Gujarat High Court
State Of Gujarat vs Surajibhai Kubabhai Damor on 28 November, 2023
NEUTRAL CITATION
R/CR.MA/7696/2022 JUDGMENT DATED: 28/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
7696 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed no
to see the judgment ?
2 To be referred to the Reporter or not ? no
3 Whether their Lordships wish to see the fair copy no
of the judgment ?
4 Whether this case involves a substantial question no
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
SURAJIBHAI KUBABHAI DAMOR
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Appearance:
MS CHETNA M SHAH APP for the Applicant(s) No. 1
MS. ALKA B VANIYA(6945) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 28/11/2023
ORAL JUDGMENT
1. RULE. Learned advocate Ms. Alka Vaniya for the respondent waives service of notice on behalf of respondent.
2. By this petition under section 439(2) of the Code of Criminal Procedure, the State of Gujarat through Assistant Government Page 1 of 9 Downloaded on : Fri Dec 01 20:36:30 IST 2023 NEUTRAL CITATION R/CR.MA/7696/2022 JUDGMENT DATED: 28/11/2023 undefined Pleader seeks following reliefs:
"a. Your Lordship may be pleased to admit and allow this application.
b. Your Lordship may be pleased to quash and set aside the order dated 12.01.2022 passed in Criminal Misc. Application NO. 34 of 2022 passed by the Learned Principal District and Sessions Judge, Sabarkantha at Himmatnagar and thereby cancel regular bail granted by the learned Additional Sessions Judge.
c. Your Lordship may be pleased to stay the execution, implementation and operation of the order dated 12.01.2022 passed in Criminal Misc. Application No. 34 of 2022 passed by the Learned Principal District Judge, Sabarkantha at Himmatnagar and permit the investigating officer to take custody of accused.
d. Your Lordships be pleased to grant any other and further relief which may be deem fit by this Hon'ble Court. "
3. The facts of the case are as under:
3.1 The first informant-complainant namely Ajaybhai Uttamlal Pancholi, has filed the complaint before the "B" Division Police Station, Himmatnagar being C.R No. I- 11209045110789/2021 for the offences punishable under Sections 465, 467, 468, 471, 167 and 120(B) of the Indian Penal Code. The allegations leveled in the FIR are to the effect that the respondent in consonance with the other accused have misappropriated the Government granted amount to tune of Rs. 97,00,000/- and made illegal monetary transaction. It is also alleged that the aforesaid amount was funded by the State Government under its scheme of Youth-Cultural Events and Sports Page 2 of 9 Downloaded on : Fri Dec 01 20:36:30 IST 2023 NEUTRAL CITATION R/CR.MA/7696/2022 JUDGMENT DATED: 28/11/2023 undefined activity, however, such amount was misappropriated by the accused. Here, the present respondent has been considered as co-
accused. In the FIR, requisite investigation is completed and the charge-sheet has been filed.
4. The application for regular bail has been moved under Section 439 of CrPC before the Sessions Court at Himmatnagar vide Criminal Misc. Application No. 34/2022, wherein learned Sessions Judge after considering the facts of the case exercised discretion to grant bail by relying upon the law laid down by the Hon'ble Apex Court in the case of Sutendrakumar Antil Vs. CBI reported in 2021 SCC Online 922, and the regular bail has been granted to the respondent - accused on several conditions.
5. Apropos, being dissatisfied the Investigating Agency is before this Court by way of this petition, claiming the above reliefs.
6. Heard learned APP Ms. Chetna M Shah appearing for the State of Gujarat and learned Advocate Ms. Alka B Vaniya for the respondent- Surjibhai Kubabhai Damor.
7. Arguments of learned APP Ms. Shah was to the tune that learned Sessions Court has not considered the magnitude of misappropriation of amount up to Rs.97,00,000/-. She would further submit that the present accused was the main culprit and if he has been given bail lightly in ignorance of settled principles thus, it would set a bad example in the society. She would further submit that from the entire evidence it was visible from the documents itself suggesting prima facie against the accused it is proved that the present respondent has committed the alleged Page 3 of 9 Downloaded on : Fri Dec 01 20:36:30 IST 2023 NEUTRAL CITATION R/CR.MA/7696/2022 JUDGMENT DATED: 28/11/2023 undefined offence therefore, under these circumstances the Court below had fall in error in exercising discretion in favour of the respondent. The above submissions are canvassed to allow this petition for cancellation of bail granted by the Sessions Court.
