This Criminal Revision Application is filed against order dated 29.10.2012 passed by learned 8th Sessions Judge (ad hoc), Gandhidham, Camp Anjar, Kutch in Criminal Misc. Application No. 236 of 2012 whereby learned Judge has allowed the application of the original complainant for cancellation of the bail granted to the present applicant by this Court vide its oral order dated 30.09.2011 in Criminal Misc. Application No. 13720 of 2011. 2. Heard learned advocate Mr. Dipen K. Dave for the applicant, learned Assistant Public Prosecutor Mr. K.L.Pandya for the State, and learned advocate Mr. Asho K. Purohit for respondent no.2 - original complainant.
3. The necessary facts may be set out first. Pursuant to the First Information Report (FIR) registered at C.R. No. I-236 of 2011 with Anjar Police Station, Dist. Kutch, for the offences under sections 395, 397, 506(2) of Indian Penal Code, 1860, and section 135 of the Bombay Police Act, 1951, the present applicant was arrested. He moved the High Court by way of Misc. Criminal Application No. 13720 of 2011 praying for bail. Learned single Judge by an oral order dated 30.09.2011 granted bail to the applicant on the conditions that : (1) not take undue advantage of his liberty or abuse his liberty; (2) not act in a manner injurious to the interest of the prosecution; (3) maintain law and order; (4) mark his presence before the Investigating Officer twice in a month i.e. on 1st and 15th of every English calendar month till the trial, against him, is over; (5) not leave the State of Gujarat without prior permission of the Sessions Judge concerned; (6) furnish the address of his residence at the time of execution of the bond and shall not change the residence without prior permission of this Court; (7) surrender their passport, if any, to the Lower Court immediately. It was provided in the said order inter-alia that if breach of any of the above conditions is committed, the Sessions Judge concerned will be free to take appropriate action in the matter.
3.1 As per condition no. 4 of the abovementioned order, the applicant accused was required to mark his presence before the Investigating Officer twice in a month on 1st and 15th of every English calendar till the trial against him is over. For the period from 1.12.2011 to 1.7.2012, he did not report to the police station and did not get his presence marked, and thereby committed breach of the said condition. On the ground that the applicant failed to comply with the said condition, the original complainant preferred Misc. Criminal Application No. 236 of 2012 before the Sessions Court and sought for cancellation of bail of the applicant. The learned 8th Additional Sessions Judge (ad hoc), Gandhidham, Camp Anjar by order dated 29.10.2012 cancelled the bail and directed the applicant to be taken again in custody. The said order is impugned in the present Revision Application.
4. Learned advocate for the applicant referring to reply exhibit 22 filed by the applicant submitted that as he was not keeping well and was under medical treatment, he could not mark his presence for certain period. It was submitted that thereafter since last four dates. he was marking his presence regularly. It was submitted that the lapse was unintentional and on such ground, the bail granted could not have been cancelled by the Sessions Court. He next submitted that the applicant is law abiding citizen and although he failed to mark his presence for certain period before the Investigating Officer, he had remained present before the court in the proceedings of the case filed against him. He submitted that this Court may even provide further stringent condition.
4.1 On the other hand learned Assistant Public Prosecutor submitted that from 1.12.2011 to 1.7.2012, the applicant failed to mark his presence before the concerned police station, which was a clear breach of condition of the order granting bail. He submitted that the order of learned Sessions Court cancelling the bail was just and proper. He further submitted that there are chapter cases registered against the applicant. He submitted that the reason that he was not well and was under treatment during the period under question, is not supported by any cogent material. Learned advocate for Respondent No. 2 also vehemently opposed the present application and the prayers made therein by submitting that the applicant is high handed person and there are complaints against him.
5. This Court has perused the impugned judgment and considered the submission made by learned advocates for the parties. This Court having considered the bail application of the applicant on its own merits allowed the same and the applicant- accused was released on bail by the order dated 30.09.2011. The bail was subjected to usual conditions including one that the accused was required to mark his presence periodically before the Investigating Officer or the Police Authorities. It was with a view to see that the accused does not misuse the liberty and does not hamper the investigating process for the offence registered against him.
