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2024 DIGILAW 1431 (GUJ)

Bharat Devji Doru v. State Of Gujarat

2024-06-27

GITA GOPI

body2024
ORDER : 1. Heard learned advocates appearing for the parties. Rule. Learned APP waives service of notice of Rule on behalf of respondent State. Rule is fixed forthwith. 2. The present revision application has been filed under section 397 read with section 401 of Cr.P.C., praying to quash and set aside the order dated 15.09.2022 passed in Criminal Misc. Application No.413 of 2022, whereby the learned Sessions Judge cancelled the bail granted to the applicant and directed the applicant to surrender before the Court in connection with the offence being FIR No.11205031220080 of 2022, registered with Mandvi Police Satation, Mandvi, Kutchchh under sections 376(2)(n), 323, 294(b), 506(2) of IPC. 3. Mr. Salim M.Saiyed, learned advocate for the applicant submitted that the bail once granted should not be cancelled as a matter of course, and the Court is required to minutely examine the allegations made by the applicant praying for cancellation of bail, and on the basis of such an allegation, could have filed an FIR before the police, where the police could have taken cognizance. Advocate Mr. Saiyed, submitted that the provision is made under section 195A of IPC; instead on 26.03.2022 another F.I.R. has been filed under sections 324 and 506(2) of IPC. Advocate Mr. Saiyed submitted that the applicant had surrendered and granted bail; thus, stated that once a bail has been granted for the FIR registered, the learned Court could not on that very ground cancel the bail granted to the applicant in the earlier matter. 3.1 Advocate Mr. Saiyed submitted that the victim has deliberately filed such a complaint, as the victim, aged about 27 years, belatedly filed the complaint, when the relation between the applicant aged about 32 years and the victim turned sour alleging rape, where factually it was consensual relationship. 3.2 Advocate Mr. Saiyed submitted that filing of another FIR cannot be made ground for cancellation of bail. Mr. Saiyed further stated that the bail came to be cancelled by observing that conditions nos.1, 2 and 3 have not been followed, and there has been breach of the condition. Mr. Saiyed stated that in subsequent FIR, the police has not invoked the provision of section 195A, since the police has not found any such offence. 3.3 Advocate Mr. Mr. Saiyed further stated that the bail came to be cancelled by observing that conditions nos.1, 2 and 3 have not been followed, and there has been breach of the condition. Mr. Saiyed stated that in subsequent FIR, the police has not invoked the provision of section 195A, since the police has not found any such offence. 3.3 Advocate Mr. Saiyed further submitted that the injury as observed of the victim are very normal, and such injury could be sustained by any woman, who would be wearing ornaments. Mr. Saiyed stated that the allegation was of injury with the hard and blunt substance before the Doctor, while examining the victim; however, in the alleged subsequent FIR, the allegation is of use of knife to threaten the complaint – victim, and, thus Mr. Saiyed submitted that in absence of any invocation of section 195A of IPC in the FIR subsequently registered against the applicant on 26.03.2022, the learned Judge ought not to have come to the conclusion that the applicant had threatened the victim. 3.4 Advocate Mr. Saiyed further stated that the witnesses, who have supported the victim are not the immediate neighbours, but are all related persons, who have not given the correct facts. Mr. Saiyed submitted that had the immediate neighbour been examined by the police, then would have known whether the applicant had entered the place within the jurisdiction of the police station. 4. Mr. Trupesh Kathiriya, learned APP submitted that the second FIR registered against the accused itself is a ground for cancellation of bail, and submitted that the injuries noted are sharp injuries with sharp object and the abrasion is with blunt object, and, thus stated that for fair trial and as victim could have remain in peaceful atmosphere for giving her deposition, the order passed by the Sessions Judge cancelling the bail should sustain. 5. In the FIR, which has been registered at Mandvi Police Station being FIR No.112050311220080 of 2022 under sections 376(2)(n), 323, 294(b), 506(2) of IPC, the applicant was arrested and granted bail in Criminal Misc. Application No.296 of 2022 on 10.03.2022. The second complaint came to be filed against the present applicant on 26.03.2022. There are few contradictions in the history before the Doctor and that of facts stated in the FIR. The police has not invoked the provision of section 195A of IPC against the applicant. Application No.296 of 2022 on 10.03.2022. The second complaint came to be filed against the present applicant on 26.03.2022. There are few contradictions in the history before the Doctor and that of facts stated in the FIR. The police has not invoked the provision of section 195A of IPC against the applicant. The applicant