Crl. Misc. Appln. Nos.5814 of 2003,Crl. Misc. Appln. Nos. 6609 of 2003

21st November, 2003

Respondent Counsel: K. B. ANANDJIWALA

Cases Cited:
State of Gujarat Vs. Sushilaben Prabhudas Tanna, (2002)2 Guj LR 1526 [Para PARA5,11]
Babusingh Vs. State of U.P., AIR 1978 SC 527 [Para PARA6]
State of Maharashtra Vs. Captain Buddhikota Subba Rao, AIR 1989 SC 2292 [Para PARA6,8,10]
Bhagirathsinh Jadeja Vs. State of Gujarat, AIR 1984 SC 372 [Para PARA6]

JUDGMENT

-Rule. Mr. Kogje, Ld. APP and Mr. Zaveri waive service of rule on behalf of respective respondents.

2. The only question which arises for consideration of this Court is :

"Whether the Ld. Sessions Judge could exercise power, once again, on the question of granting of bail to the same accused in whose case earlier bail application came to be rejected by him four months back on 10-2-2003 ?

3. The short facts of the case appear to be that the respondent No. 2 who is the accused of the complaint bearing CR No.108/02 of Vidyanagar Police Station for the offences punishable under Sections 302, 304, 120-B of IPC and Section 25(1) of Arms Act and Sections 27 and 135 of Bombay Police Act. It is the case of the prosecution that one Babubhai Girdharbhai Patel who is the political rival of the respondent No.2 and his group is killed through contract of murder (sopari) and by an arranged conspiracy with Shyamgiri Bhavangiri and others. It appears that the respondent No.2 was arrested and was in judicial custody and at that stage he filed application for bail under Section 439, Cr.P.C. being Cri. M.A. No.714/ 02. The learned Sessions Judge considered the matter at length and passed detailed order running into 17 pages whereby it was, inter alia, prima facie, found by him that the applicant therein the respondent No.2 herein is in direct political rivalry with the deceased and there is also political vengeance and as concluded by him at para 7 it prima facie revealed the motive on the part of the applicant. The learned Sessions Judge at para 8 in the said order, dated 10-2-2003 also, prima facie, concluded that the statements of witnesses, namely, Jigar, Anant and Kamlesh fully involved the applicant with the alleged offence. At the relevant point of time, the learned Sessions Judge had also considered the contention of the applicant therein (respondent No.2 herein) that the statement made before the Executive Magistrate in the proceedings under Section 164 of Cr.P.C. by the aforesaid persons, namely, Jigar, Anant, Kamlesh and others are contrary to the extent that they have not given any statement before the police. It was also considered by the learned Sessions Judge that though the statements are recorded before the police, it cannot be held on the reliable material that such statements by the aforesaid witnesses, namely, Jigar, Anant, Kamlesh and others involving the accused in the alleged offences are not voluntary. The Ld. Sessions Judge also observed in the said order of February, 2003 that the amount was also paid for purchasing the weapons and so far as the amount fixed for killing the deceased is concerned there is corroboration for the subsequent recovery of Rs.5 lacs in the statement of Jigar after contract of murder was over. The Ld. Sessions Judge in the said order at para 10 also observed, inter alia, that the concerned accused has a past criminal record and his involvement is there in the offence under Secs.307, 324 and therefore it was observed by the learned Sessions Judge that the accused is having past criminal background and therefore also his bail application cannot be granted. The Ld. Sessions Judge at para 11 in the said order also observed that so far as the criminal conspiracy is concerned there is clear evidence that agreed amount was of Rs.8 lacs out of which Rs.3 lacs was paid earlier and the balance of Rs.5 lacs was subsequently paid after the death of the deceased. The Ld. Sessions Judge ultimately concluded in the said order that on the overall perusal of the police papers it is prima facie established that the accused is involved in the offence under Section 302 read with Sections 34 and 120-B of IPC and the offence is a serious offence and the accused is involved in causing death to a reputed political person and therefore it is not proper to release the accused on bail and therefore ultimately the application for bail was rejected by the order, dated 10-2-2003.

