R/CR.RA/485/2013 [ENTITY] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION (CANCELLATION OF BAIL) NO. 485 of 2013 With CRIMINAL REVISION APPLICATION NO. 626 of 2013 With CRIMINAL REVISION APPLICATION NO. [SECTION]05 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? [ENTITY] Applicant(s) Versus [ENTITY] & 2 Respondent(s) Appearance: MR [ENTITY], ADVOCATE for the Applicant(s) No. 1 MR [ENTITY], ADVOCATE for the Respondent(s) No. 3 PUBLIC PROSECUTOR for the Respondent(s) No. 1 RULE SERVED BY DS for the Respondent(s) No. 2 Page 1 of 1[SECTION] R/CR.RA/485/2013 [ENTITY]: HONOURABLE MR.JUSTICE [ENTITY] Date : 04/12/2014 [ENTITY]
1. Since the issues involved in the above captioned applications are interconnected, those were heard analogously and are being disposed of by this common judgment and order.
2. [CASE NUMBER] 2.1 By this application under [SECTION] read with [SECTION] of the [ACT], the petitioner-original first informant calls in question the legality and validity of the order dated 29th July, 2013 passed by the Additional Sessions Judge, Gandhinagar in [CASE NUMBER] filed by the respondent No.3 (original accused No.3) for anticipatory bail under [SECTION] of the [ACT], by which the learned Judge allowed the application and ordered release of the accused on anticipatory bail in connection with [CASE NUMBER] registered with the Chandkheda Police Station of the offence under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] and [SECTION] and [SECTION] of the [ACT].
3. CRIMINAL REVISION [CASE NUMBER] 3.1 By this application under [SECTION] read with [SECTION] of the [ACT], the petitioner-original first informant calls in question the legality and validity of the order dated 25th September, 2013 passed by the Additional Sessions Judge, Gandhinagar in [CASE NUMBER] filed by the respondent No.3 (original accused No.2) for regular bail under [SECTION] of the [ACT], by which the learned Judge allowed the application and ordered release of the accused on regular bail in connection with [CASE NUMBER] registered with the Chandkheda Police Station of the offence under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] and [SECTION] and [SECTION] of the [ACT].
4. CRIMINAL REVISION APPLICATION NO.[SECTION]05 OF 2013 4.1 By this application under [SECTION] read with [SECTION] of the [ACT], the petitioner-original first informant calls in question the legality and validity of the order dated 19th November, 2013 passed by the Additional Sessions Judge, Gandhinagar in Criminal Misc. Application No.6[SECTION]4 of 2013 filed by the respondent No.3 (original accused No.1) for regular bail under [SECTION] of the [ACT], by which the learned Judge allowed the application and ordered release of the accused on regular bail in connection with [CASE NUMBER] registered with the Chandkheda Police Station of the offence under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] and [SECTION] and [SECTION] of the [ACT].
5. It appears that the original first informant, the brother of the deceased lodged a first information report in connection with the incident of suicide committed by his sister on 8 th July, 2013. In the first information report, three persons have been named as the accused (1) [ENTITY] (husband) (2) [ENTITY] (mother-in- law(3) [ENTITY] (sister-in-law). The case of the prosecution in brief is that the marriage of the deceased was solemnized with the accused No.1 on 12 th May, 2011. The accused No.1-husband was working in the police department as a police constable. The father-in-law of the deceased is also working in the police department. The accused No.2 i.e. the mother-in-law and the accused No.3 i.e. the sister-in-law used to harass the deceased mentally as well as physically. The deceased, at the time of commission of suicide, was pregnant by five months. As per the customs and rituals, during the ceremony of [ENTITY], a huge amount in cash and ornaments were demanded from the parents of the deceased. The father of the deceased is working in the ONGC and was able to arrange for ornaments worth Rs.5,00,000/-. However, there was an additional demand of car by all the accused persons. On the day of the incident, the deceased had called up her mother to complain about the ill-treatment and quarrel that had taken place in the house. The deceased, thereafter, immediately, committed suicide. The fact of suicide was not informed by the accused persons to the family of the first informant, but the same was informed by one Mr. [ENTITY].
6. In such circumstances, the brother of the deceased lodged a first information report with the Chandkheda Police Station, Ahmedabad which was registered as [CASE NUMBER] of the offence noted above.
