State Of Gujarat vs Bhagaram @ Bhaga S/O Rugnathram ...
2023 Latest Caselaw 5380 Guj

     R/CR.MA/21603/2019                           JUDGMENT DATED: 10/07/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 21603 of 2019


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1      Whether Reporters of Local Papers may be allowed               Yes
       to see the judgment ?

2      To be referred to the Reporter or not ?                        Yes

3      Whether their Lordships wish to see the fair copy               No
       of the judgment ?

4      Whether this case involves a substantial question               No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                   STATE OF GUJARAT
                         Versus
BHAGARAM @ BHAGA S/O RUGNATHRAM VARDHIRAM BISNOI (MAJU)
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Appearance:
MS MD MEHTA ADDL PUBLIC PROSECUTOR for the Applicant(s) No. 1
MR DK CHAUDHARI(5361) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 10/07/2023

                             ORAL JUDGMENT

1. This application is preferred under Section 439(2) of the Code of Criminal Procedure, 1973 by the applicant - State of Gujarat for cancellation of bail granted to the respondent herein

- original accused by this Court (Coram: Hon'ble Mr.Justice Vipul

R/CR.MA/21603/2019 JUDGMENT DATED: 10/07/2023

M. Pancholi) vide order dated 11.3.2019 passed in Criminal Misc. Application No.2303 of 2019 for the offence punishable under Sections 65(A)(E), 98(2), 116(B) and 81 of the Prohibition Act.

2. Heard Ms.M. D. Mehta, learned Additional Public Prosecutor for the applicant - State of Gujarat and Mr.D. K. Chaudhari, learned advocate for the respondent - original accused.

3. Ms.Mehta, learned advocate for the applicant has submitted that after granting bail, the respondent accused has committed breach of conditions imposed by the Court and also not co-operated with the investigation and even did not remain present before the concerned Police Station as well as before the Trial Court. She has submitted the report to the effect that the accused did not remain present before the Trial Court on any of the occasions and, therefore, the Trial Court has issued non- bailable warrant against the accused and because of non- availability, the trial could not commence. She has urged before the Court that the application may be allowed and the bail granted to the respondent accused may be cancelled.

4. Learned advocate for the respondent - accused is not in a position to defence the accused as allegations made in the present application with regard to committing breach of conditions imposed by this Court. Learned advocate for the accused has not filed an affidavit on behalf of the accused to controvert his submission.

R/CR.MA/21603/2019 JUDGMENT DATED: 10/07/2023

5. I have perused the FIR and the impugned order passed by the Coordinate Bench of this Court in the application for regular bail. I have considered the submissions canvassed by learned advocates appearing on behalf of both the sides and the averments made in the application. The Coordinate Bench of this Court, while granting bail, imposed certain conditions which reads as under :

(a) not take undue advantage of liberty or misuse liberty;

(b) not act in a manner injurious to the interest of the prosecution;

(c) surrender passport, if any, to the lower court within a week;

(d) not leave the India without prior permission of the Sessions Judge concerned;

(e) mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of six months between 11:00 a.m. to 2:00 p.m.;

(f) furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the Sessions Court;

6. It was pointed out by the learned APP for the applicant before this Court that the respondent accused has never remained present before the Trial Court during the trial and has committed breach of conditions imposed by the Court. It seems that after releasing him on bail, the respondent accused has not co-operated with the investigation and also not personally

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present before the Trial Court. After enlarging the accused on bail, he has neither complied with such conditions imposed by this Court nor present before the Trial Court and because of non- availability of him, the trial could not commence. Considering the fact that the accused is involved in the offence punishable under Sections 65(A)(E), 98(2), 116(B) and 81 of the Prohibition Act and as the accused is permanent resident of Rajasthan, the Coordinate Bench of this Court thought it fit to secure the presence of the accused at the time of trial and to monitor his further activity, the condition no.7(e) was imposed, but the respondent - accused has flouted the said condition and not complied with the same. It appears that the accused, after releasing on bail, has neither remained present before the concerned Trial Court on any of the occasions nor has marked his presence before the concerned Police Station. Therefore, this is a fit case to cancel the bail granted in favour of the respondent - accused for non-compliance of the order passed by this Court. It is relevant to note here that because of non-availability of the accused, the trial could not commence since 2019, which is pending before the Trial Court. It is desirable that only after securing the presence of the accused the trial can be concluded.

