1. This application is preferred under Section 439(2) of the Code of Criminal Procedure by the State of Gujarat for cancellation of bail granted to the original accused by the learned Additional Sessions Judge and Special Judge, Jamnagar vide order dated 13.8.2019 passed in Criminal Misc. Application No. 1161 of 2019 for the offence punishable under Sections 7(a) , 12 and 13(1)(2) of the Prevention of Corruption Act, 1988 in connection with the offence registered being C.R. No.3 of 2019 before A.C.B. Police Station, Jamnagar.

2. The brief facts of the case are that the complainant had filed complaint being C.R. No.3 of 2019 before A.C.B. Police Station, Jamnagar stating that the present respondent and another co-accused had demanded Rs.1,50,000/- for not taking action against the offence Page 1 of 18 Downloaded on : Sat Jun 17 20:36:30 IST 2023 R/CR.MA/1430/2020 ORDER DATED: 14/06/2023 punishable under the provision of Prohibition Act .

2.1 Thereafter, the respondent accused had preferred Criminal Misc. Application No. 1161 of 2019 for Anticipatory Bail before the learned Principal District and Sessions Court Jamanagar.

2.2 After perusing the record and the evidence placed on record, the trial Court had vide order date 13.8.2019 passed in Criminal Misc. Application No. 1161 of 2019 granted anticipatory bail to the accused person and therefore, the State of Gujarat has filed present application for cancellation of bail granted to the accused.

3. Heard Ms. Maithili Mehta, learned APP for the applicant State of Gujarat and Mr. Maulik Soni, learned Counsel for the respondent.

4. Ms. Mehta learned APP submitted that the impugned order is ex facie illegal and arbitrary and that the same is passed without appreciating the facts and circumstances of the case. She therefore, urges before the Court that the application may be allowed and the bail granted to the accused person may be cancelled.

5. As against that the learned Counsel Mr. Soni for the respondent has submitted that learned Trial Court has Page 2 of 18 Downloaded on : Sat Jun 17 20:36:30 IST 2023 R/CR.MA/1430/2020 ORDER DATED: 14/06/2023 rightly exercised the power under Section 438 of the Code while granting bail to the present respondent and after releasing him on bail there was no untoward or overwhelming circumstance against the present accused. Further he submitted that the investigation is over and the accused has fully cooperated with the investigating officer and there was no breach of any condition reported against the accused. In view of the aforesaid facts, he urges before the Court that present application may not be entertained and the same may be dismissed.

6. I have perused the FIR and the impugned order passed by the Trial Court in the application for anticipatory bail. I have considered the submissions canvassed by learned advocates appearing on behalf of both the sides and the averments made in the application. It appears from the record that the role attributed by the applicant in the alleged offence is only an abettor. Considering the role played by the accused, I am of the opinion that the Trial Court has rightly exercised its power under Section 438 of the Code.

7. It must be emphasised at the outset that there is a vivid distinction between the parameters to be applied while considering a bail application, vis a vis those applicable while deciding a petition for its cancellation. In Puran vs. Rambilas reported in (2001) 6 SCC 338, it was Page 3 of 18 Downloaded on : Sat Jun 17 20:36:30 IST 2023 R/CR.MA/1430/2020 ORDER DATED: 14/06/2023 reiterated that at the time of deciding an application for bail, it would be necessary to record reasons, albeit without evaluating the evidence on merits. In turn, Puran (supra) cited Gurcharan Singh v. State (Delhi Admn .) reported in (1978) 1 SCC 118 wherein this Court observed that bail once granted by the trial Court, could be cancelled by the same Court only in case of new circumstances/evidence, failing which, it would be necessary to approach the Higher Court exercising appellate jurisdiction.