4. The very accused thereafter submitted another application for bail in the month of May, 2003 being Cri. M.A.No.209/03 for releasing him on bail. The said application came up for hearing before the very Ld. Sessions Judge Mr. A.R. Patel. However, it appears that the learned Sessions Judge, ultimately, once again, considered the matter afresh and at para 7 observed that the deceased had political rivalry with so many other persons and therefore it is possible that the accused is wrongly roped in causing the death of the deceased. The very learned sessions Judge in the same para further observed that the allegations are vague and the motive for offence is not transpiring as that of political rivalry. The learned Sessions Judge also observed prima facie an attempt is made to see that the accused remains in jail until the trial is over. Very learned Sessions Judge at para 8 observed that the statements made by the witnesses are prima facie not reliable. So far as the contention of the State for not reconsidering the matter is concerned, it was observed by the learned Sessions Judge that the statement of witnesses, namely, Jigar, Kamlesh, Anant and Bhaviniben are doubtful and the State is not in a position prima facie to establish the case for involvement of the accused. The learned Sessions Judge has further observed that since the verification is made in the proceedings before the Ld. Judicial Magistrate initiated by Jigar, Kamlesh and Bhavinbhai their statements made before the Ld. Executive Magistrate are sufficient to consider and to entertain another application and therefore the argument on behalf of the State that the matter cannot be considered cannot be accepted. The learned Sessions Judge in the subsequent order has also observed that the bail application cannot be rejected with a view to penalise the accused by keeping him in custody and he also found that the application made by Rambhaben against the accused is false and ultimately the learned Sessions Judge concluded that there are contradictions in the statements and prima facie the statements made by the witnesses are doubtful and therefore he observed that it would not be proper to keep the accused in custody and therefore the bail application of the very accused as per order dated 26-6-2003 is allowed. It is this second order passed by the learned Sessions Judge granting bail is challenged by the State for cancellation of bail by preferring the present Cri. M.A. No.5814/03. Rambhaben Babulal Patel, wife of the deceased/victim has also preferred Cri. Revn. Appln. No.32/3 for challenging the legality and validity of the order, dated 26-6-03 passed by the learned Sessions Judge granting the bail to Alpesh Navnitbhai Patel the accused herein and the said revision application subsequently is converted into Cr.M.A. No.6609/03 and since the matters arise on a common issue and subject-matter, both the applications are simultaneously considered in this judgment.

5. The Ld. APP Mr. K.C. Shah as well as Mr. Zaveri appearing in Cr.M.A. No.6609/03 contended that once the learned sessions Judge having rejected the bail application by elaborate judgment and order in February, 2003 another bail application was not maintainable and it is further submitted that in any case the very learned Sessions Judge could not have taken contrary view than the view taken earlier considering the very material on record. It was also submitted that there was no change in circumstances and therefore the order passed by the learned Sessions Judge releasing the accused on bail is not only illegal on the face of it but is also without any authority. The learned counsel have relied upon the judgment of this Court in the case of State of Gujarat Vs. Sushilaben Prabhudas Tanna reported in (2002) 2 Guj LR 1526 for contending that if the contradictory finding is recorded while deciding the subsequent application by the very Court, it is clearly a case for cancellation of bail.

