Gujarat High Court
Sushilaben Yashwantbhai Solanki vs State Of Gujarat on 21 June, 2022
Bench: Nikhil S. Kariel
R/CR.A/514/2020 JUDGMENT DATED: 21/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 514 of 2020
With
R/CRIMINAL APPEAL NO. 286 of 2021
With
R/CRIMINAL APPEAL NO. 1840 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
==========================================================
SUSHILABEN YASHWANTBHAI SOLANKI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
In CRIMINAL APPEAL Nos.514 of 2020 and 286 of 2021
MR VIVEK V BHAMARE(6710) for the Appellant(s) No. 1
MR VN BHAMARE(1122) for the Appellant(s) No. 1
MR MILINDDEEP M VAGHELA(10782) for the Opponent(s)/Respondent(s)
No. 2,3,4,5,6
MR RJ GOSWAMI(1102) for the Opponent(s)/Respondent(s) No. 2,3,4,5,6
MR LB DABHI, APP for the Opponent(s)/Respondent(s) No. 1
In CRIMINAL APPEAL No.1840 of 2021
MR LB DABHI, APP for the Appellant
MR VIVEK V BHAMARE(6710) for the Appellant(s) (in Cr.A Nos.514/2020 &
286/2021)
MR MILINDDEEP M VAGHELA(10782) for the Opponent(s)/Respondent(s)
No. 2,3,4,5,6
MR RJ GOSWAMI(1102) for the Opponent(s)/Respondent(s) No. 2,3,4,5,6
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R/CR.A/514/2020 JUDGMENT DATED: 21/06/2022
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 21/06/2022
ORAL JUDGMENT
1. Admit. Learned Advocates for the respective respondents waive
service of notice of Admission. With the consent of parties, the
present appeals are taken up for final hearing.
2. Heard learned Advocate Mr.Vivek Bhamare for the appellant in
Criminal Appeal No.514 of 2020 and Criminal Appeal No.286 of
2021 and learned APP Mr.L. B. Dabhi for the appellant State in
Criminal Appeal No.1840 of 2021, and learned Advocate Mr.R. J.
Goswami appearing on behalf of the private respondents in all the
three Appeals. Since all the three Appeals challenge the validity of
the orders granting regular bail to the accused of the very self-same
FIR, all the Appeals are heard and decided together.
3. Criminal Appeal No.514 of 2020 has been preferred by the mother
of the victim of FIR bearing I-C. R. No.13/2019, challenging an
order passed by the learned 4th Additional Sessions Judge,
Viramgam dated 15.10.2019 in Criminal Misc. Application No.309
of 2019, whereby regular bail had been granted to respondents
No.2 to 5 therein, original accused Nos.3, and 5 to 8 of the said
FIR.
4. Criminal Appeal No.286 of 2021 preferred by the mother of victim
of the FIR referred herein above and Criminal Appeal No.1840 of
2021 preferred by the State, challenge the validity of the order
dated 13.11.2019 passed by the learned 4 th Additional Sessions
Judge, Viramgam in Criminal Misc. Application No.344 of 2019,
whereby regular bail was granted to respondents No.2 to 4 of the
R/CR.A/514/2020 JUDGMENT DATED: 21/06/2022
respective Appeals - original accused Nos.1, 2 and 4 of the FIR
referred to herein above.
5. The allegations levelled in FIR bearing I-C. R. No.13/2019
registered on 9.7.2019 with Mandal Police Station, Ahmedabad
(Rural) for offences punishable under Sections 302, 332, 353, 341,
143, 147, 148, 149, and 120B of IPC and for the offences
punishable under Sections 3(2)(v) and Section 3(2)(5)(a) of the
Scheduled Caste and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 and for the offences punishable under Section 3 of the
Prevention of Damage to Public Property Act, 1984. The First
Informant of the FIR, one Ms.Bhavikaben, daughter of Navajibhai
Bhagora inter alia alleges that she has been working with GVK
EMRI 181 Abhayam Mahila Helpline since last three years as a
Counselling Officer and on the date of the offence i.e. 8.7.2019,
she had received a message from the control room of the Head
Office at 2.50 p.m., on the mobile number of the office that one
Hareshbhai Yashvantbhai Solanki (later deceased/victim) had
informed that he wanted to avail the service of the Abhayam
Helpline, and whereas after a conference call the said Hareshbhai
had asked the Abhayam Team to come to the Mandal Bus Stand. It
is stated that said Hareshbhai Solanki had informed the First
Informant that his wife Urmilaben had been taken away by her
parents for last two months and since then he was not aware about
his wife's well being and it was also informed that his wife was
two months' pregnant, more particularly since his father-in-law
wanted the deceased to come to the native village of the father-in-
law, therefore, request was made to the Helpline to counsel the
family of his wife. It is stated that the First Informant along with
driver Sunilkumar Navinchandra Solanki and woman Constable
Ms.Arpitaben Lilabhai had gone in official Abhayam 181 Vehicle
R/CR.A/514/2020 JUDGMENT DATED: 21/06/2022
and had reached Mandal Bus Stand at around 17.43 hours, where
they had contacted the deceased Hareshbhai Solanki and whereas
three persons had reached the Helpline Vehicle being Hareshbhai
Solanki, his mother Sushilaben and his relative Dirubhai
Jayantibhai Jadav. It is stated that Hareshbhai had informed the
First Informant that his wife was at her father's place at Varmor
village and that his father-in-law had come to his house at
Gandhidham and had taken his wife with his consent and whereas
his father-in-law was now calling Hareshbhai to his native village
and, therefore, the aid of the Helpline was taken for counselling his
in-laws. The First Informant had thereupon taken the said
Hareshbhai in the vehicle of the Helpline, whereas the mother and
relative of the said Hareshbhai were asked to stay at the bus stand
and at 17.50 hours the First Informant had travelled towards village
Varmor i.e. the village of father-in-law of the deceased. While
going, the First Informant is stated to have asked the deceased as to
whether he would be apprehending of any problem or any kind of
threat, whereupon the deceased had told the First Informant that
there was no apprehension of any problem and whereas the First
Informant had told the deceased that if there were any
apprehension, he might get down from the vehicle and the First
Informant would go and meet his father-in-law. The deceased is
stated to have told the First Informant that there was no
apprehension and nobody would show her the way to his father-in-
law's house and except his father-in-law, nobody would recognize
him and, therefore, to show the way the said Hareshbhai had
