KANUBHAI RAMJIBHAI RABARI v. KALABHAI JAISINGBHAI — 1985 DIGILAW 216 (GUJ)

A. P. RAVANI, J. ( 1 ) THE original complainant Kanubhai Ramjibhai Rabari whose brother Babubhai Ramjibhai has been killed in the incident which took place on 26/06/1985 Has liked this application for cancellation of bail granted by the learned Sessions Judge Mehsana. in Criminal Misc. Application No. 394 of 1985 as per his order dated 6/07/1985 The prayer for cancellation of Jail or Kalabhai-accused No. 1 is not pressed at the initial state since he has been ordered to be release on bail by this Court for a temporary period so as to enable him to appeal at the examination only. This term of bail is to expire very soon. ( 2 ) IT is alleged that tone of the prosecution witnesses namely Dharamsingbhai Govindbhai was threatened by the accused. He was told that he should make an affidavit in their favour or he would also meet the same fate as that of Babubhai Ramjibhai. In this respect the witness Darmsingbhai has filed a complaint on 10/08/1985 with the Kadi Police Station. The application for cancellation of bail has been filed on 14/08/1985 It is stated at the bar that the Government took decision to submit an application for consultation of hail on 1/08/1985 Now the Government has also filed revision application being Criminal Revision Application No. 379 of 1985 and the same has been argued on with this application. ( 3 ) COUNSEL for the original accused has submitted that in view of the decision of the Supreme Court in the case of Delhi Admn. v. Sanjay Gandhi reprote in AIR 1978 SC 961 and in the case of Bhagirathsinh Jadeja v. State reported in 25 (1) GLR 332 the High Court should not interfere with the discretion exercised by the learned Sessions Judge and should not order to cancel the bail granted by the learned sessions Judge. ( 4 ) IN Delhi Administrations case (supra) the Supreme Court has laid down the principle that the prosecution witnesses turning hostile is not a circumstance by itself which can be taken into consideration for application of bail. The Supreme Court has further observed. "cancellation of bail necessarily involves the review of a decision already made and can by large be permitted only is by reason of supervening circumstance it would be no longer conducive to a fair trial to allow the accused to retail his freedom during the trial". The Supreme Court has further observed. "cancellation of bail necessarily involves the review of a decision already made and can by large be permitted only is by reason of supervening circumstance it would be no longer conducive to a fair trial to allow the accused to retail his freedom during the trial". In the very same judgment the Sopranos Court has observed that cancellation of bail is and incidental issue which arises pending the trial of an accused. While deciding such an issue the standard of proof required to be adduced by the prosecution would be like that of civil cases where on balance of probabililies either side has to prove whether the application for cancellation of hail is required to be granted or refused. Ultimately in para 24 of the judgment the Supreme Court has observed:"the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power though of an extra-ordinary nature is meant to be exercised in appropriate cases when by a preponderance of probabilities it is clear that the accused is interfering with the course of justice by tampering with the witness. Refusal to exercise that wholesome power in such cases few though they may be will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process". In the latter case of Bhugirathsinh Jadeja (supra) the Supreme Court has stated that in the case of grant or refusal of bail the approach of the court would not be to death the accused by way of punishment but the question should be decided on the basis as to whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion exercised in his favour by tampering with evidence. ( 5 ) BE it noted that in the aforesaid two cases decided by the Supreme Court the accused were not charged with the offence of murder. In Delhi Abministrationss case (supra) (popularly known as Kissa-Khursi-Ka case) the accused were charged for offences under sections 409 435 and 201 read with sec. 120-B of the Indian Penal Code while in Bhagirathsinh Jadejas case (supra ). the accused was charged for offence under section 307 of the Indian Penal Code and sec. In Delhi Abministrationss case (supra) (popularly known as Kissa-Khursi-Ka case) the accused were charged for offences under sections 409 435 and 201 read with sec. 120-B of the Indian Penal Code while in Bhagirathsinh Jadejas case (supra ). the accused was charged for offence under section 307 of the Indian Penal Code and sec. 135 of the Bombay Police Act and it was an admitted position that the victim had survived the blows administrated by the assailant. ( 6 ) AS laid down by the Supreme Court one of the considerations which should with within the Court while granting or refusing bail is to see the availahibity of the accused at the time of trial. More serious the offence the more likelihood of the accused to escape and not to stand the rial. This can safely be infrerred because if the case in which the accused is charged with serious offence is proved the stake would be very high. He may even be imprisoned for life or may be ordered to be