_ BHAGIRATH SINH S/O MAHIPAT SINGH JUDEJA.
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STATE OF GUJARAT |
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November 21, 1983 - {D.A. Desai AND R.B, Misaa, JJ.)
Criminal. Procedure-—Bail—F or cancellation of hail ‘very cogent and overwhelming circumstances aré necessary.
Practice —Bail granted by Sessions Judge by-a ivell reasoned order—Set aside by High Court-—Supreme Court to interfere if approach adopted by High ..
Court is not commending. —
The appellant, against whom an offence under sec. 307 L.P.C. had been registered for giving knife blows'to ‘a person was granted bail by the Sessions Judge. On application by the State, a Single Judge of the High Court cancelled the. bail. Hence this appeal by special leave.
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Allowing the appeal,
HELD; Very cogent and overwhelming circumstances are necessary for - an.order seeking cancellation. of the bail and the trend today is toward’ granting | bail because it is now well-settled that the power to grant bail is ‘not to’ be exercised as if the punishment before taril is being imposed. The only ntaterial 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 evidence, {842 D-E)
In the instant case the order made by the High Court is conspicuous by its silence on these. two relevant considerations. The learned Judge was impressed by some of the most irrelevant considerations and misdirected himself. The
' circumstances found by him that the victim attacked was a social and political, worker could not be considered so overriding as to permit interference. by the High Court with the discretionary order of the Sessions Judge granting bail. The High Court completely-overlooked the fact that it.was not for it ‘to decide whether the bail should be granted but the application before it was for cancellation on the bail. ee B-C} *
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CRIMINAL Avvissare: JURISDICTION : Criminal Appeal. ‘No. 658 of, 1983. ne .
$40 . a _ SUPREME COURT REPORTS: a _ [1984 1 ac. a
Aspeal by Special leave from the Judgment and Order dated
- the QIst October, 1983 of the Gujarat High Court j in Criminal Misc. ; ‘Applicstion No. 1724 of 1983,”
Vimal Dave for {he Appellant.
Pd
M. N, Phadke, RN: Poddar, Girish: Chandra and C. V. Subba . Rao for the Respondent.
‘The Judgment of the Court was delivered by
~ Desat, J. Special Leave granted, ce ” 7 Ordinarily this Court is not inclined to interfere with the orders either granting or refusing to grant bail to an accused person either
-facing a criminal trial or whose ‘case after conviction is pending in - appeal,. However, ‘this is not a case where bail is granted or refused but the order granting the bail by the.learned Sessions Judge was set _ aside by .the High. Court adoptin g an approach which does not
7 commend to ‘us,
It is. alleged that the ‘appellant ‘gave blows with a knife to one’: -
Popatlal Sorathia, who had come to visit an indoor patient Navalsinh Bhatti on August 17, 1983 around 9.45 A.M. Appellant was accosted
Teleasing him on bail was made on August 22, 1983 tothe Chief
On the same day, 3 an application for releasing the appellant on bail was moved. before the learned Sessions Judge: A notice was © issued to the learned Public Prosecuter. After hearing both the sides, _ the learned Sessions Judge by a well-reasoned order directed that - 7 the ‘appellant be released on bail on his furnishing security in the
, amount of Rs. 5000 and personal bond of the like amount. . *
‘It tnpeais that the State of Gujarat filed Miscellancens Criminal
Application No. 1724 of 1983 in the High Court of Gujarat seeking cancellation of the order granting bail to the appellant. A learned. . - _ Single Judge of the High Court held that once a prima facia case is
- , by’ the policemen on duty. An offence “under Sec. 307 LP.C. was - - tegistered against him and the appellant was taken into custody and _ was subsequently remanded to judicial custody. An application for
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Judicial Magistrate, Rajkot. The Chief Judicial Magistrate, Rajkot was pleased to dismiss the same by his order dated August 29, 1983, —
: BHAGIRATHSINE V. GUIARAT (Desai, J.) . 84
" established, the learned Sessions Judge ought to have taken into’consideration the nature and _gtavity of the circumstances in which the.