travelled in the said vehicle. It is stated that the Abhayam Team
had reached the village and gone to the house of the father-in-law
of the deceased. It is stated that at that time the deceased was
asked to sit in the backseat of the vehicle and the driver was asked
to turn around the vehicle and the First Informant and the woman
R/CR.A/514/2020 JUDGMENT DATED: 21/06/2022
Constable had gone to the house of the father-in-law of the
deceased. It is alleged that there they had met one person named
Indrajitsinh @ Kano Dasharathsinh Zala (brother-in-law of
Hareshbhai), who had introduced the First Informant to his mother
and his wife, who were present there and had told the Abhayam
Team that his father had gone outside and they would call him. It
is further stated that after a while father-in-law of Hareshbhai had
come and he had taken the Abhayam Team to a room on the first
floor, where the Abhayam Team had counselled the father-in-law
of the deceased for about 15-20 minutes and at that time,
Indrajitsinh @ Kano Dasharathsinh Zala had gone out and had
come back after some time. It is alleged that the Abhayam Team
had also counselled the wife of the Hareshbhai, his brother-in-law
and mother-in-law. Thereafter, the Abhayam Team was informed
that they (the in-laws) would need at least a month more for
settlement and thereupon the Abhayam Team i.e. the First
Informant and woman Constable had left the premises and
following them, the father-in-law of the deceased had come to the
vehicle to drop off the Abhayam Team. It is alleged that it was at
around 7.15 p.m. in the evening and once they reached near the
vehicle, the First Informant noticed that the deceased was sitting in
the front seat and no sooner she opened the front door of the
vehicle, a person reached there with a stick and around eight
persons also arrived there armed with Dhariya, Sword and Knife
and at that time a tractor and a motorcycle were kept in front of the
Abhayam Vehicle to obstruct the vehicle from moving further and
it is at that time the person with the stick had pushed the First
Informant aside and had hit the window screen of the vehicle with
stick. It is further stated that at that time, the father-in-law of the
deceased Dashrathsinh Dhanubhai Zala had shouted saying "Kano,
Hasmukhsinh, Jaydeepsinh, Ajaysinh, Anopsang, Parbatsang and
R/CR.A/514/2020 JUDGMENT DATED: 21/06/2022
Harishchandrasinh start assaulting and do not spare anyone, our
girl has been enticed by a Harijan, who is sitting in front seat of the
vehicle, pull him out and kill him". It is stated that upon such
instruction, the deceased Hareshbhai had been pulled out of the
vehicle and seeing that, First Informant and woman Constable had
run away and stood a little afar from the vehicle and the driver of
the vehicle had also run away from the vehicle. It is further alleged
that the said Hareshbhai had been dragged to the rear side of the
vehicle and he was assaulted by the accused with Dhariya, stick,
sword and knife. The First Informant, it is stated, had allegedly
seen Indrajitsinh @ Kano Dashratsinh Zala assaulting the
deceased Hareshbhai on his neck with a knife, Dashrathsinh Zala
assaulting with a Dhariya on the head of the deceased and all the
other persons were assaulting the deceased with Dhariya and stick
and Hareshbhai was shouting for help and at that time, Arpitaben
i.e. the woman constable had called up 181 Helpline and asked for
the help of police force. It is stated that immediately after that the
First Informant and Arpitaben had run out of the village. It is
further alleged that after around 15 minutes, the police force had
arrived and the First Informant and the woman Constable had
returned to the spot, where they found Hareshbhai having died.
Thus, the FIR came to be filed against the eight persons i.e. the
respondents of Criminal Appeal No.286 of 2021 and Criminal
Appeal No.1840 of 2021 being accused No.1, 2, and 4 i.e.
Dashrathsinh Dhanubhai Zala, Indrajitsinh @ Kano Dashratsinh
Zala and Jaydeepsinh Hasmukhsinh Zala, whereas the
respondents No.2 to 5 of Criminal Appeal No.514 of 2020 being
accused No.3 Hasmukh Dhanaji Zala, No.5 Ajaysinh Dhanaji Zala,
No.6 Anopsang Dolubhai Zala, No.7 Parbatsang Manuji Zala, No.8
Harishchandrasinh Parbatsang Zala. The Investigating Officer had
filed the charge-sheet on 5.9.2019, wherein the eight accused of the
R/CR.A/514/2020 JUDGMENT DATED: 21/06/2022
FIR were shown as accused and it is inter alia alleged that when
the Abhayam Helpline Vehicle was parked near the house of
Dashrathsinh, at that time the accused having seen Hareshbhai had
conspired to kill him and to achieve the said purpose, Jaydeep -
accused No.4 of the FIR had driven a tractor from his house
bearing GJ-18-E-8146 and accused No.2 Indrajitsinh had taken out
his motorcycle bearing No.GJ-1-JB-7736 and had put both the
vehicles in front of the Abhayam Vehicle so as to ensure that the
movement of the Abhayam Vehicle was obstructed.
5.1. The charge-sheet shows that along with the First Informant,
woman Constable Leela Desai was an eye-witness to the
incident, whereas driver of the Abhayam Vehicle Sunil Solanki
in his statement inter alia states as to how, when the First
Informant and the woman constable were inside the house of
father-in-law of the deceased, people had started gathering near
the Abhayam Vehicle and a tractor was parked in front of the
vehicle. At that time, people were muttering and shouting to
kill the deceased and thereafter the First Informant and woman
constable had reached the spot and the incident, as described,
had happened. The postmortem report was also placed along
with the charge-sheet, which would show 12 injuries inflicted
on the deceased, including 5 injuries admeasuring 21 cm x 2
cm, 25 cm x 2 cm, 32 cm x 3 cm, 25 cm x 3 cm and 27 cm x 3
cm on various parts of the head of the deceased, resulting in
cracking of the skull of the deceased and brain matter being
clearly visible. The postmortem also refers to an injury, which
is 35 cm x 5 cm on the neck of the deceased leaving only 2 inch
of the neck circumference. The cause of death was stated as
"(1) shock due to hemorrhage, (2) due to bleeding, and (3) due
to severe injuries on the vital organs like brain and neck
R/CR.A/514/2020 JUDGMENT DATED: 21/06/2022
structure".
