Sanjaybhai Manubhai Bhaliya vs State Of Gujarat
2022 Latest Caselaw 9154 Guj

     R/CR.MA/13091/2022                             JUDGMENT DATED: 17/10/2022




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL MISC. APPLICATION NO. 13091 of 2022

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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        Whether Reporters of Local Papers may be allowed to see
 1                                                                        NO
        the judgment ?
 2 To be referred to the Reporter or not ?                                YES

        Whether their Lordships wish to see the fair copy of the
 3                                                                        NO
        judgment ?
   Whether this case involves a substantial question of law as
 4 to the interpretation of the Constitution of India or any              NO
   order made thereunder ?

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             SANJAYBHAI MANUBHAI BHALIYA
                             Versus
                    STATE OF GUJARAT
======================================================
Appearance:
MR HRIDAY BUCH(2372) for the Applicant(s) No. 1
MALAYKUMAR S PATEL(8901) for the Respondent(s) No. 2,3,4
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
======================================================

 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                              Date : 17/10/2022

                            ORAL JUDGMENT

1. Rule.

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2. This application is filed by the applicant - original complainant under

Sections 439(2) of the Criminal Procedure Code, 1973 (CrPC) seeking

cancellation of bail granted to the respondent Nos. 2, 3 and 4 - original

accused Nos. 2, 3 and 5 by an order dated 19.05.2022 passed in Criminal

Misc. Application No. 85 of 2022 by the learned Additional Sessions Judge

and Special (POCSO) Court and Fast Track Court, Rajula, whereby, the

learned Sessions Judge was pleased to grant regular bail to the respondent

Nos. 2, 3 and 4, for the alleged offence punishable under Sections 302, 323,

504, 34, 143, 147, 148, and 149 of the Indian Penal Code, 1860 (IPC) and

Section 135 of the Gujarat Police Act, for which, FIR C.R. No.

11193024201046 of 2010 came to be registered before the Jafrabad Police

Station, Dist.: Amreli.

3. Heard, Mr. Hriday Buch, learned advocate for the applicant - original

complainant and Ms. Jirga Jhaveri, learned Additional Public Prosecutor for

the respondent - State and learned advocate Mr. Malaykumar Patel for the

respondent Nos. 2, 3 and 4 - original accused.

3.1 The learned advocate for the applicant - original complainant

vehemently submitted that despite the respondent Nos. 2, 3 and 4 - original

accused having been arraigned in a serious offence, the learned Sessions

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Judge has granted bail to them, despite there being prima facie case against

the accused persons. He submitted that the order granting bail is completely

unjust, arbitrary, perverse and without any justification inasmuch, there are

ample evidence on record suggesting involvement of the respondent Nos. 2,

3 and 4 in the crime in question. It is submitted that the learned Sessions

Judge has also failed to consider the evidence of the material eye-witnesses,

who have clearly supported the case of the prosecution.

3.2 The learned advocate for the applicant - original complainant further

vehemently submitted that the Post Mortem Report suggests 22 fatal injuries

having been sustained by the deceased, which were opined to be the ante

mortem in nature. Further, blood stains were also found on the clothes of

the respondent Nos. 2, 3 and 4, which is suggestive of the fact of presence of

the respondent Nos. 2, 3 and 4 at the scene of offence. The learned advocate

for the applicant submitted that CCTV Footage was also sent for forensic

examination, however, the same is also not considered by the learned

Sessions Judge while enlarging them on bail.

3.3 The learned advocate for the applicant further submitted that the

accused are headstrong persons and there are all chances of intimidation to

the prosecution witnesses as well as threat to the family of the complainant.

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He submitted that a representation to that effect was also made by the elders

of Chitrasar Village to the officials concerned.

3.4 Last but not the least, taking this Court to the judgment and order

dated 13.06.2022 passed by the coordinate Bench in Criminal Misc.

Application Nos. 16252 of 2021 and 5114 of 2022, it is submitted that the

coordinate Bench, taking into consideration all such aspects of the matter,

has cancelled the bail granted to the original accused Nos. 1 and 4 and

accordingly, in his submission, this application also deserves favourable

consideration, more particularly, considering the seriousness of the offence.

3.5 Thus, making above submissions, it is urged that this application may

be allowed and to cancel the bail granted to the respondent Nos. 2, 3, and 4

- original accused.

