R/CR.MA/24876/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
24876 of 2017
STATE OF GUJARAT….Applicant(s)
Versus
KRUNAL RAMCHANDRA MORJIKAR….Respondent(s)
Appearance:
MR PRANAV TRIVEDI, APP for the Applicant(s) No. 1
MR P J YAGNIK, ADVOCATE for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 28/12/2017
ORAL ORDER
1. The applicant – State of Gujarat, by way of present
application for cancellation of bail filed u/s 439(2) of the Code
of Criminal Procedure, 1973, challenges order dated
21.8.2017 passed by the learned Additional Sessions Judge,
Gandhinagar below Exh.1 in Criminal Misc. Application
No.982 of 2017, whereby respondent accused was granted
bail in connection with offences registered before Mansa
Police Station being I – C.R. No.98 of 2017 for the offences
punishable u/s 363, 366 and 376 of the IPC and u/s 4 and 6 of
the POCSO Act.
2. In this case, learned Additional Judge, after considering
investigation papers and after submissions of both the sides,
released respondent accused on bail by imposing suitable
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conditions.
3. Learned APP states at bar that at the time of incident,
the prosecutrix was aged 16 years and 06 months and she
being the minor, the question of consent does not arise and
therefore, the offence u/s 376 read with POCSO Act has been
committed. Thus, he prays to cancel the bail granted to the
present respondent accused.
4. Section 438/439 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 under section 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 complainant requires
to point out serious infirmities in the order and such
infirmities resulted into miscarriage of justice.
5. Having heard the submissions made at bar, it appears
that at the time of incident, the prosecutrix was aged 16 years
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and 06 months and as per the statement of the prosecutrix
recorded on 7.8.2017, it is revealed that the prosecutrix and
the respondent accused were in love with each other and the
prosecutrix accompanied the respondent accused of her own
and thereby, abandoned the guardianship of her parents
voluntarily. Undoubtedly, a minor girl is to be protected
under law as there are number of instances of sexual abuses
of minor girls and therefore, there is a special legislation of
POCSO in the year 2012 and amendment in sections 375 and
376 of the IPC in 2014. The judiciary takes a very serious
note of sexual offences against women and specially against
minor girls.
6. It is settled law that bail granted can be cancelled on the
ground, which has arisen after the bail was granted. It is
generally presumed that at the time of hearing of bail
application, the prosecution has raised all possible grounds,
which could go against the accused in the matter of bail and
therefore, when once bail has been granted to the accused,
the complainant/prosecution cannot have the bail cancelled on
some circumstances, which may have existed before grant of
bail. The ground of cancellation of bail and grounds of
rejection of bail are two different circumstances and hence,
approach of the Court should also be different. At the time of
hearing of bail application, the Court looks at possibility of
violation of the bail condition and Court has to be more open
and flexible, whereas, while hearing the cancellation bail
application, the Court has to be more rigid and it has to
examine only the possibility of violation whether actual
violation has taken place or not. No doubt, the offence with
which respondent accused is charged, is serious in nature, but
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every accused remains innocent until proved guilty beyond
reasonable doubt and therefore, every accused person has
right to enjoy bail granted to him unless there is an evidence
to show the abuse of this right granted to him. It requires to
be reiterated here that at the time of dealing with the
question of cancellation of bail of an accused, the only issue
which is germane is whether the accused has misused the
condition of bail or tempered with the the investigation or
evidence or not. In case on hand, no any such grievance is
ventilated by the learned advocate for the applicant and
cancellation is sought on premise, as aforesaid.
7. So looking to the facts of the case before this Court, the
Court is not inclined to entertain present application, as
learned Judge has not committed any illegality or perversity in
passing the impugned order and therefore, present Criminal
Misc. Application stands rejected. Notice charged.
(S.H.VORA, J.)
shekhar
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