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2022 DIGILAW 59 (GUJ)

Akilbhai Ibrahimbhai Patel v. State of Gujarat

2022-01-11

ILESH J.VORA

body2022
JUDGMENT : Ilesh J. Vora, J. 1. Heard Mr. Himanshu Padhya, learned counsel for the applicant complainant and Ms. Krina Calla, learned counsel for the respondent-State on advance copy. 2. This application is filed by the applicant for cancellation of bail that has been granted to the respondent No. 2-accused by Sessions Judge, Morbi, in Criminal Misc. Application No. 138/2021. 3. The facts in brief leading to filing present application are as under:- 3.1 The applicant herein is the original complainant working as Senior Operation and Maintenance Execution of India Oil Corporation Ltd. The FIR came to be registered with Vankaner Taluka Police Station, for the offence under Sections 379, 285, 427 and 120(B) of the IPC, Section 3 of the Damage to Public Act and Sections 15(2), 15(4) and 16(A) of the Petroleum and Minerals Pipelines Right User Inland Act. It is alleged in the FIR that the applicant in connivance with the other co-accused made theft of crude oil amounting to Rs. 5,26,600/- by making puncture in the pipeline and by fixing clamp on the pipe had extracted huge crude oil and directly transferred in the tanker as alleged in the FIR. Pursuant to the FIR, the applicant and co-accused have been arrested. Respondent No. 2 herein preferred bail application before the Sessions Court concerned, which came to be allowed observing that the name of the accused disclosed on the basis of statement of co-accused and therefore, imposing appropriate terms and conditions, bail application of the accused deserves to be allowed and accordingly it was allowed. 3.2 Being aggrieved by the order of granting bail to the accused, the applicant-original complainant preferred present application for cancellation of bail mainly on the ground that, there are past antecedents of like nature against the accused as 15 cases have been registered against him, however, the Sessions Court mechanically granted bail. 4. Mr. Padhya, learned counsel for the applicant submits that the accused is involved in more than 15 cases and he is habitual offender and therefore, the Sessions Court ought not to have granted bail to him, who having past antecedents. 5. 4. Mr. Padhya, learned counsel for the applicant submits that the accused is involved in more than 15 cases and he is habitual offender and therefore, the Sessions Court ought not to have granted bail to him, who having past antecedents. 5. Having heard learned counsel for the parties as well as the observations made by the Sessions Court while granting bail to the accused, this Court is of considered view that the name of the accused has been disclosed on the basis of the statement of co-accused and nothing has been recovered or seized from the applicant when he was remanded to the police custody. Thus, merely having past antecedents of the accused, is not the sole criteria to reject the bail application, but considering the nature of accusation, severity of punishment, likelihood of accused absconding from the procedure, possibility of the accused to tamper with the evidence, which are some of the criterias required to be taken into consideration while granting bail. Considering the facts and circumstance of the present case, the Sessions Court rightly thought it fit to enlarge the accused on bail as his name has been disclosed on the basis of the statement of co-accused. It is not the case of the applicant that the accused disobeyed the bail conditions or misused the privilege of the bail. It is settled law that there is significant difference between the order of rejecting the bail application and order for cancellation of bail. The order rejecting the plea for bail in non-bailable offence is in discretionary domain of the Court, whereas, in the case of cancellation of bail, the Court is called upon to extinguish the liberty that has been formerly granted. It is necessary that "cogent and overwhelming reasons" are present for cancellation of bail. The position in law vis. a vis cancellation of bail has been expounded and reiterated by the Apex Court in the case of Daulat Ram & Ors. v. State of Haryana [ 1995 (1) SCC 349 ], wherein the Apex Court held as under:- "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. 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 during the trial." 6. In light of the settled principles as propounded by the Apex Court as observed above and applying the same to the facts of the present case, this Court is of considered view that it cannot be said that the discretion exercised by the Sessions Court on irrelevant material or impugned order suffers from infirmities. It is not the case of the prosecution that the accused has disobeyed the bail condition/s or misused the privilege of bail. Hence, this Court finds that there is no merit in the application. 7. Accordingly, present application is liable to be dismissed and is hereby dismissed.