5.1 While it is true that for the period from 1.12.2011 to 1.7.2012, the applicant did not get his presence marked before the Investigating Officer and accordingly, he failed to comply with the said condition no.4 of the order of bail during the said period, it transpires from the record that except this period of about seven months, the applicant marked his presence in due compliance of the condition mentioned in the bail order. The papers made available by learned Assistant Public Prosecutor, fortified the above aspect that the applicant has marked his presence except for the above period. It could be seen from the certificate issued by the Police Sub Inspector, Ajnar Police Station that the applicant has marked his presence on different dates on 15.10.11, 1.11.11, 15.11.11, 1.12.11, 1.7.12, 15.7.12, 1.8.12, 15.08.12, 15.9.12, 1.10.12, 15.10.12, 1.11.12. It is further stated therein that after registration of the FIR no offence is registered against the applicant.
5.2 The reason was furnished by the applicant in the reply exhibit-22 filed in response to the application for cancellation of bail, stating that he was ill and therefore, for the period under question, he could not mark his presence before the Investigating Officer. The only countering submission of the other side was that no evidence substantiating his having undergone medical treatment, was produced. Be that as it may. Even if the cause shown by the applicant is kept aside, it is not disputed and is evidenced that before 1.12.2011 and after 1.07.2012, the accused has been complying with the condition and has been marking his presence as directed by this Court.
5.3 According to the learned Sessions Court, a chapter case was registered against the applicant which amounted to breach of condition of maintaining law and order. In that connection, the Court below has referred to a letter marked as 3/2 dated 17.02.2012, which is addressed by third party Jadeja Aswinsinh Chandhubha to the Dy. Collector. A copy of the said letter is a part of the record of this revision application, wherein it is stated interlia that on the land situated in the front of his land, the applicant has constructed a hotel and encroached upon Travers land. This aspect is unconnected with the offences registered against the applicant. On the basis of this alone, it cannot be said that the applicant misused his liberty or that there is a breach of law and order. The said factor cannot be taken to be a ground which would justify cancellation of bail already granted. The approach of learned Sessions Judge in cancelling bail by placing reliance on mark 3/2 and the facts connected therewith is not justified There is no cogent ground mentioned in the impugned order or could be demonstrated in course of hearing by learned APP to suggest that there was a serious misuse of liberty. Non marking of presence during the period in question, was thus a pardonable breach.
5.4 Therefore, in the facts and circumstances when it is not shown nor it is borne out from the record that the applicant has committed any serious offence during the period when he did not report the police station or that he in any way hampered the process of investigation or influenced any witness, the lapse in not reporting to investigating officer deserves to be viewed leniently. It was only an irregularity on part of the applicant that he did not mark his present as per the condition. As submitted by learned advocate for applicant that the applicant remained present on the different dates in the Court proceedings is also relevant in viewing his conduct. It cannot be said that the applicant acted intentionally to commit breach of the condition.
6. During the course of argument, learned advocate for the applicant made a statement that the applicant shall not leave the limits of Anjar Police Station and submitted that additional condition to that effect may also be provided. In this view of undertaking, it is observed that the applicant shall abide by the undertaking, as undertaken by learned advocate on behalf of the applicant and shall not leave the limit of Anjar Police Station. If for any valid reason, he is required to leave the limits of Anjar Police Station, he will seek permission of the Court.
7. In view of the above discussion, the lapse of not marking presence from 1.12.2011 to 1.7.2012 can be said to be a pardonable breach of condition and the same is rendered a technical in the facts and circumstances, and in absence of anything serious being suggested that the applicant accused abused his liberty or acted to the prejudice of investigation process, it would not be just and proper to cancel the bail granted by this Court as per order dated 30.09.2011.
8. In the result, the revision petition is allowed. The order dated 29.10.2012 in Criminal Misc. Application No. 236 of 2012 passed by 8th Sessions Judge (Adhoc), Gandhidham camp, Anjar Kutch is set aside.
9. Rule is made absolute accordingly.
10. Direct Service is permitted.
[N.V.ANJARIA, J.] cmjoshi