6. On behalf of the accused the Ld. Counsel Mr. Panchal as well as Mr. Anandjiwala have submitted, inter alia, that there is power with the Ld. Sessions Judge to consider the afresh bail application if there is change in circumstances. In the submission of Ld. counsel on behalf of the accused, there was sufficient change in the circumstance in as much as in the proceedings of the inquiry, the statements of witnesses were recorded where it transpires that such witnesses had not given any such statement before the investigating officer. Therefore, it was submitted that such fact situation is a substantial change in the circumstances which would attract the power of the Ld. Sessions Judge to consider the fresh bail application. Therefore, it was submitted that the order is within the exercise of jurisdiction by the learned Sessions Judge. The Ld. counsel appearing for the accused relied upon the decision of the Apex Court in the case of Babusingh Vs. The State of U.P. reported in AIR 1978 SC 527 and also another decision of the Apex Court in the case of State of Maharashtra Vs. Captain Buddhikota Subba Rao reported in AIR 1989 SC 2292 for contending that if such a substantial change in the fact situation arises the second application for bail can be considered by the very Court. The Ld. counsel for the accused also submitted, inter alia, that once a bail is granted by exercising discretion by the Ld. Sessions Judge the different considerations would prevail in the matter of cancellation of bail. If the discretion is by and large properly exercised and no extraordinary circumstances are demonstrated this Court would not entertain the application or accept the prayer for cancellation of bail unless such discretion is perverse on the face of it. The reliance was also placed upon the judgment of the Apex Court in the matter of Bhagirathsinh Jadeja Vs. State of Gujarat reported in AIR 1984 SC 372 for supporting the contention that once the discretion is exercised by the Ld. Sessions Judge for granting bail this Court would not leniently consider the matter for cancellation of bail unless it is so perverse.

7. In my view, the first question which is required to be examined is :

"Whether the learned Sessions Judge could have exercised power for considering the subsequent bail application; if yes, was it open to the very learned Sessions Judge to take a contrary view than the view expressed in the earlier order?

8. In case of State of Maharashtra (supra), at para 7 the Apex Court, has observed as under :

"Once that application was rejected, there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact situation. And, when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. (Emphasis supplied)".

Therefore, it will have to consider whether such a change, as sought to be canvassed on behalf of the accused can be said to be a substantial change, or a mere cosmetic change. There is no dispute on the point that when the first order came to be passed in February, 2003 the statements and the proceedings before the Ld. Executive Magistrate were very much there before the Ld. Sessions Judge. Not only that, but the Ld. Sessions Judge has considered the same, and it was primafacie observed by him as referred to hereinabove that even from the record of the proceedings before the learned Executive Magistrate under Section 164 of Cr.P.C. it does not transpire that the statements are made by these witnesses, namely, Jigar, Anant, Kamlesh and others before police are under compulsion or they are not voluntarily given. It was also observed by the learned Sessions Judge that if such an aspect is examined, it would result into evaluating the evidence at this stage.

9. The only change thereafter as per the accused is the filing of complaint for receiving/giving threats before the Ld. Magistrate (JMFC) by the aforesaid persons, namely, Jigar, Anant and others and the verification of statements made under Section 202 of Cr.P.C. disclosing that they have not made any such statement. The thrust of the argument on behalf of the accused is that it is on account of such a change in circumstances, the learned Sessions Judge considered the fresh bail application. I am afraid such contention can be accepted, when a prima facie case is made out as per prosecution and the learned Sessions Judge having found that there is a prima facie involvement of the accused in the alleged offence. As such, the statements of witnesses made before another authority for disowning the earlier statement or stating that no such statements were made, may result into tampering with the evidence or the statements already made before the police. Whether such disowning or denial of any statement made before during investigation would invite further consequences or not would be a different aspect and I do not want to express any final view on the same at this stage since the same is not the issue in the present case and the said question is kept open. However, if such statements made before another authority in the other proceedings is to be made as basis for invoking of powers of the Court for considering the fresh bail application then in that case it would leave room to any witness to frustrate the case of the prosecution and would result into upsetting the sanctity of the order passed by the judicial authority and consequently would create absurd situation. It is true that at the time when the Court has to consider the matter for granting and/or rejecting the application for bail prima facie the matter is to be examined and the observations are also to be made prima facie with a view to see that the defence of the accused is not prejudiced at the trial, but, thereby it cannot be said that if before a different authority in the different proceedings subsequently some statement is made by the witnesses, the same would result into substantial change and would form a valid basis for invoking power of the very Court once again for bail. Normally, the substantial change in the circumstance are being considered stagewise, i.e. (i) at the stage of considering the matter for granting anticipatory bail, (ii) at the stage of considering the matter for regular bail before the charge-sheet when the investigation is in progress and (iii) after filing of charge-sheet and after completion of investigation. If retraction or denial of statement made by the witnesses before any authority is to be considered as a substantial change in the circumstances at the stage of bail, then the consequences would be that there will not be any end to proceedings of bail application and also more serious consequence would arise which will leave room to accused who are involved in a serious offence either directly or indirectly to take a chance of invoking the power of the Court for bail, time and again, on such grounds. It may also result into tampering the witnesses and thereby damaging the investigation and case of the prosecution before commencement of trial. Therefore, I find that merely because the statements which are made in different proceedings by witnesses cannot be said to be a substantial change attracting the powers of the Ld. Sessions Judge for considering the fresh application for bail.