offence is committed. The charge against the appellant is that he has committed an offence punishable under Sec. 307.1.P.C. and Sec. -
135 of the Bombay Police Act and even on the date of hearing of . . ‘this appeal before us on November 18, 1983, the Court was informed ‘that the victim is alive and at present there is no danger to his life. -
Nearly 3 months have rolled by from the date of tlie offence. We fail to sindersjand what the learned Judge of the High Court desires
‘toe convey when‘he says that’ once a prima facia case is established, it: ‘is necessary for the court.to.examine the nature and gravity of the circumstances in which the offence was “committed. If there i is no
‘prima facie case there i isno question of considering other circum- stances: But 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 abitse the discretion granied in his favour by. tampering with evidence, We would have certainly. cverlooked ‘this aspect of the: _- Matter if the approach of the.learned ‘judge was otherwise one which ” '. would commend to us: . It however appears that the learned judge "was impressed by some of the most irrelevant considerations which — "prima facie emerge from the following observations of the learned judge which permeates his whole order running into about 13 pages.
. Says the learned judge : ’ “The learned Judge ought.to have seen the fact that _ the helpless victim had gone. to .the hospital’for preoperation check-up. He was a leading social and political . worker. ‘He was an active worker and ‘Secretary of ". “Gundagiri Nivaran Samiti’ which had. raised a cam- ‘paign against the atrocities allegedly having been committed: by the Rajputs of Girasiya community. Admittedly 7 _ the respondent is Girasiya and the complainant who was _ an active worker and- Secretary of Gundagiri Nivaran “ Samiti had become a victim at the hands of the. respon- ‘dent. The learned Judge ought to have taken into consideration the material fact that the incident had taken place in the premises of the Hospital which 3 may terrorize ‘. a number of sick persons who might be. getting treatment _ in the hospitai.”. ;
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» . . ‘ , . | , ‘ ‘49. : a SUPREME couRT REPORTS (1984) 1 sik
A 1 At another place, the learned Judge has observed that the ©
_ earned Sessions Judge has ignorged the fact that a social and ‘politial worker was attacked in the hospital premises with a knife having ~
-9” blade and as many as 11 injuries were caused to a helpless victim, .
In our opinion, the learned Judge appears to have misdirected
B himself while examiniag the question of directing cancellation of bail -by interfering with a discreationary. order made by the léarned "Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by
- him that the victim attacked was a social and - political worker and
Cc " therefore the accused should not be granted bail but we fail to appre- ~~ * ciate how that circumstance should be considered so overriding as to ~-*nermit interference with a discreationary order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was‘not for it to decide whether the bail should be granted but -
. the application before it was for cancellation of the bail. Very cogant . Dp . and ‘overwhelming cireumstances are necessary for an order seeking cancellation of the bail. Aad the .trend today is towards granting bail. because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the
_’: “ptnishment before trial is being imposed.. The only material consi- E iierations 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 evidence. The
. order made by the High Court is conspicuous by its silence on these ~ two relevant considerations. “It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the
F . ofder made by the High Court, .
' We accordingly allow this appeal and set aside the order made by the learned High Court Judge and-restore the one made by the learned Sessions Judge with following modifications : .
Go (i) ‘The appellant shall be’ released or if he is on bail “+ °. ‘gontinue to be 6n bail on his furnishing two fresh - .* ° ail-bonds -each in the amount of Rs.5000 supported by a solvent security. - A. (ii) The appellant shall report on_ first Monday every / * "month before the Chief Judicial Magistrate, Rajkot at 11.00 A.M. till is trial commences. Thereafter
. BHAGIRATHSINH vy. GUJARAT (Desai, J.) 843 . he would be subject to the furthe? orders that may be made in this behalf by the court which would ‘try him. ; .
(iii) Other copditions imposed by the learned Sessions Judge remain un-altered.
Order accordingly.
HSK. _ Appeal allowed:- -
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