IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 2997 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ STATE OF GUJARAT Versus KISHORESINH @ KABHAI MALUJI CHUHAN -------------------------------------------------------------- Appearance: 1. Criminal Misc.Application No. 2997 of 2000 MR SS PATEL, APP for Petitioner No. 1 MR KJ SHETHNA for Respondent No. 1 MR JITENDRA MALKAN for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE C.K.BUCH Date of decision: 22/04/2002 ORAL JUDGEMENT 1. Rule. Service of Rule is waived by ld. Counsel Mr. K.J.Shethna for respondent-original accused. With the consent of parties, the matter is taken up for final hearing today. 2. This application by the State for cancellation of bail is mainly based on one important fact that the respondent accused had prayed for anticipatory bail being Cri. Misc. Application No. 401/2000 under Section 438 of CrPC before the ld. Sessions Judge, Vadodara, but the same was rejected by the ld. Addl. Sessions Judge, Vadodara vide order dated 18.4.2000. Thereafter, accused was arrested and was produced before the ld. Judicial Magistrate (First Class ), Vadodara by the Investigating Officer. Investigating Officer at that time submitted report to grant police remand and the same was rejected by the ld. JMFC. On rejection of the remand application, original accused prayed for bail before the ld. JMFC, Vadodara and the same was granted on the ground that, prima facie, no offence punishable under Section 467 of IPC is made out against the respondent accused. As per ld. APP, this has resulted in to serious prejudice to the prosecution and investigation. 3. Ld. APP Mr. Patel submits that the finding recorded by ld. JMFC is totally unwarranted and he has practically written the order of acquittal of the accused and there was no reason for ld. JMfC to evaluate the evidence at the initial stage of proceedings when substantial part of the investigation was to be carried out. It seems that this has been mentioned in the order with a view to show why he is exercising discretionary jurisdiction under Section 437 of CrPC. 4. Being aggrieved and dissatisfied with the order passed by the ld. JMfC, Vadodara enlarging the respondent accused on bail, the State of Gujarat preferred Criminal Misc. Application No. 433/2000 before the ld. Addl. Sessions Judge, Vadodara which ultimately came to be rejected vide order dated 17.5.2000 confirming the order passed by the ld. JMFC enlarging the respondent accused on bail. Ld. JMFC has recorded prima facie findings and the same has been upheld by the ld. Addl. Sessions Judge at the time of entertaining application for cancellation of bail. A court having concurrent jurisdiction when has held the first finding legal or otherwise not perverse, bail should not be cancelled on some technical plea. Situation and facts including subsequent development becomes relevant when bail cancellation plea is raised. 5. I do not find any merits in the present application for cancellation of bail preferred by the applicant State of Gujarat. However, it would be proper to observe that the observations made by the ld. JMFC in reference to the offence punishable under Section 467 of IPC, prima facie, and the accused can still be chargesheeted for the said offence. 6. Investigation has substantially progressed and I am told that Investigating Agency is likely to file chargesheet in a near future. Accused, when offence was allegedly committed by him, was serving with police force and his presence can be secured easily. The gravity of the offence and punishment prescribed for, is not always relevant as main cause for cancellation of bail. Unless the cause is very serious and cogent, discretionary order granting bail passed by the Court normally should not be disturbed. 7. I have gone through the averments made in the application by the State and the grounds taken for cancellation of bail. In view of the observations made by the Hon'ble Supreme Court in the case of Bhagirathsinh Jadeja v/s State of Gujarat, reported in AIR 1984 SC 372, I see no such exceptional circumstances prevailing in the present case to cancel the bail. Apex Court, while dealing with the case of Kashmira Singh v/s Duman Singh, reported in AIR 1996 SC 2176, has observed that even rejection of bail application twice could not be made a ground for cancellation of bail. Thus, the Apex Court has remained conservative in cancelling the bail granted earlier on merits. In the case of Subhendu Mishra v/s Subratkumar Mishra, reported in AIR 1979 SC 3026, the Apex Court has observed that cancellation of bail done in a mechanical manner is not sustainable. I have also gone through the order granting bail to the accused which is a reasoned order and there is nothing to point out that there is a grave violation of the order passed by the Court concerned granting bail. In my view, discretion exercised by the courts below is just, proper and legal and requires no interference. It is also not the case of the State that any of the conditions on which the respondent accused is released on bail, has been violated by the respondent-accused. 8. For the reasons aforesaid, there is no merit in the present application for cancellation of bail and the same is hereby dismissed. Rule is discharged. Dt.22.4.2002 [ C.K. BUCH, J ] *rawal.