State of Gujarat vs Divyesh Mahendrabhai Chaudhary

S.H. Vora, J.—The State of Gujarat, by present Criminal Misc. Application for cancellation of bail filed u/s 439(2) of the Code of Criminal Procedure, 1973 challenged the order passed below Exh. 5 in Criminal Misc. Application No. 159 of 2013 dated 16.4.2013 passed by the learned Sessions Judge, Navsari, whereby the respondent - accused was granted bail in connection with the offence registered before the Bilimora Police Station being I - C.R. No. 129 of 2013 for the offences punishable under sections 307 and 506(2) of the Indian Penal Code and u/s. 135 of the B.P. Act. Heard the submissions of learned APP Mr. Poojari.

Brief facts leading to filing of the complaint can be stated thus:

Prior to about one and half months of the incident dated 28.3.2013, the complainant got married with one Vijaybhai and she was staying at her in-laws place. It is also stated in the complaint that when the complainant was studying at Surat, present accused was also studying with her and they have friendly relationship. However, the respondent accused wanted to have relationship of love affairs with the complainant and thus, there was one sided love with the complainant. As the complainant got married, still however, the respondent accused continued his efforts to keep relationship with the complainant, but the complainant refused and thus, the keeping the grudge as if the respondent accused cheated the complainant and when the complainant along with her sister went to college for appearing in the exam, the respondent accused brought out an axe from the bag and gave blow on the head, left leg thigh and thereby caused injuries, so also her sister also got injured while trying to intervene by receiving injuries on the right elbow and on the left hand fingers and thereafter, administered threat of killing them and also caused injuries to himself with blade.

In this case, the learned Additional Sessions Judge, after considering the papers of charge sheet and after hearing the submissions of both the sides, released the respondent accused on bail by imposing suitable conditions. Learned APP made a grievance that the learned trial Judge has not considered seriousness of the offence. Except this, no other ground has been urged to cancel the bail granted in favour of the respondent accused.

Cancellation of bail is a serious matter and once bail is granted, it can be cancelled only in the circumstances and for the reasons, which have been clearly stated by the Hon''ble Apex Court in a catena of judgments. It would be appropriate to refer the decision rendered in the case between Puran Vs. Rambilas and Another etc. etc., wherein the appellant therein was charged under sections 498A and 304B of the Indian Penal Code. The Additional Sessions Judge, Nagpur released the appellant therein on bail. The High Court cancelled the bail granted to the appellant. The said order was under challenge before the Hon''ble Apex Court and therein, it is observed by the Hon''ble Apex Court that "It was argued that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already 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 bail already granted. It was argued that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course 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. Reliance was placed on Dolat Ram v. State of Haryana 3 in support of this submission. This court observed that in Dolat Ram, it was clarified that the above instances are merely illustrative and not exhaustive and one such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime and that too without giving any reasons. This court observed that such an order would be against the principles of law and, interest of justice would require that such a perverse order be set aside and bail be cancelled. This court found that inasmuch as the Sessions Court had ignored vital materials while granting bail, the High Court had rightly cancelled the bail. It was further observed that such orders passed in heinous crimes would have serious impact on the society and an arbitrary and wrong exercise of discretion by the trial Court has to be corrected."

Section 439 of the Code confers very wide powers upon the Court of Sessions regarding bail. While granting bail, the Court considers the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds. Each criminal case presents its own factual scenario and keeping in mind the facts of each case, the Court is required to only opine as to whether there exists prima facie case against the respondent accused. Whereas while canceling the bail u/s 439(2) of the Code, the Court will have to address to the points whether the accused is likely to temper with the evidence or attempt to interfere with the course of justice or to evade the due course of justice. Apart from it, in the matter of cancellation, the State/complainant requires to point out serious infirmities in the order and such infirmities resulted into miscarriage of justice. Now, it is right time to consider the contention of learned APP in light of the principles stated herein above. From the impugned order, it appears that the learned trial Judge after examining the papers found that the complainant suffered CLW injury on her head and further both the complainant and her injured sister are discharged from the hospital. From this fact, it can be inferred that no illegality or perversity is found in the impugned order so as to cancel the bail. Except this, no other contention has been raised so as to bring case within four corners of provisions of section 439(2) of the Code. Therefore, this Court is not inclined to entertain present Criminal Misc. Application, as the learned trial Judge has not committed any illegality or perversity in passing the impugned order and therefore, present Criminal Misc. Application is rejected. Rule is discharged.