8. Per Contra, learned advocate Ms. Vaniya supported the impugned judgment and order delivered by the learned Sessions Court. She would submit that discretion has been exercised judicially by the learned Sessions Court and the issue is touching the liberty of the individual and cannot be lightly interfered until there is some surprising circumstances appeared, which proves the case of the prosecution. She would further submit that merit of the trial is one thing and exercising discretion to enlarge the accused on bail is another thing. She further submitted that merely putting some higher figure as misappropriation of funds, the government cannot seek cancellation of bail granted to the respondent. She would further submit that the trial would take its own time and if the prosecution proves its case under the parameters of the criminal jurisprudence, then the Court would pass appropriate judgment and order but that would not be a ground for cancellation of bail. The above submissions are canvassed to dismiss the present petition.
9. No further submissions were canvassed by neither of the parties.
10. Having heard learned advocates appearing for the respective parties at the outset while granting bail to the respondent the learned Sessions Court held as under:
Page 4 of 9 Downloaded on : Fri Dec 01 20:36:30 IST 2023NEUTRAL CITATION R/CR.MA/7696/2022 JUDGMENT DATED: 28/11/2023 undefined "7. Now, herein the present case, this Court has to consider the involvement of the accused in the alleged offence and as to whether prima facie, it appears that, accused has committed an offence is required to be considered. So far as the anticipatory bail is concerned, the jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case and the following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses and threat to the complainant or the witnesses;
(iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations are required to be considered. Further,Honorable Supreme Court has been pleased to held in case of Mnsabali v. Irsan and Ors., reported in 2002 AIR SCW 5391, since jurisdiction for the grant of bail is discretionary, it is required to be exercised with care and caution by balancing right of liberty of an individual and interest of society in general; the jurisdiction has not to be exercised in a casual and cavalier fashion.
8. In present matter, no substantial progress has been made by the then investigation officer, hence, investigation is transferred to LCB Himmatnagar by District Superintendent of Police. Mr. M.D. Champavat, Police Inspector and except filing of chargesheet, no fruitful reason come out on record, Page 5 of 9 Downloaded on : Fri Dec 01 20:36:30 IST 2023 NEUTRAL CITATION R/CR.MA/7696/2022 JUDGMENT DATED: 28/11/2023 undefined as another accused are mentioned in the charge-sheet, at column No. 2, are absconder. Though, their anticipatory bail applications came to be dismissed. Even, all the witnesses are the government witnesses and if we perused the papers of the charge-sheet, prima facie, it appears that, after transferring the investigation to LCB Police Sabarkantha, during the investigation the stock / pocket Panchas are used and if we considered the pendency before the learned Trial Court, there is no possibility that, trial would start within near future as offense is based on the documentary evidence and all major witnesses are the government witnesses, therefore, keeping in mind the concept of personal liberty and at present nothing is required to be recovered and discovered from the present accused and accused has joined the investigation, and as per law laid down by the Hon'ble Supreme Court in case of Sutenderkumar Antil Vs. CBI, reported in 2021 SCC online 922, as accused is joined the investigation and offence is not punishable up to life imprisonment and death.
9. Therefore, it would not be proper that, remaining accused are absconder, as present accused has made the allegation against the accused No. 1 and clearly sated that, he made the scapegoat in the scam. Earlier, when anticipatory bail applications filed by the present accused was dismissed, at the relevant point of time, the investigation was very preliminary stage and there was a possibility, if the bail is granted, which may hamper the investigation and to collect the material and other information and find out the involvement of the another persons and therefore, custodial interrogation was necessary. As due to only this reason anticipatory bail applications came to be dismissed at the Page 6 of 9 Downloaded on : Fri Dec 01 20:36:30 IST 2023 NEUTRAL CITATION R/CR.MA/7696/2022 JUDGMENT DATED: 28/11/2023 undefined relevant point of time. Now, accused is in custody and custodial interrogation is also over and nothing is more reveal the involvement of the other accused except named in the accused in the FIR, the name of the same accused are mentioned in the charge-sheet as absconder also. In such circumstances, keeping in mind the investigation papers, present situation of the pandemic and severity of the punishment and keeping in mind the lay laid down in the case of Sanjay Chandra Vs. CBI reported 2012 40 SCC as "bail is rule and jail is exception" I am inclined to allow the present application with certain stringent conditions."
