1. Rule.
Learned Additional Public Prosecutor and learned advocate Mr. Dagli waive service of Rule on behalf of respondent No.1.State and respondent No.2 respectively.
2. This application preferred under Section 439(2) of the Code of Criminal Procedure is against the judgment and order dated 7.4.2012 passed in Criminal Appeal No.34 of 2012 by 8th Additional Sessions Judge, Rajkot below Exh.6.
3. In nutshell facts are as follows:-
3.1 The applicant is the original complainant who filed a complaint at Rajkot 'B' Division Police Station registered as CR.No.I-82 of 2006, against opponents No.2 and 3 herein and others for the offences punishable under Sections 201,406,409,417,148, 468,469 etc. read with Section 120B of the Indian Penal Code.
4. Learned Chief Metropolitan Magistrate, Rajkot, after completion of trial, convicted opponents No.2 and 3 and other accused on 19.3.2012 for the offences punishable under Section 409, 114 read with Section 120B of the Indian Penal Code for rigorous imprisonment of 7 years and fine of Rs.5000/- and in default of the fine, for further imprisonment of 6 months has been ordered. For the offences punishable under Section 418 and 114 read with Section 120B, they are punished for 3 years and with fine of Rs.3000/- and in default, simple imprisonment of 3 years has been awarded. Likewise, they have been also convicted for other offences being Section 420,468,469, 471,471(A) and Section 114 read with Section 120B of the Indian Penal Code and different period of rigorous imprisonment have been awarded along with the fine for different offences and all the sentences are directed to run concurrently.
5. Aggrieved by this, opponents No.2 and 3 challenged the same preferring Criminal Appeal no.34 of 2012 and also filed an application under section 389 of the Code of Criminal Procedure for suspension of the sentence imposed by the Chief Judicial Magistrate, Rajkot with a further prayer to release opponents No.2 and 3 on bail pending the appeal and the Court allowed such an application below Exh.6 and released the opponents No.2 and 3 on bail.
6. Being dissatisfied with the impugned order, present application has been preferred raising various grounds in this application.
7. It has been argued fervently by learned Senior Advocate Mr. B.B.Naik appearing for the applicant-original complainant that this is a case of fraud of more than Rs.80 lakhs committed by the opponents in connivances with other accused and after detailed consideration of evidence oral and documentary both, the Court when has awarded the punishment holding the accused guilty of various offences, the appellate Court ought not to have granted bail so easily to these accused. Moreover, the only reason, according to the learned Senior Advocate which appears to have weighed with the Court, is parity as the Court granted bail to other two accused whose order has been challenged separately by preferring Criminal Miscellaneous Application No.5108 of 2012. It is further submitted that there could be no parity between these two sets of convicts. His further emphasis is on non-granting of reasons while enlarging the convicts. Reliance is also placed on the decision of the Apex Court in the case of Omar Usman Chamadia vs. Abdul and another reported in (2004) 12 SCC 234 to substantiate the submissions that unless there is a reasoned order passed by the Court, what weighed with the Court is impossible to gauge. The trend of granting bail without such reasoning is severally deprecated by the Supreme Court wherein the 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 is further urged that these accused have undergone imprisonment only for the period of 4 months and, therefore, also, in no way they can be permitted bail as has been granted by the learned Additional Sessions Judge, Rajkot.
8. Learned Additional Public Prosecutor Mr. L.R.Pujari has supported the case of the applicant by arguing forcefully that the the bail ought not to have been granted in the circumstances narrated in the application. He also reiterated that the ground of parity is improper as there could not be any parity considering the circumstances of these accused, who never underwent the imprisonment during the course of the trial.
9. Learned Senior Advocate Mr. P.M.Thakker appearing for opponents No.2 and 3 has urged that these accused had already been given bail while the trial was still to be completed and, they have never misused the liberty granted to them even before and, therefore, the Court has rightly allowed the application for bail drawing parity with those accused who have though not been granted bail earlier, but, have been imprisoned for almost similar roles in commission of the offence. He substantiated this contention with the decision of the Supreme Court rendered in the case of Angana and Anr. vs. State of Rajasthan reported in 2009(2) G.L.H.37.
10. He also tried to distinguish the authority sought to be relied upon by learned Senior Advocate Mr. Naik by pointing out that the case of Omar Usman Chamadia vs. Abdul and another (supra) was of rejection of the bail by the trial Court, where the High Court granted the bail without assigning the reasons, in such circumstances, the Supreme Court stepped in to observe the need of giving cogent reasonings while enlarging the person on bail. Moreover, each case will have to be regarded on the basis of the facts on the record and, therefore, he urged this Court not to interfere with the order by emphasizing that there are different parameters for grant of bail than for the cancellation of bail.
11. On thus having heard learned advocates for the parties and on having examined carefully the order of the trial Court, which is impugned in this application, for the reasons to be followed hereinafter, the order requires interference.
As is visible from the order impugned, after recording the submissions of both the sides, the appellate Court did not deem it fit to follow the judgments of this Court given in the cases of Vinod Mafat Rabari vs. State of Gujarat reported in 2004(2) GLR 1049 and Parmar Manish Babulal vs. State of Gujarat reported in 2010(1) G.L.H. 49, noting that it would be a violation of Article 21 to languish undertrial in the jail till the conclusion of the trial.