[SECTION]. It appears that the sister-in-law-original accused No.3 applied for anticipatory bail in the court of the Sessions Judge at Gandhinagar. The anticipatory bail application was allowed and the accused was ordered to be released on anticipatory bail in the event of her arrest.
8. So far as the mother-in-law-original-accused No.2 is concerned, she was arrested and was ordered to be enlarged on regular bail by the learned Additional Sessions Judge.
9. The husband was also arrested and he was also ordered to be released on regular bail subject to certain terms and conditions.
10. The first informant i.e. the brother of the deceased has come up with these revision applications challenging the legality and validity of the orders granting bail to the accused persons.
11. It appears that these applications were filed in the month of August, 2013. Time to time, they were being adjourned on one ground or the other. It also appears that the regular court, taking up the matters for cancellation of bail, refused to hear the matters on personal ground and that is how under the orders passed by the Hon'ble the Acting Chief Justice dated 3 rd November, 2014, these applications were placed before me for my consideration.
12. At the outset, the learned advocate appearing for the revisionist made it clear that his client is not seriously pressing for cancellation of bail so far as the two lady accused are concerned. However, according to the learned advocate appearing for the revisionist, the court below ought not to have ordered release of the husband on bail having regard to the serious nature of the offence and the nature of the allegations levelled in the first information report.
13. It appears that charge-sheet has already been filed and the trial is to commence from 31st December, 2014. I am told that on 31st December, 2014, charge would be framed and shortly thereafter the recording of the evidence would also commence.
14. Since what has been prayed before me is to cancel the bail granted by the trial court, I must look into the position of law as very exhaustively explained by the Supreme Court in the case of Ash Mohammed v. Shiv Raj Singh alias Lalla Babu and Anr., reported in 2012 Criminal Law Journal, 46[SECTION]0. The Supreme Court made the following observations as contained in paragraphs 10 to 2[SECTION].
"10. In [PRECEDENT], it has been opined that the grant of bail though involves exercise of discretionary power of the Court, such exercise of discretion has to be made in a judicious manner and not as a matter of course. Heinous nature of the crime warrants more caution and there is greater chance of rejection of bail, though, however dependent on the factual matrix of the matter. In the said case the learned Judges referred to the decision in [PRECEDENT] and another2and stated as follows:
"(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
11. In [PRECEDENT] Court while dealing with an application for bail has stated that certain factors are to be considered for grant of bail, they are; (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge.
12. In [PRECEDENT] and another4, while giving emphasis for ascribing reasons for granting of bail, however, brief it may be, a two-Judge Bench observed that there is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case.
13. In [PRECEDENT] has been observed that normally this Court does not interfere with an order passed by the High Court granting or rejecting the bail of the accused, however, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. Among other circumstances the factors which are to be borne in mind while considering an application for bail are whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; nature and gravity of the accusation; severity of the punishment in the event of conviction; danger of the accused absconding or fleeing, if released on bail; character, behaviour, means, position and standing of the accused; likelihood of the offence being repeated; reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being thwarted by grant of bail.
14. In [PRECEDENT] has been ruled that in an appeal against grant of bail all aspects that were relevant under [SECTION] read with [SECTION] continue to be relevant.
15. In Puran v. Rambilas and another[SECTION]it has been noted that the concept of setting aside an unjustified, illegal or perverse order is totally different from the cancelling an order of bail on the ground that the accused had misconducted himself or because of some supervening circumstances warranting such cancellation.
16. In Dr. Narendra K. [ENTITY] v. State of Gujarat and another8, a three-Judge Bench has observed that when irrelevant materials have been taken into consideration the same makes the order granting bail vulnerable. If the order is perverse, the same can be set at naught by the superior court.
1[SECTION]. In [PRECEDENT], while making a distinction between cancellation of bail and consideration for grant of bail, this Court opined thus: -
"18. In considering whether to cancel the bail the court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him. Moreover, the above principle applies when the same court which granted bail is approached for cancelling the bail. It will not apply when the order granting bail is appealed against before an appellate/Revisional Court.19. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail."
18.We have referred to the above authorities solely for the purpose of reiterating two conceptual principles, namely, factors that are to be taken into consideration while exercising power of admitting an accused to bail when offences are of serious nature, and the distinction between cancellation of bail because of supervening circumstances and exercise of jurisdiction in nullifying an order granting bail in an appeal when the bail order is assailed on the ground that the same is perverse or based on irrelevant considerations or founded on non- consideration of the factors which are relevant.
