Gujarat High Court
Bharat Jayantilal Raval vs State Of Gujarat on 7 February, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (REGULAR BAIL - AFTER CHARGESHEET) NO.
2018 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd./-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BHARAT JAYANTILAL RAVAL
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Appellant(s) No. 1
MR GIRISH M DAS(2323) for the Opponent(s)/Respondent(s) No. 2
MR HK PATEL, PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/02/2024
CAV JUDGMENT
Rule. Learned APP waives service for the Respondent-State
and learned Advocate, Mr. Das, waives for Respondent No.2-
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the original complainant.
1. By way of the present appeal under Section 14-A of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (for short, the 'Act of 1989'), the appellant
- original accused has prayed to release him on regular bail in
connection with FIR being C.R. No. 11993010200842 of 2020,
registered with Rapar Police Station, Kachchh, under Sections
302 and 120B of the Indian Penal Code, Section 135 of the G.P.
Act and Section 3(2)(v) of the Act of 1989.
2. The brief facts of the case of the prosecution are that the
husband of the first informant, namely Devjibhai Maheshwari,
was an advocate by profession. The deceased-Devjibhai
accepted the brief of Luhar Samajwadi, which no other
advocate was willing to take-up, due to the fear of original
accused Nos. 2 to 9. It is, further, stated in the FIR that the
deceased - Devjibhai had been trying to get registered an FIR
for several days before his death, but, police was not
registering the same. According to the first informant, when
the accused persons did not succeed in persuading the
deceased - Devjibhai to retire from the matter, they hatched-
up a conspiracy and committed his murder. Hence, the FIR in
question came to be lodged for the offences, as noted in
Paragraph-1, hereinabove.
3. Heard, learned Advocate, Mr. Dagli, appearing for the
appellant, learned Advocate, Mr. Das, for the first informant
and the learned APP for the Respondent-State.
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4. Learned advocate, Mr. Dagali, appearing for the appellant
submitted that he is behind bars since 27.09.2020. It was
submitted that the charge-sheet came to be filed on
21.12.2020 and though, the charge also has been framed, the
trial has not commenced yet and not a single witness is
examined, till date, as the first informant, who happens to be
the wife of the deceased Devjibhai Maheswari, is not
cooperating in conducting trial.
4.1 It was submitted that as many as 66 witnesses have been
cited in the charge-sheet and not a single witness is examined,
so far. Therefore, it was submitted that it will take long in
completing the trial.
4.2 It was submitted that the appellant has been in jail since
long and as the trial has not even commenced, the liberty of
the appellant is at stake.
4.3 It was submitted that there is no eye-witness of the
alleged offence and that the role of the petitioner is carved out
only on the basis of the CCTV footage. However, it was
submitted that the face of the person, caught in the CCTV
footage, is not visible and that, there is no proper investigation
done with regard to the said CCTV footage.
4.4 It was submitted that, initially, the FIR was filed against
as many as nine persons, including the present appellant. But,
later on, the other persons were dropped from the charge-
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sheet by describing them as only suspects and the charge-
sheet is filed only qua the present appellant.
4.5 The attention of this Court was drawn to the order dated
19.05.2023, passed by the learned 2 nd Addl. Sessions Judge,
Bhachau, Kachchh, in Criminal Misc. Application No. 244 of
2023, more particularly, the observations made at internal
Page-4 thereof, which reads as under;
"The applicant / accused preferred this bail application
because, the trial is not proceeding further as
complainant is not ready to proceed in this case. It is
important to note that the regular bail to the applicant /
accused is rejected by this Court as well as by the
Hon'ble High Court of Gujarat. It is also fact that the Sp.
Cri. Application No. 8999/2020 is pending before the
Hon'ble High Court of Gujarat. So, looking to the peculiar
facts and circumstances of this application, the subject
matter about the investigation is pending before Hon'ble
High Court of Gujarat so this Court as a subordinate
court should be slow to proceed further in the case. The
applicant / accused is not entitled for a regular bail at this
stage. Hence, I do not find it fit to exercise the discretion
for a grant of regular bail to the applicant / accused. So I
pass following order in the interest of justice."
4.5.1 It was, therefore, submitted that since the first
informant is not cooperating, the trial has not commenced, yet.
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4.6 It was submitted that, since, the first informant is not
happy with the constitution of the SIT, she has preferred
Special Criminal Application No. 8999 of 2020, which came to
be rejected by the Coordinate Bench of this Court vide order
dated 26.06.2023. The order dated 26.06.2023 is produced as
Annexure-D to this petition.
4.7 The attention of this Court was also drawn to the order
dated 07.11.2023, passed by the Coordinate Bench of this
Court in this matter, whereby, the appellant is granted interim
bail for the period of twelve weeks. It was submitted that, after
the petitioner is released on bail, there is no report of breach
of any of the conditions of interim bail at his behest, it was,
thus, prayed that considering the nature of allegations, role
attributed to the petitioner, the appellant may be enlarged on
regular bail by imposing suitable conditions.
4.8 It is also submitted that this is first application seeking
regular before this Court, after filing of the charge-sheet.
