Pravinbhai Amarshibhai Jhapdiya vs State Of Gujarat

B.N. Karia, J

Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of respondent­State and Mr. Mrudul Barot, learned advocate waives service of notice of rule for and on behalf of respondent No.2.

By way of present application, the applicant has requested to cancel the bail granted to the respondent No.2 by the learned 2nd Additional Sessions Judge, Bhavnagar in Criminal Misc. Application No.663 of 2020 an by order dated 22.05.2020.

Short facts of present case may be summarized as under:

That on 03.05.2020 in the morning, respondent No.2 namely Dolatsinh and co­accused Yuvrajsinh, started quarrel and used abusive words against the present applicant and his wife and accordingly assaulted present applicant and gave threat to kill him. Accordingly, FIR was registered against both of them as CR NO.11198265200191 of 2020 before Vallabhipur Police Station. One cross FIR was registered against the present applicant by the respondent No.2, namely Dolatsinh. It is further submitted that on the same date i.e. on 03.05.2020 in evening, at around 5:00 pm, the present respondent No.2 namely Dolatsinh along with other accused came with the weapon and assaulted to the family of the present applicant, and at that time, the brother of the applicant namely Rajubhai came to stop them and tried to save them, accordingly the present applicant gave serious injuries to the brother of the present applicant namely Rajubhai along with the other family members, and accordingly police and ambulance was called and all the accused run away. It is further submitted that at the time of leaving that place of incident, accused gave threat that we will came again and kill or finish the applicant and his family members. It is further submitted that thereafter the brother of the applicant and other injured family members were admitted in the hospital, and accordingly the FIR was registered against the 9 accused persons.

Heard learned advocate for the applicant and learned APP for the respondent­State as well as leaned advocate for the respondent No.2.

It was submitted by learned advocate for the applicant that respondent No.2 and other co­accused are very headstrong persons having criminal antecedents and case of the respondent No. 2 may not be considered by the Court below. That, main accused is still absconded and not arrested by the police authorities. That other accused are continued on regular bail and there is every possibilities for further serious incident in nearest future. From the FIR, it is clear that respondent No.2 is the main accused person and is very dangerous and headstrong person. That, respondent No.2 assaulted in the morning, and thereafter, in the evening, he alongwith other co­accused persons came with the weapon and assaulted to the applicant and his family members. That, he also caused serious injuries to the present applicant, and therefore, considering the medical papers of the injuries, prima facie, involvement of the respondent No.2 and other co­ accused persons is made out by the prosecution. As the respondent No.2 is involved in serious offence punishable under Section 307 of the Indian Penal Code and if he will continue on regular bail, he will not obey the conditions imposed by the learned Sessions Court, and therefore, his bail should be cancelled. That false police complaint was filed by the respondent No.2 against the present applicant and his family members. That, impugned order passed by leaned Sessions Court, Bhavnagar enlarging the respondent No.2 is illegal and erroneous, and therefore, it was requested by learned advocate for the applicant to cancel the bail granted in favour of the respondent No.2 by the learned Sessions Court, Bhavnagar.

Learned APP for the respondent­State has supported the arguments made by learned advocate for the applicant and argued that false complaint was filed by the respondent No.2 against the present applicant and if respondent No.2 would be continued to be enlarged on bail, there are every possibilities of committing breach of law by either sides, and therefore, bail granted to the respondent No.2 may be cancelled by this Court.

Learned advocate for the respondent No.2 has strongly objected the submissions made by learned advocate for the applicant and learned APP for the respondent­State and argued that the applicant was discharged from the hospital on 10.05.2020. He has referred a medical papers of the present applicant and argued that there was no significant intracranial/bony abnormaliy, Polypoidal mucosal thickening seen in right maxillary sinus­/o Polyp. Clinical Correlation. No serious injury was caused to the present applicant on account of any blow given by the respondent No.2. That other co­ accused were also released on bail by the learned Sessions Court, Bhavnagar and on the ground of parity, learned Sessions Court has rightly enlarged the respondent No.2 on bail. That on the very same day i.e. 04.05.2020, the respondent No.2 has also filed one complaint being C.R. No.11198065200193 of 2020 before the Vallbhipur Police Station for the offence punishable under Sections 324, 323, 504 and 188 of the Indian Penal Code against the present applicant and other co­accused. That respondent No.2, in the same offence, received serious injury. That prayer for cancellation of bail requires to be dealt with on the basis of role graver than the role of the accused persons. There are no cogent overwhelming circumstances which are necessary for an order directing the cancellation of the bail, already granted to the respondent No.2. Hence, it was requested by learned advocate for the respondent No.2 to dismiss present application. In support of his arguments, learned advocate for the respondent No.2 has relied upon the judgment of the Hon'ble Apex Court reported in 1994(0) AIJEL­SC 8264.

Having perused the record and impugned order passed by learned 2nd Additional Sessions Judge, Bhavnagar, it appears that while enlarging the present applicant on bail learned Sessions Judge, in its order dated 22.05.2020, has considered the grounds of parity as other co­accused were released on bail. Learned Sessions Judge has also referred the judgment of this Court in case of Rameshbhai B. Dhabi vs. State of Gujarat, reported in 2011(3) G.L.R. 1999 and observed that role played by co­accused can be said that role of present applicant was not grave in nature. It also appears that four co­accused are involved in the same offence have already been released on bail by same Court in Criminal Misc. Application No.647 of 2020 by its order dated 15.05.2020. Another co­accused are also released on bail by learned 6th Additional Sessions Judge, Bhavnagar on 15.05.2020 in Criminal Misc. Application No.646 of 2020.

If we consider the injury certificate of the present applicant, there was no serious injury found by the doctor, who has issued such certificate. Applicant was discharged from the hospital on 10.05.2020.

In case of Dolat Ram versus State of Haryana reported in 1994(0) AIJEL­SC 8264, Hon'ble Supreme Court has observed as under:

Rejection of bail in a non­bailable 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 bail, broadly (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 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 cancelled 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.

Nothing has been brought to the notice before this Court from which any inference may possibly be drawn that respondent No.2 has in any manner, whatsoever, abused the concession of bail during the intervening period.

This Court is of the considered view that learned Sessions Court has rightly exercised the powers considering the material placed on record by enlarging the applicant on bail.

Thus, present application stands dismissed and order passed by learned 2nd Additional Sessions Judge, Bhavnagar in Criminal Misc. Application No.663 of 2020 on 22.05.2020 stands confirmed. Rule stands discharged.