19.We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasize, the sacrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to Rule of Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why [ENTITY] while discussing about liberty opined, "it is regulated freedom".
20.It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms.Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires. Not for nothing [ENTITY] stated:
"Personal liberty is the right to act without interference within the limits of the law."
21. Thus analyzed, it is clear that though liberty is a greatly cherished value in the life of an individual,it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized, for the rational collective does not countenance an anti-social or anti- collective act.
22. Having said about the sanctity of liberty and the restrictions imposed by law and the necessity of collective security, we may proceed to state as to what is the connotative concept of bail. In Halsbury's Laws of England10it has been stated thus:-
"The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned."
23. In [PRECEDENT]. [ENTITY], learned Chief Justice, in his concurring opinion, observed:-
"Bail is well understood in criminal jurisprudence and [SECTION] of the [ACT] contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word "bail" is surety."
24. As grant of bail as a legal phenomenon arises when a crime is committed it is profitable to refer to certain authorities as to how this Court has understood the concept of crime in the context of society. In [PRECEDENT], [ENTITY], J. (as his Lordship then was), speaking for himself and [ENTITY], J, referred to [PRECEDENT] and the definition given by [ENTITY] and opined thus:-
"A crime, therefore, is an act deemed by law to be harmful to society in general, even though its immediate victim is an individual."
25. In [PRECEDENT] a two-Judge Bench, though in a different context, has observed: -
"Crime is a revolt against the whole society and an attack on the civilization of the day. Order is the basic need of any organized civilized society and any attempt to disturb that order affects the society and the community."
26. In [PRECEDENT] it has been held that crime can be defined as an act that subjects the doer to legal punishment. It may also be defined as commission of an act specifically forbidden by law; it may be an offence against morality or social order.
2[SECTION]. Keeping in mind the aforesaid aspects, namely, the factors which are to be borne in mind while dealing with an application preferred under [SECTION] of the [ACT] in respect of serious offences, the distinction between a perverse or illegal order and cancellation of order granting bail, the individual liberty and social security, the concept of bail, the definition of crime and the duty of the court, we may proceed to deal as to how in the case at hand the bail application has been dealt with by the High Court".
15. SUBMISSIONS ON BEHALF OF THE REVISIONIST.
Mr. R J. Goswami, the learned advocate appearing on behalf of the revisionist, submitted that the trial court ought not to have exercised discretion in favour of the accused persons having regard to the serious nature of the crime. He submitted that there are allegations of demand of dowry and incessant harassment. He further submitted that at the time of commission of suicide, the deceased was carrying pregnancy of five months. He submitted that since the accused persons are charged with the offence under [SECTION] of the [ACT], there would be a presumption under [SECTION] of the [ACT] since the death could be said to have occurred otherwise then under normal circumstances and that too within seven years of the marriage.
The learned counsel appearing for the revisionist, submitted that the discretionary power has to be exercised in a judicious manner and not a matter of course.
The learned counsel lastly submitted that even otherwise the impugned orders of bail are cryptic and bereft of any cogent reasons for ordering release of the accused on bail.
In such circumstances referred to above, it is prayed that at least so far as the husband is concerned, his order of bail deserves to be quashed and he should be taken in custody.
16. SUBMISSIONS ON BEHALF OF THE ACCUSED Mr. [ENTITY], the learned advocate appearing on behalf of the accused, has vehemently opposed all the three applications submitting that no error not to speak of any error of law could be said to have been committed by the learned trial judge in exercising the discretion in favour of the accused persons. Mr. [ENTITY] submitted that the consideration for cancellation of bail is different from the consideration of grant of bail. He submitted that even if two views are possible, once the bail has been granted, it should not be cancelled. He further submitted that the allegations are quite general in nature and the deceased committed suicide on account of matrimonial problems.
Mr. [ENTITY] lastly submitted that his clients are on bail past almost one year and the trial is also ripe for hearing. In such circumstances, he prays that the orders of bail may not be disturbed and the revision applications be rejected.
1[SECTION]. SUBMISSIONS ON BEHALF OF THE STATE:
Ms. [ENTITY], the learned APP appearing on behalf of the State has supported the revisionist. She submits that the trial court could not be said to have exercised his discretion judiciously considering the serious nature of the crime. Ms. [ENTITY] laid much emphasis on the fact that but for the unbearable torture and harassment, the deceased would not have gone to the extent of committing suicide knowing fully well that she was pregnant.
