Dilesh Rameshbhai Sargara vs State Of Gujarat
2023 Latest Caselaw 7943 Guj

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     R/CR.RA/994/2023                            ORDER DATED: 27/10/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
              SUBORDINATE COURT) NO. 994 of 2023
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                 DILESH RAMESHBHAI SARGARA
                               Versus
                       STATE OF GUJARAT
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Appearance:
KUMAR H TRIVEDI(9364) for the Applicant(s) No. 1
MR. TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
MS HANIBEN H JOSHI(12871) for the Respondent(s) No. 2
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  CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
                         Date : 27/10/2023
                           ORAL ORDER

1] The present application has been filed by the applicant under Section 397 of the Code of Criminal Procedure, 1973 challenging the order of cancellation of bail passed by the learned 2nd Additional Sessions Judge, Sabarkantha at Idar in Criminal Misc. Application No. 375 of 2023 on 21st July, 2023.

2] Heard Mr. Kumar H. Trivedi, learned advocate for the applicant, Ms. Haniben H Joshi learned advocate for the respondent No. 2 and Mr. Jirga Jhaveri, learned Additional Public Prosecutor appearing for the respondent-State.

3] Learned advocate for the applicant has submitted that the applicant is an accused of Special POCSO Case No. 11 of 2022 and the First Information Report came to be registered at Khedbramha Police Station being I-C.R.No.11209028230255 of 2023 for the offence punishable under Section 354 (D) of the Indian Penal Code, 1860 and Section 18 of the Protection of

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Children from Sexual Offence Act, 2012 on 12 th April, 2023. That the applicant came to be arrested on 13 th April, 2023 and the applicant had filed Criminal Misc. Application No. 223 of 2023 under Section 439 of the Code of Criminal Procedure, 1973 for regular bail and by an order dated 11 th May, 2023, the applicant came to be released on bail on certain terms and conditions. That one of the condition is that the applicant shall not enter into the jurisdiction of Khedbramha Police Station till the trial is concluded.

4] Learned advocate for the applicant has submitted that the complainant preferred an application being Criminal Msic. Application No. 375 of 2023 for cancellation of bail of the application before the learned 2 nd Additional Sessions Judge, Sabarkantha at Idar under Section 439(2) of the Code of Criminal Procedure, 1973 as it was her say that the applicant has breached the condition i.e. the applicant has entered into the jurisdiction of Khedbramha Police Station. That after hearing the parties, the learned 2nd Additional Sessions Judge, Sabarkantha at Idar was pleased to allow the application of the complainant and cancel the regular bail granted to the applicant vide order dated 11 th May, 2023 passed in Criminal Misc. Application No. 223 of 2023, on 21 st July, 2023.

5] The order is under challenged and it is the say of the learned advocate for the applicant that the applicant has not breached any of the conditions imposed by the learned 2 nd Additional Sessions Judge, Sabarkantha at Idar but the applicant

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is residing the address mentioned in the application at Himmatnagar. That the application for cancellation of bail filed by the original complainant was with a mala-fide intention and with an oblique motive just with a view to harass and pressurize the applicant and the applicant is ready to abide by any terms and conditions and has not breached any condition imposed by the learned 2nd Additional Sessions Judge, Sabarkantha at Idar. Moreover, as per say of the original complainant, the applicant had entered into the jurisdiction of the Khedbrahma Police Station but the applicant is a truck driver and he has not entered into the vicinity of Khedbramha but to reading at the address given in Himmatnagar only and hence the order of cancellation of bail passed by the learned 2 nd Additional Sessions Judge, Sabarkantha at Idar is illegal and erroneous and the same is required to be quashed and set aside.

6] Learned advocate Ms. Haniben H. Joshi appearing for the respondent No. 2 original complainant has submitted that the learned trial Court has observed that the father of the applicant has himself said that the applicant has entered into the jurisdiction of Khedbramha Police Station to give him money and she apprehends that if the applicant continues to enter into the jurisdiction of Khedbramha Police station, the complainant has to live in fear and she will be threatened and hence the application may be rejected.

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7] Learned Additional Public Prosecutor has submitted that the order passed by the learned 2nd Additional Sessions Judge, Sabarkantha at Idar canceling the bail order of the applicant is just and proper and no order of interference is call for.

8] Perused the order passed by the learned 2 nd Additional Sessions Judge, Sabarkantha at Idar and it appears that application for cancellation of bail filed by the original complainant and the Investigating Officer has not filed any application for cancellation of bail of the present applicant. The original complainant has submitted that she has produced photographs to prove that the applicant has entered the jurisdiction of Khedbrahma Police Station. The learned Sessions Court has observed that the Investigating Officer has taken the statement of the father of the applicant and it appears that the applicant had gone to give some money to his father but there is no personal work to prove that any condition has been breached. There is nothing on record to suggest that the applicant had entered into the jurisdiction of Khedbramha Police station to threaten the complainant or to influence any witnesses and there is nothing adverse recorded regarding the conduct of the applicant. It appears that the applicant has abide by all conditions and the applicant has stated that the photographs of the truck, which has been submitted by the complainant are old photographs which have not been proved in any manner to show that the applicant has infact entered into the jurisdiction of Khedbrahma Police Station and has breached any condition of bail.

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9] Learned advocate for the applicant has relied upon the judgment of the Hon'ble Apex Court in the case of Myakala Dharmarajam vs. State of Telangana reported in 2020 (0) AIJEL-SC-65583 , wherein the Hon'ble Apex Court has observed thus:

12. In a consistent line of precedent this Court has emphasized 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:

"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 canceled 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."

10] In view of the above, it appears that there is nothing on record in the order passed by the learned 2nd Additional Sessions Judge, Sabarkantha at Idar that the applicant had interfered with or attempted to interfere with the trial of the case and threatened the

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complainant or had intended to go into the vicinity where the complainant is residing with an intention of evading the due course of justice. There is nothing brought on record to show any circumstance to render it no longer conducive to a fair trial if the accused is allowed to be on bail during the trial. Even otherwise the investigating Officer has not brought any application stating that the accused has misused his freedom and his conduct requires cancellation of the bail granted to him and hence the order of cancellation of bail passed by the learned 2nd Additional Sessions Judge, Sabarkantha at Idar in Criminal Misc. Application No. 375 of 2023 dated 21 st July, 2023 is liable to set aside and the same is hereby quashed and set aside.

Application stands disposed of accordingly. Direct service is permitted.

(S. V. PINTO,J) VVM