The magistrate must not arbitrarily authorise detention for crimes carrying a sentence of less than seven years: Gujarat HC Reiterates

The Gujarat High Court in the case of KAMUBEN SOMAJI BHAVAJI THAKORE v/s STATE OF GUJARAT led by the single bench of, Justice AC Joshi has emphasised that when an offence is punishable by imprisonment for a time that may be less than seven years or which may extend to seven years, with or without a fine, police personnel and magistrates must not arbitrarily or mechanically detain the accused.



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.



The Gujarat High Court has reiterated that where the offence is punishable with imprisonment for a term which may be less than seven years or which may be less than seven years or which may extend to seven years; whether with or without fine, Police officers must not arrest accused unnecessarily and Magistrate must not authorise detention casually or mechanically. 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.

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 Reviewed by DEEPA BAJAJ


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