
3. Learned advocate for the petitioner would submit that forged, fabricated and concocted documents have been created concerning valuable land of the present petitioner value of which is in crores of rupees, to show and indicates that petitioner agreed to sell valuable land. Based on said forged document, Civil Suit came to be filed before the competent Court. It is in the Civil Suit, the petitioner came to the knowledge of the fact that forged and concocted Banakhat has been executed and therefore complaint was filed before the Investigating Officer. It is submitted that investigation revealed that respondent accused was main conspirator in the alleged offence. It is submitted that in past also similar offences were committed by the respondent accused and he has checkered history of criminal cases. It is submitted that respondent accused is main conspirator who has participated in making forged documents. It is submitted respondent accused has 21 antecedent registered against him.
Page 4 of 19 Downloaded on : Thu Mar 07 20:44:44 IST 2024NEUTRAL CITATION R/CR.MA/18227/2022 CAV JUDGMENT DATED: 06/03/2024 undefined 3.1. It is submitted that impugned order is challenged on the ground of merits, thus existence of any supervening circumstances is not requiring. It is submitted that learned Trial Court while passing impugned order has ignored relevant material. It is further submitted that learned Trial Court has ignored antecedent of respondent accused and granted anticipatory bail on the ground that he is not likely to abscond. It is submitted that in similar offence, the respondent had absconded. It is submitted that learned Trial Court ought to have considered seriousness of offence when charge under section 467 of IPC carries punishment of life imprisonment. He would submit that anticipatory bail is granted lightly without considering the relevant materials. Learned advocate for the petitioner has also relied on judgment of the Hon'ble Apex Court in the case of P. v/s. State of Madhya Pradesh [2022 SCC OnLine SC 552].
3.2. On above submissions, it is submitted to allow the petition and cancel bail granted to the respondent - accused.
4. On the other hand, learned advocate for the respondent - accused has supported impugned order. It is further submitted that FIR came to be registered against 8 accused and present respondent is not named in the FIR. It is submitted that there are absolute vague allegations made in the FIR. It is submitted that FIR came to be lodged in the year 2022 for the incident alleged to have been occurred in the year 2018. It is submitted that no role is attributed to the accused. The respondent accused has fully extended his cooperation in investigation. It is submitted that nothing adverse has been found against the Page 5 of 19 Downloaded on : Thu Mar 07 20:44:44 IST 2024 NEUTRAL CITATION R/CR.MA/18227/2022 CAV JUDGMENT DATED: 06/03/2024 undefined respondent accused. It is submitted that in the present offence, Investigating Officer and complainant has filed detail affidavit before the learned Trial Court and learned Trial Court after considering entire investigation papers, has not found any material against the accused and therefore, exercised discretion to grant anticipatory bail. It is submitted that it is not the case of the complainant that accused has breached condition and not co-operated with Investigating Officer. It is submitted that accused remained present 5 times before the Investigating Officer without fail. It is submitted that even the State has also filed an application for cancellation of anticipatory bail and learned Trial Court after recording reasons rejected the said application and same is not challenged till date by the State.
4.1. It is also submitted that registration of past offences cannot be sole ground to cancel the bail. For this submission, learned advocate has relied on judgment of the Hon'ble Apex Court in the case of Maulana Mohd. Amir Rashadi v/s. State of UP [2012 (2) SCC 382]. It is further submitted that entire case is based on documentary evidence and same is triable by learned Magistrate, even charge-sheet is filed and all other accused are on bail, and after two years, impugned order should not be quashed.
4.2. Upon above submissions, it is submitted to dismiss the petition.
5. Learned APP for the State in the facts and circumstances submitted to pass necessary order.
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6. Having heard learned advocates for the parties, I may refer to judgment of Hon'ble Apex Court in the case of Prasanta Kumar Sarkar v/s. Ashish Chatterjee [(2010) 14 SCC 496], whereby, the Hon'ble Apex Court has held as under :-
"9. .However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe 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, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail."
7. Above principles have been reiterated in various judgment by the Hon'ble Apex Court and also recently in the case of Jagjeet Singh v/s. Ashish Mishra [2022 SCC Online SC 453].
8. Thus what appears that the Courts have placed the liberty of an individual at a high pedestal and extended protection to such rights, whenever and wherever required. However, emphasis has also been laid on furnishing reasons for granting bail even though they may be in brief.
