Yashwantkumar Hiralal Patel vs Patel Pritesh Kanubhai
2022 Latest Caselaw 8356 Guj

 R/CR.MA/25624/2017                                CAV ORDER DATED: 23/09/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 25624 of 2017
                               With
           R/CRIMINAL MISC.APPLICATION NO. 25627 of 2017
                               With
           R/CRIMINAL MISC.APPLICATION NO. 25628 of 2017
                               With
           R/CRIMINAL MISC.APPLICATION NO. 25631 of 2017
                               With
           R/CRIMINAL MISC.APPLICATION NO. 29437 of 2017
                               With
           R/CRIMINAL MISC.APPLICATION NO. 29441 of 2017
                               With
           R/CRIMINAL MISC.APPLICATION NO. 29442 of 2017
                               With
           R/CRIMINAL MISC.APPLICATION NO. 29444 of 2017
                               With
           R/CRIMINAL MISC.APPLICATION NO. 29445 of 2017
==========================================================

YASHWANTKUMAR HIRALAL PATEL Versus PATEL PRITESH KANUBHAI & 1 other(s) ========================================================== Appearance:

MR MEET A SHAH for MR AD OZA(515) for the Applicant(s) No. 1 ADVOCATE NOTICE SERVED for the Respondent(s) No. 1 MR CHINTAN DAVE, ADD PUBLIC PROSECUTOR for Respondent No. 2 ========================================================== CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 23/09/2022

COMMON CAV ORDER

1. Present batch of Criminal Misc. Applications is basically

arising out of a common order passed by learned Principal

Sessions Judge, Mahisagar, Lunawada dated 28.9.2017, hence

taken up for hearing conjointly, upon request made by learned

advocates representing both the sides.

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2. Since common questions and facts are involved in this

batch of applications, Criminal Misc. Application No.25624 of

2017 is treated as a lead matter for sake of convenience, which

would govern the other applications attached herewith.

3. Original complainant Yashwantkumar Hiralal Patel and

State have brought these applications for challenging the

legality and validity of the common order passed by the Court

below whereby opponent- accused persons in respective

applications have been enlarged on bail by imposing suitable

conditions and it is this order passed way back in 2017,

precisely on 28.9.2017, present applications have now come up

for considerations before this Court.

4. First notice appears to have been issued on 13.10.2017

and subsequently, from time to time, adjournments have been

sought and hearing was then requested somewhere in the

month of June 2022.

5. The background of facts giving rise to these applications

are that opponent herein along with other persons have hatched

a conspiracy to leak board exam paper and as a part of that

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conspiracy, opponents took photographs of questions paper and

thereby said photographs were released in public through

electronic device and this has been done with the aid and

assistance of co-conspirators who committed this crime. Further

investigation and FSL report, according to the applicant-

complainant, do suggest deep rooted conspiracy of commission

of an offence. According to the applicant- complainant,

opponent is a teacher in B.M. School, who received leaked

question paper on his electronic device, who in turn forwarded

the same to his confederate Mr. Rakesh Patel and thereby

played important role as a part of such conspiracy. Opponent

No.1 was arrested in connection with this complaint which was

registered before Lunawada Police station, being C.R. No.I-36 of

2017 for the offences punishable under Sections 379, 120B,

201, 409, 114, 36 of Indian Penal Code, read with Section

Section 72 of the I.T. Act and also under Section 43 of the

Gujarat Secondary Education Act. On such arrest being made,

opponent No.1 was enlarged on regular bail by learned Sessions

Judge, vide order dated 6.5.2017, which was challenged before

this Court by filing Criminal Misc. Application No.14200 of 2017

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for seeking cancellation thereof and after hearing, Hon'ble

Court vide order dated 1.9.2017 was pleased to remand the

matter back for further consideration and in the meantime, it

was observed that opponent No.1 since was on bail right from

May 2017, is not required to surrender and application for bail

was ordered to be decided afresh by treating the applicant-

accused to be in deemed custody. This detailed order came to

be passed on 1.9.2017 and pursuant to the said order, similar in

nature, passed with respect to all other applications of this

batch of matters, proceedings have been taken up for fresh

consideration by learned Court below.

6. It has been asserted by applicant- complainant that upon

said order being passed by this Court, the matters were heard

for fresh consideration and vide common order dated 28.9.2017,

learned Principal Sessions Judge, Mahisagar was pleased to

pass an order of grant of regular bail by imposing appropriate

conditions as contained in the order dated 28.9.2017.