has been released on bail in connection with second FIR being FIR No.11205013220154 of 2022 registered with Mankuva Police Station under sections 324, 506(2) of IPC. 6. The Court while considering the facts of the case ought to have observed that the bail was granted in earlier matter. The breach of conditions, as noted, ought to have been examined in view of the statement recorded. The immediate neighbour would have been the person, who could have given true facts of any breach of condition, to note that the victim was threatened and was injured. The victim herself has not stated that the applicant had threatened her with an intention to give false evidence against him, whether the applicant had entered the place at the jurisdiction of the local police station, could have been noted only on the evidence of the immediate neighbours. The reference made of the statement of Manishbhai Veljibhai Maheswari and Narendrabhai Veljibhai Maheswari by learned APP, to state that they are neighbours, cannot be considered independent, because the victim as well as these witnesses bears the surname and appears to belonging to the same community; learned advocate for the applicant stated that the witnesses are not the immediate neighbours but interested witnesses, as they are friends of Naranbhai father of the victim. 7. The object of bail has been laid down in case of Sanjay Chandra Vs. CBI, reported in (2012) 1 SCC 40 , wherein in para-14, the Hon’ble Supreme Court held as under: “Para-14:- In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circum- stances, he should be deprived of his liberty upon only the belief that he will tamper with the wit- nesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.” 8. The Hon’ble Supreme Court in case of Gurcharan Singh & Ors. Vs. State (Delhi Administration), reported in (1978) 1 SCC 118 , held two paramount considerations, while considering petition for grant of bail in a non- bailable offence, apart from the seriousness of the offence, there is likelihood of the accused fleeing from justice and his tampering with prosecution witnesses. Both of them relate to ensure a fair trial of the case. 8.1 Therefore, to ensure a fair trial, all considerations are explored while granting bail. Thus, when the question is raised on the power to cancel bail, the same has to be exercised with great care and circumspection. Cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail. 9. 8.1 Therefore, to ensure a fair trial, all considerations are explored while granting bail. Thus, when the question is raised on the power to cancel bail, the same has to be exercised with great care and circumspection. Cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail. 9. In case of Dolat Ram Vs. State of Haryana, reported in (1995) 1 SCC 349 , the Hon’ble Supreme Court in para-4 held as under: “4. Rejection of bail in a non-bail- able 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 at- tempt 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 can- celled in a mechanical manner with- out 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. 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 non-bailable case in the first instance and the cancellation of bail already granted.” 10. Thus in Dolat Ram's case, it has been held that 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. In the case of X Vs. Thus in Dolat Ram's case, it has been held that 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. In the case of X Vs. State of Telangana, reported in 2018 (16) SCC 511 , the Apex Court has held that bail once granted should not be cancelled unless a cogent case based on a supervening event has been made out. It has been observed that second FIR is not a supervening circumstance of such a nature, as would warrant the cancellation of bail, which was granted by the High Court. In the present case, the petitioner was pursuing legal recourse. He was granted bail by the concerned Court. The police report itself suggests that the matter in which the bail was sought to be cancelled, charge-sheet was already filed, which makes the petitioner answerable to the trial Court. 10.1 The grounds for cancellation of bail and grounds of rejection of bail are two different circumstances and hence the consideration of the court on the issue also becomes different, while hearing the application for cancellation of bail, the court has to be more rigid, as it has to examine not only the possibility of violation, but also the possible consequences. The power of cancellation of bail must be exercised with care and circumspection keeping in mind the urgent and overwhelming circumstances. The bail already granted should not be cancelled on a routine manner, as it jeopardizes the personal liberty of the person. 11. In view of the aforesaid, the order dated 15.09.2022 passed by the learned Sessions Judge, Bhuj – Kutchchh in Criminal Misc. Application No.413 of 2022 stands quashed and set aside. The application stands disposed of. Rule is made absolute to the above extent. 12. The connected Criminal Misc. Application stands disposed of accordingly.