Gujarat High Court
Jasiben Mithusinh Amarsinh vs State Of Gujarat on 30 July, 2025
NEUTRAL CITATION
R/CR.MA/15341/2021 ORDER DATED: 30/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
15341 of 2021
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JASIBEN MITHUSINH AMARSINH
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR TEJAS M BAROT(2964) for the Applicant(s) No. 1
MR PRATIK B BAROT(3711) for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 30/07/2025
ORAL ORDER
1. By way of the present application under Section 439(2) of the Criminal Procedure Code, the applicant has prayed for cancellation of bail granted vide order dated 01.07.2021 passed by the Learned District and Sessions Judge, Sabarkantha at, Himmatnager, in Criminal Misc. Application No.259 of 2021, in connection with the FIR being I. C.R. No.11209041210943 of 2021 registered with Prantij Police Station for the alleged offences as mentioned in the FIR.
2. Learned Senior advocate Mr.Tejas Barot appears for the applicant submits that, the so-called incident Page 1 of 14 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:42:37 IST 2025 NEUTRAL CITATION R/CR.MA/15341/2021 ORDER DATED: 30/07/2025 undefined occurred on 12.06.2021, and on the very next day, on 13.06.2021, FIR was registered. Pursuant to the registration of the FIR, the investigation was commenced, in fact, investigating Officer concerned has apprehended the accused persons. He submits that despite the fact that, name as well as specific role was attributed to the respondent no.2, within no time, the learned Sessions Judge entertained the bail application preferred by respondent no.2 and granted bail to him. He has referred to the reasons assigned by the Court concerned and submitted that considering the fact that at the time of occurrence of incident, respondent no.2 was in possession of the deadly weapon 'Dhariya' in his hands and had inflicted blows upon the body of the victim, the Court concerned has exercised discretionary power in favour of respondent no.2 however, those reasons assigned by the Court concerned are not in consonance with the material available on record, therefore, it can safely be said that the order passed by the learned Court concerned is not in accordance with the settled Page 2 of 14 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:42:37 IST 2025 NEUTRAL CITATION R/CR.MA/15341/2021 ORDER DATED: 30/07/2025 undefined proposition of law, and therefore, the said order is required to be quash and set aside by allowing the present application. Learned Senior advocate Mr.Tejas Barot further submits that, the Court concerned ought to have to wait up to the submission of chargesheet, as when application was decided at that relevant point of time investigation was on a progressive stage and therefore, considering the gravity of the charge of the offence levelled against the accused as well as other attending circumstances which clearly goes on to show the direct involvement of the accused in commission of serious offence wherein, complainant & victim had sustained severe injuries. Considering the above stated factual aspects application preferred by the complainant is required to be allowed by quashing and setting aside the order passed by the trial Court.
3. Learned advocate Mr.Pratik Barot appears on behalf of the respondent no.2 submits that on the fateful day, present incident was occurred, and on the strength of the same, an FIR was registered by the applicant-complainant Page 3 of 14 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:42:37 IST 2025 NEUTRAL CITATION R/CR.MA/15341/2021 ORDER DATED: 30/07/2025 undefined before the police, and pursuant to which, investigation was commenced, and all accused persons named in the body of the FIR have already been apprehended by the concerned Investigating Officer. He further submits that the order passed by the Hon'ble Court is just, fair and reasonable and based upon sound principal of law as the operating part of the order shows that after considering and appreciating all the documents available on record order is delivered. He submits that considering the role attributed to the respondent no.2, the bail application of the accused has been entertained by the Court concerned. He further submits that, in fact, a cross complaints have been registered by the parties against each other. He further submits that in fact, incident of fight occurred between members of two rival parties and one Arvindbhai from the respondent no.2's side had also registred cross complaint against applicant and other witnesses. He further submits that, members of respondent no.2 have also sustained injuries in the said incident. He further submits that, in fact, as per the case Page 4 of 14 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:42:37 IST 2025 NEUTRAL CITATION R/CR.MA/15341/2021 ORDER DATED: 30/07/2025 undefined of the