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9. It is true that cogent and overwhelming circumstances are necessary for cancellation of bail and bail once granted, should not be cancelled in a mechanical manner. It is equally true that perverse order of bail is vulnerable to interference by the superior Court. At this stage, I may refer to the judgment of Hon'ble Apex Court in the case of Prakash Kadam v/s. Ramprasad Vishwanath Gupta [(2011) 6 SCC 189]. In para 18 and 19, it has been held as under.
"18. In considering whether to cancel the bail the court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him. Moreover, the above principle applies when the same court which granted bail is approached for cancelling the bail. It will not apply when the order granting bail is appealed against before an appellate/Revisional Court.
19. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail."
10. Reference can also be made to judgment of the Hon'ble Apex Court in the case of Ranjit Singh v/s. State of Madhya Pradesh [(2013) 16 SCC 797], wherein, it is held as under :-
"19. ...There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court...."Page 8 of 19 Downloaded on : Thu Mar 07 20:44:44 IST 2024
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11. In the case of Imran v/s. Mohammed Bhava [2022 SCC Online SC 496], the Hon'ble Apex Court has held as under :-
"23. Indeed, it is a well-established principle that once bail has been granted it would require overwhelming circumstances for its cancellation. However, this Court in its judgment in Vipan Kumar Dhir Vs. State of Punjab has also reiterated, that while conventionally, certain supervening circumstances impeding fair trial must develop after granting bail to an accused, for its cancellation by a superior court, bail, can also be revoked by a superior court, when the previous court granting bail has ignored relevant material available on record, gravity of the offence or its societal impact. It was thus observed:-
"9. .. Conventionally, there can be supervening circumstances which may develop post the grant of bail and are non conducive to fair trial, making it necessary to cancel the bail. This Court in Daulat Ram and Others Vs. State of Haryana observed that:
"Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail Page 9 of 19 Downloaded on : Thu Mar 07 20:44:44 IST 2024 NEUTRAL CITATION R/CR.MA/18227/2022 CAV JUDGMENT DATED: 06/03/2024 undefined during the trial."
10. These principles have been reiterated time and again, more recently by a 3 Judge Bench of this Court in X Vs. State of Telengana and Another.
11. In addition to the caveat illustrated in the cited decision(s), bail can also be revoked where the court has considered irrelevant factors or has ignored relevant material available on record which renders the order granting bail legally untenable. The gravity of the offence, conduct of the accused and societal impact of an undue indulgence by Court when the investigation is at the threshold, are also amongst a few situations, where a Superior Court can interfere in an order of bail to prevent the miscarriage of justice and to bolster the administration of criminal justice system."
24. XXXXX
25. XXXXXX
26. Thus, while considering cancellation of bail already granted by a lower court, would indeed require significant scrutiny at the instance of superior court, however, bail when granted can always be revoked if the relevant material on record, gravity of the offence or its societal impact have not been considered by the lower court. In such instances, where bail is granted in a mechanical manner, the order granting bail is liable to be set aside. Moreover, the decisions cited herein above, enumerate certain basic principles which must be borne in mind when deciding upon an application for grant of bail. Thus, while each case has its own unique factual matrix, which assumes a significant role in determination of bail matters, grant of bail must also be exercised by having regard to the above- mentioned well-settled principles."
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12. After referring various judgments and precedent on the subject, the Hon'ble Apex Court in P. v/s. State of Madhya Pradesh (supra) in para 25, 26 and 27 has held as under :-
24. As can be discerned from the above decisions, for cancelling bail once granted, the Court must consider whether any supervening circumstances have arisen or the conduct of the accused post grant of bail demonstrates that it is no longer conducive to a fair trial to permit him to retain his freedom by enjoying the concession of bail during trial. To put it differently, in ordinary circumstances, this Court would be loath to interfere with an order passed by the Court below granting bail but if such an order is found to be illegal or perverse or premised on material that is irrelevant, then such an order is susceptible to scrutiny and interference by the Appellate Court. Some of the circumstances where bail granted to the accused under Section 439 (1) of the Cr.P.C. can be cancelled are enumerated below: -
a) If he misuses his liberty by indulging in similar/other criminal activity;
b) If he interferes with the course of investigation;
c) If he attempts to tamper with the evidence;
d) If he attempts to influence/threaten the witnesses;
e) If he evades or attempts to evade court proceedings;
f) If he indulges in activities which would hamper smooth investigation;
g) If he is likely to flee from the country;
h) If he attempts to make himself scarce by going underground and/or becoming unavailable to the investigating agency;
i) If he attempts to place himself beyond the reach of his surety.
j) If any facts may emerge after the grant of bail which are considered unconducive to a fair trial.
