Dharamsinh Jayrambhai Patel ... vs State Of Gujarat & 4

1. Heard Mr. Adil Mirza, learned advocate for the applicant, Mr. K.P. Rawal, learned Additional Public Prosecutor for respondent no.1 and Mr. D.A. Chaudhari, learned advocate for respondents no.2 to 5.

2. By this application under Section 439(2) read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the applicant - original complainant has prayed for cancellation of bail granted by the learned 8th Additional Sessions Judge (Ad­hoc), Gandhidham­Kutch in Criminal Page 1 of 7 HC-NIC Page 1 of 7 Created On Wed May 04 05:01:49 IST 2016 R/CR.MA/19230/2015 ORDER Misc. Application no.312 of 2015 dated 19.6.2015.

3. Mr. Adil Mirza, learned advocate for the applicant contended that it is a grave offence under Sections 143, 147, 148, 149, 307, 342 and 323 of the IPC and therefore, the learned Judge ought not to have exercised discretion in favour of the respondents no.2 to 5. It is submitted that if the dying declaration is perused, respondents no.2 to 5 are specifically named in the dying declaration and therefore, the learned Judge ought not to have exercised the discretion. It is submitted that the learned Judge has not taken into consideration the statement given by the wife of the deceased i.e. Dayaben and other witnesses. It is further submitted that while granting the bail, the gravity of offence and its punishment is required to be considered, which is not done in the present case and therefore, the learned Judge has wrongly exercised discretion. It is further contended that the learned Judge has totally ignored the manner in which the crime was committed and ignoring such a crime and releasing the respondent on bail, will send a wrong signal to the society and therefore, the learned Judge has wrongly exercised the powers conferred under Section 439(2) of the Code in favour of the respondents no.2 to 5. It is Page 2 of 7 HC-NIC Page 2 of 7 Created On Wed May 04 05:01:49 IST 2016 R/CR.MA/19230/2015 ORDER therefore submitted that this Court may allow this application as prayed for.

4. Mr. D.A. Chaudhari, learned advocate for respondents no.2 to 5 has supported the impugned order and contended that the learned Judge has rightly exercised discretion in favour of the respondents no.2 to 5 and therefore, the present application may be dismissed.

5. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.

6. On perusal of the FIR as well as papers filed before the learned Sessions Judge, it appears that the learned Sessions Judge has rightly exercised discretion in favour of the respondents no.2 to 5 and hence, no interference is called for by this Court. The learned advocate for the applicant has also not been able to point out that there is breach of conditions by the respondents no.2 to 5.

7. At this juncture, it would be appropriate to refer to the judgment of the Apex Court in the case of Bhagirathsinh Judeja Vs. State of Gujarat, reported in AIR 1984 SC 372, wherein the Apex Court has observed thus:­ Page 3 of 7 HC-NIC Page 3 of 7 Created On Wed May 04 05:01:49 IST 2016 R/CR.MA/19230/2015 ORDER "6. In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be, granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances all necessary for an order seeking cancellation of the bail. And the trend today is towards granting bail because it is now well­settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are 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 evidence. The order made by the High Court is conspicuous by its Page 4 of 7 HC-NIC Page 4 of 7 Created On Wed May 04 05:01:49 IST 2016 R/CR.MA/19230/2015 ORDER silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the order made by the High Court."

8. It would also be profitable to refer to the case of Dolat Ram & Ors. Vs. State of Haryana, reported in (1995) 1 SCC 349, wherein the principles are laid down for exercise of powers under Section 439(2) of the Code and the Apex Court has observed thus:­ "4. 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 Page 5 of 7 HC-NIC Page 5 of 7 Created On Wed May 04 05:01:49 IST 2016 R/CR.MA/19230/2015 ORDER 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. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non­bailable case in the first instance and the cancellation of bail already granted."

9. The Apex Court, recently in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat & Anr., reported in (2016) 1 SCC 152, has reiterated the principles of grant of anticipatory bail and observed that the gravity of charge and exact role of the accused must be properly comprehended. In opinion of this Court, the learned Judge has rightly exercised the discretion and following the ratio laid down by the Apex Court in the case of Bhagirathsinh Judeja (supra) and Dolat Ram (supra), the present application is misconceived.

10. It is not the case of the applicant - original complainant that the respondents no.2 to 5 have misused the liberty granted by the learned Sessions Court. Considering the aforesaid facts therefore, the discretion exercised by the learned Judge cannot be termed as erroneous. In Page 6 of 7 HC-NIC Page 6 of 7 Created On Wed May 04 05:01:49 IST 2016 R/CR.MA/19230/2015 ORDER view of the aforesaid facts and circumstances of the case and as the discretion is exercised in favour of the respondents no.2 to 5, in order to ensure free and fair trial, further conditions need to be imposed, which are as under:­ "(a) they shall leave territory of Bhachau, Anjar and Gandhidham, till trial is over, except for the purpose of attending the Court proceedings.

(b) shall provide fresh address to the investigating officer."

11. In the aforesaid facts and circumstances of the case therefore, in opinion of this Court, no interference is called for by this Court in exercise of its powers under Section 482 read with Section 439(2) of the Code. With aforesaid conditions, the application is hereby dismissed. Notice discharged.

(R.M.CHHAYA, J.) mrp Page 7 of 7 HC-NIC Page 7 of 7 Created On Wed May 04 05:01:49 IST 2016