7. Same order is also passed in other applications since same

being common order with respect to all these applications and it

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is this order passed by learned Principal Sessions Judge is made

the subject matter of present batch of applications and which is

taken up for hearing by the Court.

8. Learned advocate Mr. Meet A. Shah for Mr. A.D. Oza

appearing on behalf of original complainant who is applicant in

some of the applications has vehemently contended that the

order passed by learned Principal Sessions Judge is not in spirit

in which the High Court passed order for fresh consideration

and as such, order under challenge is suffering from vice of non-

application of mind. It has been contended that it has been

specifically observed that High Court relegated the matter to

examine the role of each of accused persons as can be seen

from paragraphs 17 and 21 of the order of High Court, but then

what has been emerging from impugned order is that such

examination has not been undertaken by the Court below and as

such, order impugned in these applications is since not in spirit

in which the High Court expected to consider, same deserves to

be quashed and set aside.

9. Learned advocate Mr. Shah has submitted that each of

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accused persons have been part of alleged conspiracy and each

one has contributed to the commission of said crime and since

in the first round, said role was already visualized, as projected

by applicant, Hon'ble High Court looking to seriousness of

offence directed to consider and pass a fresh order and when

that be so, it was obligatory on the part of the Court below to

examine the issues as was expected to be examined. Here, it has

already been surfaced that role had been visible of each of the

accused in commission of the crime and when such magnitude

of offence has not been appreciated by Court below despite

direction, the order is perverse and same is not sustainable. By

referring to few circumstances prevailing on record, Mr. Shah

has submitted that simply because the opponents are enlarged

on bail long back, it was not the circumstance sufficient enough

not to entertain and examine despite reconsideration having

been ordered. According to Mr. Shah, order has been passed in

an evasive manner, hence on that count alone, same is required

to be quashed and set aside.

10. Learned advocate Mr. Meet Shah has submitted that

commission of crime by these accused persons has direct effect

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on moral structure of society, more particularly when it affects

future of minor students and therefore, when societal interest is

at stack, learned Court below ought not to have so evasively

passed an order reiterating almost very same conclusion. It has

been pointed out by referring to the decision delivered by

Hon'ble Apex Court reported in (2013)7 SCC 466 that in last

few years, country has been seeing an alarming rise in white

colour crimes which has affected fiber of the country's economic

structure and as such, by referring to said decision along with

other decisions placed on record, a contention is raised that

impugned order is not sustainable in the eye of law. It has been

submitted that learned Sessions Judge has failed to appreciate

the fact that whether opponent in such a serious crime is

entitled for regular bail even prior to completion of

investigation, especially when the record reveals that not only

question papers of board examination are leaked for the

relevant year but in past also, said practice has continued from

the side of these opponents and therefore, when such is the

conduct on the part of the opponents, there is hardly any

justifiable reason for the Court below to ignore these material

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circumstances. On the contrary, looking to the interest of large

section of students in the society, learned Court below ought not

to have exercised the discretion though vested. As a result of

this, order under challenge is nothing but a clear example of

irregular exercise of discretion. Hence, on that count alone,

same is required to be quashed.

11. By referring to few decisions, learned advocate Mr. Shah

has requested the Court to allow the applications filed by

applicant- complainant and to set aside the impugned order

passed in favour of the opponents herein. Said decisions

referred to are as under:-

(1) In the case of Prakash Kadam and others Vs. Ramprasad Vishwanath Gupta and others reported in (2011)6 SCC 189;

(2) In the case of Neeru Yadav Vs. State U.P., reported in (2014) 16 SCC 508;

(3) In the case of Mahipal Vs. Rajesh Kumar and others, reported in (2020) 2 SCC 118;

(4) In the case of Myakala Dharmarajam and others Vs,.

The State of Telangana and others, reported in (2020) 2 SCC 743;

(5) In the case of Ramesh Bhavan Rathod Vs. Vishanbhai Hirabhai Makwana and others, reported in (2021) 6 SCC 230;

R/CR.MA/25624/2017 CAV ORDER DATED: 23/09/2022

(6) In the case of Centrum Financial Services Limited Vs. State of NCT of Delhi and others, reported in AIR 2022 SC 650;

(7) In the case of Deepak Yadav Vs. State of U.P. and others, reported in AIR 2022 SC 2514;

(8) In the case of Ram Narain Poply Vs. Central Bureau of Investigation, reported in AIR 2003 SC 2748;

(9) In the case of Nimmagadda Prasad Vs. Central Bureau of Investigation, reported in 2013 (7) SCC 466;

(10) Order passed by Gauhati High Court in the case of Saroj Sarma Vs. State of Assam in Bail Application No.339 of 2021;

12. After narrating the aforesaid submission, learned advocate

Mr. Meet Shah has submitted that grant of such regular bail in

a routine manner would frustrate the very object of Section 439

of the Code of Criminal Procedure itself. It is not the

punishment only to be looked into but adverse impact in the

societal interest also deserves relevant consideration. Hence,

having not been observed, order under challenge requires to be

quashed in the interest of justice by consequently granting the

relief as prayed for in the applications.

