Rule returnable today. Learned APP Shri Purjari appears and waives service of notice of rule on behalf of respondent State and learned advocate Shri Rajkumar Chamal appears and waives service of notice of rule on behalf of respondents. With their consent, this matter is being heard and decided.
This Application is preferred challenging the order of the learned Addl. City Sessions Judge, City Sessions Court No. 14, Ahmedabad in Criminal Misc. Application No. 3970 of 2011 passed on 15th October 2011. The Opponent nos. 2 & 3 are the accused in a complaint being I-C.R No. 599 of 2011 lodged before Naroda Police Station for the offences punishable under Sections 467, 468, 471, 406, 114, 294B & 506 (2) & 120B IPC.
It is the say of the complainant that accused have hatched conspiracy and pursuant to such conspiracy, committed a fraud of selling the property which never belonged to the persons who have executed the Banakhat. They posed themselves as estate broker agency and pocketed an amount of Rs. 25 lakhs from the complainant. The Court, disregarding the gravity of the offence, has granted regular bail vide its impugned order.
Learned advocate appearing for the applicant urged that merely because evidences relate to property that itself cannot in any manner lessen the gravity of the offence committed by the accused. He further urged before this Court that the applicant has given away entire savings of his life time for purchasing the house which was for consideration of Rs. 34 lakhs. He further urged that there is absolutely no reason worth the name given while granting the bail. According to him, not only the applicant has been misled, but, the accused have misled the Court also.
Learned APP has supported the case of the applicant on the ground that there is absolutely no reason assigned by the court for the higher Courts to examine as to whether the Court has rightly concluded the order or not, and therefore, he also has urged this Court to quash and set-aside the order impugned. Learned APP further urged that the chargesheet is yet to be filed. Of course, there is no complaint of any breach of the conditions in post bail period.
Learned advocate appearing for the opponents urged that the two other cases being 307 of 2011 & 398 of 2011 against these opponents are in respect of the lands which are prior to the present case and I. CR.I-18/2011 has been quashed by the High Court. Reliance is placed on the following two authorities to hold that there is sufficient safe guard incorporated by the High Court in respect of apprehensions raised by the petitioner :
[1] Maulana Mohammed Amir Rashadi v. State of Uttar Pradesh & Anr., reported in [(2012) 1 SCC (Cri) 681];
[2] Decision of this Court [Coram : Rajesh H.Shukha, J.] in case of State of Gujarat v. Babu alias Babu Bajrangi Rajabhai Patel [Cri. Misc. Application No. 8675 of 2010 :: Decided on 26/12/2011].
In case of Re-Babu @ Babu Bajrangi Rajabhai Patel [Supra], this Court found that the order passed by the learned Addl. Sessions Judge had not been properly reasoned but on the ground that there were broad reasonings indicated, the Court did not require quashing the same, by referring to the judgments rendered in case of Raghubir Singh & Ors. vs. State of Bihar, reported in AIR 1987 SC 149; of Aslam Babalal Desai v. State of Maharashtra, reported in [(1992) 4 SCC 272]; of Dolatram & Ors. State of Haryana, reported in [(1995) 1 SCC 349]; of Lokesh Singh v. State of Uttar Pradesh & Anr., reported in [(2008) 16 SCC 753]; of Ramesh & Ors. vs. State of Haryana, reported in AIR 2011 SC 169; of Gobarbhai Naranbhai Singala v. State of Gujarat & Ors., reported in [2008 (3) GLR 2192]; Satish Jaggi v. State of Chhattisgarh & Ors., reported in [(2008) 1 SCC (Cr.) 660]; State Represented by Inspector of Police, T.N. vs. Eslian alia Jothi Basu, reported in [(2006) 9 SCC 785]; State of U.P vs. Amarmani Tripathi, reported in [(2005) 8 SCC 21]; of Mahant Chand Nath Yogi v. State of Haryana, reported in [2003 Cr.L.J 76]; and of Panchanan Mishra v. Digambar Mishra & Ors., reported in [(2005) 3 SC 143].
The principles that emerged from these decisions is that bail once granted may not be cancelled in a mechanical manner and while considering the application of bail, reasons for prima facie conclusion for grant of bail must be indicated and there would not be any need for either detailed discussion or appreciation of evidence. The entire object of cancellation of bail would loose its significance if there is any delay in seeking the same and the Court can examine such order of grant of bail, both on merits as well as the possibility of misconduct and super winning circumstances rendering any longer a fair trial conducive. Cancellation of bail being a harsh order and since it takes away the liberty, the same shall not be resorted to unless there are sufficient material for the court to so do it.
