Date : 03/05/2012 1. Rule returnable today. Learned Addl.Public Prosecutor Mr.L.R.Pujari wavies service of rule on behalf of respondent No. 1 – State. Learned advocates Shri .Satyam Chhaya and Shri P.B.Khandheria waives service of notice on behalf of respective respondents .
2. Petitioner –Applicant of Criminal Misc. Application No. 2637 of 2011 is the original complainant who has challenged the order passed by Learned Additional Sessions Judge , Gondal, Camp at Jetpur dated 15.1.2011, granting bail in successive bail application to the respondents in Criminal Misc. Application No. 12 of 2011 in connection with complaint registered with Jetpur City Police Station being I-CR. No.89 of 2010 for the offences punishable u/s. 302, 307,323, 324, 427, 120B, 34, ,143, 147, 148, 149 of Indian Penal Code and Section 135 of Bombay Police Act.
3. Another petition/application being Criminal Misc. Application No. 7932 of 2011 for cancellation of bail u/s. 439(2) of Code of Criminal Procedure of the very same accused/respondents is by the State raising various grounds in support of such plea.
4. It would be necessary to briefly outline the facts of the instant case. Complainant-petitioner Maganbhai Ramjibhai Zinjuvadia (Koli) alleged against the respondents herein and others that in pursuance of criminal conspiracy hatched by all the accused, they gathered armed with lethal weapons and inflicted severe injuries on the person of his son and his son's friend Nitin on a fateful night of 13th June, 2010 and as a result of these injuries, they both died . Respondents are alleged to have armed with swords and iron pipes for commission of crime
5. This incident of 13.6.2010 was reported without loss of time where complainant himself was injured while attempting to save his son. Complaint in this respect was lodged with Jetpur Police Station on 14.6.2010 at 1.45 a.m. for the incident of 13.6.2010, having occured at 23.15 hrs.
6. It is a matter of record that charge-sheet as culmination of investigation is filed on 8.9.2010 and first application for bail preferred after the charge- sheet was rejected on 27th September, 2010 being Criminal Misc. Application No. 375 of 2010. The matter was committed to the Court of Sessions on 29th September, 2010. Second application for grant of bail was preferred on 15th January, 2011 and that was allowed allegedly on very strange grounds without there being change of circumstances. It is further say of the prosecution that charges were framed soon thereafter and matter is posted for proceedings with the recordance of evidence.
7. Learned advocate Mr.Gondalia appearing for the applicant-complainant has emphatically pointed out to this Court that as far as respondent No. 4 is concerned, he had also preferred an application for grant of bail, after the charge-sheet before the High Court being Criminal Misc. Application No. 11989/2010 which was withdrawn by the respondent No.4 on 26th October, 2010 (Coram :Mr.R.H.Shukla,J). This was done after his first application for bail (after the charge- sheet) was rejected by the Sessions Court. He further urged that despite such withdrawal, without disclosing this aspect, this respondent No.4 along with other two respondents also moved yet another bail application(3rd application of respondent No.4) and the Additional Sessions Judge granted the same on 15th January, 2011 giving extraneous reasons.
8. Learned advocate Mr.Gondalia for the complainant has fervently also submitted that this is nothing but an attempt to over-reach the court process and misuse of process of law. This must be dealt with very sternly . He also urged that this successive bail application was preferred on 11th January, 2011, knowing fully well that the Presiding Officer who rejected earlier bail application was to be on leave as his leave report had been sanctioned on a prior date. Yet, respondents chose to get the matter posted on 15th January, 2010 and the Presiding Officer who was In- charge granted the bail, when the officer regularly having charge of such matters had disallowed their applications for bail by a well reasoned order. He further urged that all the accused also have criminal antecedents and it ought to have been considered by the Court that grant was in successive bail application with there being no ground worth the name. He urged that hearing of this application of cancellation could not be taken up for no fault of the complainant . Learned advocate Mr.Gondaliya relied upon the ratio laid down in the judgement of Brij Nandan Jaiswal Vs. Munna Alias Munna Jaiswal and another reported in (2009) 1 SCC 678
9. Learned Additional Public Prosecutor Mr.Pujari appearing for the State has also strongly objected to such grant of bail in case of double murder. He further joined the issue with learned advocate Mr.Gondalia that rejection of such bail application by the High Court was not revealed as well. He further urged that plight of the witnesses is much vulnerable when such persons are at large and it directly has bearing on quality of evidence that is to come before the Court.
