Vidhyaben Mukeshbhai Nayi vs State Of Gujarat
2024 Latest Caselaw 805 Guj

Gujarat High Court

Vidhyaben Mukeshbhai Nayi vs State Of Gujarat on 31 January, 2024

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       R/CR.A/1745/2023                                   ORDER DATED: 31/01/2024

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL APPEAL (CANCELLATION OF BAIL) NO. 1745 of 2023

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                          VIDHYABEN MUKESHBHAI NAYI
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR HIMANISH J JAPEE(11295) for the Appellant(s) No. 1
MR HARDIK H DAVE(6295) for the Opponent(s)/Respondent(s) No. 2
MS AV PATLEL, PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s)
No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                 Date : 31/01/2024

                                      ORAL ORDER

Rule. Learned APP waives service of rule for Respondent No.1- State and learned Advocate, Mr. Dave, waives for Respondent No.2-original accused.

1. By way of this application, filed under Section 439(2) of the Code of Criminal Procedure, 1973 (in brief, 'the Code'), the applicant-first informant seeks to assail the order dated 26.06.2023, passed in CR.M.A. No. 855 of 2023, by the learned 3rd Additional Sessions Judge, Gandhinagar, granting anticipatory bail to the respondent-original accused No.1 in connection with the offence registered with the Chandkheda Police Station, District: Ahmedabad City, being CR No. 11191008230406 of 2023 for the offences punishable under Sections 323, 294(b), 506(1) and 114 of the Indian Penal Code and Sections 3(1)(r) and 3(1)(s) of the Scheduled Castes and

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the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in brief, the 'Act of 1989').

2. Learned Advocate for the applicant would submit that learned trial Court has not taken into consideration the offence under the provisions of the Act of 1989, while granting bail to the respondent-accused. He would further submit that the trial Court granted bail, only on the ground that Respondent No.2- accused No.1 is a lady accused and that she has no criminal antecedents. It was submitted that the trial Court ought to have taken into consideration the fact that there is a prima facie case made out against the accused persons, from the plain reading of the FIR. He would further submit that the impugned order is an unreasoned order and learned Court below has failed to notice and observe the well settled principles for grant and refusal of bail. It was submitted that there is also misuse of liberty by Respondent No.2-accused No.1, whereby, she is alleged to have tempered with the CCTV footage with the help of a third party and she has also been trying to influence the witnesses and for which already a complaint has been given on 05.07.2023, which is produced as Annexure-F to this petition.

2.1 In support of his submissions, learned Advocate, Mr. Japee, placed reliance on the recent decision of the Hon'ble Apex Court in the case of 'Prathvi Raj Chauhan Vs. UOI and Others', reported in (2020) 4 SCC 727 and more particularly, the observations made at Paragraphs- 7 and 8 thereof, which reads as under;

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"7. This Court in Vilas Pandurang Pawar and Anr. v. State of Maharashtra and Ors., (2012) 8 SCC 795, has observed thus:

"10. The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence."

8. This Court in Shakuntla Devi v. Baljinder Singh, (2014) 15 SCC 521, has observed thus:

"4. The High Court has not given any finding in the

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impugned order that an offence under the aforesaid Act is not made out against the respondent and has granted anticipatory bail, which is contrary to the provisions of Section 18 of the aforesaid Act as well as the aforesaid decision of this Court in Vilas Pandurang Pawar case. Hence, without going into the merits of the allegations made against the respondent, we set aside the impugned order of the High Court granting bail to the respondent""

2.2 Learned APP adopted the arguments advanced by the learned Advocate for the applicant and prayed that the appropriate orders may be passed in the facts and circumstances of this case.

3. On the other hand, learned Advocate, Mr. Dave, appearing for the respondent-accused supported the impugned order by submitting that the two co-accused, who had played graver role than Respondent No.2-accused No.1 and who had been denied anticipatory bail by the trial Court, have already been granted anticipatory bail by the Coordinate Bench of this Court vide order dated 11.08.2023, passed in Criminal Appeal No. 1607 of 2023. It was, thereby, submitted that there is no infirmity in the impugned passed by the trial Court. It was, further, submitted that, since, the charge-sheet is filed, the charges are framed and the case is now committed, the present application be dismissed.

4. Having heard the learned Advocates appearing for the

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respective parties and having perused the impugned order, it would be relevant to refer to the observations made by the concerned trial Court, while granting anticipatory bail to Respondent No.2-accused No.1, at Paragraph-7 thereof, which reads thus;

"For Applicant No.1

7. The Court seems that applicant No.1 is a female and she has no any criminal antecedents. Further, applicant is residing at the address mentioned in the cause title and hence she will not flee from justice. Thus, a case is made out for bail. It is well settled that at the stage of deciding bail application, a detailed examination of the evidence and elaborate documentation of the merits of the case has not to be undertaken. The applicants are residing at the address mentioned in the cause title and hence applicants' presence is very well secured during the trial. Thus, considering the contentions of FIR, this is a fit case to exercise discretionary powers in favour of the applicants. Considering all the papers and further considering the settled law position, further considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and prima facie satisfaction of the court in support of the charge, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility

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of securing the presence of the accused at the trial, the larger interests of the public/ State and other similar considerations and the fact that the applicant is the local resident of Ahmedabad district and the availability during the trial etc. and as per the judgment of Hon'ble Supreme Court in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab reported in (1980) 2 SCC, Siddharam Satlingappa Mehtre vs. State of Maharashtra, and recent judgment in the case of Sushila Aggarwal vs state (NCT of Delhi) in the opinion of this Court, this is a fit case where discretionary powers is required to be exercised in favour of the present applicant by imposing conditions. Hence, considering the peculiar facts of the present case, in the interest of justice, I pass the following order. "

5. In the case of 'P. Vs. State of Madhya Pradesh and another', reported in (2022) SCC Online SC 552, the Hon'ble Apex Court has enumerated the circumstances, when bail could be canceled and one of the conditions stated therein is the misuse of the liberty granted to the petitioner by the Court by involving himself in a subsequent crime.

6. In the case of 'Gurcharan Singh and others Vs. State (Delhi Administration), reported in (1978) 1 SCC 118, the Hon'ble Apex Court had an occasion to observe that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of canceling the bail on the ground that the accused has misconducted himself or

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because of some new facts are requiring such cancellation. In Paragraph-16, the Hon'ble Apex Court has observed as under:-

"16. Section 439 of the new Code confers special powers on High Court or Court of Session regarding bail. This was also the position under Section 498 CrPC of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under sub-section (1) to be arrested and may commit him to custody. In other words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of

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Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court."

7. The aforesaid observations made by the Hon'ble Apex Court has been reiterated by the Hon'ble Apex Court in the case of 'Puran v. Rambilas and Another', reported in (2001) 6 SCC 338, as well as in case of 'Abdul Basit alias Raju and Ors. v. Mohd. Abdul Kadir Cahudhary and Another', reported in (2014) 10 SCC 754.

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8. In the case of 'Ranjit Singh v. State of M.P.', reported in (2013) 16 SCC 797, the Hon'ble Apex Court has held as under

in Paragraph-19:-

"19. It needs no special emphasis to state that there is distinction between the parameters for grant of bail and cancellation of bail. There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court. We have already referred to various paragraphs of the order passed by the High Court. We have already held that the learned trial Judge has misconstrued the order passed by the High Court. However, we may hasten to add that the learned Single Judge has taken note of certain supervening circumstances to cancel the bail, but we are of the opinion that in the obtaining factual matrix the said exercise was not necessary as the grant of bail was absolutely illegal and unjustified as the court below had enlarged the accused on bail on the strength of the order passed in Ranjeet Singh v. State of M.P. [Ranjeet Singh v. State of M.P., MCRC No. 701 of 2013, order dated 1- 2-2013 (MP)] remaining oblivious of the parameters for grant of bail under Section 439 CrPC. It is well settled in law that grant of bail though involves exercise of discretionary power of the court, yet the said exercise has to be made in a judicious manner and not as a matter of course."

9. At this juncture, the observations made by the Hon'ble Apex Court in case of 'Dolat Ram and Ors. v. State of Haryana', reported in 1995(1) SCC 349, is required to be recollected. It

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was observed therein that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. The grounds for cancellation of bail though are broad, but 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. The Court should satisfy for availability of the grounds for satisfying of the bail or cancellation of the bail and one of the possibility is accused being absconded. The bail once granted, should not be cancelled in a mechanical manner, without considering availability of any grounds or supervening circumstances, which affects the very principle of fair trial.

10. With profit, I may also refer the observations made in the recent decision by the Hon'ble Apex Court in case of 'Kekhriesatuo Tep and others Vs.National Investigating Agency' reported in (2023) 6 SCC 58. The relevant observation made in Paragraph-19 reads as under:-

"The Special Judge has himself distinguished cases of the persons who have indulged into extortion for furthering the activities of the organisation and red the persons like the present appellants, who were government servants, and er, compelled to contribute the amount. Hence, it cannot be said that the prima ell facie opinion, as expressed by the Special Judge, could be said to be perverse or impossible."

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11. Thus, the petitioner has failed to make out a case, which permits this Court to interfere with the impugned order granting bail to the accused. This Court is not required to decide the allegations and the counter allegations, at this stage. Refusal to grant bail at the initial stage is one thing and to cancel the bail already granted is another thing. This Court is not expected to cancel the bail, once granted, mechanically. It is only in a case, where, there are any supervening circumstances or allegations of misuse of liberty, then, the application for cancellation of bail can be entertained. As noted herein-above, the learned Advocate for the petitioner failed to point out any supervening circumstances. Further, the two co-accused, who are alleged to have played graver role than Respondent No.2-accused No.1 and who were denied anticipatory bail by the concerned trial Court, have already been granted anticipatory bail by the Coordinate Bench of this Court. Thus, there being no reason or supervening circumstances or grounds, warranting interference of this Court with the order granting bail, this application deserves to be dismissed.

12. In the result, present petitions fail and stands dismissed. Interim relief, if any, stands vacated. Rule is discharged.

(J. C. DOSHI,J) UMESH/-