Gujarat High Court
Anandbhai Shaktidan Gadhvi vs State Of Gujarat on 25 August, 2020
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/23632/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23632 of 2019
With
R/CRIMINAL MISC.APPLICATION NO. 20687 of 2019
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ANANDBHAI SHAKTIDAN GADHVI
Versus
STATE OF GUJARAT
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Applicant(s) No. 1
MR RAHUL K DAVE(3978) for the Applicant(s) No. 1
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
MR JM PANCHAL WITH MR ROHANKUMAR M AMIN(8851) for the
Respondent(s) No. 2
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 25/08/2020
ORAL ORDER
1. Both these applications have been preferred under section 439(2) of the Code of Criminal Procedure seeking cancellation of the bail granted to respondent No.2, original accused, vide order dated 22.10.2019 passed by the Court of learned Additional Sessions Judge, Bhuj-Kachchh in Criminal Misc. Application No.928 of 2019. The questions of law to the facts involved are intertwined and hence, they are disposed of by this common order.
2. The facts in brief are as under;
On 13.08.2019 the applicant herein, original complainant, filed a complaint before B Division Police Station, Bhuj inter alia alleging that the respondent No.2 herein, original accused, has Page 1 of 14 Downloaded on : Thu Aug 27 04:44:35 IST 2020 R/CR.MA/23632/2019 ORDER committed offences under section 376(2)(n) of IPC and sections 4, 5(l) and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act"). It was inter alia averred that the applicant is the father of the victim, who was born on 18.10.2002. The respondent No.2, who is married and a Doctor by profession, invited the victim to his house under the guise of giving her tuition and thereafter, lured her to enter into physical relationship with him on several occasions, which, ultimately, led to the filing of the complaint.
2.1 Pursuant to the filing of the complaint, the respondent- accused moved an application for bail before the Court of learned Additional Sessions Judge. However, the same was rejected. Thereafter, the applicant preferred Criminal Misc. Application No.18500 of 2019 before this Court seeking regular bail. The said application was disposed of, as withdrawn, vide order dated 01.10.2019.
2.2 After the charge-sheet was filed, the respondent-accused preferred an application seeking regular bail before the Court of learned Additional Sessions Judge, Bhuj-Kachchh in Criminal Misc. learned Application No.928 of 2019. After hearing both the sides, the learned Additional Sessions Judge allowed the application by releasing the applicant on regular bail on certain terms and condition, by way of the impugned order.
3. Criminal Misc. Application No.20687 of 2019 has been filed with the prayer to cancel the regular bail granted to the applicant herein on the ground that the impugned order passed by the learned Additional Sessions Judge is illegal and perverse Page 2 of 14 Downloaded on : Thu Aug 27 04:44:35 IST 2020 R/CR.MA/23632/2019 ORDER and suffers from the vice of jurisdictional error.
3.1 Criminal Misc. Application No.23632 of 2019 has been filed with the prayer to cancel the bail granted to the respondent- accused on the ground that pending adjudication of Criminal Misc. Application No.20687 of 2019, the respondent-accused committed breach of the conditions of bail whereby, the victim was attacked with a weapon like knife and was exerted pressure to withdraw the prosecution.
4. Mr. K.R. Dave, learned advocate appearing for the applicant-original complainant in both these matters, submitted that the learned Additional Sessions Judge has not considered the gravity and seriousness of the alleged offence while releasing the respondent-accused on regular bail. The main ground which weighed with the learned Additional Sessions Judge for granting bail are some minor contradictions in the statements submitted along with the charge-sheet papers. It was submitted that the respondent and the complainant belong to the same community and are neighbours. Taking advantage of this situation, the respondent lured the victim and established sexual relationship with her knowing fully well that she is a minor. It was, accordingly, submitted that the impugned order passed by the learned Additional Sessions Judge is illegal and perverse and hence, it deserves to be quashed and set aside.
4.1 It was further submitted that after the respondent was released on regular bail, the respondent hatched a conspiracy with the intention to deter the victim and her family from prosecuting the impugned complaint. It was submitted that on Page 3 of 14 Downloaded on : Thu Aug 27 04:44:35 IST 2020 R/CR.MA/23632/2019 ORDER 10.12.2019 the father of the victim, the applicant herein, lodged a first information report being C.R. No.II-446 of 2019 with B Division Police Station, Bhuj under sections 323 and 506(2) of IPC and section 135 of the Gujarat Police Act against some unknown individual inter alia alleging that on 10.12.2019 an unknown masked individual had assaulted the victim with a knife and had threatened her with life, if the case was not withdrawn. It was submitted that thus, the victim has been pressurized and threatened by the respondent to withdraw the case.