10. Learned advocate Mr.Satyam Chhaya appearing for respondent No. 2 and 3 contended that one of the victims, son of the complainant, was having various offences against him and was a criminal himself . Moreover, there is not an iota of evidence to suggest misuse of liberty by these accused . Trial has already begun and there is no reason for this Court to intervene after such a long duration. Parameters, as contended by learned advocate would completely change when it comes to cancellation of bail than those to be applied for grant of bail.
11. Ld. advocate Mr.Chhaya substantiated his arguments by the following authorities :
1. AIR 1984 SC 372 - Bhagirathsinh Jadeja Vs. State of Gujarat
2. (1995) SCC-349 – Dolat Ram and Ors. V/s. State of Haryana
3. AIR 1996 SC 2176-Kashmira Singh Vs. Duman Singh
4. AIR 2010 SC 91 – Hazari Lal Das Vs. State of West Bengal
5. 2011 STPL (Web) 1059 SC – Jetha Bhaya Odedara Vs. Ganga Maldebhai Odedara and Anr.
12. Learned advocate Mr. P.B. Khandheria appearing for respondent No.4 -accused Atul has not answered to the querries raised by this Court in respect of non-revelation of the order of the High Court before the Sessions Court. However, he urged that after his release, at no point of time there was misuse of liberty. He relied upon the decision given in case of Ashok
Kumar Vs. State of U.P and another reported in AIR 2009 SC 1921 to support his version.
13. Before adverting to the facts, it will be apt to to refer to judgements depended upon by both the sides. These applications are preferred for cancellation of bail on merits which has been so permitted in the judgement rendered in case of Brij Nandan Jaiswal Vs. Munna Alias Munna Jaiwal and another (Supra) where the Supreme Court has held that it is a settled law that the Complainant can always question the order granting bail if the said order is not validly passed. Court further held that if once bail is granted by any Court, the only way is not to get it cancelled on account of its misuse . Bail cancellation can be thought of otherwise than due to the misconduct. Bail orders can be tested on merits as well. The Supreme Court having found that bail was granted mechanically without considering the pros and cons of the matter particularly in serious cases like murder, some reasons justifying the grant of bail are held to be necessary.
14. The bail having been granted once, the decision in case of Ashok Kumar Vs. State of U.P and another (Supra) says that it cannot be cancelled mechanically . In this case, Supreme Court instead of cancelling the bail expedited trial.
15. Learned advocate Mr.Chhaya has relied upon the judgement rendered in case of Bhagirathsingh Jadeja Vs. State of Gujarat (Supra) which says thus :
“....very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. It is now well settled by a catena of decision of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material consideration in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case there is no question in considering other circumstances. But even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused may be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. “
16. In case of Dolat Ram and Ors. Vs. State of Haryana (Supra) , it is reiterated by the Supreme
Court that the bail cannot be cancelled in mechanical manner .
17. In case of Hazari Lal Das V/s. State of West Bengal (Supra) the said principle is further reiterated depending on the ratio of Dolat Ram case.
18. It is held in case of Jethabhai Bhaya Odedara Vs. Ganga Maldebhai Odedara and Anr. (Supra) by the Supreme Court in view of the given set of facts that only in the event of complainant proving that there is tampering with the evidence by the accused enlarged on bail, cancellation can be made. It requires to be noted that the case was of wars between gangsters and no serious role of the accused from the record was found by the Court.