26. We may clarify that the aforesaid list is only illustrative in nature and not exhaustive.
27. Keeping the aforesaid parameters to be borne in mind Page 11 of 19 Downloaded on : Thu Mar 07 20:44:44 IST 2024 NEUTRAL CITATION R/CR.MA/18227/2022 CAV JUDGMENT DATED: 06/03/2024 undefined when dealing with a petition where not only has the order granting bail been assailed on the ground of perversity and illegality, supervening circumstances have been pleaded by the appellant that justify interference by this Court, we may now proceed to deal with the instant case."
13. Coming back to the case on hand, what appears that against respondent accused there are as may as 21 antecedent recorded which are as under :-
Sr. Police Station/ C.R. No./Section Chargesheet No. Number - Date C.C. No. - Date S.C. No. - Date 1 Lodhika Police Station C.R. No. 25/2004, -
U/s 366, 506(2), 114 of the IPC.
2 Paddhari Police Station C.R. No. -
3102/2008, U/s 323, 504, 506(2), 114 of the IPC and section 135 of the B.P.Act.
3 Rajkot 'B' Division Police Station C.R. No. -
232/2009, U/s. 143, 147, 149, 325, 323, 506(2), 118 of the IPC.
4 Rajkot Taluka Police Station C.R. No. -
323/2009, U/s. 302, 396, 143, 147, 148, 149, 188, 120(b) of the IPC.
5 Rajkot City D.C.B. Police Station I C.R. AF No. 03/2018 No. 09/2016, U/s. 464, 465, 467, 471, Dt. 04/08/2018 120(b) of the IPC.
6 Rajkot Taluka Police Station II C.R. No. Chargesheet No. 37/2017, U/s. 323, 504, 506 of the IPC. 45/2017 Dt. 30/07/2017 C.C. No. 8262/2017 Dt. 21/08/2017 7 Paddhari Police Station II C.R. No. Chargesheet No. 3021/2018, U/s. 323, 504, 506(2), 114 of 35/2018 the IPC. Dt. 24/08/2018 C.C. No. 237/2018 Dt. 18/09/2018 Page 12 of 19 Downloaded on : Thu Mar 07 20:44:44 IST 2024 NEUTRAL CITATION R/CR.MA/18227/2022 CAV JUDGMENT DATED: 06/03/2024 undefined S.C. No. 190/2019 Dt. 25/09/2019 8 Paddhari Police Station I C.R. No. Chargesheet No. 31/2019, U/s. 307, 324, 427, 506(2), 114 50/2019 of the IPC. Dt. 11/10/2019 C.C. No. 437/2019 Dt. 23/10/2019 S.C. No. 243/2019 Dt. 20/12/2019 9 Rajkot Taluka Police Station I C.R. No. Chargesheet No. 173/2016, U/s. 406, 420, 465, 466, 467, 02/2017 468, 471, 120(b) of the IPC. Dt. 03/01/2017 C.C. No. 123/2017 Dt. 05/01/2017 10 Rajkot Taluka Police Station I C.R. No. Chargesheet No. 137/2018, U/s. 394, 397, 325, 114 of the 18/2020 IPC. Dt. 30/04/2020 C.C. No. 4656/2020 Dt. 04/05/2020 Transferred to Sessions Court.
11 Rajkot City D.C.B. Police Station C.R. No. Chargesheet No. 11208055200264/2020, U/s. 406, 420, 01/2022 114 of the IPC. Dt. 29/01/2022 C.C. No. 3483/2022 Dt. 29/01/2022 12 Rajkot City Pra.Nagar Police Station C.R. Chargesheet No. No. 11208044200067/2020, U/s. 465, 39(A)/2020 467, 468, 471, 472, 475, 120(b), 114 of Dt. 12/06/2020 the IPC. C.C. No. 4678/2020 Dt. 12/06/2020 13 Rajkot City Pra.Nagar Police Station C.R. Chargesheet No. No. 11208044201456/2020, U/s. 224, 161/2022 225 of the IPC. Dt. 01/02/2022 C.C. No. 7184/2022 Dt. 17/02/2022 14 Lodhika Police Station C.R. No. Investigation going 11213030220338/2022, U/s. 465, 467, on. 468, 471, 120(b) of the IPC.
