State Of Gujarat vs Viraram Hemaram Devaram ...
2023 Latest Caselaw 582 Guj

      R/CR.MA/15770/2019                           ORDER DATED: 19/01/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 15770 of 2019

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                              STATE OF GUJARAT
                                   Versus
                    VIRARAM HEMARAM DEVARAM CHAUDHARI
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Appearance:
MS. ASMITA PATEL, APP for the Applicant(s) No. 1
for the Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                             Date : 19/01/2023

                               ORAL ORDER

1. Heard Ms. Asmita Patel, learned APP appearing for the

applicant-State.

2. This is an application filed by the applicant-State under sub-

section (2) of Section 439 of Cr.P.C., 1973, seeking cancellation of

the regular bail granted to the respondent by learned 3 rd Additional

Sessions Judge, Bharuch at Ankleshwar, vide order dated

13.05.2019 in Criminal Misc. Application No.293 of 2019.

3. In nutshell, the facts as emerges from the record are

summarized as under:

3.1 The complainant had filed a complaint at Ankleshwar G.I.D.C.

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Police Station being I-C.R. No.06 of 2019 for the offences

punishable under Sections 302, 202, 212, 201 and 120(B) of I.P.C.,

Sections 25(1)(A), (1-B)(A) and 27(1) of the Arms Act and Section

135 of the G.P. Act.

3.2 On 12.01.2019, the wife of the deceased, who is the original

complainant, heard the noise of fire arm while she was in her home.

Upon hearing such noise, she went out of her residence and saw

that her husband Samimkhan has received injuries of firing on his

forehead and had succumbed to such injury. It appears that the FIR

was initially filed against unknown persons. The Investigating

Officer proceeded with the investigation and during the course of

investigation, names of total five accused persons were disclosed

including the present respondent. The present respondent came to

be arrested on 24.02.2019. The involvement of the present

respondent was disclosed pursuant to the statement of co-accused,

who was subjected to custodial interrogation. The present

respondent was interrogated and the allegation of harboring the

main accused namely Mohd. Siraj, had transpired.

3.3 The Investigating Agency had visited the house of the

respondent. During the search of the house of the respondent,

cartridge were discovered from the house of the respondent and

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the panchnama was drawn. It further transpires that mobile phone

of the respondent was recovered and the material, more

particularly, sim cards were analyzed and the details of the call

records were collected by the Investigating Agency from the

concerned mobile phone. It further transpires that the respondent

was identified in test identification parade conducted by the

Investigating Agency. The respondent was also found to be

involved in the commission of offence of murder of deceased as he

was also alleged to be part of the conspiracy.

3.4 The application for regular bail was preferred by the

respondent, pending the investigation. Such bail application came

up for consideration before the learned 3 rd Additional Sessions

Judge, Bharuch at Ankleshwar. The learned Sessions Judge, upon

appreciation of the investigation case papers and considering the

submissions made by learned advocates appearing for the

respective parties, noticed that the only role attributed to the

respondent was with regard to harboring the main accused- Mohd.

Siraj. The Court noticed that such role was disclosed pursuant to the

investigation of the core accused before the police. So far as the

allegation with regard to conspiracy is concerned, the court found

that the Investigating Agency has recovered the material in form of

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mobile phone. However, the court noticed that till date no

spectrography test has been conducted in case of the respondent.

3.5 In such circumstances, the court without expressing the

opinion with regard to the evidence collected during the course of

investigation, proceeded to exercise its discretion of enlarging the

respondent on regular bail, considering the fact that no other

criminal antecedents are registered against the respondent and the

respondent being permanent resident of Ankleshwar, there were

no possibility of fleeing away. The learned Additional Sessions

Judge considering such factors, exercised his discretion to enlarge

the respondent No.2 on regular bail subject to the conditions

incorporated in the order.

4. Ms. Asmita Patel, learned APP appearing for the applicant-

State, has invited attention of this Court to the reasons given by the

learned Additional Sessions Judge while enlarging the respondent

on regular bail. At the outset, she has submitted that the

respondent is found to be involved in the serious offence of murder

using fire arms. In such circumstances, the learned Additional

Sessions Judge ought not to have exercised the discretion, more

particularly, at the stage when the investigation was in progress.

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She has invited attention of this court to the materials collected

during the course of investigation, which points finger towards the

involvement of the present respondent.

4.1 She has submitted that the respondent was found to be part

of criminal conspiracy in committing the offence of murder of

deceased. She has further submitted that material available on

record, prima facie disclosed that because of an earlier accident,

which took place between one witness namely Mohd. Safik (friend

of victim) and witness Ankit @ Kaniya, the matter was settled

pursuant to involvement of Mohd. Siraj (main accused). However,

threat was given to register the FIR of such accident, which gave an

impression to the deceased that the said Ankitbhai, who was friend

of accused Mohd. Shaban that Mohd. Shaban was trying to instigate

Ankitbhai to lodge the FIR. This resulted into feeling of revenge

being taken against the deceased, and therefore, the accused

persons conspired to cause murder of deceased.

