Vishalbhai Bharatbhai Zalaria vs Sureshbhai Babulal Kakkad and Others

S.H. Vora, J.—Since, the present applications are arising out of the same C.R. number, they are heard together and disposed of by this common judgment so as to avoid repetition of facts and findings. The applicant-original complainant in the present applications filed u/s 439(2) of the Code of Criminal Procedure, 1973, challenges the judgment and order dated 30.10.2013 passed by the learned Additional Sessions Judge, Morbi in Criminal Misc. Application Nos. 300 of 2013, 294 of 2013, 299 of 2013 and 303 of 2013 respectively whereby, the learned Sessions Judge enlarged the opponents-accused on regular bail in connection with the offences registered before Morbi Taluka police station vide C.R. No. I-93 of 2013 under Sections 306 and 114 of the Indian Penal Code read with Sections 5, 33(A)(B) and 34 of the Money Lending Act on suitable terms and conditions.

Heard submissions of learned advocate Mr. A.R. Thacker appearing for the applicant and learned A.P.P. Mr. L.R. Poojari for the opponent-State and perused the suicide note of the deceased.

According to the complaint lodged by one Mr. Vishalbhai Bharatbhai Zalaria on 12.10.2013, the opponents-accused were threatening the father of the applicant for recovery of certain amount and further, accused Nos. 3 and 4 were not permitting the father of the applicant to execute sale deed of land and flat and in such activity, accused No. 5 was also abating accused Nos. 3 and 4 and for recovery of the amount from the father of the applicant, the accused persons were extending mental torture upon him orally and also on telephone. Because of such act on the part of the accused persons, the father of the applicant committed suicide by consuming poison.

Upon arrest of the opponents-accused persons, they have preferred regular bail application before the learned Additional Sessions Judge, Morbi, who after hearing the submissions of both the sides including the complainant and after examining the papers placed on record including suicide note of the deceased, enlarged the opponents-accused on regular bail and, therefore, the present applications at the instance of the complainant.

Learned advocate appearing for the applicant-original complainant submits that it is a clear case made out u/s 306 of the Indian Penal Code and looking to the allegations made in the F.I.R., the applicant has handed over mobile phone of his father disclosing S.M.S. made by the original accused-Mr. Sureshbhai Babulal Kakkad and other accused persons before the deceased committed suicide and also telephone call details made by the accused persons immediately preceding the incident of suicide. According to him, though the said details/information was handed over to the police, there is no investigation on the part of the concerned police. It is submitted by him that the accused persons in furtherance of their common intention, mentally tortured the deceased and forced him to take extreme step. He submitted that because of business transaction with the accused persons, the deceased was put under tremendous pressure to do something which the deceased was not willing to do so. He submitted that the learned Additional Sessions Judge failed to consider all these aspects of the case and also affidavits of the witnesses, namely, one Mr. Vishalbhai Bharatbhai Zalaria-original complainant and Ms. Gauriben Bharatbhai i.e. wife of the deceased. In support of his submissions, learned advocate Mr. Thacker for the applicant placed reliance on the following decisions rendered in the case of;

(i) Anil P. Udani v. State of Gujarat and another reported in 1993 (1) G.L.H. (U.J.) 36;

(ii) Rajubhai Pithabhai Vala Vs. State of Gujarat and Others,

(iii) Chandulal Harilal Lodhiya v. State of Gujarat and others reported in 1993 (1) GLH 520 and

(iv) Ranjitbhai Hemubhai Gohil Vs. State of Gujarat and Others,

I have minutely examined the impugned order and also suicide note of the deceased. From the perusal of the impugned order, it appears that the learned trial Judge has assigned cogent reasons before granting bail and has also considered the suicide note in para 13. It would not be proper for this Court to record, in detail as to the contents of the said suicide note but the Court has called for the said suicide note and after considering the same, the reasons assigned by the learned trial Judge are found to be sound and the learned trial Judge has not acted upon any irrelevant material. There does not seem to be non-application of mind on the part of the learned trial Judge nor there is any manifest or impropriety committed by the learned Additional Sessions Judge. The suicide note recovered did not show that the accused persons had in any way, provoked, incited or encouraged deceased to commit suicide.