3.6 In support, the learned advocate for the applicant - original

complainant has relied upon following decisions:

i) Ranjit Singh v. State of Madhya Pradesh and Others, (2013) 16 SCC 797;

ii) Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230;

      R/CR.MA/13091/2022                              JUDGMENT DATED: 17/10/2022




        iii)    Mahipal v. Rajesh Kumar, (2020) 2 SCC 118;

        iv)     Ishwar Nagji Mali v. State of Gujarat and Another, (2022)
                SCC Online SC 55.

4. Per contra, learned advocate Mr. Malaykumar Patel for the

respondent Nos. 2, 3 and 4, while vehemently opposing this application,

submitted that while withdrawing the application being Criminal Misc.

Application No. 5703 of 2021 on 09.08.2021, liberty was reserved in favour

of the respondents - accused to file a fresh bail application before the

learned Court below after recording the depositions of eye-witnesses viz.

Mr. Sachin, Mr. Karan, Mr. Anil and Mr. Deva. He submitted that the

coordinate Bench also observed in such order that the competent Court shall

decide such an application without being influenced by the impugned order

as also the withdrawal of that application. He submitted that in view of the

liberty reserved in favour of the respondents - accused, regular bail

application being Criminal Misc. Application No. 85 of 2022 was preferred

before the learned Court below after recording of the evidence of the

aforesaid witnesses, which came to be allowed by an order dated

19.05.2022, which is impugned herein. Therefore, in the submission of the

learned advocate for the respondents - accused, it cannot be said that the

order of the learned Court below is unjustifiable or unreasonable.

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4.1 The learned advocate for the respondents - accused further submitted

that as the learned Sessions Judge had rejected the bail application of the

present respondents - original accused Nos. 2, 3 and 5 on 02.03.2021 and

this Court also did not interfere in the said order, however, the bail

applications of the co-accused viz. original accused Nos. 1 and 4 came to be

allowed, that too by the very same learned Judge, the coordinate Bench

found perversity and illegality in the said order and accordingly, found the

said order unjustifiable and eventually, cancelled the bail granted to them.

However, in the case of the present respondents - accused, this Court had

granted liberty and accordingly, the competent Court viz. the learned Court

below granted bail to the present respondents - accused that too, after

recording the evidence of the five witnesses named in the aforesaid order,

and therefore, there being no illegality in the order impugned herein, more

particularly, when it is passed on merits, the bail granted to the respondents

- accused is completely justified.

4.2 The learned advocate for the respondents - accused further submitted

that it is also not the case either of the prosecution or of the original

complainant that the accused have committed breach of any bail conditions

and/or have misused the liberty granted to them and/or have involved in

similar such crime after release and that there being chance of they flee from

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justice. The learned advocate further submits that there is also no possibility

of tampering and/or hampering with the evidence as the charge-sheet is filed

and the trial has already commenced and that, all material witnesses have

been examined. In the circumstances, the learned advocate for the

respondents - accused urged that this application being devoid of any

merits, may be dismissed.

4.3 In support, the learned advocate for the respondents - accused has

relied upon a decision of the coordinate Bench in Criminal Misc.

Application (For Cancellation of Bail) No. 15021 of 2013 dated

07.07.2014.

5. The Court has also heard the learned Additional Public Prosecutor for

the respondent No. 1 - State.

6. Regard being had to the submissions made and considering the

material available on record, it appears that the matter has chequered

history. As the fact go, an FIR for the offence punishable under Sections

302, 323, 504, 34, 143, 147, 148, and 149 IPC and Section 135 of the

Gujarat Police Act came to registered with Jafrabad Police Station, Dist.:

Amreli in which, in all, five persons have been arraigned as accused.

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Initially, the respondent Nos. 2, 3 and 4 - original accused Nos. 2, 3 and 5

