[CASE NUMBER] ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO. 11045 of 2014 [ENTITY] & 1 Applicants Versus [ENTITY] & 2 Respondents Appearance: MR [ENTITY], ADVOCATE for the Applicants. MR [ENTITY], ADVOCATE for the Respondent No. 2 NOTICE SERVED for the Respondent No. 3 MR [ENTITY], LD.ADDL.PUBLIC PROSECUTOR for the Respondent No. 1 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 15/10/2015 ORAL ORDER
1. Even in third round in the second session, Mr.[ENTITY], learned advocate for the applicants, is not present.
2. The present application was listed for hearing on 12/10/2014 and on that day, following order was passed:
"When the matter is called on, Mr.[ENTITY],learnedadvocateappearingfor the applicants is not present, however, Mr.[ENTITY], learned advocate appearing for the respondent No.2 is present. Mr.[ENTITY], learned Additional Public Prosecutor has informed that the InvestigatingOfficerispresent.
It appears that since long learned advocate Mr.[ENTITY] is not appearing in the matter.However,intheinterestofjustice, thematterisadjournedto15.10.2015.Itis HC-NIC Page 1 of 5 Created On Tue Oct 20 01:30:04 IST 2015 [CASE NUMBER] ORDER madeitclearthatthemattershallproceed on merits in absence of learned advocates appearingfortherespectiveparties."
3. Investigating Officer along with papers of investigation has remained present all most, on all the occasions. Mr.[ENTITY], learned advocate appearing for respondent No.2-accused is also present. Therefore, the matter is heard on merits.
4. By way of the present application under [SECTION] of the [ACT], the applicants herein - original complainants have challenged the judgement and order dated 18/06/2014 passed by learned Session Judge, Surat in [CASE NUMBER], by which, learned Sessions Judge has exercised his power u/[SECTION] of the [ACT] and released the respondent-accused on regular bail during the pendency of the trial on certain terms and conditions.
It is the case of the applicants that thought the respondent-accused is involved in serious crime, learned Trial Court has committed an error in releasing the respondent- accused on regular bail. It is the case of the applicants that the respondent-accused has played an active role in commission of an offence, by helping the main accused, who has decided to kill [ENTITY]. However, some other persons sustained injury pursuant to the fire, which has taken place at the incident. Therefore, it is prayed that the regular bail granted in favour of respondent -accused, may be cancelled.
5. On the other hand, Mr.[ENTITY], learned advocate appearing for respondent - original accused would HC-NIC Page 2 of 5 Created On Tue Oct 20 01:30:04 IST 2015 [CASE NUMBER] ORDER submit that there is no direct evidence, which would connect the respondent-accused with the crime in question. There are in all, nine accused alleged in the FIR. He has submitted that out of nine accused, eight accused persons have been released either on anticipatory or regular bail by learned Trial Court and/or by learned Sessions Court. Therefore, this application may be dismissed.
6. Mr.[ENTITY], learned Additional Public Prosecutor has assisted the Court by producing papers of investigation.
7. I have heard learned advocates appearing on behalf of the respective parties and perused the papers of investigation. It is allegation that one [ENTITY], who has enmity with [ENTITY], has deployed the respondent-accused to done away the said person, however another person sustained injuries. Pursuant to the said firing, who has sustained injury, is out of danger. It appears that co-accused namely Mr.[ENTITY] has been enlarged on anticipatory bail by learned Session Court and the said order of anticipatory bail has been confirmed by Hon'ble the Apex Court. Other accused have been enlarged on bail by this Court or by learned Sessions Court.
So far as the respondent-accused is concerned, it is alleged that he was in contact with other accused and has not actually participated in the incident. Other accused have been released on bail, in whose contact the respondent accused was there by telephonic conversation. Considering the overall facts and circumstances of the case, those accused, against whom, serious allegations have been made, are enlarged on anticipatory bail or regular bail, this Court should not exercise HC-NIC Page 3 of 5 Created On Tue Oct 20 01:30:04 IST 2015 [CASE NUMBER] ORDER the power u/[SECTION] of the Code and cancel the bail granted in favour of the respondent-accused.
It is not the case of the applicants that there is a breach of any of the conditions imposed upon the respondent- accused while enlarging him on regular bail.
8. Considering the parameters laid down by the Honb'le Apex Court in the case of [PRECEDENT] and [PRECEDENT] for exercise of powers under [SECTION] of the Code, it cannot be said that other than legal consideration weighed with the learned Additional Sessions Judge for exercising powers and keeping in mind law laid down by the Honb'le Apex Court in the case of [PRECEDENT], the respondent - accused is granted regular bail, which do not make out a case for this Court to exercise powers under [SECTION] of the [ACT].
9. Considering the ratio laid down by the Hon'ble Apex Court in various decisions, powers of the learned Appellate Court are different than granting the same. In case of [PRECEDENT], Hon'ble Supreme Court has held that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. Therefore, I am of the opinion that when the respondent- original accused has been released on HC-NIC Page 4 of 5 Created On Tue Oct 20 01:30:04 IST 2015 [CASE NUMBER] ORDER bail and has not committed breach of any of the conditions imposed by the court, there are no reasons to exercise my power under [SECTION] of the [ACT] and cancel the regular bail granted in favour of respondent - original accused.
10. In view of the above, the present application is meritless and the same deserves to be dismissed and is accordingly dismissed. Notice is discharged.
[[ENTITY], J.] *dipti HC-NIC Page 5 of 5 Created On Tue Oct 20 01:30:04 IST 2015