19. The decisions rendered in case of Guria, Swayam Sevi Sansthan Vs. State of U.P.and Ors. reported in 2010 AIR SCW 1182, as also in case of Gobarbhai Naranbhai Singala Vs. State of Gujarat and Ors. reported in AIR 2008 SC 1134 and others decisions rendered in cases of (1) State of Maharashtra etc. Vs. Dhanendra Shiram Bhurle etc. reported in AIR 2009 SC 1706 (2) Dr.Narendra K.Amin Vs. State of Gujarat and Anr. reported in AIR 2008 SC (Supp) 1939 (3) Subodh Kumar Yadav Vs. State of Bihar and Anr. reported in AIR 2010 SC 802, if are considered, Supreme Court in crux held that whenever superior Courts find that the Court granting bail has acted in disregard of settled norms or on non-application of mind, such bail has been granted or while so doing, irrelevant materials taken into consideration or the relevant materials have been ignored, the bail can be cancelled on these parameters.
20. In light of the abovementioned legal background, taking firstly the case of respondent No.4 – Atul Haribhai Parghi, his role of course as far as merits of the matter is concerned is the same as that of other accused. There are three other offences registered against him being the criminal case Nos.3025 of 2008 , No.3030/10 and No. 211/07. He has been acquitted of the offences in the proceedings of Criminal Cases No. 211 of 2007, however, criminal cases Nos. 3025 of 2008 and 3030 of 2010 have not been proceeded so far. And, offences in both the matters are punishable u/s. 506(2) and Section 504 of Indian Penal Code. Though criminal antecedents of respondent would have bearing at the time of considering grant as well as cancellation of bail. Considering the nature of offences, this aspect is not required to be blown out of proportion .
21. This Court is conscious of the fact that bail once having been granted, Court should be slow in disturbing that equilibrium.
22. It is inevitable to make a mention that an application of bail allowed in favour of this respondent No. 4 could be said to be possible on account of maneuvering on his part. As mentioned hereinabove, in the first application of bail preferred by him before the charge-sheet he was denied relief and after the charge-sheet his application for bail was rejected on 27th September, 2010 . He thereafter preferred an application before the High Court for bail being Criminal Misc. Application No. 11989 of 2010. After some arguments his advocate sought permission to withdraw such application, which was granted by this Court and the application was treated as disposal in terms of withdrawal. Thus, denial of bail by the Sessions Court after the charge-sheet was already challenged before the High Court and while moving the 3rd application (after the charge-sheet and otherwise the 4th application) for bail successively before the trial Court again , he never disclosed these aspects before the trial Court again, and bail was granted to him. This is apparently an order obtained misleading the Court, on suppressing vital aspects.
23. No Court would ordinarily exercise the jurisdiction of grant of bail after once the High Court rejected his application for regular bail after the charge-sheet unless there are valid grounds and such change of circumstances. There is no whisper in the subsequent application about such withdrawal of application preferred before the High Court . In view of such glaring facts this suppression made by the respondent No.4 for obtaining the order from the Court shall need to be dealt with corresponding firmness.
24. Ratio of the Judgement of Ashok Kumar Vs.
State of U.P and another (Supra) will definitely not be of any use to this respondent No.4. It is not only a
question of examining the order of bail, suffering from infirmities and Court cannot even regard the length of the period for which he has been enlarged in such circumstances, any dishonest attempt on the part of litigant to misuse the machinery and taint the legal process need not be treated lightly nor can that be permitted to be camouflaged as an innocent mistake which also is not his case. Resultantly, this order for granting bail to this respondent No.4 - accused requires quashment, on this count alone.
25. It is a different aspect that on merits also the order passed by the Additional Sessions Judge is very vulnerable. And, this grant of bail on merit also requires interference for the same reasons more or less as in case of other two accused. This person pleaded bail also on a count of his further studies , however the reasons assigned by the Sessions Court while enlarging all the three by a common order are common and identical and hence, they are being dealt with hereinafter.
26. This brings this Court to the case of other two accused. They both preferred Criminal Misc. Application No.375 of 2010 for regular bail u/s. 439 of Code of Criminal Procedure. After the filing of the charge-sheet against them on 8.9.2010 , this was preferred on 14th September, 2010 within one week of the filing of the charge-sheet. They pleaded their young age and young age of their children and ensured their availability at the time of trial.
27. Sessions Court on 27th September, 2010 rejected this application mainly on two counts . Firstly, that this was the case of the double murder where these respondents were prima facie found to be involved along with other co-accused. They of course are alleged main roles. Court also noted that many witnesses as per the charge-sheet identified these accused and with this strong prima facie case, there cannot be any entitlement of the bail.
