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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
GITA GOPI, J.
Merubhai Ramabhai Kodiyatar (Hun) Rabari – Appellant
Versus
State of Gujarat – Respondent
Special Criminal Application No. 4052 of 2020
Decided On : 24-09-2020
Constitution of India, 1950 - Article 226/227 - Criminal Procedure Code, 1973 - Section 482 – Indian Penal Code, 1860 - Sections 120B, 177, 193, 465, 467, 468, 471 and 474 – Offence under - Breach of Conditions - Grounds for cancellation of bail and grounds of rejection of bail - Seeks Quashment of order - Petitioner was pursuing legal recourse, though he was not marking his presence before the police he was before the Courts seeking bail in subsequent FIRs that came to be registered against him - He was granted bail by the concerned Court - The police report itself suggests that the matter in which the bail was sought to be cancelled, charge-sheet was already filed, which makes petitioner answerable to the trial Court.
Facts of the Case: Petitioner submitted that the learned Sessions Judge erred to appreciate the fact that in subsequent FIR being Prohibition C.R. registered before the Jamjodhpur Police Station, the petitioner has been granted bail by Fourth Additional Sessions Judge vide order and another FIRs being Prohibition C.R. and Prohibition C.R. both registered at Police Station, the petitioner has been granted bail in both the cases vide order the Judicial Magistrate, First Class - He submitted that all the subsequent FIRs, on which the petitioner had been granted bail, were prior to the impugned order, and bail came to be cancelled without hearing the present petitioner, hence, order was passed ex-parte.
Findings of the Court: Grounds for cancellation of bail and grounds of rejection of bail are two different circumstances and hence the consideration of court on the issue also becomes different, while hearing the application for cancellation of bail, court has to be more rigid, as it has to examine not only possibility of violation, but also the possible consequences - Power of cancellation of bail must be exercised with care and circumspection keeping in mind urgent and overwhelming circumstances - Bail already granted should not be cancelled on a routine manner, as it jeopardizes the personal liberty of the person - Respondent-State has not been able to show any supervening circumstances, which would reflect that the liberty, granted to the accused, was misused, and no longer conducive to a fair trial - Court is inclined to exercise discretion in favour of petitioner.
Result: Petition is allowed.
JUDGMENT :
GITA GOPI, J.
1. Rule. Learned APP waives service of rule on behalf of respondent-State.
2. This petition has been preferred by the petitioner under Article 226/227 of the Constitution of India and under Section 482 of the Cr.P.C. praying for quashment of the order passed by the Principal District and Sessions Judge, Devbhumi Dwarka at Khambhaliya in Cr. M.A. No. 14/2020, dated 07.03.2020, in connection with C.R. No. I-50 of 2018, whereby the learned Sessions Judge has cancelled the bail granted to the applicant vide order dated 01.08.2019 in Criminal Misc. Application No. 14630 of 2019. The application for cancellation of bail was filed by the State, as the applicant/accused was found in breach of Conditions No. 9(a) and 9(e) of the aforesaid order.
3. The short facts, as could be culled out from the memo, order impugned and the papers annexed with the petition, can be summarized as under:
3.2 Another FIR being Prohibition C.R. No. 266 of 2018 came to be registered with Bhanvad Police Station for the offences punishable under Sections 65(a)(e), 81, 83, 98(2) and 116(b) of the Prohibition Act. For seeking bail in connection of the said FIR, petitioner approached this Court by preferring Criminal Misc. Application No. 8016 of 2019, wherein this Court has granted bail to the petitioner vide order dated 24.07.2019 by imposing certain conditions.
3.3 Thereafter, the State through Police sub-inspector, Bhanvad Police Station, has filed an application being Cr. M.A. No. 14/2020 under Section 439(2) of the Cr.P.C. for cancellation of bail, granted by this Court in Cr. M.A. No. 14630 of 2019 on account of breach of conditions being 9(a) and 9(e) and also preferred another application being Cr. M.A. No. 1089/2019 for cancellation of bail, granted by this Court in Cr. M.A. No. 8016 of 2019 on account of violation of conditions being 8(a) and 8(e).
3.4 The learned Session Judge, Devbhumi Dwarka at Khambhaliya, has allowed the application vide order dated 07.03.2020 being Cr. M.A. No. 14/2020 preferred by the State and cancelled the bail granted to the petitioner, by observing that, vide para-10 of the order of this Court, permission was granted to the Session Judge concerned to issue warrant or take appropriate action if breach of any of the condition is committed; while another application being Cr. M.A. No. 1089/2019 was rejected by the Additional Session Judge, Khambhaliya vide order dated 07.02.2020 preferred by the State for cancellation of bail granted to the petitioner by this Court.
3.5 Being aggrieved by the order dated 07.03.2020, passed in Cr. M.A. No. 14/2020, the petitioner has preferred this petition.
4. Learned advocate Mr. Vishal K. Anandjiwala for the petitioner submitted that the state has averred in the application, preferred before the learned session Judge, that the three FIRs were registered against the petitioner after he was released on bail and failed to mark presence before the police as per the order, therefore, breached the conditions of bail being 9(a) and 9(e) granted by this Court. Mr. Anandjiwala submitted that the false FIRs were filed against the petitioner and he has been impleaded as an accused on the information received by the police from their informants and by the statement of the co-accused. There is no evidence, which show that the petitioner was in possession of liquor or was involved in sale of the liquor.
5. Learned advocate for the petitioner further submitted that the learned Sessions Judge erred to appreciate the fact that in subsequent FIR being Prohibition C.R. No. 227 of 2019 registered before th
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