6. The accused had after filing of the charge-sheet preferred
application for regular bail before the learned Sessions Court and
whereas the accused Nos.3, 5, 6, 7, and 8 had preferred the first
application being Criminal Misc. Application No.309 of 2019 and
vide order impugned in Criminal Appeal No.514 of 2020, learned
4th Additional Sessions Judge, Viramgam has released the said
accused on regular bail.
6.1. Accused Nos.1, 2, and 4 had preferred application for
regular bail, after bail has been granted to accused Nos.3, and 5
to 8 and whereas vide the order impugned in Criminal Appeal
No.286 of 2021 and No.1840 of 2021 dated 13.11.2019, the
learned 4th Additional Sessions Judge, Viramgam has released
the said accused also on regular bail.
7. Heard learned Advocate Mr.Vivek Bhamare for the applicant -
mother of the victim (deceased) in Criminal Appeal No.154 of
2020, who would assail the order dated 15.10.2019, inter alia
submitting that the said order is absolutely bereft of any reason. It
is submitted that the applicant of the said appeal had opposed grant
of bail before the learned Sessions Court and whereas the learned
Sessions Court had inter alia observed that the incident had
occurred due to sudden provocation and whereas the role attributed
to the accused Nos.3, 5 to 8 was of assaulting the deceased with
sticks and whereas the postmortem report shows that the deceased
did not die on account of such injuries. It is further submitted that
the learned Sessions Judge had also tried to hold that the accused -
applicants therein, though were members of an unlawful assembly,
yet looking to the role, liability has to be attributed individually
and not jointly. Learned Advocate would submit that none of the
R/CR.A/514/2020 JUDGMENT DATED: 21/06/2022
relevant considerations as laid down by the Hon'ble Apex Court in
various decision, while considering application for grant of regular
bail, had been considered by the learned Sessions Court. Learned
Advocate would submit that the investigation would clearly reveal
that the assault was on account of a conspiracy between the
accused and the offence under Section 149 of IPC being alleged,
the learned Sessions Court ought not to have held that the
responsibility of members of the unlawful assembly on account of
the role, has to be attributed individually and not jointly as per the
scheme of the said Section. Having regard to the same, learned
Advocate would submit that the impugned order passed by the
learned Sessions Court may be quashed by this Court.
8. Insofar as the order passed by the learned Sessions Court in
Criminal Misc. Application No.344 of 2019 dated 13.11.2019
releasing the accused Nos.1, 2, and 4, learned Advocate Mr.Vivek
Bhamare would submit that the role of the said accused having
been clearly described in the FIR and the charge-sheet, yet the
learned Sessions Court has, without considering the same and on
absolutely irrelevant consideration, released the said accused on
regular bail. Learned Advocate Mr.Bhamare would submit that the
learned Sessions Court has, for releasing the said accused on
regular bail, blamed the Abhayam Helpline for the incident in
question and whereas the learned Judge has observed that
Abhayam Helpline was for the purpose of giving support and help
to ladies and in the instant case, the wife of the deceased did not
appear to have called Abhayam Helpline. It is further observed by
the learned Sessions Court that on account of Abhayam Helpline
going to the house of accused, a feeling of insult to the honour of
the accused concerned could not be ruled out. It is further
observed by the learned Sessions Court that, according to the
R/CR.A/514/2020 JUDGMENT DATED: 21/06/2022
learned Advocate, since involvement of Abhayam Helpline was
unjustified, therefore, there is possibility of false implication by the
police could not be ruled out. Learned Advocate would submit that
the learned Sessions Court had absolutely ignored the relevant
considerations which would have weighed with the Court while
considering the bail application in a case where such a heinous
offence is alleged to have been committed by the accused. Learned
Advocate would submit that there is no discussion that the role of
the accused, the gravity of the offence or even the probable
punishment, which would be the relevant considerations to be gone
into by the learned Sessions Court. Learned Advocate would
submit that in the instant case, the deceased had been killed for no
reason whatsoever. The deceased had taken the help of law and
had requested the helpline to try and counsel with his in-laws, more
particularly since his wife was pregnant by two months. It is
submitted that the deceased had not even come out of the Abhayam
Vehicle, yet merely on account of the fact that the deceased was
belonging to scheduled caste, the accused, upon seeing the
deceased, had assaulted him with such brutality that the deceased
died on the spot. Learned Advocate would, therefore, submit that
in this view of the fact that the learned Sessions Court had gravely
erred in granting bail to the accused, the impugned order may be
quashed by this Court.
9. Submissions of the learned Advocate Mr.Bhamare have been
supported by the learned APP Mr.Dabhi on behalf of the State.
Insofar as the order releasing accused Nos.3, and 5 to 8, learned
APP would submit that the order reflects absolutely non-
application of mind, more particularly the learned Sessions Court
not having discussed anything with regard to the role attributed to
the accused therein. Learned APP would submit that when the
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charge-sheet had alleged conspiracy and there was material in
support thereof and when an offence under Section 149 had been
alleged, and there being enough material to support allegation of
offences under the said Section, irrespective of the weapons held
by the said accused and irrespective of the cause of death, on
account of the common intention every person who was part of the
unlawful assembly would be guilty of the offence committed by
the unlawful assembly. Learned APP would further submit that in
an FIR alleging offence under Section 302, the learned Sessions
Court had released the accused without discussing any of the
parameters, which have to be parameter as laid down by the
Hon'ble Apex Court while considering an application for regular
bail.
9.1. Insofar as the order releasing accused Nos.1, 2, and 4,
learned APP would submit that the learned Sessions Court had
gravely erred by inter alia holding that the First Informant
while giving statement to the doctor, where the First Informant
had gone for treatment that she had been assaulted by a mob
whereas in the FIR the First Informant had named all the
accused. Learned APP would submit that as a matter of fact,
the First Information Report was registered first in point of time
whereas the First Informant had gone for treatment later and
according to the learned APP, there is no requirement to
describe to the treating doctor the nature of the offence in detail
as well as the names of each of the accused before availing
treatment. Learned APP would submit that the learned Sessions
Court by the impugned order had almost tried to shift the blame
on Abhayam Helpline for the incident in question and whereas
the reasoning of the learned Sessions Court, appears to
somehow obliquely justify the incident, more particularly when
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the learned Sessions Court refers to terms like "inter-caste
marriage without consent of father", "causing insult to the
honour", etc. Learned APP would submit that the learned
Sessions Court had gravely erred in coming to the conclusion
that this was a case of sudden provocation, more particularly
there being nothing in the investigation papers, which would
reveal any provocation whatsoever by the deceased. Learned
APP would submit that the deceased was inside the vehicle all
throughout and from the statement of the driver of the Abhayam
Vehicle it becomes clear that upon seeing the deceased inside
the vehicle the accused had started gathering around the vehicle
and as part of the conspiracy, blocked the movement of the
Abhayam Vehicle by placing a tractor and a motor cycle in
front of the vehicle. Learned APP would submit that such acts
on part of the accused clearly lead to the inference that it was a
pre-planned act on part of the accused and it was not a case of
sudden provocation. Learned APP would submit that there
being two independent witnesses to the incident, who had
described the assault and whereas when the weapons had been
recovered at the instance of the said accused, only on account of
the blood found on the weapons could not be verified as being
the blood of the deceased, benefit of the same ought not to have
been conferred upon the accused, more particularly at the stage
of regular bail. Thus, submitting learned APP would request
this Court to interfere with the impugned decision and quash
and set aside the same.