4.2 Learned advocate Mr. Dave further submitted that the bail granted to the respondent has adverse impact on the society and on the minor victim in particular. It was contended that a prosecution under the provisions of the POCSO Act draws a presumption of culpable mind against the respondent coupled with the fact that the victim is incapable of giving any kind of consent. Thus, the order granting bail to the respondent has been challenged on the grounds of illegality and perversity as also on the subsequent conduct of the respondent pursuant to his release on bail, which tantamount to a breach of the conditions of bail.
5. Mr. J.M. Panchal, learned advocate appearing with Mr. R.M. Amin, learned advocate for respondent No.2, original accused, submitted that both these applications seeking cancellation of bail granted to the respondent-accused have been preferred by a private party and not by the State. It is submitted that bail once granted should not be cancelled in a mechanical manner, without considering whether any supervening Page 4 of 14 Downloaded on : Thu Aug 27 04:44:35 IST 2020 R/CR.MA/23632/2019 ORDER circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom. In the present case, in the absence of any supervening circumstance having been made out based on a cogent case, the bail granted to the respondent-accused may not be cancelled.
5.1 It was submitted that the subsequent lodging of the first information report in C.R. No.I-145 of 2019 with Bhuj B Division Police Station cannot be considered as a supervening circumstance inasmuch as the said complaint relates to an assault on the victim with a weapon like knife allegedly by some "unknown individual" and at the end of investigation, the police has filed an 'A' summary report. Thus, there is nothing on record to prove that the respondent-accused has indulged into any illegal activity which may warrant the cancellation of bail granted to him.
5.2 Learned advocate Mr. Panchal further submitted that the impugned order of the learned Additional Sessions Judge granting bail to the respondent-accused is legal and valid as the learned Additional Sessions Judge has assigned cogent reasons while releasing the respondent-accused on bail. It was submitted that bail can be cancelled in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the Court granting bail ignores relevant material 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, then cancellation of bail in such case would be justifiable. The attention of the Court was drawn to the charge-sheet papers, particularly, the statements of Page 5 of 14 Downloaded on : Thu Aug 27 04:44:35 IST 2020 R/CR.MA/23632/2019 ORDER the victim, to high-light that there are contradictions in the version of the victim and that the victim has over-exaggerated the facts with the clear intention to arraign the respondent- accused. Further, the complaint has been filed after a delay of 43 days from the date of the alleged incident. The medical evidence rules out the possibility of sexual relationship. It was, accordingly, urged that the learned Additional Sessions Judge was justified in releasing the respondent-accused on bail and the applicant has not made out any case warranting the cancellation of bail granted to the respondent-accused.
5.3 In support of his submissions, Mr. J.M. Panchal, learned advocate, relied on some unreported decisions of this Court passed in Criminal Misc. Applications No.2489/2019 dated 28.02.2019, 23962/2018 dated 16.01.2019, 17636/2017 dated 01.08.2017, 14406/2017 dated 03.07.2017 and 26183/2016 dated 04.11.2016 to bring home the point that even if serious cases, like offences under the POCSO Act, the accused have been released on bail and that bail, in such cases, could not be considered as perverse or illegal.
5.4 Learned advocate Mr. Panchal further relied on the following decisions in support of his legal submissions ;
(i) Myakala Dharmarajam and others v. State of Telangana and another, (2020) 2 SCC 743.
(ii) 'X' v. State of Telangana and another, (2018) 16 SCC
511.
(iii) Prabhakar Tewari v. State of U.P. and another, 2020 Page 6 of 14 Downloaded on : Thu Aug 27 04:44:35 IST 2020 R/CR.MA/23632/2019 ORDER SCC OnLine SC 75.
6. Mr. Pranav Trivedi, learned Additional Public Prosecutor, adopted the submissions advanced by Mr. K.R. Dave, learned advocate for the applicants.
7. Having heard learned advocates on both the sides, essentially, this Court is required to analyse whether there was a valid exercise of the power conferred by section 439 Cr.P.C. to grant bail. The power to grant bail under section 439 Cr.P.C. is of wide amplitude but it is well settled that though the grant of bail involves the exercise of discretionary power by the Court, it has to be exercised in a judicious manner and not as a matter of course. The determination whether a case is fit for the grant of bail involves the balancing of numerous factors among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for Courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the Court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused, as that is a matter for trial. It is for this reason that a Court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-by-case basis.
8. Section 439 Cr.P.C. grants special powers to the High Court or the Court of Sessions to grant bail and also empowers any person released on bail under Chapter XXXIII to be arrested Page 7 of 14 Downloaded on : Thu Aug 27 04:44:35 IST 2020 R/CR.MA/23632/2019 ORDER and to commit him to custody. While releasing any person who is alleged to have committed any offence of the nature specified in sub-section (3) of Section 437 Cr.P.C, the Court may impose any condition, which it considers necessary for the purpose mentioned in that sub-section. For this purpose, it would be relevant to refer to the provision of sub-section (2) of section 439 Cr.P.C., which reads thus;
"S-439(2) : A High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."
