Gujarat High Court
State Of Gujarat vs Nagjibhai Mangabhai Mevada on 2 January, 2024
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R/CR.MA/8480/2022 JUDGMENT DATED: 02/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
8480 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
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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STATE OF GUJARAT
Versus
NAGJIBHAI MANGABHAI MEVADA
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Appearance:
MR HK PATEL APP for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 02/01/2024
ORAL JUDGMENT
By way of this petition under Section 439(2) of the Code of
the Criminal Procedure, the applicant - State of Gujarat seeks to
challenge the order dated 18/02/2022 passed in CR.MA No.27
of 2022 by the learned Additional Sessions Judge, Rajula
granting regular bail to the respondent - org. accused in
connection with the offence registered vide CR No.I-24 of 2018
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punishable under Sections 302, 201, 120-B and 34 of the IPC
and under Section 135 of the GP Act.
2. Though served, respondent choose not to contest the
petition. The report from the learned Court below was called for.
Pursuant to which the learned court below submitted the report
which noted that in all total 12 witnesses have been examined
and thereafter org. accused no.2 did not remain present and
thus NBW was issued. Subsequently, the respondent herein -
org. accused no.1 also did not remain present and NBW was also
issued; however none of the NBW is served uptil now.
3. The short facts of the case are that younger brother of the
complainant got love marriage with org. accused no.2 six years
prior to incident and had kept the agriculture field at Village
Rinanyala for cultivation since last four months wherein
respondent-org. accused no.1 was also staying and doing
agriculture work with whom accused no.2 was having love affair
and since the younger brother of complainant was obstruction in
their relationship, by hatching a conspiracy, both the accused
killed the deceased with the weapon and buried his dead body in
the field and thereby destroyed the evidence. Thus, the offence
as alleged came to be registered as aforestated.
4. Learned APP has assailed the impugned order by
submitting that the learned Court below has erroneously
exercised the discretion in favour of the respondent-org. Accused
No.1 by granting bail to him. He would further submit that it
was third successive bail application wherein the learned Court
below was lacking jurisdiction to grant bail in absence of any
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change of circumstances; however ignoring such aspect the
respondent has been granted bail on untenable grounds which is
not permissible under the law. He would therefore submit that
the order passed by the learned Court below is capricious,
whimsical and against settled proposition of law. He would
further submit that prior to filing of the bail application before
learned Court below, the respondent-org. accused No.1 preferred
bail application before this Court being CR.MA No.11531 of 2020
and since the co-ordinate Bench of this Court was not inclined to
grant bail as the trial was already commenced, the said
application was permitted to be withdrawn with a specific
direction to the learned trial Court to expedite the trial. He would
further submit that this Court has not granted any liberty to file
successive bail application while permitting withdrawal of said
application; yet the learned Court below has not only admitted
the bail application; but granted regular bail on irrelevant
consideration without change of circumstances to the
respondent-accused. Thus, the impugned order of granting bail
is illegal and suffers from serious error of law and requires to be
set aside.
4.1 By making above submissions, learned APP submitted to
allow this petition and to cancel the bail granted to the
respondent-accused.
5. Having heard the learned APP and considering the order
passed by the Co-ordinate Bench, by which respondent was
permitted to withdraw successive bail application filed after
charge-sheet; considering ground that trial of the case is already
commenced. This aspect was well within the knowledge of the
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respondent as well as the learned court below. What further
appears that this Court has not reserved any liberty for the
respondent to move the learned Court below for filing a fresh
successive bail application. It further appears that without there
being any change of circumstance, the respondent has moved
the bail application and learned Court below has allowed the
said application by making observation in paragraph 4 which
reads thus: (translated version of paragraph 4)
"(4) Considered the submissions of the Ld. Advocates and
perused the documents presented through a list, exhibited
as Exh. 3, Police Investigation Papers and Investigation
Officer's Affidavit. The Applicant-Accused is accused of
committing an offence U/Ss. 302, 201, 120(B), 34 of I.P.C
& S.135 of G.P Act as per the First Offence Regis. No.
24/18, which is being lodged at Dungar Police Station.
Chargesheet is filed. Furthermore, the main submissions
for the Applicant are that this is the 3) Bail Application of
the Applicant after the completion of the Complainant's
Evidence.. Moreover, it's submitted on behalf of the
Applicant that the Applicant hasn't committed any alleged
offence, there's no Prima facie Case against him directly or
indirectly Or he's not involved anywhere in this alleged
offence, he's an innocent, the Applicant runs his Family by
doing LabourLabour Work and in the Applicant's House no
body is earning except the Applicant. The entire
responsibility of taking care and maintenance of his family
is on him and as there's no one earning in his family
except the Applicant, if he's kept in jail for a long period of
time, his family might suffer starvation, The Applicant is a
Local Resident of Hadida, as well as owns movable &
immovable likelihood of his fleeing away anywhere.