10. As against the submissions made by the learned Advocate
Mr.Bhamare for the applicants and learned APP Mr.Dabhi, learned
Advocate Mr.R.J. Goswami for the accused would submit that no
error whatsoever has been committed by the learned Sessions
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Court while releasing the accused Nos.3, and 5 to 8 vide the order
dated 15.10.2019 or while releasing the accused Nos.1, 2, and 4
vide order dated 13.11.2019. Learned Advocate Mr.Goswami
would submit that the learned Sessions Court has in both the orders
observed that the incident had happened on account of a sudden
provocation. Learned Advocate would submit that the learned
Sessions Court had also found in both the orders that there is no
material to suggest any conspiracy. Furthermore, insofar as the
order granting bail to accused No.3 and 5 to 8, learned Advocate
Mr.Goswami would submit that as far as the said accused are
concerned, the said accused were stated to be armed with sticks
and whereas insofar as the cause of death of the deceased as found
in the postmortem report and the injuries found in the PM Report,
the same would show that neither the injuries nor the cause of
death could be attributed to the accused Nos.3, and 5 to 8, who
were armed with sticks.
10.1. Learned Advocate would further submit that there is a prima
facie inconsistency in the statement of the First Informant
insofar as in her statement to the doctor, when the First
Informant had gone to take treatment after the alleged assault,
she had stated that she was assaulted by a crowd and whereas in
the FIR the First Informant has named eight accused, which
would show a clear improvement. Learned Advocate would
further submit that as far as the aspect of grave and sudden
provocation, the same could be attributed to the fact that the
deceased had misused the Abhayam Helpline, which was like
an insult to the reputation of the accused, more particularly to
the family members of the wife of the deceased on account of
which the incident could be stated to have happened. Learned
Advocate would further submit that the First Informant and the
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second witness i.e. the lady Constable could not have witnessed
the incident since they had escaped from the spot and whereas
the accused have wrongly been implicated. The learned
Advocate would further submit that while weapons were
recovered at the instance of the accused Nos.1, 2, and 4, the
blood stains on the weapons could not be identified, which
would show that as such there was no material to connect the
accused to the crime in question.
11. In any case, the learned Advocate would submit that the
learned Sessions Court had granted regular bail in the month of
October - November 2019 and whereas approximately two-and-a-
half years have passed thereafter and whereas there is no allegation
that any of the accused has misused the liberty granted to them.
Learned Advocate would further submit that the trial is slated to
start soon and whereas it is at the stage of framing charges.
Learned Advocate would, therefore, submit that this Court may not
interfere at this stage, rather it is urged that any interference at this
stage would cause grave prejudice to the accused. Having regard
to the same, the learned Advocate Mr.Goswami would submit that
this Court may not interfere with the orders passed by the learned
Sessions Court and whereas the present appeals preferred by the
mother of the victim as well as the State may be rejected by this
Court.
12. Heard learned Advocates for the parties, who have not
submitted anything further.
13. Before dealing with the submissions of the learned
Advocates for the respective parties, at the outset, this Court deems
it appropriate to observe that the appellants in this group of appeals
i.e. mother of victim and the State are praying for
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cancellation/quashing and setting aside of the orders granting
regular bail to accused, on the ground of the orders being perverse
and illegal and whereas the appellants do not seek interference of
this Court for cancelling the bail on the ground of any intervening
circumstances or on the ground that the accused after grant of bail
have misconducted themselves or have misused the liberty granted
to them or there has been violation of any of the bail conditions.
14. Furthermore, it also requires to be observed that while
considering an application for setting aside an order granting bail,
in the considered opinion of this Court, relying upon the law laid
down by the Hon'ble Apex Court in case of Mahipal Vs.
Rajeshkumar @ Polia and Anr., reported in (2020) 2 SCC 118,
this Court is required to consider whether there was a valid
exercise of power as conferred under Section 439 of Cr.P.C., by the
learned Sessions Court in granting bail and only if this Court is of
the opinion that the exercise is invalid would the order of bail be
interfered with. At this stage, this Court deems it appropriate to
refer to Paragraphs 11, 12, 13, and 14 of the decision of the
Hon'ble Apex Court in case of Mahipal (supra), where the Hon'ble
Apex Court has discussed the consideration that should be weighed
with a Court while granting bail. Paragraphs Nos.11 to 14 are
reproduced herein below for benefit:-
"11 Essentially, this Court is required to analyse whether there was a
valid exercise of the power conferred by Section 439 of the CrPC to grant
bail. The power to grant bail under Section 439 is of a wide amplitude.
But it is well settled that though the grant of bail involves the exercise of
the discretionary power of the court, it has to be exercised in a judicious
manner and not as a matter of course. In Ram Govind Upadhyay v
Sudarshan Singh5, Justice Umesh Banerjee, speaking for a two judge
Bench of this Court, laid down the factors that must guide the exercise of
the power to grant bail in the following terms:
"3. Grant of bail though being a discretionary order -- but,
however, calls for exercise of such a discretion in a
judicious manner and not as a matter of course. Order for
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bail bereft of any cogent reason cannot be sustained.
Needless to record, however, that the grant of bail is
dependent upon the contextual facts of the matter being
dealt with by the court and facts, however, do always vary
from case to case...The nature of the offence is one of the
basic considerations for the grant of bail -- more heinous
is the crime, the greater is the chance of rejection of the
bail, though, however, dependent on the factual matrix of
the matter.