13. In chorus, learned Additional Public Prosecutor Mr.

Chintan Dave, appearing for the State has also submitted that it

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is a settled position of law that grant of bail without considering

the relevant aspects and recording of reasons is not justified

and therefore, when such is the situation, when learned Court

below has not examined minutely the role played by each of the

accused and by laconic order, reiterated earlier conclusion of

grant of bail, the very exercise of discretion is ill-founded and as

such, by referring to the decision delivered by Hon'ble Apex

Court reported in (2008) 13 SCC 584, a request is made to grant

the applications filed by the State also.

14. Learned Additional Public Prosecutor Mr. Dave has

submitted that when attempt has been made by these

opponents-accused to play with the career of students, large in

numbers across the State, these accused may not be allowed to

just get away, else same would frustrate and damage the case of

prosecution. It has been contended that looking to the nature of

offence, it was obligatory on the part of the Court below to re-

examine the issue.

15. However, learned Additional Public Prosecutor Mr. Dave

has fairly submitted that pursuant to investigation, even charge-

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sheet has been submitted and case is already registered and has

further submitted that these applications are not on account of

any violation of condition(s) of bail but are against improperly

granting regular bail to these opponents and therefore, these

applications for cancellation of bail are in substance challenging

the very exercise of discretion undertaken by the Court below.

Hence, since the order itself is not sustainable, same be

quashed and thereby requested to cancel the regular bail which

has been granted.

16. As against the aforesaid, learned advocates appearing for

the private opponents have vehemently opposed these

applications by contending that order which has been passed by

the Court below is passed after proper scrutiny of material,

passed after observing the principles of law laid down by

various decisions of Hon'ble Apex Court and the order

apparently is a reasoned order and therefore, when Court below

was well within its jurisdiction to exercise, simply because same

is not in favour of the applicant, may not be interfered with. It is

a settled position of law that at the time of consideration of bail,

allegations and material are not to be analyzed with microscopic

R/CR.MA/25624/2017 CAV ORDER DATED: 23/09/2022

analysis, merits are not to be examined at this stage, relevant

considerations are whether grant of regular bail would

prejudice the case or accused persons are likely to misuse

liberty or grant of bail would result into miscarriage of justice,

all these circumstances settled by catena of decisions have been

kept in mind by Court below and as such, normal rule is not jail

but bail has been appropriately observed by the Court below

and therefore, there is hardly any reason made out by applicant

by virtue of which order can be interfered with. It has been

further contended that it is not the case of either applicant or

the State that at any point of time, these opponents have either

violated the condition of bail or misused the liberty in any form.

On the contrary, all these conditions which have been imposed

upon have been scrupulously observed and as such, when that

be so, in absence of any distinguishable supervening

circumstance, there is hardly any reason for the applicant to

question the liberty which has been granted in favour of the

opponents.

17. It has been further contended by learned advocates

appearing for the opponents that grant of bail and cancellation

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thereof stands on altogether different circumstances and

therefore, in the absence of any supervening overwhelming

circumstance, once bail has been granted, is not to cancel the

same. It has been contended that each of the accused persons

are already enlarged on bail right from May 2017 and right from

2017 onwards, these opponents have never misused the liberty

nor violated any condition and as such, after almost a period of

more than 5 years, liberty may not be curtailed of these

opponents who have remained law-abiding by observing

conditions of bail and therefore, without applying microscopic

analysis, the view which as already been taken in exercise of

statutory discretion may not be substituted in absence of any

violation of condition or any supervening circumstance. On the

contrary, learned advocates for the private opponents have

submitted that these applications are pending right from 2017

and order-sheet clearly indicates that after issuance of notice,

no serious attempt has been made by either of the applicant,

namely complainant nor State to proceed promptly and have not

shown such promptness when according to them, offence is

against the societal interest and as such, when applicants have

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remained dormant for all these years, no discretion be exercised

in favour of applicants, more particularly when stage is

altogether altered and criminal case may likely to be proceeded

further. Hence, in absence of any changed circumstance or in

absence of any supervening overwhelming circumstance, order

which has been passed way back in September 2017 may not be

set at naught by entertaining present applications.

