Bhagvat Vitthaldas Shah vs State Of Gujarat
2023 Latest Caselaw 8502 Guj

Gujarat High Court

Bhagvat Vitthaldas Shah vs State Of Gujarat on 7 December, 2023

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     R/CR.MA/12708/2023                            ORDER DATED: 07/12/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
                        12708 of 2023

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                          BHAGVAT VITTHALDAS SHAH
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR HARDIK A DAVE(3764) for the Applicant(s) No. 1
O I PATHAN(7684) for the Respondent(s) No. 2
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                               Date : 07/12/2023

                                ORAL ORDER

1. By way of the present petition under Section 439(2) of the Code of Criminal Procedure, 1973, the petitioner - complainant has prayed to quash and set aside the order dated 07.02.2022 passed by the learned Sessions Court, Ahmedabad in Criminal Misc. Application No.758 of 2022, whereby the learned Sessions Judge has granted regular bail to the respondent no.2- original accused.

2. Learned advocate Mr. Dave for the petitioner - complainant would mainly submit that learned Trial Court has granted regular bail to the respondent - accused on the ground that settlement was arrived between the accused and the petitioner. He would submit that in view settlement arrived between the parties, the accused was required to act upon and pay remaining amount of Rs.40 lakhs to the petitioner in installment but the

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accused failed to adhere to settlement and has also breached very foundation of bail granted to the accused. Taking this Court through settlement deed on record at Page No.23, he would submit that in the settlement deed, the petitioner has reserved his right to move for cancellation of bail, if amount of Rs.40 lakhs is not paid to the petitioner. Therefore, upon such strength, the petitioner has moved this Court for cancellation of bail. Learned advocate Mr. Dave would further submit that learned Trial Court was moved for cancellation of bail by filing Criminal Misc. Application No.6958 of 2022. However, learned Trial Court for extraneous consideration did not exercise jurisdiction in favour of the petitioner. As such the order passed by the learned Trial Court is bad and against settled principle of law. Thus, he submits to allow this petition and cancel bail granted to the accused.

3. Learned advocate for the respondent - accused did not remain present when the matter is called out.

4. Learned APP requests this Court to pass necessary order.

5. Having heard learned advocate for the petitioner and learned APP, at the outset, let refer to observations and findings given by the learned Sessions Judge while rejecting request for cancellation of bail. Para 11 of the order dated 17.11.2022 is relevant which reads as under :-

"11. Present application is for the cancellation of the bail granted to the opponent No.2 herein on the ground that he has committed the breach of the condition imposed vide

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above mentioned order while releasing him on bail. But, considering the ratio laid down by the three Judges Bench of Hon'ble the Supreme Court in State (Delhi Administration) vs. Sanjay Gandhi 1978 (2) SCC 411 that "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 already 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 ." Further, the Hon'ble Supreme Court in Dolat Ram v. State of Haryana (1995) 1 SCC 349 has also laid down guidelines to Courts while deciding the question of cancellation of bail already granted. "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... 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

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accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non bailable case in the first instance and the cancellation of bail already granted."

6. Before reaching to the above reasons and observations learned Sessions Judge noted arguments for the accused that the accused has obeyed all the conditions which are imposed by the learned Sessions Judge while releasing him on bail. Further it is stated that accused has already paid Rs.10 lakhs and he is ready and willing to pay Rs.3 lakhs at interval of three months. It is also stated that the petitioner has already initiated proceedings under section 138 of NI Act against the accused for return of cheque stated in the settlement deed. This fact has been suppressed by the petitioner.

7. Having noted above, if we go through impugned order passed by the learned Sessions Judge while granting bail to the accused, the learned Trial Court has noted that compromise has arrived between the parties and petitioner - complainant had no objection if accused is enlarged on bail. Learned Trial Court has taken into consideration purshis filed at Exh.7 and upon such, learned Trial Court has exercised discretion to release accused on bail. Going by conditions attached in the order of learned Trial Court at nowhere it is stated that bail order is conditional and settlement between the parties will be governed by conditional bail order.

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8. In this circumstances, what appears on record that learned Trial Court has taken into consideration that parties on their own volition reached to settlement and upon such settlement, the petitioner - complainant has no objection in granting bail. Amongst other consideration, this consideration was also considered to grant bail. Now if settlement is not complied with or not followed, it would not be ground for cancellation of bail. Settlement if is breached, it could be tested in civil proceedings but cannot be reason for cancellation of bail. Preciously, to be noted that cancellation of bail is dealing with personal liberty already enlarged on bail. Cancellation of bail can be considered only by reason of supervening circumstances. It would be no longer conducive to a fail trial to allow the accused to retain his freedom during the trial. In the present case, the petitioner who is complainant has attempted pressurize tactic to bow down the accused and instead of civil proceedings, the petitioner has initiated proceedings for cancellation of bail. At the cost of repetition, it can be said that if settlement which is executed during bail proceedings is not complied in letter and spirit, remedy for the petitioner is to approach Civil Court for getting appropriate relief. There is no supervening circumstances which call for cancellation of bail.

9. In the case of Bhagwan Singh v Dilip Kumar @ Deepu @ Depak reported in 2023 INSC 7613, the Hon'ble Court after considering judgment in case of Dolat Ram v State of Haryana, (1995) 1 SCC 349; Kashmira Singh v Duman Singh, (1996) 4 SCC 693 and X v State of Telangana, (2018) 16 SCC 511, held as follows:

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'13. It is also required to be borne in mind that when a prayer is made for the cancellation of grant of bail cogent and overwhelming circumstances must be present and bail once granted cannot be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it in conducing to allow fair trial. This proposition draws support from the Judgment of this Court in Daulat Ram and others v. State of Haryana reported in (1995) 1 SCC 349, Kashmira Singh v. Duman Singh (1996) 4 SCC 693 and xxx v. State of Telangana (2018) 16 SCC

511.'

10. For the reasons stated above, no case is made out. The petition fails and stands dismissed. Needless to say that above observations are confined to decision of this petition.

(J. C. DOSHI,J) SATISH