4. Apart from the above, certain other which may be
attributed to be relevant considerations may also be
noticed at this juncture, though however, the same are only
illustrative and not exhaustive, neither there can be any.
The considerations being:
(a) While granting bail the court has to keep in mind
not only the nature of the accusations, but the severity
of the punishment, if the accusation entails a
conviction and the nature of evidence in support of the
accusations.
(b) Reasonable apprehensions of the witnesses being
tampered with or the apprehension of there being a
threat for the complainant should also weigh with the
court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence
establishing the guilt of the accused beyond reasonable
doubt but there ought always to be a prima facie
satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is
only the element of genuineness that shall have to be considered in
the matter of grant of bail, and in the event of there being some
doubt as to the genuineness of the prosecution, in the normal
course of events, the accused is entitled to an order of bail.
12 The determination of whether a case is fit for the grant of bail involves
the balancing of numerous factors, among which the nature of the offence,
the severity of the punishment and a prima facie view of the involvement of
the accused are important. No straight jacket formula exists for courts to
assess an application for the grant or rejection of bail. At the stage of
assessing whether a case is fit for the grant of bail, the court is not
required to enter into a detailed analysis of the evidence on record to
establish beyond reasonable doubt the commission of the crime by the
accused. That is a matter for trial. However, the Court is required to
examine whether there is a prima facie or reasonable ground to believe
that the accused had committed the offence and on a balance of the
considerations involved, the continued custody of the accused sub-serves
the purpose of the criminal justice system. Where bail has been granted by
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a lower court, an appellate court must be slow to interfere and ought to be
guided by the principles set out for the exercise of the power to set aside
bail.
13 The principles that guide this Court in assessing the correctness of an
order passed by the High Court granting bail were succinctly laid down
by this Court in Prasanta Kumar Sarkar v Ashis Chatterjee. In that case,
the accused was facing trial for an offence punishable under Section
302 of the Penal Code. Several bail applications filed by the accused were
dismissed by the Additional Chief Judicial Magistrate. The High Court in
turn allowed the bail application filed by the accused. Setting aside the
order of the High Court, Justice DK Jain, speaking for a two judge Bench
of this Court held:
9. ... It is trite that this Court does not, normally, interfere
with an order passed by the High Court granting or
rejecting bail to the accused. However, it is equally
incumbent upon the High Court to exercise its discretion
judiciously, cautiously and strictly in compliance with the
basic principles laid down in a plethora of decisions of this
Court on the point. It is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are:
(i) whether there is any prima facie or reasonable
ground to believe that the accused had committed the
offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing, if
released on bail;
(v) character, behaviour, means, position and standing
of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by
grant of bail.
10. It is manifest that if the High Court does not advert to
these relevant considerations and mechanically grants
bail, the said order would suffer from the vice of non-
application of mind, rendering it to be illegal.
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14. The provision for an accused to be released on bail touches upon the
liberty of an individual. It is for this reason that this Court does not
ordinarily interfere with an order of the High Court granting bail.
However, where the discretion of the High Court to grant bail has been
exercised without the due application of mind or in contravention of the
directions of this Court, such an order granting bail is liable to be set
aside. The Court is required to factor, amongst other things, a prima facie
view that the accused had committed the offence, the nature and gravity of
the offence and the likelihood of the accused obstructing the proceedings
of the trial in any manner or evading the course of justice. The provision
for being released on bail draws an appropriate balance between public
interest in the administration of justice and the protection of individual
liberty pending adjudication of the case. However, the grant of bail is to
be secured within the bounds of the law and in compliance with the
conditions laid down by this Court. It is for this reason that a court must
balance numerous factors that guide the exercise of the discretionary
power to grant bail on a case by case basis. Inherent in this determination
is whether, on an analysis of the record, it appears that there is a prima
facie or reasonable cause to believe that the accused had committed the
crime. It is not relevant at this stage for the court to examine in detail the
evidence on record to come to a conclusive finding."
15. From the law laid down by the Hon'ble Apex Court, it
appears that the preliminary consideration that should weigh with
the Court is whether there is any prima facie or reasonable ground
to believe that the accused had committed the offence, the nature
and gravity of the accusation, severity of the punishment in the
event of conviction. Furthermore, the aspect of an apprehension of
the accused fleeing from justice, character, behaviour, means,
position and standing of the accused, likelihood of the offence
being repeated, reasonable apprehension of the witnesses being
influenced etc., would be the further consideration that should
weigh with the Court. Again interference with an order granting
bail would be only on the ground that the order was passed without
application of mind or where direction of the Hon'ble Apex Court
has been contravened.
16. Now appreciating the orders passed by the learned Sessions
Court from the touchstone of the law laid down by the Hon'ble
Apex Court, it clearly appears that the learned Sessions Court had
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not taken into consideration any of the relevant aspects, which
should have weighed with the learned Sessions Court while
releasing the accused on regular bail.
17. It needs to be observed at this stage that the deceased, as
appearing from the version of the witnesses, had been done to
death only for the reason that the deceased was belonging to the
Scheduled Caste and had married into the family of the accused,
more particularly accused Nos.1 and 2. It also appears that the
deceased had not caused any provocation whatsoever, more
particularly the deceased having sought the assistance of a
Government Helpline, more particularly since it appears that his
wife who was two months' pregnant at that time was not being sent
by her parents to her maternal home. It also appears that the
deceased till the assault had taken place was inside the Abhayam
Vehicle and that he had not interacted with anybody at the scene of
offence, nor had he done anything whatsoever, which could be
termed as provocation. It also appears that the assault on the
deceased was with such brutality that the deceased had died on the
spot and whereas as noted herein above the postmortem report
shows 12 ante-mortem injuries inflicted upon the deceased of
which five were on the head of the deceased, each blow being
substantial in size, having such devastating effect that as per the
postmortem report, each blow had resulted in damage to the skull
vault resulting in brain matter being seen. Furthermore, one of the
injuries on the neck of the deceased was 35 c.m. in length, cutting
the trachea esophagus and major vessels and nerves leaving only 2
inch of the neck circumference intact. Apart from the injuries
described above, there were multiple abrasions upon the body of
the deceased with dried blood and of variable sizes at different
places.