4.2 Learned APP Ms. Asmita Patel appearing for the applicant-

State has relied upon the details of call records and has submitted

that the principle accused has called the respondent on his mobile

number for ten times and through other mobile number for almost

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three times. The telephonic records between the principle accused

and the respondent have been recovered by the Investigating

Agency from the concerned mobile company, which has been

retained in the CDR/DVD record. She has further submitted that the

aforesaid facts have been ignored by the learned Sessions Judge

while exercising the discretion. She, therefore, submitted that the

order of enlarging the respondent on regular bail is perverse and

the court below has failed to look into the gravity of the offence at

the stage of enlarging the respondent on regular bail pending

investigation when charge-sheet was not filed. Considering the fact

that FIR was registered on 12.01.2019 and the role attributed, this

Court by order dated 09.01.2023 has requested learned APP to

inquire about status of trial.

5. Learned APP Ms. Asmita Patel, under instructions, has

submitted that though the charge-sheet counters mention number

of witnesses but the prosecution proposed to examine 24 to 30

witnesses. She has further submitted that till date nine witnesses

have been examined and the next date, which is fixed before the

trial court is on 27.01.2023. She has fairly submitted that trial is in

progress and the respondent has cooperated in the trial. She has

also submitted that no conditions, imposed by the Sessions Court

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while enlarging the respondent on regular bail, have been breached

by the respondent No.2. With regard to status of co-accused, she

has submitted that charge-sheet has been filed against four

accused in all five accused, are found to be involved in commission

of offence. Out of which, three accused have been arrested and

continued in judicial custody and the present respondent is the one,

who is enlarged on regular bail. One of the accused namely Mohd.

Asif @ Golu is reported to be absconded, who is alleged to have

sold gun to the main accused. She has produced the charge-sheet

counters along the report, which are taken upon record. By making

the aforesaid submissions, she, therefore, urged this Court to

cancel the regular bail granted to the respondent.

6. Considering the averments made in the application and the

report as well as charge-sheet counters placed on record, this Court

finds that role attributed to the present respondent is with regard

to harboring the accused, which is corroborated by the fact that the

witness who had seen the main accused in the house of the

respondent No.2 has identified present respondent in test

identification parade. So far as the theory of conspiracy is

concerned, as rightly observed by the learned Sessions Judge, the

case is based upon circumstantial evidence and there is no eye

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witness. In such circumstances, it would not be proper for this court

to express any opinion as the trial is at large in progress. Even

otherwise, the criminal conspiracy would be required to be proved

by leading evidence.

7. Indisputably, the present respondent was not present on the

scene of the offence. This Court is of the view that no perversity

can be attributed to the order granting regular bail passed by the

learned Additional Sessions Judge, Bharuch at Ankleshwar.

Respondent has abide by the conditions imposed by learned

Additional Sessions Judge, Bharuch while enlarging him on regular

bail. Nothing has been placed on record to suggest that the

respondent has not remained present before the trial court.

8. At this stage, this Court seeks to rely upon the observations

of the Hon'ble Apex Court in the case of Mahipal vs. Rajesh Kumar

reported in 2020 (2) SCC Page No.118, more particularly, paragraph

No.14, 16 and 17 thereof, which are reproduced herein below:

Paragraph 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

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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. The decision of this Court in Prasanta has been consistently followed by this Court in Ash Mohammad v Shiv Raj Singh, Ranjit Singh v State of Madhya Pradesh, Neeru Yadav v State of U.P., Virupakshappa Gouda v State of Karnataka, and State of R/CR.MA/13091/2022 JUDGMENT DATED: 17/10/2022 Orissa v Mahimananda Mishra."

Paragraph 15: "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,

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illegal or unjustified. On the other 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:

"...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..."

Paragraph 16: "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

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(2015) 15 SCC 422 from a non-application of mind R/CR.MA/13091/2022 JUDGMENT DATED: 17/10/2022 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 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."

Paragraph 17: "In assessing the rival submissions, it is necessary to advert to the findings of the post-mortem report dated 3 December 2018. On the basis of the injuries, the post- mortem report concluded:

"All above mentioned injuries are ante mortem in nature. Duration within about 6 hrs prior to death.

We the members of medical board are of the opinion that cause of death is COMA brought about as a result of ante mortem head

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injuries mentioned in this PMR, sufficient to cause death in ordinary course of nature. However final opinion will be given after receiving FSL reports of above sent samples."

A total of twenty-seven ante-mortem injuries were recorded of which seven were found to be inflicted on the head. This led the R/ CR.MA/13091/2022 JUDGMENT DATED: 17/10/2022 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." (emphasis supplied) 15.1. Having regard to the observations of the Hon'ble Apex Court in case of Mahipal (supra) at paragraph 14, 15 & 16, it clearly appears that the Hon'ble Apex Court has inter alia drawn a distinction between an application for cancellation of appeal on the ground that there was an improper or arbitrary exercise of discretion and an application for cancellation of bail where it is alleged that there are existence of supervening circumstances or violation of conditions of bail by the person who has been granted bail.

9. Again, this Court would also remind itself of the decision of

the Hon'ble Apex Court in the case of Prasanta Kumar Sarkar v.

Ashis Chatterjee and another reported in 2010 (14) SCC 496,

wherein the Hon'ble Apex Court has laid down the principles for

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examining the correctness of orders granting bail to an accused.

The Hon'ble Apex Court thus held as under:

9. ...It is trite that this Court does not, normally, interfere with an order [Ashish Chatterjee v. State of W.B., CRM No. 272 of 2010, order dated 11- 1-2010 (Cal)] 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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10. In such circumstances, this is not a case to exercise the power

under Section 439(2) of Cr.P.C. cancelling the regular bail granted in

favour of the present respondent. Hence, present application

stands rejected.

(NISHA M. THAKORE,J) SUYASH