IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO. 9662 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ JALPABEN VIJAYSINH VAGHELA Applicant(s) Versus STATE OF GUJARAT & 1 Respondent(s) ================================================================ Appearance:
MR.MRUDUL M BAROT, ADVOCATE for the Applicant(s) No. 1 MR ASHISH M DAGLI, ADVOCATE for the Respondent(s) No. 2 MS JD JHAVERI, APP for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : /10/2013 CAV JUDGEMNT
1. The impugned order of granting bail to respondent by Sessions Court, Gandhinagar is dated 3.4.2013 in Criminal Misc. Application No.160 of 2013, whereby, respondents are released on bail on furnishing solvent surety of Rs.10,000/ (Rupees ten thousand only) only with certain conditions for the offences u/Ss. 302, 307, 326, 147, 148, 149 and 114 of IPC as well as Gujarat Police Act No.135 pursuant to Ist C.R. No.209 of 2012 dated 9.10.2012 Chandkheda Police Station, Chandkheda, Ahmedabad. Charge sheet of such FIR is filed which is numbered as Sessions Case no.6 of 2013.
2. The perusal of FIR at Annexure `B’ shows that there was a quarrel between neighbourer and because of the disturbance while discharging domestic waste as stated in FIR by the complainant – Jalpa w/o Vijaysinh D. Waghela. Her husband is driving Auto and he started his Auto early in the morning at 7 O’Clock and worked till 7 O’clock in the evening with lunch break at about 11.30 a.m., when he came to home for the lunch. It is further stated that since the tenant of respondent No.2 namely; Subhashchandra Jain has thrown waste water from first floor and since it was disturbing the complainant, she has conveyed such fact to them and thereupon respondent No.2 Subhashchandra as well as two his sons namely; Shailesh and Vikas came out and started quarrel with her regarding parking of Auto and started to beat cousin brother of the complainant namely: Karansinh @ Montu Khumansinh Bihola wherein shirt of Montu was torn in and therefore he had went to his home, whereas mother of Shailesh and Vikas had taken them inside their house but in a short when she and her husband went at their home, they heard a voice that Montu is being beaten and thereupon when she and her husband came out from house, they saw that Montu is lying on the road, whereas, Subhashchandra Jain and both his sons namely; Shailesh and Vikas were beating Montu. Shailesh was having knife in his hand and three to four knife blows were given on the chest and stomach of Montu, whereas, Subhashchandra and Vikas were beating the Montu with sticks. It is further stated that when complainant and other people had gathered above, three persons run away from the place, whereas, group who has gathered has managed to shift Montu to Parimal Hospital and then to Civil Hospital, where injured Karansinh @ Montu Khumansinh Bihola was operated. Such incident had taken place at 1.00 p.m. on 9.10.2012 and therefore complainant had lodged the complaint against respondent no.2 and his two sons as aforesaid.
3. Police has started investigation of the case and recorded statement of several persons. However, pending investigation injured victim Karansinh @ Montu Khumansinh Bihola had expired on 1.11.2012 i.e. after couple of weeks and therefore Police has to include the Charges u/S. 302 of IPC. Though initially, charge u/S.307 was also added, the complainant has also alleged against the Police Inspector of Chandkheda Police Station for getting all accused released without giving proper opportunity to them. For the purpose, a complaint was signed by both complainant as well as widow mother of the deceased Karansinh @ Montu Khumansinh Bihola and forwarded to several authorities.
4. At present, we are concerned with the order, wherein, the Sessions Court has granted bail in favour of respondent No.2Vikas @ Raju Subhashchandra Jain. On perusal of such impugned judgment and order, it transpires that though there is offence u/S.302, so far as respondent no.2 is concerned, his role is categorically disclosed in the FIR that he has beaten the victim with sticks and therefore relying upon the order of anticipatory bail granted by this High Court to Gunmalaben Subhashchandra Jain in Criminal Misc. Application No.160 of 2013 and Papubhai @ Birendrakumar Jain and Nemchand Jain in Criminal Misc. Application No.2408 of 2013, respondent no.2 was also granted regular bail by the Sessions Court observing that he is doing labour work of painting and therefore, he deserves bail with some conditions.