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17.1. It is also required to be noted that from the statement of the
driver of Abhayam Vehicle it becomes clear that by the time
the First Informant and the lady Police Constable had come
back to the vehicle, after finishing the counselling, a tractor and
bike had already been placed in front of the Abhayam Vehicle
preventing its movement and whereas by such time all the
accused had also gathered there with deadly weapons. This fact
prima facie reflects the existence of a criminal conspiracy.
17.2. In this conspectus of the fact it appears that insofar as the
first order passed by the learned Sessions Court releasing the
accused No.3 and 5 to 8 on regular bail, the aspects which
weighed with the learned Sessions Court was a finding that this
was a case of sudden provocation and whereas it was not a pre-
planned conspiracy and whereas accused No.3, and 5 to 8 were
shown having sticks and whereas the postmortem note does not
reflect the injuries which caused the death as being inflicted by
the said weapon. Apart from the said consideration, the learned
Sessions Court also appears to have come to a conclusion that
though the accused Nos.3, and 5 to 8 were members of unlawful
assembly, yet considering the role attributed to them the
accused Nos.3 and 5 to 8 could not be stated to be responsible
for the entire acts of the assembly. In the considered opinion of
this Court, the reasons which weighed with the learned Sessions
Court clearly reflect total non-application of mind, since as
noted herein above, there does not appear to be any sudden
provocation on the part of the deceased or taking the reasoning
of the learned Sessions Court to its extreme, no provocation also
on account of the Abhayam Helpline having gone to the house
of the accused No.1 and 2. As noted herein above, it appears
that the deceased had not even got down from the vehicle, much
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less done anything to infuriate the accused and whereas while
the First Informant, who was Counsellor with the Helpline
states that they had reached the house of the accused No.1 and
had waited for the accused No.1 to arrive whereas accused No.2
was present in the house and whereas after some time accused
No.1 had come to the house and the First Informant as well as
the lady Constable had counselled accused No.1 and 2 and other
family members for about 15-20 minutes and thereafter they
had left the house. Thus, it appears that reasonable time had
passed after the Abhayam Helpline Team had reached the house
of accused No.1 and 2 and the same clearly reflects the fact that
the accused No.1 and 2 or the other accused were not infuriated
on account of Abhayam Helpline having come to the residence
of accused Nos.1 and 2. Furthermore, as noted herein above,
the fact of the accused having placed a tractor and motor bike in
front of the Abhayam Vehicle restricting its movement reflect
the fact that while the First Informant and lady Constable were
counselling the accused No.1 and his family members, the other
accused had conspired to ensure that the deceased should not
leave the place. Furthermore, insofar as considering the
individual role of each of the accused, as observed by the
learned Sessions Court, such a dissection was not warranted
more particularly at the stage of consideration of regular bail in
view of the fact that the FIR also alleged an offence punishable
under Section 149 of IPC which inter alia states that each
member of the unlawful assembly is guilty of offence
committed in prosecution of common object. From the facts,
since it prima facie appears that, the accused Nos.3 and 5 to 8
were part of the unlawful assembly whose common object was
to murder the deceased, learned Sessions Court ought not to
have observed that in view of the weapons used by the accused,
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which had not resulted in the death of the deceased as per the
postmortem report, the said accused could not be considered as
having a common object.
17.3. In the considered opinion of the Court, insofar as the
considerations that ought to have weighed with the learned
Sessions Court, as narrated herein above, there was indeed a
prima facie and reasonable ground to believe that the accused
had committed the offence, more particularly there being two
independent eye witnesses to the incident. The accusations
against the accused were indeed grave, that of being part of an
unlawful assembly with a common object to murder the
deceased and having in furtherance of the common object,
assaulted the deceased.
17.4. That the punishment that could be imposed upon the accused
Nos.3 and 5 to 8 could range from imprisonment for life and
even to punishment with death.
18. In view of the said factors, in the considered opinion of this
Court, the learned Sessions Court had completely erred in granting
regular bail to accused Nos.3 and 5 to 8 and whereas the order
suffers from non-application of mind and perversity and whereas in
view of the fact that the order appears to be completely unjustified.
19. Insofar as order dated 13.11.2019 granting regular bail to
accused Nos.1, 2, and 4, it appears that the learned Sessions Court
had aggravated the same errors committed in the order dated
15.10.2019.
20. According to the learned Sessions Court, the cause for the
incident is that in addition to the deceased having entered into an
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inter-caste marriage with the daughter of the accused No.1, had
gone to bring his wife from her father's home without the
permission of her father, with police personnel. It also appears that
the learned Sessions Court has stated that the exercise done by the
deceased of taking the help of Abhayam Helpline, which also
appears to be a misuse of Abhayam Helpline, since according to
the learned Sessions Court, the Abhayam Helpline was for helping
woman, who need assistance and it was not designed for helping
any male person. Learned Sessions Court also holds that the
deceased without the consent of his in-laws had done inter-caste
marriage and had gone to the village with police personnel to talk
to the opposite side i.e. his in-laws, which would put the in-laws in
an embarrassing position and the same was an unthought about act,
which would be in a nature of damaging the honour of his in-laws.
Learned Sessions Court also holds that since the Abhayam
Helpline having gone to the village was the root cause of the
incident, possibility of being framed by the police also cannot be
ruled out.
20.1. In the considered opinion of this Court, none of the reasons,
which weighed with the learned Sessions Court was germane
for deciding an application for regular bail of the accused, who
had been alleged to have brutally murdered the deceased. As it
appears, the deceased had taken the help of Abhayam Helpline,
more particularly to counsel his in-laws, so that they could let
his wife go along with him or send her to her matrimonial
home. Furthermore, the reasoning as regards "inter-caste
marriage by deceased without permission of her parents", also
to this Court does not reflect a prudent approach by the learned
Sessions Court. The wife of the deceased appears to be a major
and the law does not prohibit an inter-caste marriage by a major
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or for that matter there is no law prohibiting inter-caste
marriage. Be that as it may, the Abhayam Helpline having gone
to the house of the in-laws of the deceased ought not to have
been a consideration, which should have weighed with the
Court, more particularly it is almost appearing from the
impugned order as if the Abhayam Helpline having gone to the
house of the in-laws of the deceased being a justification for the
accused to have murdered the deceased.