Secondly, the Court also noted the fact that additionally there are various offences registered against respondent No.2 and many prohibition cases were registered against respondent No. 3 . These criminal antecedents reflected their mind bent and allowing their enlargement, according to Court, would create an adverse impact on the society and the same would also cause apprehension in the minds of public at large. It deemed it fit not to enlarge on bail.
28. There could be no bar to the successive application. However, Court while granting the application shall have to record the reasons why such subsequent application for bail needed entertainment. When admittedly, there was no change of circumstances when this subsequent Criminal Misc.Application No. 12/11 was preferred and allowed.
And, this application was preferred on 11th January, 2011 on the identical grounds as mentioned in the earlier application.
There is a hand written addition in the last paragraph to fix the matter on 15th January, 2011 and at the behest learned advocate for the applicant-accused , Court fixed the matter on issuance of notice to the Additional Pubic Prosecutor.
29. Learned Presiding Officer Mr.A.K.Gupta, Additional Sessions Judge, 5th FTC , Gondal,. Camp at Jetpur was on leave possibly on account of 'Uttarayn' holidays and successive bail application has been decided by Mr.M.A.Naik, Additional Sessions Judge, Gondal, Campt at Jetpur .
30. Following are the reasons assigned by the learned Judge while allowing this successive bail. (1) Matter is sessions committed and numberd as Sessions case No. 72/10, however, no charges have been framed so far. (2) Essential object of grant of bail is to ensure the availability of accused at the time of trial as per direction of Supreme Court as well as this Court .(3) Accused's social status , possibility of abscondance, possibility of tampering with the witnesses, nature of offences alleged and its gravity incarceration for a longer duration are all necessary requirements to be considered . The Court also noted that the filing of charge-sheet and long period of custody as under trials are the changed circumstances.
Relying on the decision in case of Babusingh and others reported in AIR 1978 SC 527 Court was of the opinion that the successive bail application can be entertained on due consideration of such request. Further relying on some of the decisions of the Supreme Court, it held that under trial prisoner has no bar in preferring the bail application repeatedly and principle of res judicata does not apply to such application. Young age of accused and possible long time Sessions trial may take also convinced him to grant bail and accordingly, on the sum of Rs.5,000/- and bail bond of equal amount, he has granted bail to all the respondents by its impugned order dated 15th January, 2011.
31. Apparently the order impugned may look very innocuous and having been substantiated by the well laid down ratio of Supreme Court . There is further attempt to bring on record awareness of settled principles of law while granting the bail in the successive bail application. Where in fact, there are neither change of circumstances nor there was long duration of custody of respondents as under trial prisoners.
It would be relevant to reiterate and reproduce chronology of stages of trial for understanding hollowness of reasonings
32. It is utterly surprising that the Presiding Officer having known that one such application for bail had already been rejected after filing of the chargesheet, chose to name the filing of the chargesheet a changed circumstances for him to grant such successive bail application. It is further intriguing that the six months period of imprisonment as an under-trial prisoner is regarded to be a very long period, while justifying his order of grant of bail. Knowing fully well that the case is committed to the Court of Sessions and having been numbered as Sessions case, without being mindful of the fact that such observations were being made in the double murder case, the Court granted bail to these two accused and respondent no. 4 disregarding settled norms as also their criminal antecedents as well as impact on the society of such an order.
33 There is another glaring aspect that requires mention particularly is that the Presiding Officer chose not to make a mention of the fact that this is a successive bail application that he was dealing with. He made no reference at all of the order made on earlier bail application nor is there anything to suggest as to why he differed from the reasonings given by the Presiding Officer in whose charge he was allocated this matter. If the order of the earlier Judge [Mr. A.K Gupta] is perused, he has briefly and precisely given sound and cogent reasons to deny grant of bail to these accused. In identical circumstances, when the Presiding Officer holding regular charge deemed it fit not to enlarge the accused on bail, no ground worth the name is made out for deferring from those reasons while granting the order of bail in favour of the respondents herein.