had moved regular bail application before the learned Sessions Court being

Criminal Misc. Application No. 28 of 2021. The said application came to

be rejected vide order dated 02.03.2021 passed by the learned Additional

Sessions Judge, Rajula. Against the said order, they moved this Court by

way of filing Criminal Misc. Application No. 5703 of 2021, which came to

be withdrawn on 09.08.2021 with a liberty to file afresh after recording the

depositions of the eye-witnesses as named in the said order. However,

despite this Court did not interfere in the order dated 02.03.2021 passed in

the case of present respondent Nos. 2, 3 and 4, the very same learned

Sessions Judge grants the regular bail to the original accused Nos. 1 and 4

vide order dated 19.08.2021 passed in Criminal Misc. Application No. 164

of 2021 i.e. after withdrawal of the application by the present respondent

Nos. 2, 3 and 4 before this Court on 09.08.2021. The said order came to be

assailed by the applicant - original complainant before this Court and the

coordinate Bench vide judgment and order dated 13.06.2022 passed in

Criminal Misc. Application Nos. 16252 of 2021 and 5114 of 2022 allowed

the said applications and cancelled the bail granted to the original accused

Nos. 1 and 4. By way of impugned order here in this application, the

learned Sessions Judge has granted bail to the respondent Nos. 2, 3 and 4 -

original accused Nos. 2, 3 and 5.

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6.1 At the outset, since the observations made by the coordinate Bench in

the judgment and order dated 13.06.2022 passed in Criminal Misc.

Application Nos. 16252 of 2021 and 5114 of 2022 are significant, they are

extracted hereunder:

"10. Heard learned Advocates for the respective parties who has not submitted anything else.

11. At the outset, certain prima facie aspects are required to be noted.

[1] The FIR filed by the first informant, on the date of the incident i.e. approximately 3 hours after the incident in question, specifically states the respondents no. 2 and 3 as accused and also alleges specific role played by the said respondents, more particularly, the FIR stating that the respondents no. 2 and 3 had assaulted the deceased with stick as well as with hands.

[2] Four eye witnesses i.e. as named in order dated 09.08.2021 of this Court whereby bail application of other accused nos. 2, 3 & 5 had not been considered, had witnessed the incident and whereas all four of the witnesses in their statements to the Investigating Officer have clearly stated with regard to role played by each of the accused, more particularly, the applicants before this Court being accused no. 1 & 4. The accused no. 1 & 4 are stated to have assaulted the deceased with sticks and whereas it is also mentioned that when the first informant as well as his brother Sachin and others had tried to intervene, even the said persons had also assaulted.

[3] The Sessions Court vide order dated 02.03.2021 i.e. approximately 5 months before the date of the impugned order had rejected bail applications of accused no. 2, 3 and 5 and whereas such order had not been interfered by this Court vide order dated 09.08.2021, i.e. also prior to date of the impugned order releasing the respondents no. 2 and 3 (accused no. 1 & 4) on regular bail.

12. Having noted the salient aspects as above and reading the

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same along with the impugned order, insofar as the findings of the learned Sessions Court are concerned, it appears that the learned Sessions Court has inter alia noted that the first informant appears not to have witnessed the incident. Learned Sessions Court also finds that according to the first information, the accused before the Court i.e. respondent no. 2 and 3 herein do not appear to have used any weapon and thus the said accused having assaulted the deceased with any weapons is not coming out.

12.1. In the considered opinion of this Court, the said finding of the learned Sessions Court reflects absolute non-application of mind on part of the learned Sessions Court whereas it appears from a plain reading of the FIR that the first informant has clearly stated about the role played by the present respondents no. 2 and 3 in assaulting the deceased and whereas in the First Information Report it is mentioned that the first informant had witnessed the respondents no. 2 and 3 assaulting the deceased with sticks. Apart from the same as it appears, there were four eye witnesses who also mentioned about the present respondents no. 2 and 3 having assaulting the deceased with sticks. It also appears that statements of the said witnesses had been recorded under Section-164 of the Code of Criminal Procedure and whereas as informed by the learned Advocates, three of the four witnesses have also deposed in favour of the prosecution.

12.2. Insofar as the finding by the learned Sessions Court that no weapons having been discovered at the instance of the present accused, it clearly appears that the learned Sessions Court had erred at that stage also since the Discovery Panchnama clearly reflects about the sticks having been discovered at the instance of the accused no. 1 and 4 i.e. the respondents no. 2 and 3. Though it would attempted to be submitted by learned Advocate Mr. Raval on behalf of the respondents no. 2 and 3 that at the stage of the said weapons being discovered, it is mentioned that there were no blood stains on the said weapons, which submission in the considered opinion of this Court may not be germane for considering this application, more particularly, in view of that fact that this Court is considering an order whereby in spite of weapons being discovered at the instance of the respondents no. 2 and 3 herein, the learned Sessions Court had noted that no weapons had been discovered at the instance of the said accused. The learned Sessions Court also notes that the applicants have prima facie not injured the deceased

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using any weapons, which also is a factually incorrect finding, more particularly, as noted herein above in addition to the first informant, four witnesses have clearly stated that they had witnessed the respondents no. 2 and 3 assaulting the deceased with sticks.