20.2. Furthermore, it also does not appear that the accused were
acting under grave provocation as mentioned by the learned
Sessions Court, more particularly as noted herein above, since it
appears that the Fist Informant, who was a counseller with the
Abhayam Helpline and the lady police constable, who had
accompanied the First Informant, had spent some time, in the
range of around half-an-hour, at the residence of the in-laws of
the deceased and whereas only after the First Informant and the
lady Police Constable had returned back to the Abhayam
Helpline Vehicle that the assault had started and whereas as
noted herein above, by such time the accused had already
gathered around the vehicle and the accused had placed a tractor
and the motor bike on the path of the Abhayam Helpline
Vehicle to ensure that it is not able to move any further.
20.3. Furthermore, as noted herein above, even the deceased had
not done anything to infuriate the accused more particularly it is
appearing very clearly that the deceased had not got out of the
Abhayam Helpline vehicle. Thus, it clearly appears that in
addition to the incident not happening on account of grave or
sudden provocation as observed by the learned Sessions Court,
it also clearly appears that the accused had conspired to ensure
that the deceased is not able to escape from the spot by blocking
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the Abhayam Helpline vehicle.
20.4. Furthermore, learned Sessions Court observing that the First
Informant having recollected seven names shouted by the
accused No.1 asking them to assault the deceased also appears
to be improbable more particularly since the First Informant did
not know any of the accused beforehand. In the considered
opinion of this Court, such a finding by the learned Sessions
Court at the stage of grant of bail was completely unjustified,
more particularly since in addition to the First Informant even
the lady Police Constable, who was also witness, had also
named the seven persons, whose names had been taken by the
accused No.1. Furthermore, in the considered opinion of this
Court, whether the First Informant could have clearly
recollected the names, etc were matters to be decided at the
stage of trial after leading of offence and whereas at the stage of
grant of regular bail, the Court was only required to reach a
prima facie opinion as to whether there was a possibility of the
commission of the crime by the accused and whereas the Court
is not required to conclude that the fact of the crime being
committed by the accused was beyond reasonable doubt.
20.5. The First Informant and the woman Police Constable being
independent witnesses having nothing to do either with the
deceased or the accused, who are present on the spot of assault
very naturally having named eight accused in detail, it was not
open for the learned Sessions Court at the stage of regular bail
to have come to a conclusion that the statement of the First
Informant was not believable.
20.6. Insofar as the finding of the learned Sessions Court that the
aspect of weapons recovered at the instance of the accused not
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having adequate blood, resulting in the FSL not being able to
come to a definite opinion about the blood on the weapons
belonging to the deceased or not, ought not to have been a
factor which should have gone in favour of the accused. As it
appears, the accused had allegedly assaulted the deceased with
certain weapons, the first informant and the witness woman
police Constable in their statements specifically attributed
weapons to each of the accused, and the weapons being
discovered at the instance of the accused, was in the considered
opinion of this Court enough material to come to a prima facie
conclusion that the accused had possibly committed the crime.
The learned Sessions Court was not required to come to a
conclusion beyond reasonable doubt at the stage of grant of bail
as to the accused having committed the crime or not.
20.7. It further appears that the learned Sessions Court was also
swayed by a submission that the First Informant had in her
statement to the treating doctor mentioned that she had been
assaulted by a mob whereas she had named eight persons in the
FIR. Thus, it appears to be an improvement. Again, in the
considered opinion of this Court, the learned Sessions Court,
had gravely erred in coming to such a conclusion more
particularly since it appears that the FIR had been registered
first in point of time i.e. the FIR having been registered at 1.55
a.m., on 9.7.2019, whereas the First Informant had been
examined by a doctor at 4.15 a.m., wherein she has stated that
she had been assaulted by a mob. Furthermore, in the
considered opinion of this Court, the First Informant was not
required to give an exact description of the assault of the
assailants before the doctor, rather the injured person is only
required to give a brief history about how the injuries are
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caused. The First Informant having recorded names of eight
accused in the FIR and later the First Informant having stated
that she had been assaulted by a crowd was not a major
inconsistency which should have weighed at the stage of
considering an application for regular bail ought not to have
been an aspect which should have weighed in favour of the
accused.
21. In view of the discussion, in the considered opinion of this
Court, the orders of the learned Sessions Court being order dated
15.10.2019 passed in Criminal Misc. Application No.309 of 2019
releasing the accused Nos.3, and 5 to 8 on regular bail and order
dated 13.11.2019 passed in Criminal Misc. Application No.344 of
2019 granting regular bail to accused Nos.1, 2 and 4 appear to be
on the basis of perverse reasoning reflecting absolute non-
application of mind and for unjustified consideration.
Furthermore, the learned Sessions Court had not at all referred to
the relevant considerations that should have weighed with the
Court while considering an application for grant of bail, as
observed by the Hon'ble Apex Court in case of Mahipal (supra).
21.1. Insofar as the considerations referred to by the Hon'ble Apex
Court in case of Mahipal (supra), referring to an earlier
decision of the Hon'ble Apex Court in case of Prashanta
Kumar Sarkar Vs. Ashis Chatterjee ((2010) 14 SCC 496),
are required to be discussed herein briefly, since by way of this
order, the orders whereby the accused have been granted regular
bail are sought to be assailed. It appears to this Court, more
particularly considering the statement of the First Informant and
the statement of the woman Police Constable who had
witnessed the incident and also considering the weapons which
are stated to be held by the accused and the injuries sustained by
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the deceased co-relatable to the weapons that there was a prima
facie ground to believe that the accused had committed the
offence. Nature and gravity of offence being extremely serious,
since it clearly appears that the only fault of the deceased on
account of which he had been done to death was the fact that the
deceased belonging to scheduled caste had married a girl
belongs to a non-scheduled caste. That the present clearly being
a case of honour killing and furthermore, from the severity and
gravity of the assault upon the deceased, it becomes clear that
the accused had a clear intention of murdering the deceased and
furthermore the incident appears to be on account of a
conspiracy by the accused. Insofar as severity of punishment is
concerned upon conviction the punishment could range from
life-imprisonment to punishment by death. Thus, it is clear that
in all the above factor, considerations would clearly and
substantially weigh against the accused having been released on
regular bail.