11. It appears that while passing the impugned order learned Sessions Court has considered with well settled parameters of granting or refusal of bail. The learned Sessions Court has also believed and held that all the witnesses in the trial are government witnesses so there is least chance of there being any tamper. It is also held by the learned Sessions Judge that there is no reason to disbelieve that in near future the trial would attain its finality. Striking consideration is that, the alleged offence the majority of witnesses are government witnesses. Learned APP Ms. Shah, however, argued and assailed the impugned order on various grounds but could not point out any aspects which shows that respondent had misused his liberty or has tried to win over the witnesses or had violated certain conditions laid down in the impugned order.
12. In this given circumstances interference at the end of this Court must be limited, more particularly, when liberty granted to the respondent is an issue to be decided. Learned APP Ms. Shah Page 7 of 9 Downloaded on : Fri Dec 01 20:36:30 IST 2023 NEUTRAL CITATION R/CR.MA/7696/2022 JUDGMENT DATED: 28/11/2023 undefined was unable to point out that how the impugned order is unjustified, illegal or perverse or there is any circumstance which has been ignored by the Sessions Court.
13. The Sessions Court considered the case of the applicant, on the basis of materials placed before the Court. As stated earlier learned APP failed to point out any reason to interfere with the liberty of the accused including reasons of flight risk. The Hon'ble Apex Court in the case of Dolat Ram Vs. State of Haryana reported in 1995 SCC 349, has observed that the 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.
14. In P. Vs. Madhyapradesh reported in 2022 SCC Online SC 552, the Hon'ble Apex Court has adverted all the past precedents and has encapsulated the circumstances under which the bail granted to the accused under Section 439(1) of the CrPC can be revoked. Those circumstances are as under:
(a) if he misuses his liberty by indulging in similar other criminal activity.
(b) If he interferes with the course of the investigation;
(c) If he attempts to tamper with the evidence;
(d) If he attempts to influence/threaten the witnesses;
(e) If he evades or attempts to evade court proceedings;
(f) If he indulges in activities which would hamper smooth investigation;
(g) If he is likely to flee from the country;
(h) If he attempts to make himself scarce by going Page 8 of 9 Downloaded on : Fri Dec 01 20:36:30 IST 2023 NEUTRAL CITATION R/CR.MA/7696/2022 JUDGMENT DATED: 28/11/2023 undefined underground and / or becoming unavailable to the investigating agency;
15. Now what perceives emphatically is that misuse of liberty granted is the center amongst other reasons, which may prompt revoking of the bail once granted. It is profitable to refer to the case of Kekhriesatuo Tep and Ors Vs. National Investigation Agency reported in (2023) 6 SCC 58, wherein it is observed at paragraph no.20, reads thus:
"20. An interference by an appellate Court and particularly in a matter when liberty granted to the citizen was being taken away would be warranted only in the event the view taken by the trial court was either perverse or impossible. On this limited ground, we find that appeals deserve to be allowed."
16. It appears that in the present case, the learned Sessions Judge has passed well reasoned order to exercise discretion in favour of the respondent. It also appears that petitioner State failed to point out that the respondent -accused has misused his liberty in any manner.
17. In the aforesaid facts and circumstances of the case, more particularly, when the charge-sheet is filed and bail has already given. Therefore, there is no reason to interfere with the impugned order.
Accordingly, the present petition stands dismissed. Rule is discharged.
(J. C. DOSHI,J) Radhika Page 9 of 9 Downloaded on : Fri Dec 01 20:36:30 IST 2023