N Criminal Appeal No 658 of 1983
840 Appeal by Special leave from the Judgment and Order dated the 21st October 1983 of the Gujarat High Court in Criminal Misc
Application No 1724 of 1983
Vimal Dave for the Appellant
M N Phadke R N Poddar Girish Chandra and C V Subba Rao for the Respondent
The Judgment of the Court was delivered by DESAI J
Special Leave granted
Ordinarily this Court is not inclined to interfere with the orders either granting or refusing to grant bail to an accused person either facing a criminal trial or whose case after conviction is pending in appeal
However this is not a case where bail is granted or refused but the order granting the bail by the learned Sessions Judge was set aside by the High Court adopting an approach which does not commend to us
It is alleged that the appellant gave blows with a knife to one Popatlal Sorathia who had come to visit an indoor patient Navalsinh Bhatti on August 17 1983 around 945 AM Appellant was accosted by the policemen on duty
An offence under Sec
307 IPC was registered against him and the appellant was taken into custody and was subsequently remanded to judicial custody
An application for releasing him on bail was made on August 22 1983 to the Chief Judicial Magistrate Rajkot
The Chief Judicial Magistrate Rajkot was pleased to dismiss the same by his order dated August 29 1983
On the same day an application for releasing the appellant on bail was moved before the learned Sessions Judge
A notice was issued to the learned Public Prosecutor
After hearing both the sides the learned Sessions Judge by a well reasoned order directed that the appellant be released on bail on his furnishing security in the amount of Rs 5000 and personal bond of the like amount
It appears that the State of Gujarat filed Miscellaneous Criminal Application No 1724 of 1983 in the High Court of Gujarat seeking cancellation of the order granting bail to the appellant
A learned Single Judge of the High Court held that once a prima facie case is 841 established the learned Sessions Judge ought to have taken into consideration the nature and gravity of the circumstances in which the offence is committed
The charge against the appellant is that he has committed an offence punishable under Sec
307 IPC and Sec
135 of the Bombay Police Act and even on the date of hearing of this appeal before us on November 18 1983 the Court was informed that the victim is alive and at present there is no danger to his life
Nearly 3 months have rolled by from the date of the offence
We fail to understand what the learned Judge of the High Court desires to convey when he says that once a prima facie case is established it is necessary for the court to examine the nature and gravity of the circumstances in which the offence was committed
If there is no prima facie case there is no question of considering other circumstances But even where a prima facie case is established the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion grained in his favour by tampering with evidence
We would have certainly overlooked this aspect of the matter if the approach of the learned judge was otherwise one which would commend to us
It however appears that the learned judge was impressed by some of the most irrelevant considerations which prima facie emerge from the following observations of the learned judge which permits his whole order running into about 13 pages
Says the learned judge The learned Judge ought to have seen the fact that the helpless victim had gone to the hospital for pre operation check up
He was a leading social and political worker
He was an active worker and Secretary of Gundagiri Nivaran Samiti which had raised a campaign against the atrocities allegedly having been committed by the Rajputs of Girasiya community
Admittedly the respondent is Girasiya and the complainant who was an active worker and Secretary of Gundagiri Nivaran Samiti had become a victim at the hands of the respondent
The learned Judge ought to have taken into consideration the material fact that the incident had taken place in the premises of the Hospital which may terrorize a number of sick persons who might be getting treatment in the hospital 842 At another place the learned Judge has observed that the learned Sessions Judge has ignored the fact that a social and political worker was attacked in the hospital premises with a knife having 9 blade and as many as 1 l injuries were caused to a helpless victim
In our opinion the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge
One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail
The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail
Very cogent and overwhelming circumstances all necessary for an order seeking cancellation of the bail
And the trend today is towards granting bail because it is now well settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed
The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted ill his favour by tampering with evidence
The order made by the High Court is conspicuous by its silence on these two relevant considerations
It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the order made by the High Court
We accordingly allow this appeal and set aside the order made by the learned High Court Judge and restore the one made by the learned Sessions Judge with following modifications i The appellant shall be released or if he is on bail continue to be on bail on his furnishing two fresh bail bonds each in the amount of Rs5000 supported by a solvent security
ii The appellant shall report on first Monday every month before the Chief Judicial Magistrate Rajkot at 1100 AM till his trial commences
Thereafter 843 he would be subject to the further orders that may be made in this behalf by the court which would try him
iii Other conditions imposed by the learned Sessions Judge remain unaltered
Order accordingly
HSK Appeal allowed


Summary:
The appellant against whom an offence under sec
307 IPC had been registered for giving knife blows to a person was granted bail by the Sessions Judge
On application by the State a Single Judge of the High Court cancelled the bail
Hence this appeal by special leave
Allowing the appeal  HELD Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail and the trend today is towards granting bail because it is now well settled that the power to grant bail is not to be exercised as if the punishment before trail is being imposed
The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence
842 D E In the instant case the order made by the High Court is conspicuous by its silence on these two relevant considerations
The learned Judge was impressed by some of the most irrelevant considerations and misdirected himself
The circumstances found by him that the victim attacked was a social and political worker could not be considered so overriding as to permit interference by the High Court with the discretionary order of the Sessions Judge granting bail
The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation on the bail
842 B C