Page 13 of 19 Downloaded on : Thu Mar 07 20:44:44 IST 2024NEUTRAL CITATION R/CR.MA/18227/2022 CAV JUDGMENT DATED: 06/03/2024 undefined 15 Rajkot City Pra.Nagar Police Station C.R. Chargesheet No. No. 11208044220794/2022, U/s. 406, 23/2023 420, 465, 467, 468, 471, 120(b) of the Dt. 16/01/2023 IPC. C.C. No. 742/2023 Dt. 17/01/2023 16 Rajkot City Pra.Nagar Police Station C.R. Chargesheet No. No. 11208044220848/2022, Section 52 of 16/2023 the Jail Act. Dt. 02/02/2023 C.C. No. 2304/2023 Dt. 06/02/2023 17 Rajkot Taluka Police Station C.R. No. Investigation going 11208053230685/2023, U/s. 323, 504, on. 506(2), 114 of the IPC.
18 Paddharai Police Station Chapter Case --
No. 02/2018, Section 56 of the G.P. Act. 19 Gandhigram Police Station C.R. No. --
16/2016, U/s. 323, 504, 114 of the IPC (N.C.) 20 Rajkot City Rajkot Taluka Police Station Declared on 11208053231115/23, U/s. 3(1),(2), 3(2), 04/12/2023 and 3(4) of the GUJCTOC.
21 L.C.B. Rajkot Rural Chapter Case No. -
01/2022, U/s. 2(H-Z) of the PASA Act.
14. Presently, the accused is behind bar in offence under GUJCTOC registered with Rajkot City Police Station. The table stated herein-above indicates that accused having enlarged on anticipatory bail by the learned Sessions Judge continued to indulge in various offence which can be discerned from the above table. Further it can be noticed from the record of the petition that accused when was in custody of an offence, absconded from PDU Hospital on 11.09.2020 and was arrested only on 15.11.2021. The accused has played active role in commission of offence.
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15. Learned Trial Judge while enlarging the accused on bail has given following reasons in para 4 which reads as under :-
"4. After hearing the contesting parties and perusing the entire documents it transpires that the present applicants does not find any mention in the first information report. Even in the affidavit filed by the investigating officer no specific role of any of the applicant could come in light which would warrant their arrest and detention. Even the complainant has raised his allegations against the present applicants which are, as of now, based on his assumptions. To curtail the liberty of any person and put him behind the bars is an infringement of his right to life and personal liberty. Once such an option is to be taken that must be on the basis of valid grounds leading to strong suspicion which, in this case is missing as of now.
Three of the applicants are shown to have criminal antecedents as per the affidavit filed by the investigating officer. The criminal antecedents can be one of the deciding factors but it cannot be the sole deciding factor while exercising the discretion of a regular or anticipatory bail. Therefore, the criminal history of the applicants shall not be of any help to the prosecution in this case and at this stage because I do not find any sort of specific allegation or role of any of the applicant."
16. It appears that the learned Trial Court while enlarging the accused on anticipatory bail has totally ignored parameters of grant or refusal of bail. Antecedents of accused has not been considered properly but in very casual manner, learned Trial Court has observed that criminal antecedent can be one of the deciding factors but it cannot be sole deciding factor while exercising discretion of regular or anticipatory bail. It is further surprisingly observed by the learned Trial Court that criminal history of the accused shall not be of any help to the prosecution in the case. Observation and finding arrived at by learned Trial Page 15 of 19 Downloaded on : Thu Mar 07 20:44:44 IST 2024 NEUTRAL CITATION R/CR.MA/18227/2022 CAV JUDGMENT DATED: 06/03/2024 undefined Court are unjust and perverse. The are inconsistent with settled principle of grant or refusal of bail.
17. According to this Court, impugned order passed by the learned Trial Court is perverse, not only that the accused has also misused his liberty. Even after he was enlarged on anticipatory bail, he continued to indulge in identical offence, which can be discerned from Sr.No.15,16, 17,19 and 20 of the above table. What further appears that no case for exercising discretion of giving extraordinary relief of anticipatory bail was made out. Learned Sessions Judge has not discussed merits and no reasons are implied to extend extraordinary relief of anticipatory bail in the impugned order, which makes impugned order bereft of reasons and requires to be quashed and set aside.