18. Learned advocates have relied upon one of the

observations made by Hon'ble Apex Court while not canceling

the bail, i.e. paragraph 11 of the judgment in the case of Guria,

Swayam Sevi Santhan Vs. State of Uttar Pradesh and others

reported in (2009) 15 SCC 75.

19. Learned advocates appearing for the opponents in

addition to this have also vehemently submitted that order in

question is based upon proper scrutiny of each of the role of the

accused, as can be seen from paragraph 11 onwards, and not

only the role has been examine prima facie, but even the

affidavit which has been filed by the Investigating Officer has

also been taken note of and it is only thereafter, decision is

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taken in due exercise of discretion. That being so, order in no

circumstance can be said to be perverse in any form. Hence, no

interference deserves and accordingly, request is made to

dismiss the applications.

20. Having heard learned advocates appearing for the parties

and having gone through the material on record, it appears that

no-doubt, opponents-accused are allegedly involved in

commission of the crime, as stated, but then, originally, they

were enlarged on bail vide order dated 6.5.2017, which was

subject matter of Criminal Misc. Application (for Cancellation of

Bail) No.14200 of 2017, in which, for the reasons stated in the

said order, Coordinate Bench was pleased to set aside the order

passed in favour of accused granting them bail and then

relegated the matter back to the Sessions Court for considering

bail application afresh on its own merits and directed the same

to be decided within stipulated period. However, considering

the fact that in May 2017, concerned accused were already set-

free on bail, Coordinate Bench was pleased to direct that they

are not required to surrender by treating them to be in deemed

custody. While passing the said order, statements of four

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witnesses have also been referred to in paragraph 21 of the said

order since it was found that learned Sessions Judge has

committed an error by not examining specific role played by

each of the accused and therefore, on account of such non-

application of mind, Coordinate Bench looking to the gravity

and stage was pleased to relegate the matter back. In light of

the aforesaid order, learned Court below was pleased to

reconsider and after perusal of relevant papers, it appears that

discretion has been exercised by Court below. While considering

the order impugned afresh, detailed affidavit filed by the

Investigating Officer is also taken note of with respect to each of

the accused persons and after analyzing the same and after

dealing with the same, learned Court below was pleased to find

that appropriate material has been gathered, but then on the

reasons which are set out in the order, it is found by the Court

below that since investigation was on at the time of passing of

the order, detailed merit has not been opined clearly so as to

see that no premature conclusion can take place and therefore,

keeping in view the proposition of law laid down by catena of

decisions, learned Court below found that these applicants

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having not a background of criminal nature are not likely to

misuse the liberty in any form and further, punishment is nearly

of 7 years and especially when examination itself is not

undertaken, opponents if are continued to be on regular bail, no

prejudice would likely to be caused. It was also noticed by the

Court that with respect to this episode, there is no evidence

found that either students or parents have raised any grievance

nor any litigation has taken place with respect to cancellation of

said exam, a discretion thought it fit to be exercised after

considering the proposition of law laid down by series of

decisions as mentioned in the order itself.

21. It has further been taken note of that looking to the overall

circumstance and situation prevailing on record, opponents

deserve to be continued to remain on regular bail. With respect

to the main accused, it was observed that it is on account of

recommendation of higher authorities, Mr. Hitendra Prajapati

was appointed. Had that not taken place, probably the incident

would not have arisen. However, be that as it may, overall

circumstances found wherein students or parents have not

raised any grievance and not being affected, order is passed in

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due discretion vested in law and it is also found from the record

that such discretion is exercised way back in September 2017,

appropriate conditions have been imposed as can be seen from

the operative part of the order.

22. From the record, it appears that no attempts have been

made so far either by applicants to seek cancellation, especially

when notices have been issued way back in October 2017,

order-sheet is indicating adjournments only, which reflects no

sensitivity to prosecute the matter at the earliest. If such is the

situation, as now projected that offence is against the public

interest and therefore, after this much passage of time, Court

thinks it proper not to exercise discretion for canceling the bail

which has already been granted when reasoned order is passed

by the Court below.