12.3. Insofar as the aspect with regard to the Post Mortem Report is concerned, while the learned Sessions Court notes that the Post Mortem Report does not reflect any serious injuries being caused to the deceased and whereas the Post Mortem Report also does not specifically state with regard to the cause of death. As it appears the learned Sessions Court had completely erred on this aspect also, more particularly, since perusal of the Post Mortem Report clearly reflects 22 ante mortem injuries having been sustained by the deceased. The Post Mortem Note also states with regard to the deceased having died on account of asphyxia due to manual strangulation and smothering.

13. Shockingly the learned Sessions Court while granting bail to the applicants also observes that prima facie no incident for an offence under Section-302 appears to have happened in the instant case. This Court, is at pains to understand such a finding on part of the learned Sessions Court, more particularly, in view of the overwhelming evidence which was present before the learned Sessions Court which would show that the deceased, having been assaulted by the accused, had died even before he could be taken to the hospital. There being ample material in form of the FIR, in form of statements of four witnesses and in form of the Post Mortem Report which all point towards the deceased having been done to death, yet the learned Sessions Court having observed as mentioned herein above, is unfathomable by this Court.

14. Having regard to the discussion herein above, it clearly appears that the observations of the learned Sessions Court while releasing the accused no. 1 and 4 i.e. the respondents no. 2 and 3, clearly reflects absolute non-application of mind on part of the learned Sessions Court and whereas the findings could be held to be nothing less than perverse.

15. Furthermore it appears, as has been submitted by learned Advocate for the applicant, and also on the basis of the averments in the application, that it is not the case of the applicant that the bail

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granted to the respondents no. 2 and 3, should be canceled on account of the respondents no. 2 and 3 having misused the liberty granted to them or on account of some supervening circumstances which had occurred in the interregnum rather as noted from the submissions of learned Advocate and as found from the averments made in the application, the main ground for challenging the order is that the order granting bail to the respondents no. 2 and 3 was completely unjustified. At this stage this Court seeks to rely upon the observations of the Hon'ble Apex Court in case of Mahipal vs. Rajesh Kumar reported in 2020 2SCC page no. 118, more particularly, paragraph no. 14, 16 and 17 thereof which are reproduced herein below for benefit.

Paragraph 14: "The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case by case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding. The decision of this Court in Prasanta has been consistently followed by this Court in Ash Mohammad v Shiv Raj Singh, Ranjit Singh v State of Madhya Pradesh, Neeru Yadav v State of U.P., Virupakshappa Gouda v State of Karnataka, and State of

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Orissa v Mahimananda Mishra."

Paragraph 15: "The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted. In Neeru Yadav v State of Uttar Pradesh,12 the accused was granted bail by the High Court. In an appeal against the order of the High Court, a two judge Bench of this Court surveyed the precedent on the principles that guide the grant of bail. Justice Dipak Misra (as the learned Chief Justice then was) held:

"...It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court..."

Paragraph 16: "Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers (2015) 15 SCC 422 from a non-application of mind

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or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment. The order of the High Court in the present case, in so far as it is relevant reads:

"2. Counsel for the petitioner submits that the petitioner has been falsely implicated in this matter. Counsel further submits that, the deceased was driving his motorcycle, which got slipped on a sharp turn, due to which he received injuries on various parts of body including ante-mortem head injuries on account of which he died. Counsel further submits that the challan has already been presented in the court and conclusion of trial may take long time.

3. Learned Public Prosecutor and counsel for the complainant have opposed the bail application.

4. Considering the contentions put-forth by the counsel for the petitioner and taking into account the facts and circumstances of the case and without expressing opinion on the merits of the case, this court deems it just and proper to enlarge the petitioner on bail."

Paragraph 17: "In assessing the rival submissions, it is necessary to advert to the findings of the post-mortem report dated 3 December 2018. On the basis of the injuries, the post- mortem report concluded:

"All above mentioned injuries are ante mortem in nature. Duration within about 6 hrs prior to death.