18. Learned advocate for respondent would submit that jail authority were putting atrocity to the accused and issue was placed before the Hon'ble Apex Court by way of Writ Petition (Criminal) No.287 of 2021, whereby, the accused was shifted to Central Jail, Ahmedabad and inquiry was initiated against concerned officer. It is submitted that thus accused is falsely involved in the offence though he is innocent person. The submission has hardly any bearing on the issue. One cannot be oblivious to the facts of the case. The respondent accused is involved in the offence of criminal breach of trust and forging documents and place them as genuine one before the authorities i.e. before Court to scuttle property right. It was not happened once, but repeatedly done before and after the impugned offence. Respondent seems to be habitual offender. Thus, taking these Page 16 of 19 Downloaded on : Thu Mar 07 20:44:44 IST 2024 NEUTRAL CITATION R/CR.MA/18227/2022 CAV JUDGMENT DATED: 06/03/2024 undefined aspects, prosecution has also invoked offence under GUJCTOC. Thus, the respondent accused who is habitual offender, exercise of discretion in his favour was not permissible.
19. Learned advocate for respondent also submitted that as many as in 5 offences, the accused is acquitted from the offence and in 3 criminal cases, FIR is quashed. Yet large number of offence are registered against the accused and that too within Rajkot City and in vicinity of Rajkot. The accused who is habitual in indulging identical offence could not be considered for extraordinary remedy. The impugned order is perverse, bad in law and against settled principles of law.
20. Before, parting with the order I may refer to the judgment of Hon'ble Apex Court in the case of State of Bihar v/s. Rajballav Prasad [2017 (2) SCC 178]. In para 12 and 21, the Hon'ble Apex Court has held as under :-
"12. We may observe at the outset that we are conscious of the limitations which bind us while entertaining a plea against grant of bail by the lower court, that too, which is a superior court like High Court. It is expected that once the discretion is exercised by the High Court on relevant considerations and bail is granted, this Court would normally not interfere with such a discretion, unless it is found that the discretion itself is exercised on extraneous considerations and/or the relevant factors which need to be taken into account while exercising such a discretion are ignored or bypassed. In the judgments relied upon by the learned counsel for the respondent, which have already been noticed above, this Court mentioned the considerations which are to be kept in mind while examining as to whether order of bail granted by the court below was justified. There have to be very cogent and overwhelming circumstances that are necessary to Page 17 of 19 Downloaded on : Thu Mar 07 20:44:44 IST 2024 NEUTRAL CITATION R/CR.MA/18227/2022 CAV JUDGMENT DATED: 06/03/2024 undefined interfere with the discretion in granting the bail. These material considerations are also spelled out in the aforesaid judgments, viz. whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with the evidence. We have kept these very considerations in mind while examining the correctness of the impugned order.
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21. Keeping in view all the aforesaid considerations in mind, we are of the opinion that it was not a fit case for grant of bail to the respondent at this stage and grave error is committed by the High Court in this behalf. We would like to reproduce following discussion from the judgment in the case of Kanwar Singh Meena v/s. State of Rajasthan (2012) 12 SCC 180 :
"10...While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately Page 18 of 19 Downloaded on : Thu Mar 07 20:44:44 IST 2024 NEUTRAL CITATION R/CR.MA/18227/2022 CAV JUDGMENT DATED: 06/03/2024 undefined result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this court are much wider, this court is equally guided by the above principles in the matter of grant or cancellation of bail.
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18. Taking an overall view of the matter, we are of the opinion that in the interest of justice, the impugned order granting bail to the accused deserves to be quashed and a direction needs to be given to the police to take the accused in custody..."
21. For the foregoing reasons, the present application is allowed. This Court finds that it was not a fit case to grant anticipatory bail to the accused. Learned Trial Court has committed grave error and therefore, impugned order is quashed and set aside. The anticipatory bail granted to the respondent accused is cancelled. Since the respondent is already in custody under GUJCTOC offence, he shall also to be treated in judicial custody of the FIR being C.R.No.11213030220338 of 2022 i.e. present FIR.
22. Needless to say that respondent would be at liberty to move for regular bail. Findings and observations arrived at by this Court herein-above would not come in the way of concerned Court to decide regular bail application, if moved.
(J. C. DOSHI,J) SATISH Page 19 of 19 Downloaded on : Thu Mar 07 20:44:44 IST 2024