23. As seen by catana of decisions that granting of bail and

cancellation thereof is altogether on different yardstick and for

cancellation in addition to lack of reasons, either supervening

circumstances or special circumstances must be reflecting,

which circumstances are not projected at all, except the

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seriousness of offence for which the Court below has already

examined that neither students nor parents appeared to have

raised any grievance against such nor any litigation is pending

and exam itself is cancelled, therefore no prejudice has taken

place. Hence, in absence of any such circumstances, this Court

is of the opinion that in view of the law laid down by Hon'ble

Apex Court, it appears that at such belated stage, when

admittedly, it is not the case of either of applicants that there is

any violation or any misuse of liberty by any of the accused and

since scrupulously, all conditions have been observed so far

throughout, Court see no reason to dislodge the conclusion

arrived at by the Court below when it has considered the

material on record placed before it. Observations relevant to the

issue the Court deems it proper to reproduce here-under:-

(i) In the case of X. v State of Telangana & Anr., reported in

(2018) 16 SCC 511

"14. In a consistent line of precedent this Court has emphasised the distinction between the rejection of bail in a non-bailable case at the initial stage and the cancellation of bail after it has been granted. In adverting to the distinction, a Bench of two learned Judges of this Court in Dolatram v State of Haryana4 observed that:

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"4. Rejection of a 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 the bail, already granted, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion of 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.

15. These principles have been reiterated by another two Judge Bench decision in Central Bureau of Investigation, Hyderabad v Subramani Gopalakrishnan5 and more recently in Dataram Singh v State of Uttar Pradesh:

"23. It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail 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 concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court

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on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, 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.

18. For the above reasons, we hold that the order of the High Court allowing the application for bail cannot be faulted. Moreover, no supervening circumstance has been made out to warrant the cancellation of the bail. There is no cogent material to indicate that the accused has been guilty of conduct which would warrant his being deprived of his liberty."

(ii) In the case of Myakala Dharmarajam & Ors., v. State

of Telangana & Anr., reported in (2020) 2 SCC 743.

"8. In Raghubir Singh v. State of Bihar2 this Court 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 scarce 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."

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24. It has been noticed by the Court that one of learned

advocates Mr. Shekhawat appearing on behalf of opponent

accused has submitted and raised a grievance that though

allegations are leveled against almost all accused persons, but

cancellation of bail applications have been filed by applying

'Pick and Choose' method only against 6 to 7 and further, there

is no breach of any of the conditions nor misuse of liberty by any

of the accused right from the day when they have been enlarged

on bail and now the situation is that, trial has already

commenced. As a result of this, when trial machinery is already

put in motion and there is no apprehension on the part of any of

the applicants that accused will not cooperate with trial, there is

no circumstance sufficient enough to cancel bail once it has

been granted. On the contrary, in case of Criminal Misc.

Application Nos.29441 of 2017 and 25631 of 2017, learned

advocate has vehemently contended that trial has already

commenced in respect of present complaint and allegations are

vague and all offences are magistrate triable offences and major

role was not majority of accused persons and as such, has relied

upon the decision reported in (1995)1 SCC 349 (paragraph 4)

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and has submitted that in a situation like this, the order does

not require any interference. It has been pointed out that on the

contrary, in case of co-accused Rajendra, who was granted

anticipatory bail at relevant point of time, which was challenged

before Hon'ble the Apex Court, but Hon'ble the Apex Court has

also not interfered with grant of anticipatory bail. Whereas,

here, regular bail already granted way back in 2017 is

questioned and now being agitated in 2022 and therefore, in

this set of circumstance, challenge to the order may not be

allowed. So, considering this circumstance also, it appears to

this Court that there is hardly any case made out by applicants

to call for any interference after this much passage of time.

25. In light of the aforesaid circumstances, decisions which

have been relied upon by learned advocate for the applicant are

no-doubt on salutary principles but in the background of present

facts and circumstances on hand, it is not possible for this Court

to just cancel the bail which has already been granted way back

in 2017 and that too in absence of any special circumstance

supervening in nature or any misuse or violation of any liberty.

It is a trite law that while applying the precedent, there must be

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similarity of circumstances. One additional fact may make a

world of difference in applying the precedent and as such, when

this being the situation, when the applicants have not pointed

out any distinguishable material nor made out any case for

cancellation, Court in respectful agreement of such decisions

which are already placed before the Court for consideration by

applicant is of the opinion that such decisions are not possible

to be applied as a straitjacket formula to take different view in

favour of the applicants. Hence, no case is made out by

applicant to call for any interference. The applications being

merit-less, as such stands DISMISSED.

26. However, while parting with the present order, it is made

clear that it would be open for the State or applicant-

complainant to seek appropriate remedy of cancellation of bail if

any of accused persons are attempting to violate any of the

conditions and/or not cooperating with process of trial of the

main case.

Sd/-

(ASHUTOSH J. SHASTRI, J) OMKAR