Learned advocate Mr. Thacker for the applicant has also placed reliance on the two affidavits of the complainant and his mother so as to demonstrate that if the accused persons remain enlarged, then they would harass them by hook or crook and further, they would not be allowed to live peacefully. Both the complainant and his mother have filed identical affidavits opposing grant of regular bail before the trial Court. It is also important to note here that there is no untoward incident of breach of any of the conditions alleged by the prosecution nor there is whisper as to any such act committed by the accused persons after released on bail. So far as the case laws cited at bar by the learned advocate for the applicant are concerned, the Court has minutely examined each of the case and after scrutiny of the said decisions, it appears that in view of the peculiar facts and circumstances of the case before the said Court, an appropriate order cancelling the order of bail were passed. In the instant case, there is nothing on record which indicates that the Court has exercised its powers either on irrelevant consideration or against the materials on record. It is true that the offence u/s 306 is not only against an individual but it is also against the whole society. But to cancel the bail once it is granted, then it is very necessary on the part of the complainant/State to show that the accused persons have played a vital role in inducing the deceased to end his life prematurely. Prima facie, the learned trial Judge has not found any such ingredients or material and, therefore, there is no reason on the part of this Court to disturb the findings so recorded by the learned trial Judge in para 13 of the impugned order.

Learned A.P.P. Mr. L.R. Poojari for the State made a statement at the bar that the call details supplied by the applicant are sent for F.S.L. examination. So, there is no substance in the submissions made by learned advocate Mr. Thacker to the effect that the police is not investigating this aspect.

Lastly, it is also required to be noted that the learned trial Judge has considered the affidavits filed by the complainant and his mother and, therefore, submission of learned advocate Mr. Thacker to the effect that the learned Sessions Judge has not at all considered affidavits of these two witnesses is not tenable because from paras 3 and 5 of the impugned order, it appears that the learned trial Judge has considered and read the affidavits of the complainant and his mother.

Cancellation of bail is a serious matter and once bail is granted, it can be cancelled only in the circumstances and for the reasons, which have been clearly stated by the Hon''ble Apex Court in a catena of judgments. It would be appropriate to refer to the decision rendered in the case between Puran Vs. Rambilas and Another etc. etc., wherein, the appellant therein was charged under Sections 498-A and 304-B of the IPC. The Additional Sessions Judge, Nagpur released the appellant therein, on bail. The High Court cancelled the bail granted to the appellant. The said order was under challenge before the Hon''ble Apex Court and therein, it is observed by the Hon''ble Apex Court that "it was argued that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. It was argued that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. Reliance was placed on Dolat Ram v. State of Haryana in support of this submission. This court observed that in Dolat Ram, it was clarified that the above instances are merely illustrative and not exhaustive and one such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime and that too without giving any reasons. This court observed that such an order would be against the principles of law and, interest of justice would require that such a perverse order be set aside and bail be cancelled. This court found that inasmuch as the Sessions Court had ignored vital materials while granting bail, the High Court had rightly cancelled the bail. It was further observed that such orders passed in heinous crimes would have serious impact on the society and an arbitrary and wrong exercise of discretion by the trial Court has to be corrected.

Section 439 of the Code confers very wide powers upon the Court of Sessions regarding bail. While granting bail, the Court considers 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 tampering with the witnesses and obstructing the course of justice and such other grounds. Each criminal case presents its own factual scenario and keeping in mind the facts of each case, the Court is required to only opine as to whether there exists prima facie case against the respondent accused. Whereas while cancelling the bail u/s 439(2) of the Code, the Court will have to address to the points whether the accused is likely to temper with the evidence or attempt to interfere with the course of justice or to evade the due course of justice. Apart from it, in the matter of cancellation, the State/complainant requires to point out serious infirmities in the order and such infirmities resulted into miscarriage of justice. In view of the above, this Court is not inclined to entertain present Criminal Misc. Applications as the learned trial Judge has not committed any illegality or perversity in passing the impugned order. Hence, present Criminal Misc. Applications are rejected at admission stage. Registry to maintain copy of this judgment in Criminal Misc. Application Nos. 18914 to 18916 of 2013.