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PETITIONER: BHAGIRATH SINH S/O MAHIPAT SINGH JUDEJA

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT21/11/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. 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)

ACT:      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.

HEADNOTE:      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 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. [842 B-C]

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JUDGMENT:      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

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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

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         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.      Order accordingly. H.S.K.                                       Appeal allowed. 844