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2024 DIGILAW 1747 (GUJ)

Chauhan Mahendrasinh Udesinh v. State Of Gujarat

2024-08-21

GITA GOPI

body2024
JUDGMENT : 1. RULE returnable forthwith. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent – State. 2. The present Criminal Revision Application challenges the legality and validity of the order dated 14.08.2024 passed by the learned 2nd Additional District and Sessions Judge, Mehsana, Visnagar passed in Criminal Miscellaneous Application No.356 of 2024, which was preferred by the complainant under Section 439(2) of Code of Criminal Procedure, 1973 (hereinafter referred to in short as ‘Cr.P.C.’). 3. Heard learned Advocate for the applicant Mr. Maulik M. Soni, who submitted that the bail granted on 08.12.2022 by the learned Additional District and Sessions Judge, Mehsana, Visnagar came to be cancelled and the applicant was directed to surrender before the trial Court and the arrest warrant has been issued. It is further submitted the process of arrest warrant is still open as it has not been served on the applicant and in the meantime, the applicant has preferred the present Criminal Revision Application challenging the order of cancellation of bail. 4. It is further submitted that the bail which was granted was in connection with the First Information Report (FIR) registered with Satlasana Police Station as Part A C.R. No.11206062230328 of 2023 for the offences punishable under Sections 409, 419, 420, 465, 467, 471 and 474 of the Indian Penal Code (IPC). The FIR was registered on 02.08.2023. It is submitted that the conditions of bail did not include any condition of deposit of money. The applicant had volunteered by filing Pursis – Exhibit 7 in Criminal Miscellaneous Application No.786 of 2023 that he would be willing to deposit an amount of Rs.5,00,000/- at Jai Somnath Credit Society. It is also submitted that the said pursis was only recorded and no direction was given to the applicant to deposit any amount. Inspite of that, the learned 2nd Additional District and Sessions Judge, Mehsana, Visnagar passed an order in Criminal Miscellaneous Application No.356 of 2024 considering it as a breach of the Undertaking and cancelled the bail granted by the Court. 5. It is further submitted that the cancellation of bail should not be mechanically ordered when there is no such allegations of holding any threats to witness or making any attempt to tamper with evidence. It is further submitted that the learned Judge while granting the bail has observed about the Undertaking given by the applicant. 5. It is further submitted that the cancellation of bail should not be mechanically ordered when there is no such allegations of holding any threats to witness or making any attempt to tamper with evidence. It is further submitted that the learned Judge while granting the bail has observed about the Undertaking given by the applicant. The order of bail did not include the condition of deposit of any amount as per the Undertaking filed by the applicant. Hence, it is submitted that the same cannot be considered as breach of conditions. 6. On the other hand, learned Additional Public Prosecutor submitted that the Undertaking filed by the applicant has been observed in the order, which itself can be considered as implied condition for the revisionist to have followed the same and thus, the order passed by the learned Sessions Judge cancelling the bail granted to the applicant is just and consistent with the facts of the matter. 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 Apex 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 per- son 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 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 se- cure their attendance at the trial but in such cases, `necessity' is the operative test. 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 se- cure 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 circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses 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. In case of Dolat Ram v. State of Haryana, reported in (1995) 1 SCC 349 , the Hon’ble Apex Court in para-4 held as under :- “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. 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 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.” 9. Thus in the case of Dolat Ram (supra), 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. 10. The Hon’ble Apex 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. 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. 11. 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. 11. The Hon’ble Apex Court in the case of Raghubir Singh v. State of Bihar reported in 1986 4 SCC 481 , held that bail can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scare by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. The above grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence, it must not be lightly resorted to. 12. This Court would like to refer to the decision in the case of Merubhai Ramabhai Khodiyatar (Hun) Rabari v. State of Gujarat reported in 2021 (2) G.L.R. 1175 . In Paragraph 16.1, it was held as under :- “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. In the present case, the respondent - State has not been able to show any supervening circumstances, which would reflect that the liberty, granted to the accused, was misused, and no longer conducive to a fair trial.” 13. The bail already granted should not be cancelled on a routine manner, as it jeopardizes the personal liberty of the person. In the present case, the respondent - State has not been able to show any supervening circumstances, which would reflect that the liberty, granted to the accused, was misused, and no longer conducive to a fair trial.” 13. Here in this case, no condition was imposed upon the revisionist for payment of Rs.5,00,000/- while granting bail to the applicant. Even otherwise, as observed in the decision of this Court in the case of Ishwarbhai Ashokbhai Khturani Sindhi v. State of Gujarat in Criminal Revision Application No.978 of 2023, decided on 09.08.2023, no such condition could be imposed by the Court while granting bail. The Courts are not the Recovery Agents to any party, much less to the complainant to realize the dues of the complainant that too without any trial. The bail would be subject to the cancellation only if supervening circumstances are brought to the notice of the Court. Liberty once granted by way of bail cannot be cancelled as a matter of course. 14. The learned Judge has failed by relying upon the Undertaking which has been filed by the applicant. In relation to the Undertaking, time could be extended by the learned Sessions Judge if necessary but non-payment of amount cannot be made a ground for cancellation of bail, more so, when such conditions had not been imposed in the order of bail. 15. In view of the aforesaid discussion, this Court is of the view that the impugned order dated 14.08.2024 passed by the learned 2nd Additional District and Sessions Judge, Mehsana, Visnagar passed in Criminal Miscellaneous Application No.356 of 2024 is perverse and is not consistent with the established principles to be exercised for cancellation of bail and hence, the same is quashed and set aside. 16. The application is allowed in the aforesaid terms. Rule made absolute. Direct Service is permitted.