Gujarat High Court
Dayaram Danabhai Parmar vs Jay Rajendrakumar Nayak on 22 April, 2025
NEUTRAL CITATION
R/CR.MA/7725/2025 ORDER DATED: 22/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
7725 of 2025
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DAYARAM DANABHAI PARMAR
Versus
JAY RAJENDRAKUMAR NAYAK & ANR.
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Appearance:
MR JAGDISHBHAI K CHAUHAN(11689) for the Applicant(s) No. 1
MR PRATEEK S BHATIA(8629) for the Applicant(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 22/04/2025
ORAL ORDER
[1.0] RULE. Learned APP waives service of notice of Rule for and on
behalf of respondent No.2 - State of Gujarat.
[2.0] By way of the present petition under Section 483(3) of the
Bharatiya Nagrik Suraksha Sanhita (for short "BNSS), the applicant
has prayed to quash and set aside the order dated 05.04.2025
passed by the learned 3rd Additional Sessions Judge, at Tharad,
District Banaskantha in Criminal Misc. Application No.138 of 2025,
whereby the learned Sessions Judge has granted regular bail to the
respondent - original accused in connection with the FIR being C.R.
No.11195050250225 of 2025 registered with Tharad Police Station,
District Banaskantha for the offences punishable under Sections
108, 351(3), 61(2) and 54 of the Bharatiya Nyaya Sanhita, 2023 (for
short "BNS") and section 3(2)(v) of the Atrocities Act.
[3.0] Learned advocate for the applicant has submitted that the
learned Sessions Judge has not considered the gravity of offence
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and straightway released the respondent No.1 - accused on regular
bail which has adversely affected the investigation and possibility
of tampering with the evidence also cannot be ruled out. Therefore,
he has requested to allow the present application and cancel the
regular bail granted to the respondent No.1.
[4.0] The learned APP has adopted the submissions made by the
learned advocate for the applicant and submitted that respondent
No.1 was released on bail without properly appreciating the
evidence and the seriousness of the offence committed by him.
Therefore, it is prayed that the present application be allowed.
[5.0] Having heard the learned advocates for the respective parties
and having gone through the documents on record as well as bail
order passed by the learned court below, it appears that while
considering the bail application, the learned Sessions Court has
considered the following aspect:
"The Court has to consider the involvement of the accused in
the alleged offence, the jurisdiction to grant bail has to be
exercised on the basis of the well settled principles having
regard to the facts and circumstances of each case and the
following factors are to be taken into consideration while
considering an application for bail: (i) the nature of accusation
and the severity of the punishment and the nature of the
materials relied upon by the prosecution; (ii) reasonable
apprehension of tampering with the witnesses and threat to the
complainant or the witnesses; (iii) reasonable possibility of
securing the presence of the accused at the time of trial or the
likelihood of his abscondence; (iv) character behaviour and
standing of the accused and the circumstances which are
peculiar to the accused; (v) larger interest of the public or the
State and similar other considerations are required to be
considered."
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R/CR.MA/7725/2025 ORDER DATED: 22/04/2025
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[5.1] It goes without saying that the criteria or parameters for
granting bail to an accused and canceling bail are significantly
different and must be considered separately by the Court. As
submitted by the learned advocate for the applicant, the court
below has overlooked the fact that there is ample evidence and a
proximate cause. However, it is pertinent to note that the Court is
not required to determine whether the evidence favors the accused
or the prosecution at this stage. Instead, the Court must consider
whether a prima facie case exists against the accused, the material
collected against them, the severity of the punishment, and
whether a charge-sheet has been filed. The Court must assess
whether further detention of the accused is necessary or if their
presence is required during the investigation. Considering the
aforementioned factors, the Court must also ensure the presence
of the accused during the trial after granting bail.
[6.0] At the outset, it is pertinent to note that present application
is filed under Section 483(3) of the BNSS. As regular bail was
granted by the learned Sessions Judge in exercise of powers under
Section 483 of the BNSS, the remedy that was available for the
applicant was to file an appeal under Section 14A of the CrPC
however, the applicant instead directly approached this Court
seeking cancellation of bail which is not permissible in view of
decision of Hon'ble Supreme Court in the case of Himanshu Sharma
vs. State of Madhya Pradesh reported in (2024) 4 SCC 222.
