STATE OF GUJARAT Vs. DEEPAK JASVANTLAL SHETH

JUDGEMENT

(1.) This is an application under Sec. 439(2) of the Criminal Procedure Code for cancellation of bail granted to the applicant by order dated 12- 12-1997. The circumstance in which this application has been moved may be noticed in brief. The respondent is accused of having committed offence under Sec. 302 read with Sec. 34 and Sec. 114 as well as under Sec. 120B of the Indian Penal Code being a party to criminal conspiracy to commit murder of one Ranjitsinh Parmar also known as Ranjitsinh Jam along with other accused persons which included respondent's father Jaswantlal Manilal Sheth in pursuance of which said Ranjitsinh was murdered. As per the F.I.R., some dispute existed between accused Jaswantlal M. Sheth and his son Deepak on one side and deceased Ranjitsinh Jam on the other in respect of a land situated near M.P. Shah Arts and Science College, Surendranagar and suit is pending in Civil Court. The complainant a cousin of said Ranjitsinh Parmar received a telephonic call at about 6-00 or 6-30 p.m. on 6-11-1997 for Ranjitsinh. On enquiry it was revealed that Jashubhai was calling and it was stated that he and his son Deepak were sitting at their bungalow and want to have discussion with Ranjit Jam in respect of land. On getting this message, deceased went to the house of Jashubhai. When the said deceased did not return for sometime, the complainant went to the house of the accused Jashubhai after about one hour. At that time, he found that accused-respondent, along with three persons named and three persons unnamed was sitting in the Varandah with the deceased. Seeing this the complainant returned. When deceased did not return upto 10-30 p.m., the complainant again went to the residence of Jashubhai where he found Ranjitsinh lying in pool of blood in the compound of house of Jashubhai. Jashubhai Manibhai, Deepakbhai Jashubhai Sheth and Dudhrajwala, a person called "Gadia Gamno Jat" and two to three other persons were described as accused in the F.I.R. During the course of investigation one Siddiq Khan working as watchman at the residence of Jashubhai, Manharsingh Hemubha and Harbala, both also in the employment of Jashubhai, were examined. Ayubkhan @ Raju, S/o. Alamkhan, referable to "Jat of Gadia village" in the F.I.R., and Iqbal Hussein S/o. Allarakha were arrested and their statements were also recorded, which were self-incriminating as actually responsible for killing as well as implicating, other accused persons including Jashubhai and Deepak as involved in criminal conspiracy to kill Ranjit. On 1/2-12-1997 application under Sec. 438 was filed on behalf of Jaswantlal and Deepak. In the said application Deepak Jaswant Sheth pleaded his alibi from the scene of occurrence. His presence in Bombay as indoor patient at a nursing home from 6-11-1997 to 9-11-1997 was stated. A certificate from the doctor of the said nursing home was also presented to the Court. The application was decided on 12-12-1997. Application on behalf of Jashwantbhai M. Sheth (Jashubhai) was rejected by holding that prima facie a case under Sec. 302, may be read with Sec. 114 or Sec. 34 is made out against petitioner No. 1. About accusation under Sec. 120B the Court said "Sec. 120B of the Indian Penal Code which may not be considered at this stage but the case has been made out against him for murder". Application on behalf of Deepak was allowed by holding the plea of alibi was plausible and case under Sec. 302 being evenly passed, benefit must go to accused. Regarding the case of criminal conspiracy under Sec. 120B, the Court observed :

(2.) Before embarking on the merit of the application, it may be noticed that Sec. 438 contemplates a direction that an accused be released on bail, if arrested and the order comes into existence at his pre-arrest stage in respect of an apprehended arrest. Section 439(2) envisages that the High Court or the Court of Sessions can direct that any person who is released on bail be arrested and commit him to custody. The stage for cancellation of a bail would obviously arise after a person having been taken into custody and released on bail on such condition as may have been imposed by the order. No stage for cancellation arises prior to that in stricto sensu, when a grievance is made about legality, validity and correctness of directions under Sec. 438. Such grievances may be considered and the principles governing the consideration of such application may be slightly different from what strictly are applicable, governing the issue of direction to arrest and commit the accused to custody after he has been arrested and released on bail. Relevant consideration for the purpose of examining whether directions issued under Sec. 438 are in proper exercise of jurisdiction vested in the Court on appropriate consideration of material before it, and the same is not based on irrelevant consideration or by ignoring relevant material which ought to have been considered before making such direction. In short, a discretion which vest in the Court inheres in itself a limitation that it shall be exercised in judicious manner and not in a manner which is arbitrary, capricious or founded on irrelevant consideration. In this connection, reference may be made to a decision in the case of Khima Jakhu v. State of Gujarat , Criminal Revision Application No. 396 of 1970 decided on 22nd December, 1970. The question has arisen under Sec. 497 of old Code. The provisions under the old Code were not on the same lines as are in the same section as Sec. 439(2) is concerned. At the relevant time, under the old Code, under sub-sec. (2) of Sec. 498, the High Court or the Court of Sessions could only cancel the bail granted by it. Whereas under Sec. 439(2) of the present Code, the High Court or the Court of Sessions can cancel the bail even if it is granted by the lower Court. However, this distinction is not of much relevance for the present purpose. The order granting bail was neither appealable then nor now. Nor there was any provision like Sec. 438 for anticipatory bail. Question under old Code ordinarily could arise only after release on bail of the accused. However, now the orders come into effect even before actual arrest is made, on the apprehension of such arrest and question of validity of such direction can arise even before arrest is made and occasion for releasing on bail arise. In the aforesaid case, the Court was considering the question of cancelling the bail granted by the Sessions Court, the Court said :

(3.) I am of the opinion that while considering the question whether direction under Sec. 438 has been made in proper exercise of the discretion, the same principle be adopted.