CR.RA/408/2008 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 408 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= DINESHBHAI MOTIBHAI RABARI - Applicant(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR.SUBHASH G BAROT for Applicant. MS ARCHANA RAVAL, APP for Respondent(s) : 1, MR SHIRISH R PATEL for Respondent(s) : 2 - 5. MR NITIN T GANDHI for Respondent(s) : 2 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 04/07/2008 ORAL JUDGMENT CR.RA/408/2008 2/12 JUDGMENT 1. Rule. Ms.Archana Raval, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.1 and M/s.Shirish R.Patel and Mr.Nitin T.Gandhi, learned advocates waives service of notice of Rule on behalf of respondents No.2 to 5. With the consent of learned advocates appearing for the respective parties and the facts and circumstances of the case the revision application is taken up for final hearing today. 2. Present revision application is filed by the applicant-original complainant to quash and set aside the order passed by the learned Additional Sessions and Fast Track Court Judge, Fast Track Court No.7, Ahmedabad (Rural) dated 21.5.2008 in Criminal Misc. Application No.518 of 2008 whereby the learned Judge has enlarged the respondents No.2 to 5 herein – original accused on bail in connection with complaint being C.R. No. I – 109 of 2008 registered with Sola High Court Police Station for the offences punishable under Sections 326, 294, 506(1) and 114 of the Indian Penal Code and Section 135(1) of the Bombay Police Act. CR.RA/408/2008 3/12 JUDGMENT 3. A compliant came to be registered with Sola High Court Police Station on 28.3.2008 against the respondents No.2 to 5 herein for the offences punishable under Sections 326, 294, 506(1) and 114 of the Indian Penal Code and Section 135(1) of the Bombay Police Act for the offences alleged to be happened on 28.3.2008 at 4.30 p.m. alleging inter- alia that respondent No.2 herein - original accused Govabhai Taljabhai Rabari gave dharia blow on the head of the complainant on the front side as well as thereafter second blow on the back side of his head. It was further alleged in the complaint that other accused persons gave stick blows to the complainant and his father. Both complainant and his father were treated at Civil Hospital, Sola. Respondents No.2 to 5 herein came to be arrested and therefore they preferred Criminal Misc. Application No.518 of 2008 under Section 439 of the Code of Criminal Procedure for releasing them on bail which came up for hearing before the learned Additional Sessions and Fast Track Court Judge, Fast Track Court No.7, Ahmedabad (Rural) Shri M.M.Gandhi, and it was submitted that CR.RA/408/2008 4/12 JUDGMENT investigation is already concluded, and that the injured is discharged from the hospital, and if they are continued to be in custody then it will be a pre-trial conviction. The learned Additional Sessions and Fast Track Court Judge, Fast Track Court No.7, Ahmedabad (Rural), without considering the gravity of the offence, role played by individual accused and the seriousness of the offence and the charge levelled against the accused persons solely considering the fact that the investigation is already over and the injured is discharged from the hospital, released the respondents No.2 to 5 – original accused on bail. 3.1 Being aggrieved and dissatisfied with the impugned order of releasing the respondents No.2 to 5 herein – original accused on bail by the trial court, the petitioner - original complainant has preferred present revision application. 4. Learned advocate appearing on behalf of the petitioner – original complainant has vehemently submitted that as such the trial court has not CR.RA/408/2008 5/12 JUDGMENT assigned any reasons while releasing the accused on bail. It is submitted that relevant aspects such as gravity of the offence, evidence on record and the accusation against the accused are not considered by the trial court. It is submitted that as the original accused No.1 has given dharia blow on the vital part of the body i.e. on the head of the complainant and the complainant was seriously injured, the maximum punishment can be of life imprisonment which has not been considered by the trial court while releasing them on bail, and therefore, it is requested to allow the present revision application. It is further submitted that merely because the injured is discharged from the hospital is no ground to release the accused on bail and fortunately the injured has survived and is discharged from the hospital, the said benefit can never be given to the accused. Learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and Another reported in 2004 (7) SCC 528 as well as recent decision of the Hon'ble CR.RA/408/2008 6/12 JUDGMENT Supreme Court in the case of Dinesh M.N.(S.P.) vs. State of Gujarat reported in 2008 AIR SCW 3677. 5. Ms.Archana Raval, learned Addl.Public Prosecutor appearing on behalf of the respondent No.1-State of Gujarat has supported the petitioner and submitted that the trial court has committed an error in releasing the accused on bail and no reasons have been assigned by the trial court while releasing the accused on bail and that relevant considerations and factors are not considered by the trial court while releasing the accused on bail. It is requested to allow the present revision application. 