10. Therefore, in the above view of the matter, as it cannot be said to be a substantial change in the circumstances, the learned Sessions Judge could not have exercised his power for considering the fresh application for bail and it appears that the learned Sessions Judge has exercised his power in contravention to settled legal position as laid down by the Apex Court in the State of Maharashtra (supra).

11. Apart from the above, even otherwise also the perusal of the order and relevant observations made at the time of passing the first order in Feb., 2003 upon the bail application and at the time of passing the second order in June, 2003 upon the second bail application clearly goes to show that prima facie observations made in the subsequent order while granting the bail in majority of aspects are ex facie in contravention to earlier observations made and prima facie finding recorded while passing the first order in Feb., 2003. At this stage, it would not be out of place to refer the decision of this Court in the case of State of Gujarat (2002 (2) Guj LR 1526) (supra) wherein this Court while considering the matter for granting bail by the learned Sessions Judge once having rejected the anticipatory bail application on the ground that there is no prima facie case observed at para 7 relevant portion whereof reads as under:

"I am conscious that when the learned Judge exercises his discretionary power of grant of bail, then ordinarily, this Court would not interfere in an application filed for cancellation of bail unless and until a special case is made out to interfere with such orders. As stated earlier, the facts of this case are not only glaring, but also shocking. The learned Judge who himself rejected the anticipatory bail application just 9 days before the grant of regular bail application, has entered into an arena which was forbidden under law by going into the merits and demerits of the case. Having gone through the same, he has come to a conclusion that there was a strong prima facie case against the accused and that the circumstances narrated in her anticipatory bail application do not warrant any grant of anticipatory bail and according to him it was not a case of even regular bail which could be granted in a regular bail application. But, surprisingly, within 9 days, on the same facts, the learned Judge took a somersault and granted regular bail on the ground that the minor children of deceased Sandhya had to remain in jail along with their grand mother accused Sushilaben. The learned Judge who earlier rejected the anticipatory bail application of the respondent accused was very much conscious and aware of this fact when he rejected her anticipatory bail application. In spite of it, he granted regular bail which was not only highly improper but illegal. In my considered opinion, no reasonable man on earth would take different view of the matter like this Judge."

Ultimately, the Court also found in the said decision that there is an oblique motive in passing such order for which the departmental inquiry was initiated against the Judge concerned and cancelled the bail.

