Magistrate Must Not Authorise Detention Casually In Offences Punishable With Imprisonment Less Than 7 Years: Gujarat HC Reiterates

The Bench comprising Justice AC Joshi refused to cancel the bail granted to the Respondents accused of offences u/s 406, 420 and 120-B of IPC for which maximum punishment was for 7 years. Additionally, the Single Judge Bench noted that the Respondents had not breached any bail conditions.

The Bench was hearing applications filed u/s 439(2) of CrPC seeking cancellation of bail granted to the Respondent No. 2 by the Sessions Court.

The Complainant had insisted that Respondent No. 2 had been arraigned for serious offences of cheating and breach of trust worth INR 35 lacs and yet anticipatory bail was granted despite there being a prima facie case. There were also chances of tampering and hampering with the evidence.

Addressing these submissions, Justice Joshi relied on Arnesh Kumar vs State of Bihar extensively where the Apex Court had held:

"Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically…"

The High Court also turned to Vivekanand Mishra v. State of U.P. and Ors where the Apex Court had laid down the following guidelines:

1. While granting bail, the court has to keep in mind the nature of accusations and the severity of punishment and if the accusation entails a conviction then the nature of evidence in support of accusations
2. Reasonable apprehensions of witness tampering must be taken into account.
3. Prima facie satisfaction of the court in support of the charge is must.
4. Frivolity in prosecution should always be considered and the element of genuineness must be considered in the grant of bail.

Special emphasis was placed on recognising 'the seriousness of charge' as a factor while determining grant of bail by relying on Sanjay Chandra v/s CBI. The High Court also reiterated the principle that once bail has been granted, the Appellate Court is usually slow to interfere with the same as it pertains to the liberty of an individual.

Keeping in view these factors, the High Court found that the Respondents were well placed in society and were not likely to flee from justice.

Accordingly, the application seeking cancellation of bail was dismissed.

Case No.: R/CR.MA/12390/2022

Case Title: KAMUBEN SOMAJI BHAVAJI THAKORE v/s STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 386

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