Gujarat High Court
Rajnish S/O Sawal Lilha vs Rakesh @ Govind Banwarilal Dhandhariya on 1 February, 2024
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R/CR.MA/930/2019 ORDER DATED: 01/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
930 of 2019
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RAJNISH S/O SAWAL LILHA
Versus
RAKESH @ GOVIND BANWARILAL DHANDHARIYA & 1 other(s)
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Appearance:
MR D K TRIVEDI(5283) for the Applicant(s) No. 1
MR. SURAJ A SHUKLA(7185) for the Respondent(s) No. 1
MR HK PATEL APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 01/02/2024
ORAL ORDER
1. By way of the present application under Section 439(2) of
the Code of Criminal Procedure, the petitioner-org. complainant
has prayed to quash and set aside the order dated 05/10/2018
passed by the learned 10th Addl Sessions Judge, Surat in
Criminal Misc. Application No.4702 of 2018, whereby the
learned Session Judge has granted anticipatory bail granted to
the respondent-original accused.
2. Learned Advocate Mr.Trivedi for the petitioner would
submit that the learned Court below has granted anticipatory
bail on untenable grounds and considerations foreign to grant or
refusal of bail has been considered by the Court below. He would
submit that the impugned order is cryptic and without assigning
any good reasons, the said order is passed in a case where huge
amount of Rs.90.00 Lakhs and odd are involved in commission
of offence. He would therefore submit that Court below has
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committed serious error in granting anticipatory bail within few
days of registration of the FIR. He would further submit that in
order to save the skin, the accused has filed a complaint which
is produced at Annexure - Q seedling the liability by saying that
nephew of respondent has stolen the cheque book and forged the
signature of the respondent; but since the respondent is habitual
offender and duped not only the first informant / petitioner; but
also other persons in Surat and has taken away huge amount.
He would submit that all these aspects have not been considered
by the learned Court below while granting anticipatory bail and
therefore impugned order may be quashed and set aside and bail
of the respondent may be cancelled.
2.1 Learned Advocate Mr.Mehta would further submit that one
of the condition imposed in the bail order of marking presence
and to furnish the bail bond have not been complied with and
therefore even on the ground of making breach of conditions of
bail order, the bail may be cancelled.
2.2 Learned Advocate Mr.Mehta in support of his submissions
relied upon the following decision:
(01) Centrum Financial Services Limited vs. State of NCT
OF Delhi [AIR 2022 SC 650];
(02) Naveen Singh VS. State of Uttar Pradesh [2021 (6)
SCC 191];
(03) Subodh Kumar Yadav v. State of Bihar [2019 (14) SCC
638];
(04) Sanjaybhai Manubhai Bhaliya vs. State of Gujarat
[2022 (3) GLH (UJ) 1]
(05) Yashwantkumar Hiralal Patel vs. Hiteshkumar
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Chunnalal Agrawal [2017 JX (Guj) 949 .
2.3 By making above submissions, learned advocate Mr.Mehta
would submit to allow this petition.
3. Objecting to the above submissions, learned Advocate for
the respondent-accused would submit that two Criminal Cases
bearing No.1470 & 1471 of 2022 in respect of the cheques
involved in the offence came to be filed wherein the respondent
came to be acquitted by the learned Court below by accepting
the defence purported by the respondent and holding that there
was no sale transaction took place between the parties. He
would further submit that after the respondent enlarged on
anticipatory bail, he has preferred the quashing petition before
this Hon'ble Court wherein the co-ordinate Bench as per order
dated 15/10/2018 stayed the investigation and subsequently
report is filed by the IO and the matter is still pending
consideration. He would further submit that respondent has not
committed any breach of condition as submitted by learned
Advocate for the applicant; neither misused the personal liberty
and therefore petition may be dismissed.
4. Learned APP submits to pass appropriate order considering
the facts and circumstances of the case.
5. Having considered the submissions of rival sides, what
emerges from the record that the learned Court below has
considered all the relevant consideration for granting bail in the
offence punishable under the provisions of Section 406 and 420
of the IPC. To be noted that, respondent is enlarged on bail since
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05/10/2018 and it is not the case of the petitioner that
respondent has misused the liberty. Refusal to grant the bail at
initial stage is one thing and cancellation of bail after granting is
another thing. There should be strong reasons for cancellation of
the bail already granted and the Court cannot cancel the bail
mechanically.
6. In Bhagirathsinh S/O Mahipat Singh ... vs State Of
Gujarat [AIR 1984 SC 372], the Hon'ble Apex Court has held
that very cogent and overwhelming circumstances are necessary
for an order seeking cancellation of the bail. In paragraph 8 it
has been observed thus:
"8. In our opinion, the learned Judge appears to have misdirected
himself while examining the question of directing cancellation of bail
by interfering with a discreationary order made by the learned
Sessions Judge. One could have appreciated the anxiety of the
learned Judge of the High Court that in the circumstances found by
him that the victim attacked was a social and political worker and
therefore the accused should not be granted bail but we fail to
appreciate how that circumstance should be considered so overriding
as to permit interference with a discretionary order of the learned
Sessions Judge granting bail. The High Court completely overlooked
the fact that it was not for it to decide whether the bail should be
granted but the application before it was for cancellation of the bail.
Very cogent and overwhelming circumstances are necessary for an
order seeking cancellation of the bail. And the trend today is towards
granting bail because it is now well-settled by a catena of decisions of
this Court that the power to grant bail is not to be exercised as if the
punishment before trial is being imposed. The only material
considerations in such a situation are whether the accused would be
readily available for his trial and whether he is likely to abuse the
discretion granted in his favour by tampering with evidence. The
order made by the High Court is conspicuous by its silence on these
two relevant considerations. It is for these reasons that we consider in
the interest of justice a compelling necessity to interfere with the
order made by the High Court."
7. What further appears from the observations made by the
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learned court below while granting anticipatory bail that there
was business transaction since 2014 between both the parties
and dispute pertains to non-payment of amount in respect of
commercial transaction relating to embroidery job work.
Furthermore, the learned Court below has also recorded that the
contention of learned Advocate for the applicant therein that the
cheques forming subject matter of the present complaint were
stolen from his shop and misused by the present coamplainant
cannot be appreciated without recording of evidence and detailed
scrutiny of the evidence which should be avoided at this stage.
In fact, the cheques which is said to have been part of the
subject matter wherein as recorded earlier the respondent came
to be acquitted by the learned Court below.
8. The Court below has taken into consideration law laid
down in the case of Siddharam Satlingappa Mhetre v/s. State of
Maharashtra and Ors. [2011] 1 SCC 694 and according to this
Court, the petitioner has failed to make out any consideration
which may believe that impugned order is whimsical, arbitrary
and against the settled position of law.
9. It is not even the case of the IO or the prosecution that
conditions imposed by the learned Court below has been
breached by the respondent and therefore the said aspect would
not be considered. To be noted that refusing to grant bail is one
consideration and cancellation of bail is different as it deals with
the personal liberty of the person.
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10. Insofar as the reliance placed upon the decisions relied
upon by the learned Advocate for the petitioner, of course, they
are on cancellation of bail, but in the facts of the present case,
as noted herein above no untenable grounds are discerned or
pointed out by learned advocate for the petitioner and therefore
the said decisions would not be applicable to the facts of the
present case.
11. In Bhagwan Singh v Dilip Kumar @ Deepu @ Depak
reported in 2023 INSC 7613, the Hon'ble Apex 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:
'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.'
12. Resultantly, present petition fails and stands dismissed.
(J. C. DOSHI,J)
sompura