When in fact it was dealing with the convict and not the undertrial prisoner whose guilt was held proved,reference is required to be made to the case of Harshadbhai Bharatbhai Ramavat vs. State of Gujarat reported in 2008(3) G.L.R. 2345, referred to in the decision of Parmar Manish Babulal vs. State of Gujarat (supra), wherein the Court has observed thus:-
"9. It is the settled law that for suspending execution of sentences, the Court will look to the nature of accusation made made against the accused, the manner in which the crime is alleged to have been committed, the gravity of offence and the desirability of releasing the accused on bail. It is not necessary at all for the Court to re-appreciate the evidence at this stage, but prima facie, case appearing from the record. This exercise is required to be taken particularly with reference to the contentions raised by learned Counsels for the parties. Convict may point of the glaring infirmities in the prosecution case which would be touching to the vital aspect and the very substratum of the case of the prosecution. Considering, prima facie, such infirmities to be resulting in acquittal, the accused in such appeals, may be admitted to bail, but however, if the appellate Court is not able to take such a view, the course which appears to be open is to reject the plea of bail after rejecting the request for suspension of sentence.
Division Bench in the case of Parmar Manish Babulal vs. State of Gujarat (supra) held thus:-
"The gravity of offence can easily be judged by the punishment prescribed by law and law prescribes life imprisonment for such an offence. And last if we examine the desirability part of releasing the accused on bail,in our view there are no circumstances for releasing these applicants on bail, who may go back to the society and again enjoy the status of teachers when there is noting to assure or that they will not indulge in similar activity. If people proved to have been involved in such activity, are released on bail, it would send wrong signals to the society at large. Thus having seen the judgment, we have examined the case against accused in the manner in which the rape is alleged to have been committed and gravity of offence and desirability part of releasing the accused on bail, none of the factors tilt in favour of the applicants. The judgment cannot help the applicants in any manner."
The trial Court instead relied on the judgment of this Court in the case of Sanjaychandra vs. C.B.I reported in 2012(1) G.L.H. 93 and deemed it proper to exercise the powers under Section 389 to enlarge the accused on bail. It though noted the need for assigning some reasons while enlarging the convict on bail these are hardly found in this order. Evaluation of the evidence is not desirable at the time of suspending the sentence till the final hearing of the appeal but from the record, some reasons which are necessary to be assigned as has been categorically directed by the Supreme Court and as noted by the appellate Court itself are absent.
During the pendency of trial in both the Miscellaneous Criminal Applications (being Criminal Miscellaneous Applications No.5396 and 5874 of 2006) preferred by the present opponents No.2 and 3 respectively, the Court had granted bail to both the accused is found a mention. The Court also further noted that in the judgment under challenge in the appeal, the role of the accused qua each offence is not specified by the trial Court at the end and, therefore, it is just and reasonable to grant bail to both the accused pending the trial. This finding appears contrary to the record as there has been a detailed noting of the documentary and oral evidence, whereby the trial Court concluded the involvement of these accused holding in affirmation the issues No.2 to 5 qua these opponents.
12. This Court is conscious of the fact that parameters of cancellation of bail would be different than the grounds for grant of bail. Moreover, ground and reasons for grant of bail pending the trial would be different than the grant of bail of the convict who challenges such conviction in appeal. Division Bench of this Court in 2010(1) G.L.H 49 held that in extraordinary circumstances, powers of bail shall be exercised by the Court once the accused has been convicted of the offence and more particularly, when there are serious offences while granting bail. The impact of the same on the society will have to be taken into consideration by the Court concerned, while exercising powers under Section 389 of the Code of Criminal Procedure. It is also necessary to make a mention that though the said decision has been rendered in the case of offence punishable under section 376(2)(g),120B etc. In the case on hand allegations of fraud of huge amount are proved after a full-fledged trial however, as this Court is not to go deeper into the merits as the matter is being remanded, this issue requires no dilation. Although admitted by the Court itself that it is necessary to grant certain reasons while allowing the bail during the pendency of the appeal and there hardly appears to be any reasons emerging from the order.
13. Moreover, these persons have undergone the imprisonment at pre-trial stage only for the period 4 months and, therefore, their cases cannot be equated with other accused, who had undergone the imprisonment for a much longer duration and order of grant of bail to whom is under challenge in a separately prepared Miscellaneous Criminal Application.
In this case, order having been passed virtually on no reasons as also on reasons which are ex facie unsupported by documents, order needs quashing. The reasons while granting bail may not be elaborate, but, they meed to be specific and sufficiently indicative of process of reasoning leading to passing such order for the higher courts to examine the correctness of such order. Requirement of such reasoning does not become any less when there is an order to suspend the sentence by enlarging the convict on bail pending the appeal. On the contrary, need of such reasons would enhance, particularly as the crime is proved and if the same is grave. In the background mentioned hereinabove,instead of acceding to the request of cancellation of bail of opponents No.2 and 3 pending the appeal, it would be appropriate to avail an opportunity to both the sides to approach the trial Court by quashing and setting aside the order impugned and directing it to decide the application afresh keeping in mind the broad principles of law while granting the bail, during pendency of appeal against conviction under the Criminal Procedure Code.
Resultantly, this application is allowed in the aforementioned premises. Rule is made absolute to the above extent.
( Ms. Sonia Gokani, J. ) sudhir On pronouncement, learned advocate Mr.Dagli appearing for the opponents No.2 and 3 makes a request to direct the trial Court to hear the application of bail within a fixed period and in a meantime to allow the opponents to remain on bail considering the fact that they have not misused the liberty. Although it is being objected to by the prosecution, considering the fact that this Court has remanded the matter on the ground of lack of reasons much less any cogent reasons, request is acceded to. The trial Court shall decide this matter preferably within one week from the date of receipt of this order and latest by 26.4.2012.
(Ms.
Sonia Gokani, J.) sudhir Top