1988 Supreme(Guj) 60

Gujarat High Court
Judgename :M.B.SHAH
STATE OF GUJARAT - Appellant
Versus
LALJI POPAT - Respondent
CRIMINAL REVISION APPLICATION 369 of 1987
Decided On : 04/02/1988

Headnote:(i) Criminal Procedure Code, 1973 Sections 437, 439-Grant of Bail-Earlier rejected by Andl. Sessions Judge and High Court - But later granted by Andl. Sessions Judge - No new ground Whether proper? (No)

       Held, it should be noted that before the Additional Sessions Judge who decided the Miscellaneous Criminal Application No. 232/ 87 at the initial stage, all the papers pertaining to investigation were produced and the relevant papers were considered by the learned Additional Sessions Judge while rejecting the application. To this Court also some papers were shown and this Court has rejected the bail application. Inspite of this, without there being any new material or change of circumstances it seems the learned. Judge has entertained the applications and released the accused who are involved in a serious offence on bail by stating that the investigation is now over and the case is committed to the Sessions Court. This can hardly be said to be new ground for revising the order passed by the Court of co-ordinate jurisdiction or to ignore the order passed by this Court.

        (ii) Criminal Procedure Code, 1973 Section 437(5) - Cancellation of Bail by same Court - High Court's power to cancel under sections 439(2) and 482 Explained - Whether bail be cancelled in this case? (Yes)

       Held, it is true that normally this Court would be slow in interfering with the discretionary order granting bail to the accused. It is equally true that one of the paramount considerations for the Court at the time of canceling bail would be whether the accused would be readily available for their trial and whether they are likely to abuse the discretion granted in their favour by tampering with the evidence. But at the same time the Court has also to consider the other relevant aspects in the matter before granting bail. The Court is required to exercise the discretion of granting bail judicially after following the well laid down principles. If the Sessions Court has ignored the said criteria of deciding bail application either intentionally or arbitrarily, then \ this Court has jurisdiction to set aside the said order. It is not the law that once the accused is released on bail on erroneous ground, till he tempers with the evidence or till he absconds, the High Court has no Authority to interfere with the said order. In each case the Court is required to consider the reasonable apprehension of the prosecuting agency depending upon the facts of each case. The Sessions Court is subordinate to the High Court and it is always open to the State Government to point out the High Court that the order passed by the Sessions Court is arbitrary or illegal one or it suffers, from any serious infirmity and the High Court would have jurisdiction either under section 439(2) or section 482 to quash and set aside the said order.

       Held, the learned advocate for the accused further submitted that in any set of circumstances these applications are for cancellation of bail and, therefore, the Court should find out on the basis of some material whether the accused are likely to abscond or whether they are likely-to tamper with the evidence. It is true that for cancellation of bail these are the two vital factors, But at the same time these vital factors are to be determined by taking into consideration the charge against the accused, the evidence against the accused and the likely sentence. Merely because accused No.3 is a' Police Constable and accused No.4 is the S.T. bus driver, it cannot be said that they would not attempt to tamper with the evidence. On the contrary a Police Constable would be more resourceful and it is quite possible that to avoid extreme punishment he would try his best to tamper with the evidence.

       From the medical evidence and from the evidence of the witness it is apparent that all the accused took part in assaulting the deceased Naga Meru and Bhura Naga. The charge against them is of double murder. The learned Judge has not taken into consideration this aspect before releasing the accused on bail. Hence, the orders passed by the learned Judge requires to be quashed and set aside.

       In this view of the matter, these revision applications are allowed. The judgments and orders dated 8th December 1987 and 17th December 1987 passed by the Additional Sessions Judge, Junagadh, in Miscellaneous Criminal Applications Nos. 439 of 1987 and 458 of 1987 are quashed and set aside. The bail bonds of the accused stand cancelled and they are directed to surrender to custody forthwith. Rule made absolute.

        (iii) Criminal Procedure Code, 1973 Sections 437 & 439-Bail Supreme Court's guidelines for deciding bail applications – Stated

       Held, hence taking into consideration the aforesaid observations of the Supreme Court in the decisions mentioned above, it can be said that following factors are the relevant factors which are required to be taken into consideration for deciding bail application:

       1. The nature of the charge is the vital factor and the nature of evidence is also pertinent.

       2. The punishment to which the accused may be liable if convicted

       3. While considering the question of granting bail under section 439(1) of the, Criminal Procedure Code, the Court should take into consideration the provisions of section 437(1) inspite of the fact that under section 439(1) the High Court and Sessions Court have wide jurisdiction to grant bail.

       4. The nature and gravity of the circumstances in which the offence is committed, say highway robbery or dacoity, gang rape, murder or murders because of group rivalry, attack by one community on other community or such other cases.

       5. The position and the status of the accused with reference to the victim and the witnesses say in case of burning of house-wife, witnesses may be neighbours, their evidence might be tampered with by any means.

       6. The reasonable possibility of the presence of the accused not being secured at the trial.

       Merely because the accused is the owner of large property, movable or immovable, would be no ground to presume that the presence of the accused would be secured at the trial by granting him bail. For this purpose the charge, the nature, of evidence by which it is supported and the punishment to which the party would be liable, if convicted, are to be taken into consideration. In cases of highest magnitude of punishment assigned under the law the Court can reasonably presume that no amount of bail was sufficient to secure the presence of convict at the stage of judgment. In some cases accused may leave the country or go underground, in such a manner that it becomes difficult to trace him out.

       7. Any likelihood of tampering with the witnesses

       This also depends on the seriousness of the offence and the nature of evidence. In serious offences if the accused are released on bail, they would be tempted to tamper with the evidence by hook or crook. Therefore, the position and the status of the accused with reference to the victim and the witnesses and the events leading to the incident and the history of the accused are required to be taken into consideration. As observed by the Supreme Court, in regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society.

       8. Jeopardising his own life being faced with the grim prospect of possible conviction in the case.

       9. The prospect of victim or his relatives indulging in private retribution who feel helpless and may believe that law may not protect them.

       10. The larger interests of public, society or the State.

       11. Similar other circumstances depending on facts and peculiarity of each case.