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CR.MA/7885/2009 7/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 7885 of 2009
=========================================================
DAHYABHAI
GOPALBHAI PATEL - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MR
CHETA N PANDYA, FOR S V
RAJU ASSOCIATES for Applicant(s) : 1,
MR K L PANDYA, ADDL PUBLIC
PROSECUTOR for Respondent(s) : 1,
RULE SERVED for Respondent(s) :
2,
MR HARDIK A DAVE for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 07/04/2010
ORAL
ORDER
Present
application has been filed by the applicant original informant
for cancellation of bail granted to respondent No.2 on the grounds
narrated in detail in memo of application inter-alia that as referred
to in the FIR itself the respondent No.2 had made an attempt to kill
the applicant and it is only because of the staff member who lifted
the girl the shot was missed and she was saved.
2. Learned
Counsel Mr.Pandya for S V Raju Associates for the applicant referred
to the papers including the additional affidavit which was produced
on record before the Sessions Court and also the FIR and the order
passed by the Sessions Court in Criminal Misc. Application No.1554 of
2009 releasing the respondent No.23 on bail. Learned Counsel,
Mr.Pandya referring to these papers pointedly emphasized that as
respondent No.2 is having a close connection with the higher officer
of the Police Department the investigation has not been properly
made. He further submitted that even the learned Sessions Judge
while deciding the application for bail has not considered the
submissions and the facts for that he referred to the aspect of
recovery of gun as muddamal and emphasized that the gun has been
referred in the order granting bail in Criminal Misc. Application
no.1554 of 2009, it has been recorded that nothing has been
recovered. Learned Advocate, Mr.Pandya referred to the FSL Report to
point out that there is a prima-facie evidence in the form of FSL
Report suggesting having shot fired from the said weapon. He further
referred to the statement of two independent witnesses produced on
record Hemsing as well as Gopalbhai and submitted that both have
stated about incident having take place and the person armed with the
revolver. He submitted that though the dispute is with regard to
business and bifurcation of hospital for which memorandum of
understanding is arrived at which is produced at Annexure B the
present incident is culminated and therefore even though it could be
a business rivalry or a dispute the offence could not be considered
lightly.
3. Mr.Pandya,
learned Counsel again referred to the order passed in Criminal Misc.
Application No.1554 of 2009 and pointedly referred to paragraph No.5
and submitted that the learned Additional Public Prosecutor did not
object and there is no reason recorded with regard to merits or
demerits of the case. He, therefore, submitted that as the order has
been passed without considering the merits it is erroneous. He also
submitted that it is necessary to give reasons while releasing the
person on bail and this order does not reflect any reason the order
is bad. Mr.Pandya, learned Advocate submitted that therefore this
Court may consider the circumstances and all the ground which
prima-facie suggest the involvement of the accused and therefore
allow the present application.
3.1 Mr.Pandya,
learned Counsel referred to the judgment reported in (2009) 1 SCC 678
in case of Brij Nandan Jailwal Vs. Munna Allias Munna Jaiswal &
Anr.,and emphasized the observations with regard to the need for
reasons. He further submitted that as observed by the Hon’ble Apex
Court in paragraph Nos.12 and 13 that the complainant can always
question the order granting bail if the order is not validly passed.
He further submitted that it is not necessary that once the bail is
granted the only way to get it cancelled on account of misuse. He
further submitted that it is not the only ground that when the
liberty is misused after the accused is released on bail, it could be
cancelled. He emphasized and submitted that if the order granting
bail is not valid and is not reasoned order it could be examined. He
also submitted that while granting bail like the present case of 307
of IPC reasons are required to be justified which is not recorded in
the present case. He, therefore, submitted that present application
may be allowed.
3.2 Similarly,
Mr.Pandya, referred to and relied upon the judgment of the Apex Court
reported in (2000) 2 SCC 391 in case of R. Rathinam Vs. State by DSP,
District Crime Branch, Madurai District, Madurai & Anr.,
referring to the observations in paragraph Nos.7 and 8 and again
emphasized that even if the bail is granted by the trial Court or
Sessions Court the High Court can examine if there is sufficient
material to interfere with such an order. He also referred to and
relied upon the judgment reported in (2001) 6 SCC 338 in case of
Puran Vs. Rambilas & Anr., and referring to paragraph No.8
submitted that it was incumbent upon the Sessions Court to record at
least some reasons though detailed examination or discussion may not
be there with regard to the evidence. It is submitted that as it was
a day of election, there was a notification issued by the
Commissioner of Police to deposit the fire arms and it has not been
deposited by the respondent and / or his wife who stated to be owner,
have committed the offence under the Arms Act and still no steps have
been taken to join her as an accused. He, therefore, submitted that
present application may be allowed and the bail may be cancelled.