5. Per contra, learned Advocate, Mr. Das, appearing for the
first informant strongly opposed this appeal and by taking this
Court through the provisions of Section 437 of the Code of
Criminal Procedure, 1973 (in brief, 'the Code'), it was
submitted that the offence, where, the punishment is provided
up to the death penalty or the imprisonment for life, the courts
should be slow in granting bail.
5.1 It was, further, submitted that in order to get the relief of
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bail, the appellant is required to make out a case of either false
implication or insufficient evidence against him / her or the
rivalry between two sides and in absence of such grounds, the
provisions of Section 437 of the Code do not permit a Court to
grant bail.
5.2 It was submitted that the courts should be circumspect in
granting bail in the offence, punishable under Section 302 of
the IPC.
5.3 It was submitted that the interim bail granted by the
Coordinate Bench of this Court vide order dated 07.11.2023 is
challenged before the Apex Court, by way of Diary No. 5514 of
2024, which is pending for hearing before the Hon'ble Apex
Court.
5.4 It was also submitted that the CCTV footage is a crucial
evidence to bring home the charges leveled against the
appellant, which shows the accused committing the crime. It
was submitted that as to whether, the face of the accused is
clearly visible in the CCTV footage or not is a matter of trial
and the same cannot be gone into at this stage.
5.5 It was submitted that the conduct of the appellant-
accused post-commission of the offence is also required to be
taken into consideration, where, he had fled from the State of
Gujarat, after commission of the offence, and was arrested by
the police from Mumbai.
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5.6 It was submitted that constitutional Courts or the
Government only can constitute an SIT. However, in the case
on hand, the concerned IO, himself, constituted an SIT, which
is not permissible. It was submitted that, in view of the above,
the first informant has neither trust nor reliance on such an SIT
or the investigation done by it. It was submitted that, if, the
first informant appears before the trial Court for giving her
deposition, then, she would be approving the so called
hatched-up investigation done by the unauthorized SIT and
that is why she is not remaining present before the concerned
trial Court for recording her evidence.
5.7 Lastly, it was submitted by learned Advocate, Mr. Das,
that considering the detailed written arguments given by him,
this appeal may be dismissed.
6. In rejoinder, learned Advocate, Mr. Dagli, appearing for
the appellant submitted that no test identification parade was
ever carried out, so as to establish that the person visible in
the CCTV footage is the present appellant. It was submitted
that, in fact, no detailed investigation is done with respect to
the said CCTV footage.
6.1 In support of his submission, learned Advocate, Mr. Dagli,
placed reliance on the decision of the Coordinate Bench of this
Court dated 03.08.2021, rendered in Criminal Misc. Application
No. 2387 of 2021, to submit that in an identical case, the
Coordinate Bench of this Court exercised discretion in favour of
the accused-applicant, therein. It was, further, submitted that
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in Paragraph-8 thereof, the Coordinate Bench of this Court has
specifically observed that the witnesses are trying to delay the
trial and that the accused is behind bars since long.
6.2 Learned Advocate, Mr. Dagli, also referred to another
order of the Coordinate Bench of this Court dated 23.06.2023,
passed in Criminal Misc. Application No. 5059 of 2023 and
prayed that this appeal may be allowed.
7. Learned Additional Public Prosecutor appearing on behalf
of the respondent-State also has opposed grant of regular bail
looking to the nature and gravity of the offence.
8. Heard the learned Advocates for the respective parties
and perused the papers. At the outset, it would be relevant to
refer to the observations made by the Coordinate Bench of this
Court, while releasing the appellant on interim bail vide order
dated 07.11.2023, more particularly, the observations made at
Paragraphs- 7 and 8 thereof, which reads thus;
"7. This Court has considered the remarks offered by
learned Special Judge, from which it appears that the
complainant is not ready and willing to depose before the
Court. It further appears that there is no fault on the part
of the appellant, on the contrary, the complainant does
not want to proceed further in the matter,
8. Perusing the remarks, it appears that charge is framed
against the accused persons on 20.09.2020. The
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summons is issued to record the evidence, but time and
again, the matter is adjourned. Though bailable warrant
came to be issued against the witness/ complainant, the
original complainant has denied before the Court till final
outcome of his application for further investigation.
Considering the aforesaid aspect, prima facie, it appears
that though charge-sheet is filed, the original
complainant intends to transfer the investigation to SIT
and the said matter is pending in the pretext of the said
pending proceedings with a view to prolong the matter
for indefinite period. Though a long span of 3 & 1/2 years
is passed, not a single witness is examined and trial is at
a standstill. Hence, considering the snail's pace of the
trial and considering the personal liberty of the applicant
under Article 21 of the Constitution, the appellant -
accused cannot be detained for indefinite period
considering his personal liberty under Article 21 of the
Constitution of India. Accordingly, during pendency of
this appeal, the appellant is ordered to be released on
interim bail for a period of 12 weeks from the date of his
actual release on furnishing a personal bond of
Rs.10,000/- (Rupees Ten Thousand Only) with one
surety of like amount on the following conditions that he:"
8.1 Thus, the Coordinate Bench of this Court, while granting
interim relief, has categorically recorded that the first
informant does not want to proceed with the matter. The
appellant has been in jail for about more than three years and
during this period, not a single witness has been examined and
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the trial has not even commenced, yet. The Coordinate Bench
of this Court has further observed that considering the
provisions of Article 21 of the Constitution of India, the
appellant cannot be kept behind the bars for an indefinite
period.