We the members of medical board are of the opinion that cause of death is COMA brought about as a result of ante mortem head injuries mentioned in this PMR, sufficient to cause death in ordinary course of nature. However final opinion will be given after receiving FSL reports of above sent samples."

A total of twenty-seven ante-mortem injuries were recorded of which seven were found to be inflicted on the head. This led the

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members of the medical board to conclude that the cause of death was coma brought about by the result of the head injuries. The learned counsel for the first respondent contended that the deceased fell from the bike and sustained injuries which led to his death. However, it is not for the court to assess in detail the evidence on record to come to a conclusive finding on a chain of causation. A court assessing a plea of bail is required to find a prima facie view of the possibility of the commission of the crime by the accused and not conclude that the alleged crime was in fact committed by the accused beyond reasonable doubt." (emphasis supplied)

15.1. Having regard to the observations of the Hon'ble Apex Court in case of Mahipal (supra) at paragraph 14, 15 & 16, it clearly appears that the Hon'ble Apex Court has inter alia drawn a distinction between an application for cancellation of appeal on the ground that there was an improper or arbitrary exercise of discretion and an application for cancellation of bail where it is alleged that there are existence of supervening circumstances or violation of conditions of bail by the person who has been granted bail.

16. Having regard to the said findings, in the considered opinion of this Court, the observations relied upon from judgment of this Court Ramesh R. Thakor (supra) as well as judgment of the Hon'ble Apex Court State of Telangana (supra) by learned Advocate on behalf of the respondents no. 2 and 3, which are with regard to an aspect when bail is sought to be canceled on the ground that the accused have misused the liberty granted them, would not be applicable.

17. Furthermore, appreciating the law laid down by the Hon'ble Apex Court in Mahipal (supra) at paragraph no. 17 as herein above, that a Court assessing a bail application is required to reach a prima facie view of possibility of commission of the crime by the accused and whereas the Court is not required to conclude that the crime was committed by the accused beyond reasonable doubt, it appears that even this primary consideration had been ignored by the learned Sessions Court and whereas in spite of prima facie material, the Sessions Court has come to a conclusion otherwise as regards the role of the accused no. 1 & 4 - respondents no. 2 & 3 herein. Furthermore, the Hon'ble Apex Court in Mahipal (supra) has laid down a test to be followed when challenge is to an order granting

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bail on the ground that there was an improper or arbitrary exercise of discretion. The test being that whether the order granting bail is perverse, illegal or unjustified. In the instant case it clearly appears on the basis of the discussion as herein above that the order granting bail was completely unjustified, illegal and suffer from gross perversity.

18. This Court also notes that in the instant case, in case of accused no. 2, 3 and 5, the very same learned Sessions Court vide an order dated 02.03.2021 had rejected the bail application of the said accused and whereas the said order had not been interfered by this Court. In view of such a circumstance, the same Sessions Court, having gone ahead and granted bail to the present respondents no. 2 and 3 i.e. accused no. 1 and 4, is in this considered opinion of this Court completely unjustifiable.

18.1. Insofar as the submission made by learned Advocate Mr. Raval that the trial is at an advanced stage and canceling bail or quashing and setting aside order granting bail to respondents no. 2 and 3 would not serve any purpose, in the considered opinion of this Court, the primary aspect which is required to be seen while granting bail, in case of a cognizable offence is with regard to the role played by each of the accused and the nature & gravity of the accusation. In the instant case, accused having prima facie played a vital role in causing the death of the deceased and the allegation against the accused being that they had participated in assault with using sticks and the Post Mortem Report showing approximately 22 ante mortem injuries suffered by the deceased, in the considered opinion of this Court also reflects on the perversity of the reasons stated in the order of the learned Sessions Court granting bail to the respondents no. 2 and 3 which was completely unjustified and in view of such a scenario, even if the trial is at an advanced stage, the illegal and perverse order of the learned Sessions Court, cannot be allowed to continue any further.

19. Having regard to the discussion & reasoning as herein above, in the considered opinion of this Court, order dated 19.08.2021, deserves interference and hence, the same is quashed and set aside.

20. At the request of learned Advocate Mr. Raval, time to surrender is granted to the accused for a period of four weeks from the date of this order is uploaded on the web portal of the Gujarat

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High Court."