hanged. Therefore in such cases. it will surely be one of the relevant circumstances to take into consideration as to with which offence the accused is charged. In the instant case it is an undisputed position that the charge against the accused is that of offence under sec. 302 of the Indian Penal Coder. ( 7 ) FROM the aforesaid decisions of the Supreme Court in is clear that the question of cancellation of bail necessarily involves a review of earlier decision (para 13 of Delhi Administrations case ). On proper scrutiny of the order passed by the learned Sessions Judge it becomes clear that the learned Sessions Judge has exercised his discretion on the basis that Kalabhai Jaisingbhai-opponent No. I was the only person responsible for causing the death of deceased Babubhai. Ramjibhai. The learned Sessions Judge has observed as follows:"on perusal of the police papers and post-mortem note the deceased did due to single blow given by the assailant Kalabhai Jesangbhai. Now from the police papers it does not appear that the other accused were and with deadly weapons and they were waiting for the arrival of the deceased Babubhai @ Karamsibhai and therefore it appears that the other accused were involved in the present crime and it is an after-thought and the F. I R. has been given after due deliberation". With respect to the learned Sessions Judge he has not read the F. I. R. correctly. In the F. I. R. it is very clearly stared that when deceased Babubhai Ramjibhai was returning to his hostile from Ahmedabad he was intercepted by the accused and therc was zapazapi between the accused on the one side and the deceased on the other side. At that time the complainant had reached there. It is further stated in the complaint that his (complainants) brother deceased Babubhai Ramjibhai was caught hold of from both the sides by Babuhhai Nathabhai (Opponent No. 2 herein) and by Karmanbhai Zaverbhai (opponent No. 3 herein) and Kalabhai Jaisingbhai (opponent No. 1 herein) took out his knife and gave knife blow on the neck of deceased Babubhai. Thus in the complaint itself opponents Nos. 2 and 3. i. e. Babubhai Nathabhai and Karamanbhia Zaverbhai have been ascribed specific more. It may be said that had they not caught hotel of the deceased the opponent No. 1 probably could not have been successful in delivering the himself now on the neck of the deceased. Even so the learned Sessions Judge has passed the order granting bail on the footing that there is nothing in the police papers to collect all the opponents so as: to involve them in the offence of murder. Thus the very basis of the discretion exercised by the learned Sessions Judge is based on the gross misreading of the F. I. R. ( 8 ) IT is very clear from the complaint filed on 10/08/1985 by one of the witness namely. Dharamsingbhai Govindbhai that he was threatened by opponents Nos. 2 3 4 and 5 the counsel for the opponents-accused submitted that the complaint filed by said witness is connected and the same cannot relief upon. At this stage the contention raised by the counsel or the oppoents-accused cannot be decided. On the face of it as the complaint stands in appears that a witness has been threatened by the opponents-accused swear an affidavit in their favour or that hew would be finish. In above view ear an affidavit in their favour or that he would be finished. In above view of the matter it is clear that if the order passed by the learned Sessions Judge is not interfered with there are all the chances that it will impair the fair-trial of the prosecution case. In above view ear an affidavit in their favour or that he would be finished. In above view of the matter it is clear that if the order passed by the learned Sessions Judge is not interfered with there are all the chances that it will impair the fair-trial of the prosecution case. ( 9 ) HOWEVER in the case of opponents Nos. 4 and 5 i. e. Prabhathhai Jaisingbhai and Jaisingbhai Bhatibhai in F. I. R. no specific overtact in the commission of crime of murder has been attributed. Therefore the bail granted to them is not required to be interfered with. However their bail can be continued by imposing certain further conditions. ( 10 ) IN the result the application is partly allowed. Bail granted by the learned Sessions Judge Mehsana in Criminal Misc. Application No. 394 of 1985 in favour of opponents Nos. 2 and 3 i. e. Babubhai Nathabhai and Karmanbhai Zaverbhai is ordered to be canceled. Bail granted commission Nos. 4 and 5 i. e. Prabhathhai Jaisingbhai and Jaisingbhai Bhatibhai is not disturbed. However further condition is imposed. It is directed that till the chargesheet is filed opponents Nos. 4 and 5 i. e. Prabhathhai Jaisingbhai and Jaisingbhai Bhatibhai shall not enter the village Indrad taluka Kadi and also within the radius of 10 kms from village Indrad. It will be opinion the parties to apply before the learned Sessions Judge for modification and/or cancellation of this condition after the chargesheet is filed. Opponents Nos. 2 and 3 i. e. Babubhai Nathabhai and Karmanbhai Zaverbhai to surrender latest by 13/09/1985 ( 11 ) RULE made absolute to the aforesaid extent only. ( 12 ) IN view of the aforesaid order passed on Criminal Misc. Application No. 1499 of 1935 it is not necessary to pass any separate order on Criminal Revision Application No. 372 of 1985 filed by the State. (ATP) order modified. .