7. The ratio laid down by the Apex Court in the catena of decisions that if the accused is not co-operating with the investigating agency or not remaining present and flouting the conditions imposed upon him while granting bail, then in that case, he is not entitled for any leniency and in that

R/CR.MA/21603/2019 JUDGMENT DATED: 10/07/2023

circumstances, the bail is required to be cancelled. The reported decisions of the Hon'ble Apex Court in this regard are summarized as under :

[1] CBI versus Santosh Karnani and Anr., reported in 2023 SCC OnLine SC 427;

[2] Deepak Yadav versus State of UP and Anr., reported in [2022] 8 SCC 559;

[3] Kamla Devi versus State of Rajasthan and Anr., reported in [2022] 6 SCC 725;

[4] Manoj Kumar Khokhar versus State of Rajasthan and Anr., reported in [2022] 3 SCC 501;

[5] Brijmani Devi versus Pappu Kumar and Anr., reported in [2022] 4 SCC 497;

[6] Supreme Bhiwandi Wada Manor Infrastructure Pvt. Ltd versus State of Maharashtra and Anr., reported in [2021] 8 SCC 753;

[7] Nathu Singh versus State of UP and Ors., reported in [2021] 6 SCC 64;

[8] Jitendra Taneja versus State of UP and ors., reported in [2021] 5 SCC 308; and

[9] Union of India versus K.A. Najeeb, reported in [2021] 3 SCC 713.

8. It is worthwhile to refer to the decision of this Court in the case of Jayshreeba Anirruddhsinh Gohil Vs. State of Gujarat reported in 2022 (4) GLR 2787 wherein this Court has held and observed in paragraphs no.8 and 11 as under:-

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8. ............. If such an approach is permitted then every accused will get himself released on bail by making false statements and his subsequent conduct from resiling from such statement will be a blessing for him. There will be no sanctity attached to the proceedings of the Court, and the accused will be roaming freely without complying with the directions. Non-fulfillment of the commitment or withdrawal from the statement cannot dilute the directions issued by a Court of law.

11. Under the circumstances and in light of the aforesaid glaring facts, this Court has no other option but to cancel the bail granted to the respondent No.2-Original accused No.1 vide order dated 24.05.2021 in Criminal Misc. Application No.3410 of 2021 passed by the City Sessions Judge, Ahmedabad. The impugned order dated 08.09.2021 passed in Criminal Misc. Application No.5749 of 2021 is hereby quashed and set aside.

The bail bonds are canceled. The respondent No.2- accused is directed to surrender immediately."

9. It is also worthwhile to refer to the decision of this Court in the case of Merubhai Ramabhai Kodiyatar (Hun) Rabari Vs. State of Gujarat reported in 2021 (2) GLR 1175 wherein this Court has held and observed in paragraph no.11 as under:-

"11. The condition of marking presence before the police station for a certain period, is a condition which a court may impose in the interest of justice. Such conditions are generally imposed to secure the presence of the accused for the trial and to prevent him from fleeing the course of justice and such condition becomes necessary so as to prevent him from tampering with evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or court; and sometimes to restraint the movement of the accused in a particular area or locality or to maintain law and order. There may be further consideration in the mind of the court while imposing the condition of marking presence before the concerned police station; generally,

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this condition bears importance till the filing of charge- sheet, as and when the charge-sheet is forwarded to the Magisterial Court empowered to take cognizance of the offence on the police report, the same accused is under the control of the court."

10. Considering the seriousness of the crime and keeping in mind the criminal antecedents of the accused, the possibility of tampering with the evidence cannot be ruled out which eventually would have a material bearing on the quality of justice. In view of aforesaid facts, request of cancellation of bail granted to the accused is acceded to.

11. For the foregoing reasons and in view of the decisions of the Apex Court as aforesaid, I am of the opinion that the present application deserves to be allowed and it is hereby allowed. The impugned order dated 11.3.2019 passed in Criminal Misc. Application No.2303 of 2019 is hereby quashed and set aside. The bail stands cancelled. The Investigating Officer is at liberty to approach the concerned Sessions Court for issuance of non- bailable warrant and if warrant is already issued against the accused person then the Investigating Officer shall take appropriate action for execution of the warrant issued by the Trial Court in accordance with law. Rule is made absolute.

Sd/-

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL