CR.MA/14865/2007 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 14865 of 2007 With CRIMINAL MISC.APPLICATION No. 15741 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RANJITBHAI HEMUBHAI GOHIL - Applicant(s) Versus STATE OF GUJARAT & 5 - Respondent(s) ========================================================= Appearance in Cr.ma 14865/2007 MR A.D.Shah for Mr. BD KARIA for Applicant. Mr.S.P.Hasurkar, APP for Respondent no.1, MR SP MAJMUDAR for Respondent nos. 2 – 6. Appearance in Cr.ma 15741 of 2007 Mr.S.P.Hasurkar, APP for the applicant. Mr.P.M.Thakkar, ld. Sr. Counsel for Mr. S.P.Majmudar for respondents nos.1 – 5. ========================================================= Coram:HONOURABLE MR.JUSTICE MD SHAH Date : 21/10/2008 ORAL JUDGMENT 1. Rule. Learned A.P.P. Mr.S.P.Hasurkar waives service of rule on behalf of the respondent no. in Criminal Misc. CR.MA/14865/2007 2/10 JUDGMENT Application no.14865/2007. 1A. In Criminal Misc. Application no.14865 of 2007, the applicant original complainant seeks to cancel the order granting regular bail to the respondent nos.2 to 6 by quashing and setting aside the order dated 4-12-2007 passed in Criminal Misc. Application no.377 of 2007 by the learned Principal Sessions Judge, Surendranagar, while the State of Gujarat has also sought the very same relief by preferring Criminal Misc. Application no.15741 of 2007. Hence, both these applications are heard together with the consent of parties and are being disposed of by this common judgment. 2. Brief facts leading to the filing of the present Criminal Misc. Applications are that on 7-8-2007 at about 10.00 a.m. while he was proceeding to his place of work, he happened to see his uncle Manubhai Gohil surrounded by the present respondent nos.2 to 6-accused and other five accused who were armed with deadly weapons and all of a sudden all these accused persons assaulted his uncle with such deadly weapons resulting which his uncle had died. In connection with this incident, the present applicant-complainant lodged complaint before CR.MA/14865/2007 3/10 JUDGMENT Joravarnagar Police Station for the offences punishable under Sections 302, 147, 148, 149 and 120B of the Indian Penal Code on the very same day i.e. 7-8-2007 which came to be registered as CR no.I-122/2007. Upon filing of such complaint, two of the accused were arrested but the respondent nos.2 to 6-accused were found absconding and not traceable. 3. The applicant then moved Special Criminal Application no.1853/2007 seeking fair investigation which is still pending. During the course of investigation, the Investigating Officer moved the concerned Magistrate and the respondent nos.2 to 6 were declared as absconders and also issued warrant against them. The learned Magistrate also directed the Investigating Officer to issue a proclammation in writing for proclaiming the present respondent nos.2 to 6 as absconders under Section 82 of the Cr.P.C. On 5-11-2007. 4. It is the case of the applicant-complainant that the respondent nos.2, 3 and 4 then moved Criminal Misc. Application no.345 of 2007 while the respondent nos.5 and 6 moved Criminal Misc. Application no.355/2007 and thus all the respondents claimed to be enlarged on CR.MA/14865/2007 4/10 JUDGMENT anticipatory bail. However, both these applicantions came to be rejected by the learned Sessions Judge, Surendranagar, by common order dated 12-11-2007. All these respondents then moved for anticipatory bail application being Criminal Misc. Application no.13514/2007 before this High Court, which came to be withdrawn, however, the Court directed withdrawal on condition that the respondents will surrender. Accordingly, the respondents had surrendered as per the directions of this Honourable Court and then moved the learned Principal Sessions Judge, Surendranagar, seeking regular bail by way of Criminal Misc. Application no.377 of 2007 which came to be granted. It is this order granting bail to the present respondent nos.2 to 6- accused, which is the subject matter of challenge in these Criminal Misc. Applications claiming cancellation of bail. 5. Heard learned Counsel appearing for the parties. 6. It has been argued by learned Advocate Mr. A.D.Shah for the applicant-original complainant that all the accused are involved in the heinous crime of murder of deceased Manubhai Gohil by playing active role. It has also been argued by him that the deceased had received 13 injuries CR.MA/14865/2007 5/10 JUDGMENT as per the medical certificate and though there is evidence of eye-witnesses, the learned trial Judge has allowed the bail application of the present respondent nos.2 to 6-accused, and therefore, the order granting bail to them is required to be quashed and set aside. It has also been argued by him that merely on the ground that charge-sheet was filed and taking into consideration the inimical terms that exist between the parties no prima facie case is made out for granting bail to the accused. According to him, even the fact that the respondent nos.2 to 6 were ready and willing to comply with any strict conditions cannot be a ground for granting bail to them. 7. Mr. P.M.Thakkr, learned Counsel for the respondent nos.2 to 6 has submitted that the trial has commenced, the complaint has been examined by the trial Court, that a considerably long period of one year has elapsed since the impugned order granting bail to the respondent nos.2 to 6-accused have been passed and they have neither misused their liberty during that period nor any untoward incident had taken place. According to the learned Counsel no effort has also been made by the respondent nos.2 to 6 to tamper with the evidence of prosecution CR.MA/14865/2007 6/10 JUDGMENT witnesses, and therefore, no interference is called for. 8. This Court has very carefully gone through impugned order, the complaint as a whole and the papers of investigation including the statement of witnesses recorded by the Investigating Officer. The grounds that weighed with the learned Principal Sessions Judge, Surendranagar, while granting bail to the respondent nos.2 to 6-accused are (i) investigation is over, (ii) charge- sheet is filed, (iii) no likelihood of fleeing the course of justice if released on bail, (iv) there is no clear proof with regard to injuries attributed to each of the accused and the weapons used by each of them in the commission of the offence in question, (v) that the injuries found in the post mortem note does not conform to the injuries which are alleged to have been caused by the present respondents-accused.