prosecution, co-accused Arvindbhai is the main accused, and his bail application has already been entertained by the Coordinate Bench of this Hon'ble Court after submission of chargesheet, a copy of which is also placed on record. He further submits that in fact, main accused himself has already been released by the Coordinate Bench. He submits that, in fact, after the order of releasing the respondent no.2, Investigating Officer continue with the investigation, at the end of day collected sufficient material against all the accused and therefore, submitted chargesheet before the Competent Court, then after trial has already been commenced and number of witnesses have been examined. Considering the above stated factual aspects, the Hon'ble Court may not entertained this application at this belated stage. He further submits that the parameters and guidelines to entertain the regular bail applications and to reject the cancellation of bail application are very much settled by the Hon'ble Supreme Court and in support of this submission he has put reliance upon the case of Page 5 of 14 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:42:37 IST 2025 NEUTRAL CITATION R/CR.MA/15341/2021 ORDER DATED: 30/07/2025 undefined Bharatbhai Bhimabhai Bharwad Vs. State of Gujarat 2019 (0) AIJEL SC 64512 and in the case of Dinesh M.N.(S.P.) Vs. State of Gujarat 2008 (0) AIJEL SC 41252, submitted that as per the ratio laid down to the Hon'ble Apex Court, it amounts that this case was the present application filed by the applicant is required to be dismissed.
4. I have considered the rival submissions canvassed by learned advocates for the parties and also perused the material available on record.
5. Considering the above facts of the case, before dwelling into the issue involved in the matter, I would like to refer to certain decisions, wherein the aspect of cancellation of bail has been considered. I would like to refer to the decision of the Hon'ble Supreme Court in case of Nitya Nand Rai Vs. State of Bihar & Anr., reported in 2005 SCC (Cri) 1159, wherein the Hon'ble Supreme Court has observed as under:-
"We think the High Court was not justified in Page 6 of 14 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:42:37 IST 2025 NEUTRAL CITATION R/CR.MA/15341/2021 ORDER DATED: 30/07/2025 undefined considering the application for cancellation of bail as if it was an application for grant of bail. Consideration of an application for grant of bail stands on a different footing than one forcancellation of bail."
6. In the decision of the Hon'ble Supreme Court in the case of State (Delhi Administration) Vs. Sanjay Gandhi, reported in (1978) 2 SCC 411, it has been held as under:
"Rejection of bail, when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non- bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial."
7. Further, the Hon'ble Supreme Court in the case of Bhagirathsinh Vs. State of Gujarat, reported in Page 7 of 14 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:42:37 IST 2025 NEUTRAL CITATION R/CR.MA/15341/2021 ORDER DATED: 30/07/2025 undefined (1984) 1 SCC 284, has held as under:
"Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail and the trend today is towards granting bail because it is now well-settled by a catena of decisions of this 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."
8. The Hon'ble Supreme Court in the case of Mehboob Dawood Shaikh Vs. State of Maharashtra, reported in (2004) 2 SCC 362, has held as under:
"It is trite law that the considerations for grant of bail and cancellation of bail stand on different footings.......bail granted under Section 437 (1) or (2) or Section 439 (1) can be cancelled were (i) the accused misuses his liberty by indulging in similar criminal Page 8 of 14 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:42:37 IST 2025 NEUTRAL CITATION R/CR.MA/15341/2021 ORDER DATED: 30/07/2025 undefined activity, (ii) interferes with the course of investigation (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc.These 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."
9. In the case of Raghubir Singh Vs. State of Bihar, reported in (1986) 4 SCC 481, the Hon'ble Supreme Court has observed that grounds for cancellation of bail under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or Section 439(1) can be cancelled where (i) accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with Page 9 of 14 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:42:37 IST 2025 NEUTRAL CITATION R/CR.MA/15341/2021 ORDER DATED: 30/07/2025 undefined 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 scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. It was also held that above grounds are illustrative and not exhaustive. Rejection of bail stands on one footing but cancellation of bail is a harsh order since it interferes with liberty of individual and must not be lightly resorted to.