21.2. At this stage, while it also requires to be noted that other
aspects which require to be considered, being the danger of
accused absconding or the likelihood of the offence being
repeated, or reasonable apprehension of witnesses being
influenced etc., now after approximately 2½ years of grant of
bail being in favour of the accused, more particularly since the
accused have neither absconded nor they have repeated the
offence, nor any of the witnesses appears to have been
influenced would not, in the considered opinion of this Court,
be a factor which ought to be weighed with this Court, more
particularly since the first three considerations as noted herein
above, heavily weighed against the accused. It also requires to
be noted at this stage that the murder of the deceased was only
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on account of the fact that the deceased belonged to the
scheduled caste whereas he had married a girl from a non-
scheduled caste. Thus, the murder of the deceased being a
honour killing, which is also a social evil, which requires to be
eradicated, releasing the accused on bail would send wrong
signals to the society at large, therefore also, in the considered
opinion of this Court, interference is required.
22. In the decision of the Hon'ble Apex Court in case of
Bhagirathsinh Jadeja vs. State of Gujarat, reported in 1984
GLH 515 relied upon by the learned Advocate for the respondents,
it appears that the Hon'ble Court had inter alia observed that very
cogent and overwhelming circumstances are necessary for an order
seeking cancellation of bail. The elaborate discussion as herein
above would show that the orders passed by the learned Sessions
Court being absolutely perverse, illegal and unjustified and the
learned Sessions Court not having referred to the relevant
considerations which should have weighed with the Court while
considering the plea for grant of bail, in the considered opinion of
this Court, the decision of the Hon'ble Apex Court would not, in
any manner, advance the cause of the present accused.
23. At this stage, this Court seeks to rely upon the observations
of the Hon'ble Apex Court in case of Mahipal (supra), more
particularly paragraphs 16, 17, and 19 thereof, which paragraphs
are reproduced herein below for benefit:-
"16 The considerations that guide the power of an appellate court in
assessing the correctness of an order granting bail stand on a
different footing from an assessment of an application for the
cancellation of bail. The correctness of an order granting bail is
tested on the anvil of whether there was an improper or arbitrary
exercise of the discretion in the grant of bail. The test is whether the
order granting bail is perverse, illegal or unjustified. On the other
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hand, an application for cancellation of bail is generally examined
on the anvil of the existence of supervening circumstances or
violations of the conditions of bail by a person to whom bail has
been granted. In Neeru Yadav v State of Uttar Pradesh,12 the
accused was granted bail by the High Court. In an appeal against
the order of the High Court, a two judge Bench of this Court
surveyed the precedent on the principles that guide the grant of bail.
Justice Dipak Misra (as the learned Chief Justice then was) held:
"12...It is well settled in law that cancellation of bail
after it is granted because the accused has
misconducted himself or of some supervening
circumstances warranting such cancellation have
occurred is in a different compartment altogether than
an order granting bail which is unjustified, illegal and
perverse. If in a case, the relevant factors which
should have been taken into consideration while
dealing with the application for bail and have not
been taken note of bail or it is founded on irrelevant
considerations, indisputably the superior court can set
aside the order of such a grant of bail. Such a case
belongs to a different category and is in a separate
realm. While dealing with a case of second nature, the
Court does not dwell upon the violation of conditions
by the accused or the supervening circumstances that
have happened subsequently. It, on the contrary,
delves into the justifiability and the soundness of the
order passed by the Court.
17 Where a court considering an application for bail fails
to consider relevant factors, an appellate court may
justifiably set aside the order granting bail. An appellate
court is thus required to consider whether the order
granting bail suffers from a non-application of mind or is
not borne out from a prima facie view of the evidence on
record. It is thus necessary for this Court to assess
whether, on the basis of the evidentiary record, there
existed a prima facie or reasonable ground to believe that
the accused had committed the crime, also taking into
account the seriousness of the crime and the severity of
the punishment. The order of the High Court in the
present case, in so far as it is relevant reads:
2. Counsel for the petitioner submits that the
petitioner has been falsely implicated in this matter.
Counsel further submits that, the deceased was
driving his motorcycle, which got slipped on a sharp
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turn, due to which he received injuries on various
parts of body including ante-mortem head injuries on
account of which he died. Counsel further submits that
the challan has already been presented in the court
and conclusion of trial may take long time.
3. Learned Public Prosecutor and counsel for the
complainant have opposed the bail application.
4. Considering the contentions put-forth by the counsel for the
petitioner and taking into account the facts and circumstances of
the case and without expressing opinion on the merits of the
case, this court deems it just and proper to enlarge the petitioner
on bail.
18 xxx
19 A total of twenty-seven ante-mortem injuries were recorded of
which seven were found to be inflicted on the head. This led the
members of the medical board to conclude that the cause of death
was coma brought about by the result of the head injuries. The
learned counsel for the first respondent contended that the deceased
fell from the bike and sustained injuries which led to his death.
However, it is not for the court to assess in detail the evidence on
record to come to a conclusive finding on a chain of causation. A
court assessing a plea of bail is required to find a prima facie view
of the possibility of the commission of the crime by the accused and
not conclude that the alleged crime was in fact committed by the
accused beyond reasonable doubt."
24. From a perusal of the law laid down by the Hon'ble Apex
Court, it appears that the factors to be taken into consideration
while testing the correctness of the order granting bail is whether
the order is perverse or illegal or unjustified. This Court having
elaborately discussed herein above and having reached a
conclusion that the orders passed by the learned Sessions Judge
being perverse, illegal, and unjustified, the orders are required to be
interfered with by this Court. Furthermore, this Court also seeks to
rely upon the observations of the Hon'ble Court at paragraph 19
(Mahipal) that the Court while assessing a plea of bail is required
to prima facie come to a conclusion as regards possibility of
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commission of crime by the accused and not to conclude that the
alleged crime was, in fact, committed by the accused beyond
reasonable doubt. In the instant case, in the considered opinion of
this Court, there is prima facie material to hold that the accused
had, in fact, committed the crime and whereas furthermore, since
as held herein above the orders passed by the learned Sessions
Court clearly being perverse, illegal, unjust, for the reasons
recorded herein above, the impugned orders being order passed by
the learned 4th Additional Sessions Judge, Viramgam dated
15.10.2019 in Criminal Misc. Application No.309 of 2019 and
order dated 13.11.2019 passed by the learned 4th Additional
Sessions Judge, Viramgam in Criminal Misc. Application No.344
of 2019 are quashed and set aside. The present Criminal Appeals
are allowed to the aforesaid extent.
25. At the request of the learned Advocate Mr.Goswami, the
accused are granted 5 weeks' time from today to surrender.
Sd/-
(NIKHIL S. KARIEL,J)
V.V.P. PODUVAL