6.2 Thus, in nutshell, the coordinate Bench has cancelled the bail of the

co-accused, particularly, on the grounds that: i) the order passed by the

learned Sessions Judge is without application of mind; ii) that the learned

Sessions Judge has discussed the evidence at the stage of considering the

bail application; ii) that the learned Sessions Judge, despite this Court did

not interfere in the order rejecting bail application, has granted the bail; iv)

that, at the stage of bail application, the learned Sessions Judge has

observed that prima facie no incident for an offence under Section 302 IPC

appears to have happened; v) the main ground for cancellation is the order

being unjustified and improper and arbitrary exercise of discretion.

7. In the above context, if the case on hand is considered, again the very

same learned Sessions Judge appears to have committed the very same

errors viz. if paragraph (4) of the impugned order is referred to, the learned

Sessions Judge has observed that, "the Hon'ble High Court has given names

of five prosecution witnesses and after conclusion of their evidence,

permitted to move the Court with fresh bail application. If the depositions

of the said prosecution witnesses are considered, there are contradictions

in the statements of the witnesses, facts narrated in the complaint and the

charge-sheet as well as the statements of the police witnesses. In the

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circumstances, it is submitted (by the accused) that the they are falsely

implicated in the offence and they are undergoing pre-trial punishment and

that, they are innocent. Further, crucial witnesses have been examined and

the rest are police witnesses and there is no possibility of tampering and

accordingly, if they would be enlarged on bail, they undertake that they

would not indulge in any criminal activity and/or threaten the witnesses". It

is further observed by the learned Sessions Judge that, "...if the depositions

of the crucial witnesses are referred to, prima facie, there appears

contradictions and in the circumstances, there is possibility of the accused

being innocent". It is also observed that, no test identification has been

carried out so as to ascertain the presence of the accused at the spot".

Further, the learned Sessions Judge has also considered the aspect that, "if

the accused are not released on bail, they families may suffer starvation".

However, contrary to the said proposition, it is observed in the later part of

the said observations that, "the applicants - accused are the locales and

possess movable and immovable properties and that, they may not flee

from justice and that, they are ready to give bail of whatever the amount,

the Court would prescribe".

7.1 Above all, in the case on hand, the learned advocate for the applicant

has much emphasized on the correctness of the order granting bail rather

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than cancellation of bail. It is an admitted position that the accused in the

case on hand are charged with the serious offence, punishable under Section

302, 323, 504, 34, 143, 147, 148, and 149 IPC. At this juncture, if the

decision of the Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee

and Anr., MANU/SC/0916/2010 : (2010) 14 SCC 496, is referred to, the

Apex Court has laid down the principles for examining the correctness of

orders granting bail to an Accused. This Court held:

9. ...It is trite that this Court does not, normally, interfere with an order [Ashish Chatterjee v. State of W.B., CRM No. 272 of 2010, order dated 11- 1-2010 (Cal)] passed by the High Court granting or rejecting bail to the Accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the Accused had committed the offence;

             (ii)      nature and gravity of the accusation;

             (iii)     severity of the punishment in the event of conviction;

             (iv)     danger of the Accused absconding or fleeing, if released
             on bail;

             (v)    character, behaviour, means, position and standing of
             the Accused;

             (vi)      likelihood of the offence being repeated;

             (vii)     reasonable apprehension of the witnesses being





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           influenced; and

           (viii)    danger, of course, of justice being thwarted by grant of
           bail.

           ***

10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal.

14. In Mahipal v. Rajesh Kumar and Anr. reported in MANU/SC/1677/2019 : (2020) 2 SCC 118, this Court held:

14. The provision for an Accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the Accused had committed the offence, the nature and gravity of the offence and the likelihood of the Accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-by-case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the Accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding.

15. In Sanjay Chandra v. Central Bureau of Investigation

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reported in MANU/SC/1375/2011 : (2012) 1 SCC 40, this Court held:

24. In the instant case, we have already noticed that the "pointing finger of accusation" against the Appellants is "the seriousness of the charge". The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the Appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice".

25. The provisions of Code of Criminal Procedure confer discretionary jurisdiction on criminal courts to grant bail to the Accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. ....

