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CR.MA/2737/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2737 of 2010
=======================================================
JAYKANT
BHIKHABHAI RABDIYA - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=======================================================
Appearance :
MR
EE SAIYED for Applicant(s) : 1, MRNASIRMSAIYED for
Applicant(s) : 1,
MR HL JANI APP for Respondent(s) : 1,
MR BS
PATEL for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 16/06/2010
ORAL
ORDER
Rule.
Learned A.P.P., Mr.H.L. Jani waives service of notice of rule on
behalf of the respondent-State.
Present
application has been filed by the applicant-original complainant for
cancellation of bail granted to the respondent no.2-accused as per
the order passed in Criminal Misc. Application No.411/2010 dated
08.03.2010 on the grounds stated in this application inter alia
contending that the Learned Sessions Judge has not appreciated the
facts and circumstances and evidence on record. It is also contended
that the gravity and seriousness of the offence is completely
ignored by the learned Sessions Judge while releasing the respondent
no.2-accused on bail.
Learned
counsel, Mr.E.E. Saiyed for the applicant submitted that as stated
in the FIR as well as from the statements recorded, it is evident
that the harassment was caused to her and in fact, the charges are
for the offence under Section 302 of the Indian Penal Code. Learned
counsel, Mr.E.E. Saiyed submitted that considering the gravity of
the offence, bail ought not to have been granted and, therefore, the
present applicant may be allowed.
Learned
counsel, Mr.B.S. Patel referred to the papers including the
statements recorded during investigation and also P.M. Report and
submitted that the charges for the offences under Section 302 of the
Indian Penal Code and the facts narrated in the complaint are with
regard to matrimonial discord and the deceased had consumed poison
pills. He submitted that the present applicant is the
brother-in-law, who is residing separately. Therefore, the impugned
order granting bail cannot be said to be erroneous considering the
entire facts on record.
Learned
A.P.P., Mr.Jani also submitted that considering the gravity of the
offence, the learned Sessions Judge ought to have considered the
relevant papers. However, he submitted that appropriate order may be
passed
In
view of the rival submissions, it is required to be considered
whether the present application can be entertained or not.
It
transpires from the record that the applicant is brother-in-law, who
is residing separately and the deceased and the present applicant as
well as his wife are residing in the same premises/bungalow, but
separately on the ground floor and the first floor. The contention
about his not being present is not required to be considered or
disconsidered at this stage. However, the present applicant is not
husband and considering the role attributed and other evidence
including the statements of witnesses, the impugned order cannot be
said to be perverse. It is well accepted that the parameters for
cancellation of bail are different than that of grant of bail.
Therefore, as the bail has already been granted, necessary grounds
for cancellation of bail cannot be said to have been made out.
The
Hon’ble Apex Court in a judgment reported in 2009(1) SCC 678 has
observed that the order of the bail can also be examined on merits,
however, the criteria for cancellation of bail is held to be
stringent as discussed hereinabove. Therefore, unless any case is
made out on the basis of any further material or with regard to the
conduct, it would not be proper to cancel the bail, which has been
granted exercising discretion in favour of the accused.
Therefore,
as the bail has already been granted, necessary grounds for
cencellation of bail cannot be said to have been made out.
Therefore, considering the observations made by the Apex Court with
regard to criteria for cancellation of bail, the present application
cannot be entertained and deserves to be rejected.
Accordingly,
the present application stands rejected. Rule is discharged.
(RAJESH
H.SHUKLA, J.)
/patil
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