34 It is again a matter of record and is known to practically all the segments of criminal justice system where the judiciary is an integral part of this system that murder trial may not get over ordinarily in six months' period and therefore in a matter where all the stages of trial were occurring by and large as scheduled, six months of judicial custody cannot be blown out of proportion in a successive bail application nearly within three months of earlier rejection.
35. This Court is conscious of the fact that ordinarily bail once granted should not be cancelled and there are bound to be overwhelming circumstances; if on merits, the same is required to be cancelled. Complainant since is given the right to challenge the order of bail if not validly passed, even on merits, present is the case where the prosecution correctly questioned the legality and validity of such an order.
36 . As there was a reiterative emphasis during submission of criminal antecedents of the deceased Lalo, the son of the complainant, it is necessary to mention that no body gets a license to do away with even the criminals by becoming a self-styled Massiah for the Society, when the law requires punishment of any offences by following the due procedure of law, such submissions can never weigh with the Court while proceeding the grant of bail in murder case or in a matter of cancellation of such bail. Again, there was hardly anything that could be pointed out as far as his friend Nitin was concerned, who also has become prey to the alleged conspiracy of killing these persons. The papers of the charge-sheet reveal overwhelming evidences against all the three persons and yet the Court completely disregarded these aspects and allowed the accused to be enlarged on bail. Criminal antecedents of those two respondents -accused where they are shown to have been involved in various offences could not have been brushed aside by the trial court.
37. Alleged roles of respondent nos. 2 & 3 are graver and they may not be oblivious of withdrawal of bail application by respondent no. 4. In a jointly moved application for bail, they also chose to maintain silence on this point. It is vital to bear in mind the importance of liberty but, at the same time, the Judicial Officer is expected also to strike the balance while presiding over serious matters where the larger impact on the society also becomes his concern.
38. Yet another submissions with regard to absence of misuse of such grant also cannot weigh with the Court nor can the length of period from the date of enlargement should be regarded in this bail application particularly when challenge to such enlargement was done within four days of such order. For no fault of the complainant side, this matter could not be proceeded earlier. Since this is a challenge on the merit, this submission does not weigh with the Court.
39. Ordinarily with the lapse of time plea of cancellation of bail on merit may loose its ferverance and misuse/misconduct may become far more relevant considerations but, in the instant case considering the circumstances as discussed hereinabove, their overwhelming involvement from the nature of evidence, nature of accusation, nature of grant of bail in successive application, giving go by to all settled principles of law, severity of punishment and chronology of events if are evaluated and assessed, it becomes utmost necessary not to let merit fade into insignificance as such orders cannot not be permitted to the sustained and stamped with approval by this Court.
40. It is to be noted that the trial of Sessions Case No. 73 of 2010 has commenced. There is an apprehension ventilated before this Court on the part of the prosecution that it is very unlikely that the trial could remain fair. Considering the seriousness of the crime and keeping in mind the criminal antecedents of these accused, the possibility of tampering with the evidences cannot be ruled out which eventually would have a material bearing on the quality of justice. These are of course additional grounds weighed with the Court, however, largely for the reasons above, request of cancellation on merit is acceded to.
41. Resultantly, the order impugned dated 15th January 2011 in Criminal Misc. Application No. 12 of 2011 passed by the learned Addl. Sessions Judge, Gondal [Camp at Jetpur] granting bail to the respondent nos. 2, 3 & 4 viz., Bharat @ Katio Haribhai Parghi; Manish @ Kalu Haribhai Parghi; and Atul Haribhai Parghi is hereby quashed and set-aside for different set of reasons enumerated hereinabove. They shall surrender themselves to the judicial custody without loss of time by presenting themselves before the Sessions Court, Gondal Rule is made absolute in the above terms.
bina {Ms. Sonia Gokani, J.} At this stage, request is being made by learned advocate appearing for the respondents to stay operation of this order to enable the respondents to approach the Apex Court. Considering the ensuing vacation, request is being made to stay this order for 8 weeks . Considering the fact that urgent matters are being admitted during vacation and considering schedule of Sessions trial. Operation of this order is stayed for a period of four weeks.
(Ms.Sonia Gokani,J) bina