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2008 DIGILAW 597 (GUJ)

Manubhai Bhikhabhai Valand v. State of Gujarat

2008-12-19

Z.K.SAIYED

body2008
Judgment Z.K.Saiyed, J.—The applicant - original complainant has filed this Application under Section 439(2) of Code of Criminal Procedure(for short “Cr.P.C.”) inter-alia praying to quash and set aside the order dated 22.01.2008, passed by the learned Additional Sessions Judge, Ahmedabad City in Criminal Miscellaneous Application No. 3204 of 2007 and cancel the bail of Respondent No. 2 - original accused in M. Case No. 17 of 2007 registered with Naroda Police Station, Ahmedabad, on the ground that the Respondent No. 2 - accused has breached the conditions which were imposed in the order passed by the learned Additional Sessions Judge while granting the bail to the Respondent No. 2. 2. Heard Mr. B.C. Rupera, learned Advocate for the applicant, Mr. S.P. Hasurkar, learned APP appearing on behalf of the Respondent No. 1 - State and Mr. P.R. Nanavati learned Advocate appearing on behalf of the Respondent No. 2 - original accused. 3. Mr. Rupera has contended that while granting the bail to the Respondent No. 2 the learned Judge has imposed certain conditions, viz.(i) that he shall not leave the limits of India till the disposal of the present case; and(ii) that he shall deposit passport before the IO within three days of this order. Mr. Rupera has contended that the Respondent No. 2 has surrendered his passport before the IO bearing No. F120155 which has expired in 2002 and he has not surrendered the fresh passport No. E2117282 which was issued on 12.6.2002 and thereby the Respondent No. 2 has committed the breach of conditions imposed by the learned Judge while granting bail to him. Mr. Rupera has also contended that the Respondent No. 2 had visited Dubai(out of India) from 17.8.2008 to 23.8.2008 without the prior permission of the Court concerned and thereby the Respondent No. 2 has breached the condition of the order passed by the learned Judge “that he shall not leave India without the prior permission of the Court”. He has also contended that the applicant has informed to the Respondent No. 3 about the breach of conditions of bail order committed by the Respondent No. 2 - accused and also made a request in writing that immediate action be taken against the Respondent No. 2, but the Investigating Officer has not taken any action. He has also contended that the applicant has informed to the Respondent No. 3 about the breach of conditions of bail order committed by the Respondent No. 2 - accused and also made a request in writing that immediate action be taken against the Respondent No. 2, but the Investigating Officer has not taken any action. He has also contended that he obtained information under the provisions of Right to Information Act and from that information he came to know that the Respondent No. 2 has not surrendered his original passport and also not obtained any prior permission to go abroad. He, therefore, contended that the Respondent No. 2 has disobeyed the order passed by the learned Judge. 4. On behalf of Respondent No. 2 - original accused an Affidavit in reply has been filed. It is contended by the learned Advocate appearing on behalf of the Respondent No. 2 that the applicant has tried to influence the police and Investigating Agency and got filed the charge-sheet against the Respondent No. 2. It is contended that the FIR was registered against the applicant and his brother in respect of two land transactions. FIR being CR No. I-17 of 2007 was lodged on 22.5.2007 in respect of alleged offence committed in the year 1999 i.e. after a period of almost 9 years. The said FIR was lodged in respect of land bearing Survey No. 783/2 which was purchased by the Respondent No. 2-accused by entering into registered sale deed on payment of full consideration. It is contended by the learned Advocate that the applicant has failed to obtain any order in the said kproceedings and when the Respondent No. 2 has obtained bail order then just to harass him the applicant has filed this application. It is contended that the investigating Agency has also obtained expert’s opinion and found that the Respondent No. 2 has not committed any offence and, therefore, on 8.6.2008 the Police has filed Report under Section 169 CrPC and on 27.6.2008 that Report was accepted by the learned Metropolitan Magistrate, Court No. 18. It has been further contended that at the time of visit of Respondent No. 2 at Dubai no case was pending against him and, therefore, he has not committed any wrong. Lastly, he contended that the Court may not cancel the bail. 5. Learned APP Mr. It has been further contended that at the time of visit of Respondent No. 2 at Dubai no case was pending against him and, therefore, he has not committed any wrong. Lastly, he contended that the Court may not cancel the bail. 5. Learned APP Mr. Hasurkar has contended that during the pendency of investigation the Investigating Agency has not found any material evidence against the Respondent No. 2 and, therefore, the Investigating Agency has filed Report under Section 169 CrPC. 6. I have perused the papers and also gone through Section 169 CrPC. From the ingredients of above provision it appears that when the Investigating Agency filed Report under Section 169 and the same was accepted by the learned Metropolitan Magistrate under the above provision it is not necessary for the Respondent No. 2 to obtain any permission, when no case was made out against him. In the present case the Respondent No. 2 has also furnished the surety at that time when he was enlarged on bail and it is still in force. When the Investigating Officer has filed Report under Section 169 CrPC that no offence is made out against the Respondent No. 2, the said Report is acepted by the learned Magistrate, yet, the provision of Section 170 CrPC is always available and later on also the process can be issued. 7. I have gone through the application as well as contentions raised by the learned Advocates appearing for the parties. In the case of Bhagirathsinh Jadeja vs. State of Gujarat, reported in AIR 1984 SC 372 , the Hon’ble Supreme Court has observed as under: “Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. It is now well settled by a catena of decisions of the Supreme 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. If there is no prima facie case there is no question of considering other circumstances. 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. If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence.” 8. In the case of Dolat Ram and Others vs. State of Haryana, reported in (1995) 1 SCC 349 , it is observed by the Hon’ble Supreme Court that cancellation of bail cannot be done in a mechanical manner and has also observed that: “Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already 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 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 during the trial.” 9. In the case of Subhendu Mishra vs. Subrat Kumar Mishra & Another, reported in AIR 1999 SC 3026 , the Hon’ble Supreme Court has observed that the High Court overlooked distinction of factors relevant for rejecting bail at initial stage and cancelling bail once granted-Cancellation of bail done in a mechanical manner - Order not sustainable. 10. In the case of Subhendu Mishra vs. Subrat Kumar Mishra & Another, reported in AIR 1999 SC 3026 , the Hon’ble Supreme Court has observed that the High Court overlooked distinction of factors relevant for rejecting bail at initial stage and cancelling bail once granted-Cancellation of bail done in a mechanical manner - Order not sustainable. 10. I have gone through the paper and the contentions raised by the parties and considered the order passed by the learned Judge. From the papers as well as contentions raised by the learned Advocates for the parties, it appears that the Respondent No. 2 - accused has not committed any breach of the conditions imposed by the learned Judge while granting the bail to the Respondent No. 2. In light of the decisions of the Hon’ble Supreme Court, as referred above, and in the facts of the case this is not a fit case to cancel the bail and the Court cannot cancel the bail in a mechanical manner. 11. In view of above, there is no substance in this application and the same is rejected. Rule is discharged.