[6.1] It is needless to say that merely based on presumption and
assumption, present application is filed without any material and
any prevalent circumstances. The offences alleged are under
Sections 108, 351(3), 61(2) and 54 of the BNS and section 3(2)(v) of
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the Atrocities Act. The respondent No.1 was arrested and even
after the arrest, no remand of accused was sought for by the
investigating agency and as substantial investigation qua
respondent No.1 was over and there was no need for the
investigating agency to detain him behind the bars, the learned
Sessions Judge released respondent No.1 on regular bail by the
impugned order. Even, it was not the case of prosecution that for
further investigation presence of accused was required and
therefore, he came to be released on regular bail by imposing
stringent conditions in paras (2.1) to (2.7) and even thereafter i.e.
after 05.04.2025, no untoward incident has occurred. It is not even
the case of the present applicant - original complainant that
present applicant has tampered with evidence and/or tried to
influence any witness and/or committed breach of any of the
conditions of regular bail. However, merely based on assumption
such application seeking cancellation of regular bail is filed, which is
not permissible.
[7.0] This Court deems it proper to refer to the judgment in the
case of Ajwar v. Waseem reported in 2024 INSC 438, wherein the
Apex Court observed that the same Court which granted bail to an
accused can cancel the bail if there are serious allegations against
him, even if the accused has not misused the bail. If there are
serious allegations against the accused, even if he has not misused
the bail granted to him, such an order can be canceled. However,
once bail is granted, it ought not to be canceled in a mechanical
manner. An unreasonable or perverse order of bail may invite
interference by the Apex Court. Personal liberty is one of the
cherished Constitutional freedoms, and once bail is granted during
the pendency of the trial, it must only be retracted in the face of
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grave circumstances. The Hon'ble Supreme Court in the said
decision, in paragraphs 27 and 28, has observed as under:
"27. The considerations that weigh with the appellate Court
for setting aside the bail order on an application being moved
by the aggrieved party include any supervening circumstances
that may have occurred after granting relief to the accused,
the conduct of the accused while on bail, any attempt on the
part of the accused to procrastinate, resulting in delaying the
trial, any instance of threats being extended to the witnesses
while on bail, any attempt on the part of the accused to
tamper with the evidence in any manner. We may add that this
list is only illustrative and not exhaustive. However, the court
must be cautious that at the stage of granting bail, only a
prima facie case needs to be examined and detailed reasons
relating to the merits of the case that may cause prejudice to
the accused, ought to be avoided. Suffice it is to state that the
bail order should reveal the factors that have been considered
by the Court for granting relief to the accused.
28. In Jagjeet Singh (supra), a three-Judges bench of this
Court, has observed that the power to grant bail under Section
439 Cr.P.C is of wide amplitude and the High Court or a
Sessions Court, as the case may be, is bestowed with
considerable discretion while deciding an [2024] 5 S.C.R. 593
Ajwar v. Waseem and Another application for bail. But this
discretion is not unfettered. The order passed must reflect due
application of judicial mind following well established
principles of law. In ordinary course, courts would be slow to
interfere with the order where bail has been granted by the
courts below. But if it is found that such an order is illegal or
perverse or based upon utterly irrelevant material, the
appellate Court would be well within its power to set aside
and cancel the bail."
[8.0] In the present case, the order passed by the learned Sessions
Judge is based on sound legal principles and reasoning. Therefore,
no case is made out to interfere with the order of the learned
Sessions Judge. Even no allegations have been made by the original
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complainant (applicant) that the accused has misused his liberty.
Present application which is filed merely on assumption and
presumption cannot be entertained especially since the learned
Sessions Court has imposed suitable conditions while granting bail
to the accused. Any detailed appreciation of evidence, which may
prejudice the accused, should be avoided while deciding a bail
application.
[9.0] In view of the above, no case is made out to entertain the
present application and hence, present application stands
dismissed. Rule is discharged.
(HASMUKH D. SUTHAR, J.)
Ajay