8. At this stage it is appropriate to take in to account the observations made by the Hon'ble Apex Court in case of Deepak Yadav vs. State of Uttar Pradesh and another reported in (2022) 8 SCC 559. The said observations read as under:-

8.1 It would be profitable to refer the judgment of this Court in case of Shree Vikas Co. Op Bank Ltd, (Liq) Through Sunil Laxmanrao Powle Vs. State of Gujarat dated 6.5.2022 passed in Criminal Misc. Application No. 3712 of 2018 and allied matters, wherein this Court has held as under:-

State of Telangana & Anr., reported in (2020) 2 SCC 743, Hon'ble Apex Court in paragraph 8 held as under:

(ii) In the case of X. v State of Telangana & Anr. , reported in (2018) 16 SCC 511, Hon'ble Apex Court in paragraphs 14, 15 and 18 held as under:

(iii) In the case of Manoj Kumar Khokhar v State of Rajasthan & Anr. , reported in (2022) 3 SCC 501, Hon'ble Apex Court in paragraphs 29 and 38 held as under:

Quoting Mahipal vs. Rajesh Kumar − (2020) 2 SCC 118, this Court observed as under:

38. Thus, while elaborate reasons may not be assigned for grant of bail or an extensive discussion of the merits of the case may not be undertaken by the court considering a bail application, an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. In such a case the prosecution or the informant has a right to assail the order before a higher forum. As noted in Gurcharan Singh vs. State (Delhi Admn .) − 1978 CriLJ 129, when bail has been granted to an accused, the State may, if new circumstances have arisen following the grant of such bail, approach the High Court seeking cancellation of bail under section 439 (2) of the Cr. PC. However, if no new circumstances have cropped up since the grant of bail, the State may prefer an appeal against the order granting bail, on the ground that the same is perverse or illegal or has been arrived at by ignoring material aspects which establish a prima−facie case against the accused."

8.2 In the decision of this Court in case of Hiteshkumar Vallabhdas Shah Power of Attorney of Pankaj Indravadan Sheth Vs. State of Gujarat reported in 2021 GLR 4 2874, this Court has held as under:-

7.2. The Hon'ble Supreme Court in case of Narendra Amin Vs. State of Gujarat , reported in 2008 (13) SCC 584, noted that the Court dealing with cancellation application is required to find whether irrelevant material of substantial nature was taken into account or relevant material omitted from consideration while granting bail. If so, order granting bail would be perverse, justifying cancellation, in that context, stand of no supervening circumstances has no relevance in such a case.

7.3. The Hon'ble Supreme Court in case of Abdul Basit Alias Raju And Ors. Vs. Mohd. Abdul Kadir Chaudhary And Another , reported in (2014) 10 Supreme Court Cases 754, held that although the court granting bail can cancel the bail on ground of accused's misconduct or new adverse facts having surfaced after the grant of bail, however, in view of express bar contained in Section 362 Cr.P.C., it cannot review its order as to grant of bail on ground of it being unjustified, illegal or perverse. Such challenge to bail order on ground of it being illegal or contrary to law can be determined only by the court superior to the court which granted bail. The cancellation of bail rides on the satisfaction and discretion of the court under Section 439(2) of the Cr.P.C., it does not vest the power of review in the court which granted bail.

7.3.1. In Dolat Ram 's case (supra), it has been held that very cogent and overwhelming circumstances are necessary for the canceling bail granted to an accused. As has been held in Narendra Amin 's case (supra), the Court is required to examine whether irrelevant material of substantial nature has been Page 11 of 18 Downloaded on : Sat Jun 17 20:36:30 IST 2023 R/CR.MA/1430/2020 ORDER DATED: 14/06/2023 taken into account or relevant material has been omitted from consideration while granting bail. In Abdul Basit @ Raju And Ors. (supra), the cancellation of bail was sought for on the grounds that it was obtained by gross misrepresentation of facts, misleading the Court and indulging in fraud, requiring the bail order to be set aside on ground of it being perverse in law. It was observed that circumstances brought on record do not indicate any situation where bail was misused by accused, thus was held that cancellation of bail can be granted on ground of accused's misconduct or new adverse facts having surfaced after the grant of bail; and challenge to bail order on ground of it being illegal or contrary to law, can be determined only by the Court superior to the Court which granted bail.

7.4. It has been held by the Hon'ble Supreme Court in case of Bhagirath Singh S/o. Mahipat Singh Judeja Vs. State of Gujarat ; reported in AIR 1984 SC 372, that, even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion grained in his favour by tampering with evidence.