16. In Siddharam Satlingappa Mhetra v. State of Maharashtra and Ors. reported in MANU/SC/1021/2010 : (2011) 1 SCC 694) rendered in the context of the discretion to grant Anticipatory Bail Under Section 438, this Court advocated the need to balance individual personal liberty with societal interest. This Court held:

84. Just as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important.

17. There is no straight jacket formula for grant or refusal of bail. Seriousness of the charge is undoubtedly one of the relevant considerations while considering bail applications. All the relevant factors have to be weighed by the Court considering an application for bail, including the gravity of the offence, the evidence and

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material which prima facie show the involvement of applicant for bail in the offence alleged, the extent of involvement of the applicant for bail, in the offence alleged, possibility of the applicant Accused absconding or otherwise defeating or delaying the course of justice, reasonable apprehension of witnesses being threatened or influenced or of evidence being tampered with, and danger to the safety of the victim (if alive), the complainant, their relatives, friends or other witnesses.

18. xxx

19. xxx

20. In Dolat Ram (supra), this Court held:

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. 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."

7.2 Adverting the case on hand keeping in mind the aforesaid settled

legal position, the respondents - original accused are arraigned as accused

for the offence punishable under Sections 323, 504, 34, 143, 147, 148, and

149, IPC which is a grave and serious crime. Considering the overall facts

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and circumstances of the case vis-a-vis the settled legal position as

enumerated herein above, following aspects have been weighed with by the

Court:

i) the accused are arraigned for the offence punishable under

Sections 302 etc. IPC, punishment for which punishment

prescribed for is death or life imprisonment;

ii) considering the gravity and nature of offence as well as the

observations made by the learned Sessions Judge in the order

granting bail, the coordinate Bench has cancelled the bail

granted to the co-accused i.e. original accused Nos. 1 and 4;

iii) a bare perusal of the FIR prima facie reveals that the present

respondents - accused are also attributed with the same role as

that of the original accused Nos. 1 and 4;

iv) PM Note suggests as many as 22 injuries on the body of the

deceased, which were ante mortem in nature;

v) the learned Sessions Judge appears to have gone beyond the

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parameters for consideration of the bail application inasmuch

as, the learned Sessions Judge has virtually dealt with the

evidence, more particularly, of the crucial witnesses that were

examined and observed that, there are possibility of the accused

being innocent";

vi) as per the applicant - original complainant, the accused, on

several occasions, have attempted to intimidate the witnesses

and hence, a representation against the accused persons has

also been made before the authority concerned by the elders of

Chitrasar village. The said conduct of the accused is against

the condition of bail granted to them;

vii) the bail granted to the respondents - accused by the learned

Sessions Judge appears to have been completely unjustified;

viii) much emphasis has been given to the order dated 09.08.2021,

whereby, the coordinate Bench had permitted withdrawal of

bail application of the respondents - accused with liberty to

move afresh after five witnesses, as named in the said order, are

examined. In this regard, least is to say that, the facts and

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circumstances of a case always prevail over such a liberty and

it is implied;

ix) it is trite law 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;

x) last but not the least, the judgment and order passed by the

coordinate Bench dated 13.06.2022 passed in Criminal Misc.

Application Nos. 16252 of 2021 and 5114 of 2022.

8. The Court has gone through the decision of the coordinate Bench of

this Court, relied upon by the learned advocate for the respondent Nos. 2, 3

and 5 in Criminal Misc. Application (For Cancellation of Bail) No. 15021

of 2013 dated 07.07.2014. In the said case, considering the all the details,

the Court was of the opinion that, there was no illegality, perversity or

arbitrariness in granting bail, whereas, in the case on hand, as discussed

herein above, such is not the case.

8.1 The Court has also gone through the decisions relied upon by the

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learned advocate for the applicant, however, with a view not to burden this

judgment, the Court deems it proper not to discuss the same in detail.

9. In the aforesaid view of the matter and for the forgoing observations

and discussion, the present application requires to be allowed. Accordingly,

this application succeeds and is, therefore, allowed. The order dated

19.05.2022 passed in Criminal Misc. Application No. 85 of 2022 by the

learned Additional Sessions Judge and Special (POCSO) Court and Fast

Track Court, Rajula is set aside and bail granted to the respondent Nos. 2, 3

and 4 - original accused Nos. 2, 3 and 5 is cancelled. The respondent Nos.

2, 3 and 4 are directed to surrender to custody within a period of four weeks

from today without fail, failing which, the concerned police authority is at

liberty to take appropriate steps, in accordance with law. Rule is made

absolute accordingly.

9.1 It goes without saying the observations made herein above being

prima facie, they shall have no bearing, in any way, on the trial.

[ A. C. Joshi, J. ] hiren