4. Mr.Hardik
Dave, learned Advocate appearing for respondent No.2 also referred to
the papers including the memorandum of understanding and submitted
that the dispute is of civil nature for which the understanding is
arrived at. He further submitted that the incident which is alleged
to have been taken place is a matter which required to be considered
on the basis of evidence at the trial. He therefore submitted that
for deciding the present application considering the nature and
gravity of offence order granting bail is just and proper.
5. Mr.K
L Pandya, learned APP for respondent No.1 referred to the police
papers and submitted that though it is a dispute regarding the
business resulting in this incident, the manner in which it is taken
place and having regard to the prima-facie evidence in the form of
FSL Report the bail is required to be cancelled.
6. In
view of the rival submissions it is required to be considered whether
the present application for cancellation of bail can be entertained
or not. Therefore, as both the sides have referred to this aspect in
detail this Court is required to consider only the fact which have
been emphasized that the material and evidence has not been properly
appreciated. It has also been emphasized that the order passed by
the Sessions Court in Criminal Misc. Application No.1554 of 2009
granting bail to the respondent No.2 has not passed a reasoned order.
As it is evident from the order more particularly paragraph No.5 the
submissions made by the learned Advocate Mr.Pandya is well founded
that there is no reason recorded with regard to the grant of bail.
6.1 The
first aspect which has been much emphasized by learned Advocate
Mr.Pandya with regard to the reasons not having been recorded while
releasing the respondent No.2 on bail as per the order passed in
Criminal Misc. Application No.1554 of 2009 by the Sessions Court is
required to be considered. As it transpires from the material and
evidence particularly Annexure B the dispute is of a civil nature
with regard to the division of the hospital between the parties and
there was a understanding for which MOU is recorded. Thereafter, it
has culminated into incident giving rise to FIR filed at Page 29
filed against the respondent No.2 by the applicant first
informant and it refers to this aspect and some pressure or threat
given to the applicant first informant. There is a cross
complaint also filed by the respondent No.2 which is at page 39.
7. The
Court is not required to appreciate and scrutinize the evidence in
detail at this stage for the purpose of considering the application
for bail or the present application for cancellation of bail. It
is required to be mentioned that by catena of judicial pronouncement
it has been laid down that reasons are required to be recorded as it
reflects the decision making process to enable the higher form as to
the consideration which have weighed for deciding such an
application. There is nothing mentioned or reflected in the order.
Recording of submissions of both the sides is not a reasoning though
the Court may not be required to discuss the evidence but is required
to indicate briefly the relevant aspect which has not been done. At
the same time the another aspect which has been emphasized by learned
Advocate Mr.Pandya with regard to the evidence that there is
sufficient evidence to suggest prima-facie involvement of the accused
particularly in the form of FSL Report. Again it is a matter of
appreciation of evidence at the trial and though prima-facie the FSL
Report suggest about the firing having made from the weapon this
Court is not required to consider and scrutinize the same as it would
be a matter of appreciation of evidence. Therefore the only aspect
which is required to be considered is the gravity of offence and the
criteria for cancellation of a bail. As it is evidence the dispute
is of a civil nature with regard to sharing or division of a hospital
for which MOU has been arrived at. The offences alleged are under
Sections 307, 323 and 506 (2) of the IPC as well as for the offence
under Section 25 (a) (b) of the Arms Act. The respondent is also a
doctor and does not have any antecedent. Therefore though such an
incident prima-facie is taken place it would be a matter of
appreciation of evidence at the trial. However, for deciding the
present application for cancellation of bail, the Court is required
to consider the settled principles with regard to cancellation of
bail. It is well accepted that the criteria or the parameters for
cancellation of bail are stringent and different than grant of bail.
8. Though
learned Advocate, Mr.Pandya has referred to the judgment of Hon’ble
Apex court, more particularly, Brij Nandan Jailwal (Supra), the
observations made in paragraph Nos.12 and 13, there is no dispute
with regard to the discretion of the Court and there is no quarrel
that the matter could be examined by the Court for the purpose of
deciding the bail and it is not required to be considered only on the
ground that liberty has been misused or abused. It is also well
settled that in catena of decisions while considering cancellation of
bail the case may be considered on merits to examine whether the
trial Court has ignored relevant and important material or has taken
into consideration the irrelevant material. In the facts of the case
though the submissions to the extent of recording of reasons that it
has not been properly recorded is justified but the conclusion with
regard to grant of bail cannot be said to be erroneous. Therefore,
in the present circumstances this Court having examined the material
and also the rival submissions based on material and also in light of
the well accepted principles with regard to the cancellation of bail
where it has been observed that the Court has to be conscious and
such discretion may not be exercised lightly. Therefore considering
the submissions as well as this aspect with regard to the
cancellation of bail and also consideration the papers the present
application for cancellation of bail deserves to be rejected and
accordingly stands rejected. However it is clarified that aforesaid
observations and discussions is only for the purpose of deciding this
application only and may not be treated as having expressed any
opinion with regard to the merits or appreciation of evidence in any
manner.
(RAJESH
H SHUKLA, J.)
sompura
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