Bhagirath Sinh Vs. State of Gujarat
 INSC 181 (21 November 1983)
MISRA, R.B. (J)
CITATION: 1984 AIR 372 1984 SCR (1) 839 1984
SCC (1) 284 1983 SCALE (2)818
CITATOR INFO :
D 1985 SC 969 (12)
Criminal Procedure-Bail-For cancellation of
bail very cogent and overwhelming circumstances are necessary.
Practice-Bail granted by Sessions Judge by a
well 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 I.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.
Allowing the appeal,
HELD: 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 be exercised as if the punishment before
trail is being imposed. The only 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
[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.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 658 of 1983.
840 Appeal by Special leave from the Judgment
and Order dated the 21st October, 1983 of the Gujarat High Court in Criminal
Misc. Application No. 1724 of 1983.
Vimal Dave for the Appellant.
M. N. Phadke, R. N. Poddar, Girish Chandra
and C. V. Subba Rao for the Respondent.
The Judgment of the Court was delivered by
DESAI, J. Special Leave granted.
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 adopting an approach which does not 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 by
the policemen on duty.
An offence under Sec. 307 I.P.C. was
registered against him and the appellant was taken into custody and was
subsequently remanded to judicial custody. An application for releasing him on
bail was made on August 22, 1983 to the Chief Judicial Magistrate, Rajkot. The Chief
Judicial Magistrate, Rajkot was pleased to dismiss the same by his order dated
August 29, 1983.
On the same day, an application for releasing
the appellant on bail was moved before the learned Sessions Judge. A notice was
issued to the learned Public Prosecutor.
After hearing both the sides, the learned
Sessions Judge by a well-reasoned order directed that the appellant be released
on bail on his furnishing security in the amount of Rs. 5000 and personal bond
of the like amount.
It appears that the State of Gujarat filed
Miscellaneous 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 facie case is 841
established, the learned Sessions Judge ought to have taken into consideration
the nature and gravity 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 I.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 the offence. We fail to
understand what the learned Judge of the High Court desires to convey when he
says that once a prima facie 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 is no prima facie case there is no question of considering
other circumstances 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 abuse the discretion
grained in his favour by tampering with evidence. We would have certainly
overlooked 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 permits
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 pre-operation
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
campaign against the atrocities allegedly having been committed by the Rajputs
of Girasiya community. Admittedly 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 respondent. 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 may terrorize a number of sick
persons who might be getting treatment in the hospital." 842 At another
place, the learned Judge has observed that the learned Sessions Judge has
ignored, the fact that a social and political worker was attacked in the hospital
premises with a knife having 9" blade and as many as 1 l injuries were
caused to a helpless victim.
In our opinion, the learned Judge appears to
have misdirected himself while examining the question of directing cancellation
of bail by interfering with a discretionary order made by the learned 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 therefore the accused should not be, granted
bail but we fail to appreciate how that circumstance should be considered so
overriding as to permit interference with a discretionary 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 cogent and
overwhelming circumstances all necessary for an order seeking cancellation of
the bail. And 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 punishment before trial is being imposed.
The only 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 ill 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 order 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:
(i) The appellant shall be released or if he
is on bail continue 'to be on bail on his furnishing two fresh bail-bonds each
in the amount of Rs.5000 supported by a solvent security.
(ii) The 'appellant shall report on first
Monday every month before the Chief Judicial Magistrate, Rajkot at 11.00 A.M.
till his trial commences. Thereafter 843 he would be subject to the further
orders that may be made-in this behalf by the court which would try him.
(iii) Other conditions imposed by the learned
Sessions Judge remain unaltered.
H.S.K. Appeal allowed.