In such circumstances, she prays that there being merit in the revision applications, the same be allowed and the bail orders be quashed.
18. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the centripodal question that falls for my consideration is whether the orders passed by the Sessions Court are legitimately acceptable and legally sustainable within the ambit and sweep of the principle laid down by the Supreme Court for grant of regular bail under [SECTION] of the Code and anticipatory bail under [SECTION] of the Code.
19. I am conscious of the fact that while considering a bail application as well as an application for cancellation of bail, ordinarily the court should not enter into the appreciation or re-appreciation of the evidence. However, at least, to consider whether any prima facie case is made out against the accused persons or not, the court may look into the papers of the charge-sheet. It is not in dispute that the deceased committed suicide within a period of two years from the date of marriage. The allegations against the mother-in-law and the sister-in-law appears to be that of instigating the husband of the deceased and on account of such instigation, the husband used to treat his wife cruelly. Since the revisionist himself is not so serious about the orders of bail so far as the mother-in-law and sister- in-law is concerned, I do not intend to disturb the same. It appears that the sister-in-law is a working lady and has a son aged 10 years. So far as the mother-in-law is concerned, the allegations against her are also general in nature .
20. In such circumstances, I am of the view that so far as the mother-in-law and sister-in-law are concerned, their bail need not be ordered to be cancelled.
21. In the result, [CASE NUMBER] and [CASE NUMBER] fail and are ordered to be rejected.
22. The above takes me to consider whether the court below committed any error in exercising the discretion in favour of the husband.
23. I have gone through the first information report as well as the other papers of the charge-sheet. There are serious allegations against the husband. I am not convinced with the manner in which the learned Additional Sessions Judge dealt with the application. In a very slip shod and casual manner, the learned Judge ordered the release of the husband on bail. A bare perusal of the impugned order does not reflect any proper application of mind so far as the relevant aspects which are to be taken into consideration while deciding a bail application in a serious offence like the one under [SECTION] of the [ACT] is concerned. I am not impressed with the submissions canvassed by Mr. [ENTITY] that the consideration for cancellation of bail is different from the consideration of grant of bail. That is not an absolute rule, and it will depend on the facts and circumstances of the case. While cancelling the bail, the court has also to consider the gravity and the nature of the offence, prima facie case against the accused, the position and standing of accused etc. In the present case, the husband is a police constable. If there are serious allegations against the accused, his bail may be cancelled even if he has not misused the bail granted to him or even if he is on bail past almost a period of one year. Moreover, the above principle applies when the same court, which granted bail is approached for cancelling the bail. It will not apply when the order granting bail is appealed before a revisional court. There is no absolute rule that once bail is granted to the accused, then it can only be cancelled if there is likelihood of misuse of bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail.
24. I am of the view that the case in hand is a very serious case and cannot be treated like an ordinary case. A young lady was compelled to end her life with five months pregnancy on account of incessant torture and harassment by her husband. There are serious allegations that on the day of the ritual, which is ordinarily performed at the time when the pregnancy is of seven months (popularly known as [ENTITY] in the State of Gujarat) demand was made for a car and ornaments. It also appears that just before the deceased committed suicide, a big quarrel had taken place in the house. It also appears that at that point of time, the deceased had called up her mother complaining that she had been beaten by her husband and mother-in-law. On the very same day, soon thereafter, she hanged herself to death.
25. All these aspects have been very conveniently ignored by the trial court. I would rather say, in a very cursory manner, the bail application was considered and allowed.
26. Although, the trial may be ripe enough for hearing, yet having regard to the serious infirmities in the order of bail, the husband does not deserve to remain on bail. So far as the husband is concerned, his bail deserves to be cancelled.
2[SECTION]. In the result, the Criminal Revision Application No.[SECTION]05 of 2013 is allowed. The order dated 19 th November, 2013 passed by the Additional Sessions Judge, Gandhinagar in Criminal Miscellaneous Application No.6[SECTION]4 of 2013 is hereby ordered to be quashed and consequently, the order of bail stands cancelled.
28. The accused [ENTITY] is directed to immediately surrender before the Sessions Court and on his surrender, the Sessions Court shall remain him to judicial custody. If the accused [ENTITY] fails to surrender on or before 5th December, 2014, then the trial court shall issue non- bailable warrant of his arrest.
([ENTITY], J.) [ENTITY]