Gujarat High Court
Kumaresh Kishorbhai Agarbattiwala vs State Of Gujarat on 15 January, 2024
NEUTRAL CITATION
R/CR.MA/4585/2023 ORDER DATED: 15/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
4585 of 2023
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KUMARESH KISHORBHAI AGARBATTIWALA
Versus
STATE OF GUJARAT
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Appearance:
MS SM AHUJA(118) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 15/01/2024
ORAL ORDER
1. By way of the present petition under Section 439(2) of the
Code of Criminal Procedure, 1973, the petitioner has prayed to
quash and set aside the order dated 10.10.2022 passed by the
learned Additional Sessions Judge, Surat in Criminal Misc.
Application No.5988 of 2022, whereby the learned Sessions
Judge has granted regular bail to the respondent no.2 - original
accused.
2. Heard learned advocate Ms.Ahuja for the petitioner and
learned APP for the State. Though served, none appears for
respondent no.2.
3. Learned advocate for the petitioner would submit that
within span of 15 days, learned Sessions Judge has passed two
different orders in bail matters, that shows discrepancy in the
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impugned order. Referring to order dated 08.09.2022 at page
no.166, she would contend that in Criminal Misc. Application
No.5400 of 2022, learned Sessions Judge having believed that
respondent no.2 has committed offence and has grabbed land of
the petitioner denied bail to respondent no.2. She referred to
para 4 of the order and submitted that it is clearly believed and
held by learned Sessions Judge that respondent no.2 has
illegally possessed disputed land. She submitted that learned
Sessions Judge has also believed that deed upon which
respondent no.2 relied to claim that he is owner of the land is
not tenable one. She also referred to finding that respondent
no.2 has possessed land illegally. She then referred to order
dated 10.10.2022 passed in Criminal Misc. Application No.5988
of 2022 to contend that within 15 days thereafter, learned
Sessions Judge has given different findings and so there are
contrary findings. She would submit that there is irrelevant
consideration borne in the mind of learned Sessions Judge to
deliver the impugned order dated 10.10.2022 to enlarge the
accused on bail. Thus, she would submit that impugned order is
illegal and palpably wrong and that finding is required to be
quashed and set aside. Learned advocate for the petitioner
submitted that there are seven antecedent registered against
respondent no.2. This is not taken into consideration by the
learned Trial Court. Accused is headstrong person and habitual
offender. This aspect is also not considered by the learned Trial
Court. Prima facie case is made out against respondent -
accused, this has been ignored by the learned Trial Court.
Therefore, present petition deserves consideration and required
to be allowed. Upon above submissions, it is submitted to allow
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the petition and cancel the bail granted to respondent - accused.
4. Learned APP in the given facts and circumstances submits
to pass necessary orders.
5. At the outset, let refer para 4 being reason in Criminal
Misc. Application No.5988 of 2022 to enlarge the accused on
bail. Reasons are in Gujarati language but for better
understanding they are translated in English. They are as
under :-
"(4) Perused the application of the applicant, affidavit of
the IO at Exh.4, objections raised by the original
complainant as well as authorities produced by him and
the investigation papers etc. Moreover, the documents
produced by the original complainant are also taken into
consideration. Heard Ld. Advocates for both the parties.
The facts of the offence registered against the applicant is
that without any approval of competent authority, the
applicant committed illegal trespass in the land owned and
possessed by the complainant, constructed residential
house unlawfully, illegally occupied the land owned by the
complainant and grabbed the land. It should be noted at
this juncture that bail application of the applicant has
been rejected earlier. However, as the investigation was
completed, the police filed chargesheet in the Court
thereafter and case is pending before the Honourable High
Court to decide legitimacy and competence of the law for
which the applicant is charged with. As stated earlier,
chargesheet has been filed against the accused at end of
the investigation of the offence and under such
circumstances, there is no possibility of tampering with the
complainant or the witnesses. Considering the facts of the
offence and current situation of the cases pending in the
Court, it might take a long time to commence the trial of
this case and for the final disposal of the same. Looking to
the facts of the offence registered against the accused, it is
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not a serious offence of causing harm to body. It is to be
noted at this juncture that the Police has submitted that
other offences have been registered against the applicant of
this case; however, they are the offences registered under
the Gambling Act. In the judgement of Hon'able Supreme
Court in Prabhakar Tiwari V/s. State of Uttarpradesh,
published in 2020(0) ALJEL, Hon'ble Supreme Court, Page
no. 62674, it is ordered by Hon'ble Supreme Court that if
the accused is entitled for bail, despite other offences
having been registered against him, if the accused is
entitled for bail subject to conditions, the accused should
be released on bail and his bail cannot be denied. The
earlier bail application of the applicant was denied
considering the fact that trial was pending against the
accused and there was possibility that the accused may
threaten and tamper with the complainant and witnesses.