Moreover, it's also submitted on behalf of the Applicant
that he has been in jail for the last three years. If the
Applicant is kept in jail, it might amount to a Pre-Trial
Punishment for him. There is no Prima Facie Case against
the Applicant. There's no Eye Witness/Evidence showing
the accused being directly involved in the commission of
this crime, as well as the Applicant has been incarcerated
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for more than last three years. Moreover, in this case,
Accused No.2 has been released on Bail, therefore, there is
a submission that keeping in view the Law Of Parity, the
Applicant should be enlarged on Bail. If the Applicant is
released on Bail, he binds himself to furnish the requisite
Bail Bond and to fulfill the conditions as imposed by the
Hon'ble Court. Thus, after stating all the above mentioned
facts, the Applicant-Accused makes submission for
enlarging him on Bail. Having considered all these
submissions, as well as the Accused is assuring that he
won't temper with the Evidence. Hence, all the
submissions made on behalf of the Applicant-Accused for
releasing him on Bail appear to be germane. As well as
whether or not the Applicant-Accused has committed this
offence or is involved in commission of this offence, that is
a subject of Evidence. During Trial, the presence of the
Accused can be made available. At this stage, the
Chargesheet is filed. There doesn't appear any need for
Accused ratio decidendi is custodial interrogation. The
applicable as laid down in -(1) Hon'ble Supreme Court
judgment - Arneshkumar V. State Of Bihar, (2)
Sanjaychandra V. C.B.I (Hon'ble Supreme Court judgment)
(CR. A No. 2178/2011), (3) Rameshbhai Batubhai Dabhi V.
State Of Gujarat (Cr. M. A No. 1475/2011) (Hon'ble
Gujarat High Court), (4) Patel State Of Gujarat, Vishnubhai
Shivram bhai V. 2004(3)GLR 2195 & (5) Bhagirathsing M.
Jadeja V. State Of Gujarat, 1984 SCC 63 etc. Considering
the above mentioned situation and the present Covid-19
situation, at this stage, it appears proper to enlarge the
Accused-Applicant on Bail upon due conditions and hence,
upon the conditions mentioned herein below, the Final
Order is passed herewith."
6. It appears from the observations made in paragraph 4 that
no change of circumstance has either pointed out or noted by
the learned Court below; yet it had exercised the discretion and
granted bail on irrelevant consideration. It also appears that
without referring to any evidence on record to held that there is
no prima facie evidence against the respondent-accused, the
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learned Court below had exercised the discretion and appears to
have acted upon untenable grounds and thereby committed
serious error of law.
7. Impugned order is totally cryptic order. The learned trial
court for reasons best known to him or on extraneous
consideration took tangential way from previous order passed by
co-ordinate Bench of this Court. Such kind of approach on the
part of the learned Sessions Court is flaws to judicial discipline
for as much judicial impropriety.
8. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu
Yadav and Anr. (2004 (7) SCC 528), the Hon'ble Apex Court In
para 11 it noted as follows:
"11. The law in regard to grant or refusal of bail is very well
settled. The court granting bail should exercise its
discretion in a judicious manner and not as a matter or
course. Though at the stage of granting bail a detailed
examination of evidence and elaborate documentation of
the merit of the case need not be undertaken, there is a
need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly where
the accused is charged of having committed a serious
offence. Any order devoid of such reasons would suffer
from non-application of mind. It is also necessary for the
court granting bail to consider among other circumstances,
the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of
punishment in case of conviction and the nature of
supporting evidence.
(b) Reasonable apprehension of tampering with the witness
or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the
charge."
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9. In the opinion of this Court, it was not appropriate to
exercise the discretion when the accused is involved in a very
serious charge of offence like murder and when such fact was
noticed by the co-ordinate Bench of this Court. Overlooking all
these aspects, the learned Court below has exercised the
discretion; which is nothing but an attempt to overreach the
judicial process of this Court. Such an attempt on the part of the
learned Court below appears to be contemptuous act.
10. In Prahlad Singh Bhati Vs. NCT of Delhi And Another
[(2011) 4 SCC 280], the Hon'ble Apex Court emphasized on
penning the reasons for granting bail. In paragraph 8, it has
been observed thus:
"8. The jurisdiction to grant bail has to be exercised on the
basis of well-settled principles having regard to the
circumstances of each case and not in an arbitrary manner.
While granting the bail, the court has to keep in mind the
nature of accusations, the nature of evidence in support
thereof, the severity of the punishment which conviction will
entail, the character, behaviour, means and standing of the
accused, circumstances which are peculiar to the accused,
reasonable possibility of securing the presence of the accused at
the trial, reasonable apprehension of the witnesses being
tampered with, the larger interests of the public or State and
similar other considerations. It has also to be kept in mind that
for the purposes of granting the bail the Legislature has used
the words "reasonable grounds for believing" instead of "the
evidence" which means the court dealing with the grant of bail
can only satisfy it as to whether there is a genuine case against
the accused and that the prosecution will be able to produce
prima facie evidence in support of the charge. It is not excepted,
at this stage, to have the evidence establishing the guilt of the
accused beyond reasonable doubt."
11. In Prasanta Kumar Sarkar Vs. Ashish Chatterjee And
Another [(2010) 14 SCC 496], the Hon'ble Apex Court has
reiterated the proposition of law and culled out the very settled
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factors to be borne in mind while considering the bail
application.