12. If the matter is examined in the present case, as observed earlier, the learned Judge initially while passing the order in Feb., 2003 below bail application has elaborately discussed all the aspects which are referred hereinabove in earlier paragraph and has come to conclusion that prima facie case is established that the accused is involved in the offence under Section 302 and the same is a serious offence and is for causing death of a leading political person and therefore it would not be proper to release the accused on bail. Once having found prima facie and once having considered all the material and making observations for prima facie establishment of the involvement of the accused the learned Sessions Judge could not have taken a somersault and arrived at a different finding than the finding recorded earlier. The pertinent aspect is that at the time when such an order came to be passed for rejecting the application for bail in Feb., 2003 the proceedings before the Executive Magistrate under Section 165 were not only considered but it was also contended that the statements recorded of the witnesses before police cannot be relied upon at all in view of the statements made before the Executive Magistrate in which such witnesses had disowned the statements made before police and the said contention was expressly negatived by the learned Judge. Thereafter, merely because in the other proceedings in the inquiry under Section 202 of Cr.P.C. before JMFC the statements as referred to hereinabove are disowned or such witnesses have declared that they have given any statement, in my view, could not at all be said to be a ground for taking totally a reverse view on other aspects also which had no bearing at all to the inquiry proceedings under Section 202 of Cr, P. C. even if it is considered that such was a change of circumstance. Further, as observed earlier, the statements made by the very witnesses pending investigation before the authority cannot be said to be a ground for nullifying the observations made earlier and the ground for invoking power of the Court for considering fresh bail application. Therefore, I find that the learned Judge in any case otherwise also could not take somersault and record or make observations in total contravention to the earlier observations and prima facie finding recorded in the first order passed in Feb., 2003. Hence also, the order of the learned Sessions Judge granting bail deserves to be quashed and set aside.

13. However, incidentally, this Court may also be required to consider as to whether it was a case for granting bail to the accused or not. If this Court records the prima facie view in detail, it may prejudice the case of defence at the time of trial. However, on perusal of the earlier order passed by the learned Sessions Judge in Feb., 2003 and the prima facie finding recorded by the learned Sessions Judge after taking into consideration the material considered by him, even if the material of statements recorded before the judicial magistrate in the inquiry under Section 202 are considered, I find that it would not make any difference to the prima facie involvement of the accused in the serious offence as observed by the learned Judge while passing the order for rejecting the bail application on 10-2-2003. I would have recorded further reasons for dealing various other aspects for prima facie consideration of the material in the matter of involvement of alleged offence of the accused, however, Mr. Anandjiwala, learned counsel for the petitioner has prayed that this Court may not record further detailed observations since it may prejudice the defence of the accused at the trial and therefore I find it proper to leave the matter at that stage and suffice it to say that I am in agreement with the reasons recorded by the learned Sessions Judge while passing the order on 10-2-2003 whereby the bail application was rejected.

14. In view of the aforesaid discussion and observations and discussion, the petition succeeds. The order, dated 26-6-2003 passed by the learned Sessions Judge Fast Track Court, Anand in Cri. M. A. No.209/03 is quashed and set aside and consequently the bail granted to the accused opponent, namely, Alpeshbhai Navinbhai Patel shall stand cancelled.The accused shall be put into judicial custody by the police in view of the order passed by this Court.

15. After the pronouncement of the order, Mr. Anandjiwala, learned counsel for the accused prayed that the operation of the order be suspended for some time so as to enable the accused to have recourse to the higher forum. Mr. Kogje, learned APP has submitted that once this Court cancelled the bail, the police officer should be at liberty to put the accused into custody and no stay should be granted. Mr. Zaveri appearing for the wife of the deceased has also objected on the ground that the accused is in a key position in the Municipality and there is a threat to all concerned persons. Mr. Anandjiwala also submitted that though the accused was on bail for a period of five months no such incident of threat or otherwise is recorded against the accused.

16. Considering the facts and circumstances of the case, once this Court having found that the order passed by the learned Sessions Judge is ex facie without any authority and once this Court having found that on merits also it was not a case for releasing the accused on bail and when one of the conditions even for circulating the matter before the Apex Court for hearing the matter is surrendering of the accused to custody I find that the request of Anandjiwala cannot be accepted and hence rejected.

17. Rule is made absolute to the aforesaid extent.

Petition allowed.