However, as the investigation was over, chargesheet has
been filed. Hence, the question of threatening and
tampering with complainant and witnesses does not arise.
Further, the applicant is in jail from the time he has been
arrested on 21/08/2022. Now, the investigation is over
and considering the facts and the gravity offence registered
against the accused as well as the provision made in the
law regarding the punishment of the offence, it seems
proper and just to release the accused on bail. Considering
the observations made regarding bail in the judgements of
Hon'ble Supreme Court and Hon'ble High Court, I believe
that the applicant may be released on bail subject to
relevant conditions. Further, the submissions made by the
original complainant as well as the authorities produced
i.e. (1) 2017 Law Suit (Supreme Court) 293 and (2) 2021
Law Suit (Supreme Court) 3704 are taken into
consideration. However, considering the facts of those
judgements, it is found that the same are not applicable for
rejecting the bail application of the applicant. As the
present application of the applicant is liable to the allowed
subject to the conditions, the following final order is
passed in the wider interest of justice.
6. Reading reasons what weighed the learned Trial Court to
grant regular bail to the accused is that investigation is
complete, charge sheet is filed. Validation of provisions of
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Gujarat Land Grabbing Act are under challenge before Co-
ordinate Bench of this Court. It is also recorded by learned Trial
Court that in near future, it is not possible to dispose of the
matter. So far as antecedent is concerned, learned Trial Court
has referred to decision of the Hon'ble Apex Court in the case of
Prabakar Tiwari v/s. State of Uttar Pradesh [2020(0) ALJEL -
62674 and also believed that offences are under the provision of
Gambling Act. Accused is behind bar since 21.08.2022. Now if
we refer reasons assigned by the learned Trial Court while
deciding bail 15 days prior to granting bail, learned Sessions
Judge was of the opinion that prima facie case is made out,
investigation is going on and bail is to be denied.
7. Limb consideration for grant of regular bail can be traced
from well celebrated judgment of the Hon'ble Apex Court in the
case of State through CBI v/s. Amarmani Tripathi [2005 (8) SCC
21]. In the said case, the Hon'ble Apex Court has observed as
under :-
"(i) whether there is any prima facie or reasonable ground
to believe that the accused had committed the offence;
(ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of conviction;
(iv) danger of accused absconding or fleeing if released on
bail;
(v) character, behaviour, means, position and standing of
the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
tampered with; and
(viii) danger, of course, of justice being thwarted by grant of
bail."
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8. The above proposition was reiterated in various decisions.
The concept and philosophy of bail was discussed by the Hon'ble
Apex Court in the case of Maneka Gandhi v/s. Union of India
[AIR 1978 SC 597]. Same was reiterate in the case of Vaman
Narain Ghiya v/s. State of Rajasthan [ 2009 (2) SCC 281]. The
Hon'ble Apex Court has observed as under :-
"Personal liberty is fundamental and can be circumscribed
only by some process sanctioned by law. Liberty of a
citizen is undoubtedly important but this is to balance
with the security of the community. A balance is required
to be maintained between the personal liberty of the
accused and the investigational right of the police. It must
result in minimum interference with the personal liberty of
the accused and the right of the police to investigate the
case. It has to dovetail two conflicting demands, namely,
on one hand, the requirements of the society for being
shielded from the hazards of being exposed to the mis-
adventures of a person alleged to have committed a crime;
and on the other, the fundamental cannon of criminal
jurisprudence, viz, the presumption of innocence of an
accused till he is found guilty. Liberty exists in proportion
to wholesome restrain, the more restraint on others to
keep off from us, the more liberty we have."
9. 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
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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."
10. Though learned advocate for the petitioner tried to put
learned Sessions Judge's findings on cloud, it appears that
learned Sessions Judge has given two different consideration
while rejecting bail application prior to filing of charge-sheet and
granting bail after filing of charge-sheet. Merely because the
accused is in possession of disputed land and has possessed
illegally, it cannot be reason to curtail personal liberty of
accused, more particularly, when charge-sheet is filed and trial
is pending. It was expected by the learned advocate that person
who is in illegal possession should not be granted bail. But that
is not consideration of bail more particularly when charge-sheet
is filed. It is important to note that the petitioner who claims that
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accused is in illegal possession of disputed land has not
preferred any civil litigation to get possession from accused.
Criminal law cannot be motioned to get remedy which can be
granted in civil litigation. Application for cancellation cannot be
propelled to get civil remedy of getting possession. This is misuse
of criminal machinery. If sufficient offence is there against the
accused it will be tested during trial after due opportunity of
cross examination but it cannot be germane at this stage to
stipple personal liberty of the accused.
11. In view of above, the petition fails and accordingly, it is
dismissed.
(J. C. DOSHI,J)
SATISH