8.1 The power to cancel bail can be exercised under sub- section (2) of Section 439 Cr.P.C. suo motu or at the instance of the State or the aggrieved party. In the case of Abdul Basit @ Raju and others v. Mohd. Abdul Kadir Chaudhary and another, (2014) 10 SCC 754, it has been held that although the Court granting bail can cancel the bail on ground of accused's misconduct or new adverse facts having surfaced after the grant of bail, however, in view of express bar contained in section 362 CrPC, it cannot review its order as to grant of bail on ground of it being unjustified, illegal or perverse and that such challenge to bail order on ground of it being illegal or contrary to law can be determined only by the Court superior to the Court which granted bail.
8.2 It is well settled law that the criteria for rejection of bail in a non-bailable offence at the initial stage and for cancellation of bail stand on different footing. In the same way, the concept of setting aside an unjustified, illegal or perverse order granting bail is different from the concept of cancellation of bail on the Page 8 of 14 Downloaded on : Thu Aug 27 04:44:35 IST 2020 R/CR.MA/23632/2019 ORDER ground of accused's misconduct or on the emergence of new adverse facts after the grant of bail, which requires cancellation of bail as held in Abdul Basit's case (supra). The decision of the Supreme Court would show that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the Court superior to the Court which granted the bail and not by the same Court.
9. In assessing the rival submissions, it is necessary to advert to the facts of the case. The learned Additional Sessions Judge rejected the bail application preferred by the respondent-accused on 05.09.2019, which was filed before the filing of charge-sheet. The respondent-accused thereafter preferred bail application before this Court in Criminal Misc. Application No.18500 of 2019, which was disposed of, as having been withdrawn, vide order dated 01.10.2019. After the filing of charge-sheet, the respondent-accused preferred bail application in Criminal Misc. Application No.928 of 2019 before the learned Additional Sessions Judge, which came to be allowed, vide impugned order dated 22.10.2019. While granting bail to the respondent- accused, the learned Additional Sessions Judge made the following observations in paragraphs-10 and 11 of its order;
"10. I have given my thoughtful consideration to the arguments advanced by rival parties. So far the say of the de-facto complainant and Ld. PP that mere filing of charge- sheet is not a change in circumstances and when this Court has rejected the first bail application preferred by the present applicant/accused at the stage of FIR, present application may be rejected is concerned, in this regard, I would like to refer my earlier order in Cr.M.A. No. 774/2019 wherein at Para No. 7, it is held that, "That, merely because after commission of alleged offence, complaint came to be lodged after about one week, it Page 9 of 14 Downloaded on : Thu Aug 27 04:44:35 IST 2020 R/CR.MA/23632/2019 ORDER cannot be considered sole ground to grant bail when the investigation is not over" and, therefore, the first bail application preferred by the present applicant/accused was rejected without entering into merits only because the investigation was not over but now Investigating Officer has completed the investigation and charge sheet came to be filed and pursuant to that charge-sheet, POCSO Case No. 32/2019 is been registered against the present applicant/accused.
11. On perusal of the police papers, it becomes clear that according to the prosecution's version, no incident of the sexual assault had taken place on 25th July, 2019. According to the prosecution's case whatsoever sexual assault took place was prior to 25th July, 2019 and for that complaint came to be lodged on 13th August, 2019 and, therefore, there is delay of more than 15 days in lodging complaint. At the same time, victim is of about 17 years. That, the applicant/accused is in judicial custody since 14/08/2019. It also appears from the police papers that there are material variance in stating of material witnesses. Here in this case, de-facto complainant has relied upon AIR 1989 Supreme Court 2292, State of Maharastra Vs. Captain Buddhikota Subha Rao, 2001 (2) Crimes 30 (SC), The State of Maharastra Vs. Ritesh S/o. Vasudeo Wanjari, 1990 CR.L.R. (Guj) 361, Arvindkumar Jasram Gupta Vs. the State of Gujarat and submitted that mere filing of charge-sheet is not change in circumstances is concerned, has discussed herein above, it cannot be said that in present case there is no change in circumstance and specifically when the Hon'ble High Court has not decided the present applicant accused earlier bail before filling of the charge-sheet. Considering the ratio of the authorities relied upon by the applicant accused in Cr.M.A. No. 2489 of 2019, Jaymal @ Rudra Alias Jasin S/o. Sureshbhai Dodiya Vs. State of Gujarat, in Cr.M.A. No. 23962 of 2018 Devji Jagshiji Thakor Vs. State of Gujarat and in Cr.M.A. No.17636 of 2017 Rasik Arjanbhai Jogal Vs. State of Gujarat".