7.5. Myakala Dharmarajam & Ors. Etc. Vs. The State of Gujarat, decided on 07.01.2020 in Criminal Appeal Nos.1974-1975 of 2019, the Hon'ble Apex Court while placing reliance on the case of Kanwar Singh Meena Vs. State of Rajasthan & Anr. , reported in (2012) 12 SCC 180, held that, the factors to be considered while granting bail have been held by this Court to be the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his Page 12 of 18 Downloaded on : Sat Jun 17 20:36:30 IST 2023 R/CR.MA/1430/2020 ORDER DATED: 14/06/2023 tampering with the evidence and witnesses, and obstructing the course of justice etc. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the Court. The court has to only opine as to whether there is prima facie case against the accused. For the purpose of bail, the Court must not undertake meticulous examination of the evidence collected by the police and comment on the same.

7.6. In case of Raghubir Singh Vs. State of Bihar , reported in (1986) 4 SCC 481, the Hon'ble Apex Court held that, bail can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (viii) attempts to place himself beyond the reach of his surety, etc. The above grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.

7.7. Cancellation of bail could not be resorted to on the assumption that the applicant - accused was guilty. In Sushila Aggarwal Vs. State of (NCT of Delhi ), reported in (2020) 5 SCC 1, it is held that, the correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the State of investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances.

R/CR.MA/1430/2020 ORDER DATED: 14/06/2023 This does not amount to "cancellation" in terms of Section 439 (2) Cr.P.C. So when the order of bail is found to be erroneous, as material facts and crucial circumstances are ignored, it would be vulnerable subjecting to be set aside."

12. In case of Sanjay Chandra Vs. CBI , reported in (2012) (1) SCC 40, the Hon'ble Apex Court held that, primary purpose of bail in a Criminal Case is to relieve the accused of imprisonment, to relieve the State of the burden of keeping the accused pending trial and at the same time to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court at the time of trial. Merely the offence alleged against the accused is serious one, in terms of huge loss to the State exchequer that itself should not deter the Court from enlarging on bail when there are no serious contentions from the prosecution that if the accused is released on bail, they would interfere with the trial or tamper with the evidence."

8.3 In the decision of this Court in case of Merubhai Ramabhai Kodiyatar (Hun) Rabari Vs. State of Gujarat reported in 2021 GLR 2 1175 ,this Court has held as under:-

8.4 In the decision of this Court in case of Arvind Ravji Baradia (Ahir) vs. State of Gujarat dated 21.4.2016 passed in Criminal Misc. Application No.8165 of 2016, this Court has held as under:-

8.5 In the decision of this Court in case of State of Gujarat vs. Ravi Mepa Chavda dated 1.4.2016 passed in Criminal Misc. Application No.9782 of 2015, this Court has held as under:-

8.6 In the decision of this Court in case of Asha Dharamnarayan Sharma Vs. State of Gujarat dated 12.2.2016 passed in Criminal Misc. Application No.20335 of 2015, this Court has held as under:-

9. Considering the ratio laid down by the Hon'ble Apex Court, this Court is of the view that so far as the factum of considering the application filed under section 439 (2) Page 17 of 18 Downloaded on : Sat Jun 17 20:36:30 IST 2023 R/CR.MA/1430/2020 ORDER DATED: 14/06/2023 of Code for cancellation of bail and granting of bail are concerned, both factors are quite different. Normally in usual circumstance, the Court cannot interfere with the order passed by the Trial Court except in the case of any overwhelming circumstance or any breach of condition or any other special circumstance shown by the applicant.

10. In view of the aforesaid facts and circumstances of the case and the case laws, I am of the opinion that in the present case, when the respondent original accused has been released on bail and has not committed any breach of conditions imposed by the Court and when there is no overwhelming circumstances, there is no reason to exercise power under Section 439(2) of the Code and cancel the bail granted in favour of the respondent - original accused.

11. With aforesaid clarifications and observations, present application deserves to be dismissed and accordingly it is dismissed. Notice discharged.

(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 18 of 18 Downloaded on : Sat Jun 17 20:36:30 IST 2023