In the instant case, as can be noted from the order impugned, there are no reasons virtually given for the grant of bail. After recording the submissions of both the sides, the Court made a mention of case of prosecution and thereafter held thus -
"In these circumstances, the complaint has been filed. Considering the facts and circumstances of the case and allegation made against the applicant, I do not like to discuss the merit or demerits of the case because it would be adversely affected the case of the prosecution as well as case of the defence. But, considering the dispute between the parties and case of the prosecution, I am of the opinion that before convicting the person in the offence, it is not proper to keep in the jail. In these circumstances, I am of the opinion that this application is required to be allowed."
It would be apt to refer to the decision in case of Omar Usman Chamadia vs. Abdul and another reported in (2004) 12 SCC 234, wherein the Hon'ble Supreme Court has held as under:-
"10. However, before concluding, we must advert to another aspect of this case which has caused some concern to us. In the recent past, we had several occasions to notice that the High Courts by recording the concessions shown by the counsel in the criminal proceedings refrain from assigning any reason even in orders by which it reverses the orders of the lower courts. In our opinion, this is not proper if such orders are appealable, be it on the ground of concession shown by the learned counsel appearing for the parties or on the ground that assigning of elaborate reasons might prejudice the future trial before the lower courts. The High Court should not, unless for very good reasons, desist from indicating the ground on which their orders are based because when the matters are brought up in appeal, the court of appeal has every reason to know the basis on which the impugned order has been made. It may be that while concurring with the lower courts' order, it may not be necessary for the said appellate court to assign reasons but that is not so while reversing such orders of the lower courts. It may be convenient for the said court to pass orders without indicating the grounds or basis but it certainly is not convenient for the court of appeal while considering the correctness of such impugned orders. The reasons need not be very detailed or elaborate, lest it may cause prejudice to the cause of the parties, but must be sufficiently indicative of the process of reasoning leading to the passing of the impugned order. The need for delivering a reasoned order is a requirement of law which has to be complied with in all appealable orders. This Court in a somewhat similar situation has deprecated the practice of non-speaking orders in the case of State of Punjab v. Jagdev Singh Talwandi. That was a case where the High Court in a detention order while allowing the challenge to the detention order directed the release of the detenue before it could give a reasoned order. Even such a practice was deprecated by a Constitution Bench of this Court. Whereas in the instant case it is a final order reversing the order of the learned Sessions Judge wherein the High Court thought it not necessary to give the reasons on the ground that the counsel appearing for the parties did not press for a reasoned order. Consequently, when the matter was taken up for hearing, we had no benefit of the reasons which persuaded the High Court to pass the impugned order. Hence, we have proceeded to decide the appeal on merit based on the material available on record and the arguments addressed before us, from which we have come to the conclusion that the impugned order ought to be set aside. Though a prayer was made on behalf of the first respondent that the matter be remanded to the High Court to facilitate it to pass a reasoned order, without prolonging the proceeding any further by remanding it to the High Court. But we do record our disapproval of the practice followed by the High Court reflected in the impugned order and hope the same will not be repeated."
It has been reiteratively mentioned by the higher Courts that the reasons need not be detailed or elaborate as they may prejudice the cause of either side but there must be sufficient reasons indicative of the purpose, leading to passing of the order impugned for the higher forum to examine the correctness of the same. Had there been even broad reasonings indicated in the order impugned, there would not have been any occasion for this Court to remand the matter back to the court concerned. However, with there being no reasons given at all, the impugned order requires to be quashed and set-aside with a direction to the learned Addl. City Sessions Judge, City Civil Court, Ahmedabad to decide the same afresh, as expeditiously as possible but not later than three weeks from the date of receipt of this order.
As the act of the court cannot act prejudicial to either side and this matter is being remanded back on account of Court having passed a non-reasoned order, the respondents shall continue to remain on bail on the same terms and conditions.
With the above observations and directions, this Criminal Misc. Application stands allowed. Rule is made absolute to the extent above with no order as to costs.
{Ms. Sonia Gokani, J.} Prakash* Top