Rameshji Ravaji Thakor vs State of Gujarat

S.G. Shah, J.—Rule. Mr. Shah waive service of notice of rule for respondent Nos. 2 to 7 while Ms. Jhaveri waives service of notice of rule for respondent No. 1.

Petitioner being a complainant of Thara police station, 1st C.R. No. 58 of 2013 has challenged the order dated 7.9.2013 granting bail to respondent Nos. 2 to 6 by the Additional Sessions Judge, Deesa, passed in Criminal Misc. Application No. 757 of 2013 for the offences punishable under Sections 302, 323, 324 etc.

The petitioner has, on 7.6.2013 lodged the complaint before the police station disclosing that on 6.6.2013, two persons namely; Kanaksinh C. Vaghela and Jashubha C. Vaghela, probably respondent No. 6 herein, had come to his parlor and sat outside his parlor. When complainant asked them about their sitting outside his parlor, it is the say of the complainant that both of them had become angry and stated that complainant is not knowing them. They have further stated that they are Darbars of Thara, and when complainant has stated that he does not recognize or know them, though both of them had gone away from there, they have given a threat to the complainant. It is further stated that after half an hour, respondent Nos. 2 to 6 and Kanaksinh etc. had come at the place of incident with Cudgel, Hockey Stick, Sword, Knife and other weapons and at that time when father of the petitioner namely; Ravaji Bhikhaji was coming to his parlor with brothers of the petitioner, Sangramji and Pintu, all these accused have rushed to them and amongst them Kanaksinh has hit blow of a sword on the head and legs of complainant''s father. Whereas, Jashubha had given a blow by Hockey Stick on hands of the complainant''s father. Thereby, complainant''s father had fallen down and all of them had beaten him as well as Sangramji and when complainant''s father Ravaji and his brother Sangramji Ravaji had fallen down, the accused has rushed towards the complainant and his another brother Pintu, but they both had run away from the place of incident towards toll tax. However, at that time, Kanaksinh has chased them and given a blow on head of the complainant by a sword. At the same time, other accused have beaten the brother of the complainant Pintu by Cudgel, Hockey Stick and Knife and because of such incident, complainant and his brothers etc. shouted and cried, which resulted into gathering all other people, who have rescued them and managed to call ambulance by making a phone call on 108. It is further stated that father of the complainant was unconscious and they were transferred to Patan but during the treatment, father of the complainant died because of the injuries sustained by him.

The above story makes it clear that if Kanaksinh C. Vaghela has given a fatal blow to the victim Ravjibhai as well as to the complainant, certainly he cannot be entitled to be released at least till investigation is over and chargesheet is filed considering the gravity of crime and direct involvement and direct specific evidence against him. However, for rest of the accused, though they may be present at the relevant time, since allegations against them are regarding attacking by stick or by foot, it would not be necessary to keep them behind the bar till disposal of the Sessions case. It is settled legal position that in absence of specific allegations against a person and in absence of serious and heinous crime, generally, bail is a rule and all accused cannot be detained only because of a pending trial against them.

If we peruse the application filed by respondent Nos. 2 to 6 before the Sessions Court, in Paragraph 2, they have disclosed the details of investigation, which reveals that there is material contradiction in so far as presence of weapons with different accused are concerned as well as knife blow that may have been inflicted by different accused to the victim. It may be the reason that while granting anticipatory bail, the Sessions Court has considered all such details and when there is possibility of misidentity as emerged from the available record, it cannot be said that there is illegality, perverseness or arbitrariness in granting the bail to the present respondent Nos. 2 to 6 by impugned order.

It is also clear and certain that petitioner has claimed to cancel the bail on merits of the impugned order and not because of misdeed or breach of any condition of the bail. Detailed discussion of available evidence is unnecessarily prejudice the pending trial and therefore the same is avoided.

However, considering the overall record, it certainly emerges that though there is a specific allegation against Kanaksinh for commission of heinous crime, only because of presence of the other accused with him, would not result into interfering with the impugned order of bail.

Recently, in Criminal Case Nos. 1542 of 2014 and 1766 of 2014 between Ankit Sharma v. State of NCT of Delhi and State of NCT of Delhi v. Gopal Goyal Kanda, Delhi High Court has considered the applications for cancellation of bail in such case of suicide, wherein, facts are more serious than the present case. Inasmuch as, the deceased has left two suicide notes disclosing the name of the accused responsible for compelling her to end her life. The Delhi High Court has after narrating all the relevant factual details taken care of all the judgments cited by both the sides in both the cases, which are as under:

Learned counsel for the petitioner has relied upon judgments in State of Maharashtra Vs. Captain Buddhikota Subha Rao, , Kishore Samrite Vs. State of U.P. and Others, , State Vs. Amarmani Tripathi, , Prahlad Singh Bhati Vs. N.C.T. Delhi and Another, , Gurcharan Singh and Others Vs. State (Delhi Administration), , A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, and Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another, .

Learned counsel for the respondent has relied upon judgments in Sanjay Chandra Vs. CBI, , H.B. Chaturvedi Vs. C.B.I., , Avtar Singh vs. State of Punjab, (2010) 15 SCC 529, 2002 (1) PLJR 63 (SC) , Dipak Shubhashchandra Mehta Vs. C.B.I. and Another, , Dolat Ram and Others Vs. State of Haryana, , Ramcharan Vs. State of M.P., , Nityanand Rai Vs. State of Bihar and Another, , Hazari Lal Das Vs. State of West Bengal and Another, , Rashmita Vs. State and Ors, , Govind Narain Johari Vs. State and Another, and Suresh Kalmadi Vs. CBI, .

The Delhi High Court has quoted relevant paragraph of relevant citations. Therefore, repetition of all such paragraphs are not necessary at present but what is concluded by Delhi High Court in Paragraph Nos. 23, 24 and 28 are reproduced as under:

It is a settled law that bail granted can be cancelled on the ground which has arisen after the bail was granted. It is generally presumed that at the time of hearing of the bail application, the prosecution has raised all possible grounds which could go against the accused in the matter of bail and, therefore, when once bail has been granted to the accused, the prosecution cannot have the bail cancelled on some circumstances which may have existed before the grant of bail.

The ground of cancellation of bail and grounds of rejection of bail are two different circumstances and hence the approach of the Court should also be different. At the time of hearing the bail application, the Court looks at the possibilities of the violation of bail conditions and the Court has to be more open and flexible, whereas while hearing the cancellation application, the Court has to be more rigid and it has to examine not only the possibility of violations but whether the actual violation has taken place or not. The Court should be more rigid here and actual proof of violation is required.

No doubt, the offence with which respondent/accused is charged is serious in nature, but every accused is presumed innocent until proven guilty beyond reasonable doubt and every accused person has the right to enjoy the bail granted to him unless there is evidence to show the abuse of this right given to him. It is re-emphasized by this Court that at the time of dealing with the question of cancellation of bail of an accused, the only issue which is germane is whether the accused has misused the conditions of bail or tampered with the investigation or the evidence or not.

Under the above circumstances, present petition deserves to be dismissed and accordingly dismissed. Rule is discharged.