(vi) that the respondents-accused nos.2 to 6 had surrendered and are in jail custody since long, that the respondents had not misused their liberty while on bail. 9. This Court is quite conscious of the fact that ordinarily the Court should not interfere in matters relating to bail. CR.MA/14865/2007 7/10 JUDGMENT Here, in the instant case, none of the reasons assigned by the learned Principal are found to be tenable. 10. Firstly, the ground that investigation is over , charge- sheet is already filed and that the respondents have not misued their liberty while on bail are by itself no ground for being released on bail. It is clear from the record that the present respondent nos. 2to 6- accused were declared absconders right from the beginning and had surrendered to custody only under the directions of the High Court, and therefore, the present respondent nos.2 to 6 are not only likely to flee the course of justice but possibility of the respondent nos.2 to 6-accused tampering with the prosecution witnesses can also be not ruled out. The question of clear proof with regard to the injuries attributed to each of the present respondent nos.2 to 6, the weapons used and the fact whether the injury found in the post mortem note conforms to the injuries alleged to have been caused by the present respondent nos.2 to 6- accused will be decided at the trial. It has to be borne in mind that present respondent nos.2 to 6-accused stands charged of offence under Sections 302 , 147, 148, 149, 120(B) read with Section 34 of the Indian Penal Code CR.MA/14865/2007 8/10 JUDGMENT where the punishment prescribed is life imprisonment or even death penalty. 11. In the present case, reading the complaint as well as the statement of witnesses and the nature of accusations levelled against the present respondent nos.2to 6- accused, prima facie, it is abundantly clear that respondents nos.2 to 6 are involved in the commission of the crime in question and that they have used deadly weapons that were in their possession at the time of the offence as is evident from the statements of eyewitnesses. Considering the conduct of the respondents-accused in absconding as aforesaid, the use of deadly weapons and the severity of the punishment in the event of conviction lead me to believe that there are reasonable grounds to cancel the bail having regard to the nature and gravity of the offence and the materials collected during investigation so as to prevent miscarriage of justice and the adverse impact in the society. This is so in view of the judgments rendered in the case of (1) State of U.P. vs. Amarmani Tripathi [(2005) 8 SCC 21], wherein the factors that are required to be looked into while granted bail have been highlighted and, (2) Panchanan Mishra v. CR.MA/14865/2007 9/10 JUDGMENT Digambar Mishra, [(2005) 3 SCC 143 wherein the objectives underlying the cancellation of bail is reflected and (3) Gobarbhai Naranbhai Singala vs. State of Gujrat and Others – judgment dated 29-10-2008 delivered by the Honourable Apex Court, Per Honourable Mr. Justice Bhan, Bench: Ashok Bhan & Altamas Kabir, JJ. in Appeal (Cri.) 198 of 2008 arising out of SLP(CRL) no.6646 of 2005 with Criminal Appeal no.199 of 2008 (arising out of SLP(CRL) no.4283 of 2006 reported in (2008) 3 SCC 775 wherein paragraphs 25, 26 and 27 are relevant. 12. On a careful consideration, in my view, the learned Principal Sessions Judge has failed to exercise the discretion judiciously in granting bail to the present respondents nos.2 to 6-accused, and therefore, both these Criminal Misc. Applications are allowed. The impugned order dated 4th December, 2007 passed by the learned Principal Sessions Judge, Surendranagar, is hereby set aside and the bail granted to the respondent nos.2 to 6 accused stands cancelled. The respondent nos.2 to 6- accused are directed to surrender before the concerned Magistrate forthwith and the learned Magistrate shall CR.MA/14865/2007 10/10 JUDGMENT take them into judicial custody forthwith. In case the respondent nos.2 to 6-accused fail to comply with the above directions, the learned Magistrate shall take appropriate legal steps to apprehend them. Rule is made absolute in these applications. 13. This Court would like to make it clear that the observations made in this order is not an expression of opinion on the merits of the matter, and therefore, the trial Court is directed to proceed with the trial in accordance with law without being influenced in any manner by the observations made herein above. (M.D.Shah,J.) lee. Further orders: After pronouncement of the above order, Mr. P.M.Thakkar, learned Sr.Counsel requested for suspension of the order as also for some time for approaching the Apex Court. Taking into consideration , the fact that the trial has commenced, the role played by the accused and the seriousness of the offence, the request is rejected. (M.D.Shah,J.) lee.