8.2 In the case on hand, the offence was allegedly committed
in the year 2020, whereas, the charge-sheet is also filed on
21.12.2020 and despite that, not a single witness has been
examined, till date. Further, from a bare reading of the order
dated 19.05.2023, passed by the trial Court, it is revealed that
as the first informant is not cooperating, the trial could not be
commenced. According to the learned Advocate, Mr. Das, the
first informant is not satisfied with the investigation and
therefore, she preferred Special Criminal Application No. 8999
of 2020. However, the record indicates that the Coordinate
Bench of this Court dismissed the said petition vide order
dated 26.06.2023.
8.3 At this juncture, it would be relevant to refer to the
application, which is produced as Annexure-C to this petition,
given by the first informant before the concerned trial Court,
whereby, it is averred that only the constitutional Court or the
government can constitute an SIT and since, she is not
satisfied with the investigation carried out by so called SIT,
which is constituted by the concerned IO on his own, thus, she
cannot appear and give her deposition before the trial Court.
The trial Court, in its order dated 19.05.2023, has recorded
that as the first informant is not remaining present, the trial
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could not be proceeded with.
8.4 Further, the affidavit filed by the concerned IO before the
trial Court reveals that the role of the present appellant is
earmarked on the basis of CCTV footage. The case of the
prosecution, primarily, appears to be based on circumstantial
evidence. Since, as many as 66 witnesses are to be examined,
there is no possibility of the trial getting concluded in the near
future.
8.5 At this juncture, it would be relevant to refer to the
'Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI through
its Director', reported in (2007) 1 SCC 70, wherein, the
Hon'ble Apex Court observed at Paragraphs-10, 15 and 16
thereof, as under;
"10. In our opinion none of the aforesaid decisions can
be said to have laid down any absolute and
unconditional rule about when bail should be granted by
the Court and when it should not. It all depends on the
facts and circumstances of each case and it cannot be
said there is any absolute rule that because along period
of imprisonment has expired bail must necessarily be
granted.
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15. Learned counsel for the appellant has repeatedly
referred to Article 21 of the Constitution and on that basis
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has submitted that the appellant should be released on
bail particularly since he has already been imprisoned for
more than six years.
16. We are of the opinion that while it is true that Article
21 is of great importance because it enshrines the
fundamental right to individual liberty, but at the same
time a balance has to be struck between the right to
individual liberty and the interest of society. No right can
be absolute, and reasonable restrictions can be placed
on them. While it is true that one of the considerations in
deciding whether to grant bail to an accused or not is
whether he has been in jail for a long time, the Court has
also to take into consideration other facts and
circumstances, such as the interest of the society."
8.6 What culls out from the observations made by the
Hon'ble Apex Court is that Article 21 is of great importance
because it enshrines the fundamental right to individual
liberty, but at the same time a balance has to be struck
between the right to individual liberty and the interest of
society. If, the accused has been in jail for long time, then, it
can also be a consideration along with other aspects, such as,
interest of the society etc.. In the present case, as discussed
herein above, the accused is behind bars for more than three
years and the limited allegation against him is that his
presence is seen in the CCTV footage. Hence, this application
deserves to be allowed.
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9. In the result, the present appeal is ALLOWED. The
appellant is ordered to be released on bail in connection with
FIR being being C.R. No. 11993010200842 of 2020, registered
with Rapar Police Station, Kachchh, on executing personal
bond of Rs.10,000/- (Rupees Ten Thousand only) with one
surety of like amount to the satisfaction of the Trial Court
concerned and subject to the conditions that the appellant
shall:-
[a] not take undue advantage of liberty or misuse
liberty;
[b] not act in a manner injurious to the interest of
the prosecution;
[c] not leave the territory of India without prior
permission of the Sessions Judge concerned;
[d] appear before the Investigation Officer
concerned, as and when required for investigation
purpose and attend Court concerned regularly;
[e] furnish the present address of residence along
with the proof to the I.O. concerned and also to
the Court at the time of execution of the bond and
shall not change the residence without prior
permission of Sessions Court concerned;
[f] mark presence before the concerned police
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station on alternative Mondays for the period of
next six months;
10. The competent authority will release the appellant only if
he is not required in connection with any other offence for the
time being. If breach of any of the above conditions is
committed, the Sessions Judge concerned will be free to take
appropriate action in the matter. Bail bond to be executed
before the lower court having jurisdiction to try the case. It will
be open to the concerned Court to delete, modify or relax any
of the above conditions in accordance with law. At the time of
trial, the trial court shall not be influenced by the observations
of preliminary nature made qua the evidence by this Court, at
this stage, i.e. while releasing the appellant on bail. Direct
service is permitted.
Sd./-
(J. C. DOSHI,J)
UMESH/-