10. From the above observations, it is apparent that the learned Additional Sessions Judge has taken note of the earlier order rejecting the bail application preferred by the respondent-
Page 10 of 14 Downloaded on : Thu Aug 27 04:44:35 IST 2020R/CR.MA/23632/2019 ORDER accused. While considering the bail application preferred after the filing of charge-sheet, the learned Additional Sessions Judge took note of the prosecution case that no sexual assault had taken place on 25.07.2019; however, the impugned complaint was lodged only on 13.08.2019, viz. after a period of 18 days. Further, on examination of the charge-sheet papers, the Additional Sessions Judge found material variances in the statements of material witnesses.
11. In the present case, the learned Additional Sessions Judge has considered the contradictions in the statements of the material witnesses submitted along with the charge-sheet while allowing the bail application of the respondent. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate, in such order, reasons for prima facie concluding as to why bail was being granted, particularly, when the accused is charged of having committed a serious offence. The learned Additional Sessions Judge has not entered into detailed discussion of the material on record but has noted his prima facie satisfaction by perusing the entire material on record, which, in the opinion of this Court, exhibits application of mind on the facts of the case. Hence, the impugned order cannot be said to be suffering from the vice of jurisdictional error nor can it be termed as perverse or illegal, as has been contended by learned advocate for the applicant.
12. In Myakala Dharmarajam and others v. State of Telangana and another (supra), the Apex Court has observed thus;
Page 11 of 14 Downloaded on : Thu Aug 27 04:44:35 IST 2020R/CR.MA/23632/2019 ORDER "10. Having perused the law laid down by this Court on the scope of the power to be exercised in the matter of cancellation of baits, it is necessary to examine whether the order passed by the Sessions Court granting bail is perverse and suffers from infirmities which has resulted in the miscarriage of justice. No doubt, the Sessions Court did not discuss the material on record in detail, but there is an indication from the orders by which bail was granted that the entire material was perused before grant of bail. It is not the case of either the complainant Respondent 2 or the State that irrelevant considerations have been taken into account by the Sessions Court while granting bail to the appellants. The order of the Sessions Court by which the bail was granted to the appellants cannot be termed as perverse as the Sessions Court was conscious of the fact that the investigation was completed and there was no likelihood of the appellant tampering with the evidence."
13. This Court while considering the application for cancellation of bail on the ground of perversity should avoid re- appreciation of evidence. If irrelevant material has been taken into consideration and / or relevant material is omitted, then it would justify cancellation of the bail granted to the accused. While considering the bail application preferred by the respondent-accused after the filing of charge-sheet, the learned Additional Sessions Judge observed the material produced on record in the form of charge-sheet papers and thereafter, exercised discretion in favour of the respondent-accused. Thus, it cannot be considered that the learned Additional Sessions Judge has ignored relevant materials or has taken into account irrelevant material. Thus, Criminal Misc. Application No.20687 of 2019 fails on merits.
14. Criminal Misc. Application No.23632 of 2020 has also been preferred under section 439(2) Cr.P.C. mainly on the ground that one of the conditions of bail, which reads - "the applicant shall Page 12 of 14 Downloaded on : Thu Aug 27 04:44:35 IST 2020 R/CR.MA/23632/2019 ORDER not tamper with the witnesses" has been violated by the respondent-accused in the manner that the victim is alleged to have been threatened and injured with a knife by an unknown individual and has been pressurized to withdraw the prosecution. In the case of 'X' v. State of Telangana (supra), the facts reveal that there was a "supervening circumstance", which was the filing of a first information report by the complainant on 22.11.2017 complaining that while driving her car in New Delhi, an auto had intentionally obstructed her path and hit her car besides which, her car has been followed by another vehicle. Besides, an attempt has been made to pressurize the complainant to withdraw her complaint and to "settle" the dispute against the payment of a consideration of Rs.5 crores. On these facts, the Apex Court held as under;
"8.7 Supervening circumstances, for the cancellation of bail, must be of such a nature as to lead to the conclusion that the accused does not deserve to be at liberty either by reason of a violation of the conditions of bail or due to supervening conduct which bears upon the misuse of liberty by the accused. No such case is made out."
15. In the present case, the second first information report has been filed by the father of the victim, which was investigated upon by the police and at the end of investigation, the police did not find any merit in the complaint and therefore, filed an 'A' summary report. Considering the facts and circumstances of the case and the principle rendered in 'X' v. State of Telangana's case (supra), this Court is of the view that the filing of the second first information report cannot be considered as a supervening circumstance so as to warrant cancellation of bail granted to the respondent-accused. Hence, Page 13 of 14 Downloaded on : Thu Aug 27 04:44:35 IST 2020 R/CR.MA/23632/2019 ORDER the present application also fails on this count.
16. For the foregoing reasons, both the applications are rejected. Rule is discharged.
(GITA GOPI, J) PRAVIN / NEHA GUPTA Page 14 of 14 Downloaded on : Thu Aug 27 04:44:35 IST 2020