6. Application is opposed by Shri Gandhi, learned advocate appearing on behalf of respondents No.2 to 5 - original accused. It is submitted that in the facts and circumstances of the case and considering the fact that the petitioner-original complainant was discharged from the hospital and the investigation was over, there were no possibilities by the accused to tamper with the evidence, and considering the above and the trial court has acquitted the accused, CR.RA/408/2008 7/12 JUDGMENT the same is not required to be interfered with by this Court while considering the application for cancellation of bail. It is submitted that as rightly held by the trial court as the investigation was over the custody of the accused would be pre- trial conviction. It is submitted that even if the decision of the trial court to release the accused on bail is erroneous, is no ground to cancel the bail and/or set aside the order passed by the trial court releasing the accused on bail. By making above submissions, it is requested to dismiss the present revision application. 7. Heard the learned advocates appearing on behalf of the respective parties. As so stated in the complaint, it is borne out from the record that the original accused No.1 – respondent No.2 herein Govabhai Taljabhai Rabari had given dharia blow on the head on the vital part of the body and the complainant came to be seriously injured and/or hospitalised and was admitted in Civil Hospital, Sola. The other accused had given stick blows on the father of the complainant. It appears that the CR.RA/408/2008 8/12 JUDGMENT petitioner had taken treatment as indoor patient from 28.3.2008 to 23.4.2008. Thus, prima facie a case is made out against the accused for the offences under Sec.326 of the IPC also. Considering the impugned order passed by the learned Additional Sessions and Fast Track Court Judge, Fast Track Court No.7, Ahmedabad (Rural) at Mirzapur releasing the accused on bail, it appears that as such no reasons have been assigned by the trial court while releasing the accused on bail except observing that investigation is by and large over and therefore if the accused are continued to be in custody, it will be a pre-trial conviction. No other reasons have been assigned. The learned Judge has not considered the seriousness of the offence and the accusation and the role played by the accused. The original accused No.1 had given a dharia blow on the vital part of the body i.e. on the head. Merely because the injured is discharged from the hospital can never be a ground in favour of the accused for bail. The injured being fortunate enough to recover and discharged from the hospital. However because of that the said benefits can never be given to the accused. In the case of Kalyan Chandra Sarkar CR.RA/408/2008 9/12 JUDGMENT (supra), in para 11 the Hon'ble Supreme Court has noted as follows: “11. The law in regard to grant or refusal of bail is very settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. CR.RA/408/2008 10/12 JUDGMENT (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh (2002 (3) SCC 598 and Puran v. Rambilas (2001 (6) SCC 338).” 8. As stated above, while releasing the accused on bail, the trial court has not considered the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. As held by the Hon'ble Supreme Court in the aforesaid decision any order devoid of such reasons would suffer from non-application of mind. In view of the above, the impugned order passed by the learned Additional Sessions and Fast Track Court Judge, Fast Track Court No.7, Ahmedabad (Rural) dated 21.5.2008 in Criminal Misc. Application No.518 of 2008 deserves to be quashed and set aside so far as respondents No.2 - original accused No.1 Govabhai Taljabhai Rabari is concerned. The other accused respondents No.3 to 5 herein are alleged to have been given stick blows and therefore their case can be considered separately and the case of the accused No.1 cannot be compared with other accused as accused No.1 has given dharia blow on the head of the CR.RA/408/2008 11/12 JUDGMENT complainant – injured. Under the circumstances, the impugned order passed by the trial court releasing the respondents No.3 to 5 herein does not require to be interfered with on merits though this Court is not satisfied with the reasonings (as such no reasons are given) by the trial court releasing the accused on bail. However, this Court has considered the case independently. 9. The revision application succeeds in part. The impugned judgment and order passed by the learned Additional Sessions and Fast Track Court Judge, Fast Track Court No.7, Ahmedabad (Rural) dated 21.5.2008 in Criminal Misc. Application No.518 of 2008 in releasing the respondent No.2 herein – original accused No.1 Govabhai Taljabhai Rabari in connection with complaint being C.R.No.I – 109 of 2008 registered with Sola High Court Police Station is hereby quashed and set aside. The said respondent No.2 – original accused No.1 Govabhai Taljabhai Rabari shall surrender immediately and the investigating officer shall take him into custody immediately. So far as respondents No.3 to 5 – CR.RA/408/2008 12/12 JUDGMENT original accused No.2 to 4 are concerned, the impugned order releasing them on bail is hereby confirmed with a modification of the condition that they shall not enter the local limits of Sola and Ghatlodia area of Ahmedabad for a period of six months except called by the investigating officer. Rule is made absolute accordingly. Direct service is permitted. ( M.R. SHAH, J. ) syed/