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2008 Supreme(Guj) 354
2009(1) GCD 654(Guj)
Hon’ble Mr. Justice M.D. Shah
Ranjitbhai Hemubhai Gohil
Versus
State of Gujarat & Ors.
Criminal Misc. Application No. 14865 of 20071—Decided on 21/10/2008
Appearance :
Appearance in Cr.M.A. 14865/2007 :
Mr. A.D. Shah for Mr. B.D. Karia, for the Applicant.
Mr. S.P. Hasurkar, APP for Respondent No. 1.
Mr. S.P. Majmudar, for Respondent Nos. 2 - 6.
Appearance in Cr.M.A. 15741 of 2007 :
Mr. S.P. Hasurkar, APP for the applicant.
Mr. P.M. Thakkar, Ld. Sr. Counsel for Mr. S.P. Majmudar, for Respondents No. 1 - 5.
Whether application for cancellation of regular bail granted by Lower Court deserves to be allowed?
Headnote:Head Note :
Criminal Procedure Code, 1973(Central Act 2 of 1974) — Section 439 — [Indian] Penal Code, 1860(Central Act 45 of 1860) — Sections 302, 147 to 149 & 120-B — Order granting regular bail — Cancellation of — Scope — Finding of — It is clear from the record that present respondent who are on regular bail by Lower Court were declared absconders right from the beginning and had surrendered to custody only under directions of High Court — They are therefore not only likely to flee the course of justice but possibility of their tampering with prosecution witnesses can also be ruled out — The respondent accused stand charged of henious offences where the punishment prescribed is life imprisonment or even death — The ground that investigation is over, charge-sheet is already filed and that respondent have not misused their liberty while on bail considered by Lower Court for grant of bail are by itself no ground for being released on bail — Court considering the facts and record of the case held that there are reasonable grounds to cancel the bail to prevent miscarriage of justice — Court accordingly set aside the orders of Lower Court granting the Respondent Nos. 2 to 6 regular bail and directed them to surrender before the concerned Magistrate.
Held :
Firstly, the ground that investigation is over, charge-sheet is already filed and that the respondents have not misued their liberty while on bail are by itself no ground for being released on bail. It is clear from the record that the present Respondent Nos. 2 to 6- accused were declared absconders right from the beginning and had surrendered to custody only under the directions of the High Court, and therefore, the present Respondent Nos. 2 to 6 are not only likely to flee the course of justice but possibility of the Respondent Nos. 2 to 6-accused tampering with the prosecution witnesses can also be not ruled out. The question of clear proof with regard to the injuries attributed to each of the present Respondent Nos. 2 to 6, the weapons used and the fact whether the injury found in the post mortem note conforms to the injuries alleged to have been caused by the present Respondent Nos. 2 to 6-accused will be decided at the trial. It has to be borne in mind that present Respondent Nos. 2 to 6-accused stands charged of offence under Sections 302,, 147, 148, 149, 120(B) read with Section 34 of the Indian Penal Code where the punishment prescribed is life imprisonment or even death penalty. [Para 10]
In the present case, reading the complaint as well as the statement of witnesses and the nature of accusations levelled against the present Respondent Nos. 2to 6-accused, prima facie, it is abundantly clear that Respondents Nos. 2 to 6 are involved in the commission of the crime in question and that they have used deadly weapons that were in their possession at the time of the offence as is evident from the statements of eyewitnesses. Considering the conduct of the respondents-accused in absconding as aforesaid, the use of deadly weapons and the severity of the punishment in the event of conviction lead me to believe that there are reasonable grounds to cancel the bail having regard to the nature and gravity of the offence and the materials collected during investigation so as to prevent miscarriage of justice and the adverse impact in the society. [Para 11]
Law Laid Down :
For grant of bail nature, gravity of offence and material collected during investigation required to be considered.
M.D. Shah, J.—Rule. Learned A.P.P. Mr. S.P. Hasurkar waives service of rule on behalf of the respondent No. in Criminal Misc. Application No. 14865/2007.
1-A. In Criminal Misc. Application No. 14865 of 2007, the applicant original complainant seeks to cancel the order granting regular bail to the Respondent Nos. 2 to 6 by quashing and setting aside the order dated 04.12.2007 passed in Criminal Misc. Application No. 377 of 2007 by the learned Principal Sessions Judge, Surendranagar, while the State of Gujarat has also sought the very same relief by preferring Criminal Misc. Application No. 15741 of 2007. Hence, both these applications are heard together with the consent of parties and are being disposed of by this common judgment.
2. Brief facts leading to the filing of the present Criminal Misc. Applications are that on 07.08.2007 at about 10.00 a.m. while he was proceeding to his place of work, he happened to see his uncle Manubhai Gohil surrounded by the present Respondent Nos. 2 to 6-accused and other five accused who were armed with deadly weapons and all of a sudden all these accused persons assaulted his uncle with such deadly weapons resulting which his uncle had died. In connection with this incident, the present applicant-complainant lodged complaint before Joravarnagar Police Station for the offences punishable under Sections 302, 147, 148, 149 and 120B of the Indian Penal Code on the very same day i.e. 7-8-2007 which came to be registered as CR No. I-122/2007. Upon filing of such complaint, two of the accused were arrested but the Respondent Nos. 2 to 6-accused were found absconding and not traceable.
3. The applicant then moved Special Criminal Application No. 1853/2007 seeking fair investigation which is still pending. During the course of investigation, the Investigating Officer moved the concerned Magistrate and the Respondent Nos. 2 to 6 were declared as absconders and also issued warrant against them. The learned Magistrate also directed the Investigating Officer to issue a proclammation in writing for proclaiming the present Respondent Nos. 2 to 6 as absconders under Section 82 of the Cr.P.C. On 05.11.2007.
4. It is the case of the applicant-complainant that the Respondent Nos. 2, 3 and 4 then moved Criminal Misc. Application No. 345 of 2007 while the Respondent Nos. 5 and 6 moved Criminal Misc. Application No. 355/2007 and thus all the respondents claimed to be enlarged on anticipatory bail. However, both these applicantions came to be rejected by the learned Sessions Judge, Surendranagar, by common order dated 12.11.2007. All these respondents then moved for anticipatory bail application being Criminal Misc. Application No. 13514/2007 before this High Court, which came to be withdrawn, however, the Court directed withdrawal on condition that the respondents will surrender. Accordingly, the respondents had surrendered as per the directions of this Honourable Court and then moved the learned Principal Sessions Judge, Surendranagar, seeking regular bail by way of Criminal Misc. Application No. 377 of 2007 which came to be granted. It is this order granting bail to the present Respondent Nos. 2 to 6-accused, which is the subject matter of challenge in these Criminal Misc. Applications claiming cancellation of bail.
5. Heard learned Counsel appearing for the parties.
6. It has been argued by learned Advocate Mr. A.D. Shah for the applicant-original complainant that all the accused are involved in the heinous crime of murder of deceased Manubhai Gohil by playing active role. It has also been argued by him that the deceased had received 13 injuries as per the medical certificate and though there is evidence of eye-witnesses, the learned trial Judge has allowed the bail application of the present Respondent Nos. 2 to 6-accused, and therefore, the order granting bail to them is required to be quashed and set aside. It has also been argued by him that merely on the ground that charge-sheet was filed and taking int