5. On perusal of judgment and order in Criminal Misc. Application No.160 of 2013, it becomes clear that this Court has granted anticipatory bail to Gunmalaben w/o Subhashchandra Jain present respondent No.2 because she is a lady and her name was disclosed in subsequent statement of the complainant after twenty days of the incident. Whereas, Papubhai @ Birendrakumar Jain Nemchand Jain has been granted anticipatory bail on the ground of parity may be because his name was not disclosed as an accused in the FIR.
6. However, at present since role of present accused i.e. respondent No.2 as stated in the FIR is limited to the extent of beating by sticks and when cause of death is because of of the injuries by sharp instrument which was not used by the present accused, I do not see any reason to cancel the order of bail granted to respondent no.2, when it is with some strict conditions as listed in the bail order. However, so far as conditions of bail are concerned, it requires to be modified by amending one condition, considering the nature of dispute and presence of complainant and accused in the same locality. Whereby, it would be appropriate to impose one additional condition upon respondent no.2 that he should not stay within the local limits of Chandkheda and Motera Police Stations so as to avoid disturbance and conflict and possibility to over reach the witnesses of the incident. Thereby respondent no.2 has to stay away from such areas and has to comply with the condition No.8 of the impugned order afresh disclosing fresh address and other information.
7. For coming to such conclusion, I have heard the counsel of the parties and perused the record of the case and facts of the case, nature of the allegations, role attributed by respondent no.2 are taken into consideration. However, at this primafacie stage, discussion of evidence is avoided which otherwise prejudice the final trial.
8. I am also relying upon the judgment between
Jetha Bhaya Odedara v. Ganga Maldebhai
Odedara, reported in AIR 2012 SUPREME COURT 775, wherein, the Apex Court has held that though noone has right to take law into his own hands or to criminally assault any other person, when it is not the case of the complainant that respondent has during his period of bail either tried to tamper with the evidence or committed any other act that may affect the fairness of the trial. Therefore, the Apex Court has refused to cancel the bail. Though such order was mainly because of the passage of time i.e. two years after passing the order of detention, the fact remains that the Apex Court has considered the role attributed by particular person and observed that prosecution shall be free to apply for cancellation of bail if the respondent fails to comply any of the conditions imposed upon him by order under challenge.
9. The learned advocate for the petitioner is relying upon the decision in the case of Prakash Kadam and etc. etc. v. Ramprasad Vishwanath Gupta and Anr. reported in AIR 2011 SC 1945, wherein, it is held that;
“... It cannot be contended that the consideration for cancellation of bail is different from the consideration of grant of bail. That is not an absolute Rule, and it will depend on the facts and circumstances of the case. In considering whether to cancel the bail the Court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him. Moreover, the above principle applies when the same Court which granted bail is approached for cancelling the bail. It will not apply when the order granting bail is appealed against before an appellate / revisional Court. There is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail...”
However, it cannot be ignored that though such case has been relied upon for cancellation of bail, it is to be relied upon considering the facts, circumstances and evidence on record. It cannot be ignored that the reported case is dealing with the crime committed by a Police Officer in fake encounter and therefore, the Apex Court has considered the fact against the Police man stating that it is to be treated as rarest of rare case since the fact cannot be ignored which shows that it is nothing but a cold blooded triple murder by the persons, who are supposed to upheld the law and when appellant – accused before the Apex Court, where, police personnel having duty to uphold the law and when far from performing their duty they appear to have parity as criminals, the Apex Court has considered to confirm the cancellation of their bail by the High Court. However, the ratio of the judgment has been taken care of which is quoted hereinabove, where, while considering the granting of bail or cancellation of bail, the gravity of crime, the lack of evidence, position and stand of victim with reference to the victim and witnesses likeliness of the victim and representing the offences, the possibility of his tampering with the witnesses and obstructing the Courts of justice and such grounds are required to be taken into
10. Thereby application is partly allowed.
Impugned order dated 15.3.2013 granting bail to respondent no.2 is modify with following condition:
Respondent no.2 shall not stay and enter into the local area of Chandkheda and Motera Police Stations and stay away from such area, witnesses and the place of incident pending trial.
11. Rule is made absolute to the aforesaid extent.
VATSAL (S.G.SHAH, J.)