10. The law regarding cancellation of bail has been well settled by a catena of judgments by Hon'ble Surpeme Court to the effect that cancellation of bail can be ordered only on stronger grounds and bail already granted should not be cancelled by the High Court unless it appears that the order passed by the Sessions Judge granting bail was arbitrary, illegal and perverse or if the accused is interfering with the course of justice by tampering with the evidence. It is also trite law that the Page 10 of 14 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:42:37 IST 2025 NEUTRAL CITATION R/CR.MA/15341/2021 ORDER DATED: 30/07/2025 undefined power to cancel bail has to be exercised with caution and great circumspection in appropriate cases.
11. The case on hand pertains to cancellation of bail granted to the accused, and according to me, in an application for cancellation of bail, the conduct subsequent to release on bail and the supervening circumstances are the relevant factors to be kept in mind while deciding the cancellation of bail application. It is no doubt true that the error being committed by the learned trial judge as well as the non-consideration of relevant aspects while setting the accused at liberty are also the relevant factors to be borne in mind at the time of deciding cancellation of bail application, still the same do not have much significance, on the basis of which, the order granting bail to the accused can be reversed, as it can be taken into consideration and determined during the course of trial. The consideration of cancellation of bail is different from the consideration for grant of bail, and the bail can be cancelled only on existence of cogent and overwhelming circumstances, but not on re- Page 11 of 14 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:42:37 IST 2025
NEUTRAL CITATION R/CR.MA/15341/2021 ORDER DATED: 30/07/2025 undefined appreciation of the facts of the case. It is a settled law that cancellation of bail should not be by way of punishment even if prima facie case against the accused is established.
12. In view of the settle proposition of law as laid down by the Hon'ble Supreme Court in the aforesaid decisions, now coming back to the case on hand, it is found out that an FIR has been lodged for the alleged offences alleging inter alia about the unfortunate incident, wherein 3 persons have sustained injuries and in connection with the aforesaid FIR, the applicant had filed an application seeking bail, which was eventually considered by the learned Judge concerned. I have also gone through the order passed by the learned Judge concerned and found out that while passing order granting bail, all relevant aspects germane to the grant of bail have been considered by learned Judge, therefore, it cannot be said that the learned Judge has not taken into consideration the facts of the case as also material available on record. Page 12 of 14 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:42:37 IST 2025
NEUTRAL CITATION R/CR.MA/15341/2021 ORDER DATED: 30/07/2025 undefined
13. I have also considered the averments made in the application and having considered the same, it is found out that by filing present application, the applicant has sought cancellation on the ground that some relevant aspects were not taken into consideration by the learned judge while enlarging the accused on bail and it is not the case of the applicant that the respondent no.2 - accused has violated any condition imposed upon him and/or misused the liberty granted to him. However as stated above, I have considered the findings given and conclusion arrived at by the learned Judge while passing said order and found out that each and every aspect has been considered by the learned Judge and assigned cogent and convincing reasons, therefore, I do not find any error and/or perversity in the said order, which requires interference at the hands of this Hon'ble Court.
14. Therefore considering the facts of the case coupled with the law enunciated by the Hon'ble Supreme Court in the aforesaid decisions, I find that there is no material available on record to show any justification for Page 13 of 14 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:42:37 IST 2025 NEUTRAL CITATION R/CR.MA/15341/2021 ORDER DATED: 30/07/2025 undefined cancellation of bail after more than four years and, therefore, order of cancellation of bail cannot be justified at this stage.
15. Therefore, the present application lacks of merit therefore, is hereby rejected. Notice discharged.
(DIVYESH A. JOSHI,J) KKN Page 14 of 14 Uploaded by MS.KAJAL KISHORBHAI NAVLAKHA (HCD0076) on Fri Aug 01 2025 Downloaded on : Sat Aug 02 00:42:37 IST 2025