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CR.MA/1250/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1250 of 2011
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
VINAYAK
KESHAVRAV KULKARNI - Respondent(s)
=========================================================
Appearance
:
MS CM SHAH APP
for
Applicant(s) : 1,
MRMPSHAH for Respondent(s) : 1,
MS. KRUTI M
SHAH for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 03/05/2011
ORAL
ORDER
1.0 The
present application the grant of regular bail to the respondent by
the Sessions Court, Surat in Criminal Misc. Application No. 1568 of
2010.
2.0 The
respondents came to eb arrestd on 22.03.2010 in connection with
offence registered with Kamrej Police Station, Surat being I-C.R. No.
37 of 2010 for the offence punishable under Sections 120 (B), 121(A),
124(A) and 153 (A)(B) of the Indian Penal Code and under Sections 38,
39 and 40 of the Unlawful Activities (Prevention) Amendment Act,
2004. The respondent-accused preferred an application for regular
bail which came to be allowed by order passed below Exh. 1 dated
17.09.2010 passed by the learned Sessions Judge, Surat in Criminal
Misc. Application No. 1568 of 2010. It is the said order which is
challenged in the present application.
3.0 Heard
learned advocates for the respective parties.
4.0
The main grounds urged for cancellation of bail on the grounds are
that in the statement of co-accused, name of accused person was
revealed and in T.I. Parade he was identified; that the involvement
of the accused is proved and activities of accused ought to have been
viewed seriously; that the accused had played vital role by giving
accomodation to one of the accused Avinash Kulkarni and that the
accused persons used to constitute unlawful assembly with an
intention of spreading antisocial and anti-national activities to
spread the maoist activities.
5.0 Ordinarily
the High Court cannot exercise its discretion to interfere with the
bail granted by the Sessions Judge in favour of the accused and where
cancellation of bail is sought in an application, the prosecution has
to prove its allegation by preponderance of probabilities.
Cancellation of bail necessarily involves the review of a decision
already made and can by and large be permitted only if by reason of
supervening circumstances. It would not be conducive to a fair trial
to allow the accused to retain his freedom during the trial. A bail
once granted cannot be cancelled on the off-chance or on the
supposition that witnesses have been won over by the accused. The
power to take back to custody an accuse who has been enlarged on bail
has to be exercised with care and circumspection. Very cogent and
overwhelming circumstances are necessary for an order seeking
cancellation of the bail and the trend today is towards granting bail
because it is now well settled that the power to grant bail is not to
exercise as a punishment before trial. The material considerations in
such a situation are whether the accused would be readily available
for his trial and whether he is likely to abuse the discretion
granted in his favour by tampering with the evidence. While
considering the application for cancelling a bail the Court has to
see whether the accused tampers with the prosecution evidence or
otherwise impedes the course of justice, whether fresh evidence for
believing that the accused has been guilty of an offence punishable
with death or imprisonment for life has been discovered; whether the
accused runs to a foreign country or goes underground or beyond the
control of his sureties or whether he commits acts of violence, in
revenge, against the police and the prosecution witness and those who
have booked him or are trying to book him.
6.0 On
the facts of the present case, none of the aforesaid ingredients has
been pointed out to support the contention of the applicant to cancel
the bail. The applicant has failed to establish its case by showing a
preponderant of probabilities and not beyond reasonable doubt, that
the accused has attempted with its witnesses, or has abused his
liberty or that there is a reasonable apprehension that he will
interfere with the course of justice. The Sessions Court has
considered all the facts and circumstances of the case while granting
bail. It is also required to be noted that this Court has granted
bail to co-accused by order dated 18.11.2010 in Criminal Misc.
Application No. 12435 of 2010 and other allied matters. However, in
the interest of justice, it is ordered that the respondent-accused
shall report to the concerned police station once in every three
months I.e. January, April, July and October from 1st to
7th day of the month between 11.00 a.m. And 5.00 p.m.
7.0 With
above direction application stands disposed of.
. (K.S.JHAVERI,
J.)
niru*
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