12. In the later judgment in the case of 'Y' Vs. State of
Rajasthan & Anr., decided in Criminal Appeal No.649 of 2022
decided on 19/04/2022, the Hon'ble Apex Court in paragraph
22 and 23 has observed as under:
"22. The impugned order passed by the High Court is cryptic,
and does not suggest any application of mind. There is a recent
trend of passing such orders granting or refusing to grant bail,
where the Courts make a general observation that "the facts
and the circumstances" have been considered. No specific
reasons are indicated which precipitated the passing of the
order by the Court.
23. Such a situation continues despite various judgments of
this Court wherein this Court has disapproved of such a
practice. In the case of Mahipal (Supra), this Court observed as
follows:- 25. Merely recording "having perused the record" and
"on the facts and circumstances of the case" does not subserve
the purpose of a reasoned judicial order. It is a fundamental
premise of open justice, to which our judicial system is
committed, that factors which have weighed in the mind of the
Judge in the rejection or the grant of bail are recorded in the
order passed. Open justice is premised on the notion that
justice should not only be done, but should manifestly and
undoubtedly be seen to be done. The duty of Judges to give
reasoned decisions lies at the heart of this commitment.
Questions of the grant of bail concern both liberty of individuals
undergoing criminal prosecution as well as the interests of the
criminal justice system in ensuring that those who commit
crimes are not afforded the opportunity to obstruct justice.
Judges are duty-bound to explain the basis on which they have
arrived at a conclusion." (emphasis supplied)
13. It is undoubted that once the bail is granted, it should not
be cancelled in mechanical manner; without considering as to
whether any supervening circumstances have rendered it no
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longer conducive to a fair trial to allow the accused to retain his
freedom by enjoying the concession of bail during trial; but at
the same time cancellation of bail cannot be limited to the
occurrence of supervening circumstances.
14. In Deepak Yadav Versus State Of U.P. & Anr., [2022 (8)
SCC 559] in paragraph 33 the Hon'ble Apex Court has held as
under:
"31. It is no doubt true that cancellation of bail cannot be
limited to the occurrence of supervening circumstances. This
Court certainly has the inherent powers and discretion to
cancel the bail of an accused even in the absence of
supervening circumstances. Following are the illustrative
circumstances where the bail can be cancelled :-
a) Where the court granting bail takes into account irrelevant
material of substantial nature and not trivial nature while
ignoring relevant material on record.
b) Where the court granting bail overlooks the influential
position of the accused in comparison to the victim of abuse or
the witnesses especially when there is prima facie misuse of
position and power over the victim.
c) Where the past criminal record and conduct of the accused is
completely ignored while granting bail.
d) Where bail has been granted on untenable grounds.
e) Where serious discrepancies are found in the order granting
bail thereby causing prejudice to justice.
f) Where the grant of bail was not appropriate in the first place
given the very serious nature of the charges against the accused
which disentitles him for bail and thus cannot be justified.
g) When the order granting bail is apparently whimsical,
capricious and perverse in the facts of the given case. "
15. In the recent decision in the case of Ansar Ahmad vs. State
of Uttar Pradesh & Anr., rendered in Criminal Appeal No.1168 of
2023 , the Hon'ble Apex Court has reitereated the proposition of
law that cancellation of bail cannot be limited to the occurrence
of supervening circumstances. The relevant observations made
in paragraph 15 to 17 which reads thus:
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"15. We are not at all impressed by the aforesaid submission of
Mr. Basant as it is well settled position of law that cancellation
of bail is not limited to the occurrence of any supervening
circumstances. In Ash Mohammad vs. Shivraj Singh @ Lalla
Babu and Another, reported in (2012) 9 SCC 446, this Court
has observed that there is no defined universal rule that applies
in every single case. Hence, it is not the law that once bail is
granted to the accused, it can only be cancelled on the ground
of likelihood of an abuse of bail. The Court before whom the
order of grant of bail is challenged is empowered to critically
analyse the soundness of the bail order. The Court must be
wary of a plea for cancellation of bail order vs. a plea
challenging the order for grant of bail. Although on the face of
it, both situations seem to be the same yet, the grounds of
contention for both are completely different. Let's understand
the different conditions in both the situations.
16. In an application for cancellation of bail, the court ordinarily
looks for supervening circumstances as discussed above.
Whereas in an application challenging the order for grant of
bail, the ground of contention is with the very order of the
Court. The illegality of due process is questioned on account of
improper or arbitrary exercise of discretion by the court while
granting bail. So, the crux of the matter is that once bail is
granted, the person aggrieved with such order can approach the
competent court to quash the decision of grant of bail if there is
any illegality in the order, or can apply for cancellation of bail if
there is no illegality in the order but a question of misuse of bail
by the accused. In Puran v. Rambilas and another, reported in
2001 (6) SCC 338, this Court has observed, "The concept of
setting aside as unjustified, illegal or perverse order is totally
different from the cancelling an order of bail on the ground that
the accused had misconducted himself, are because of some
supervening circumstances warranting such cancellation"
17. The above principle has been reiterated in the case of
Venkatesan Balsubramaniyan vs. The Intelligence Officer, DRI
Bangalore (Cr. Appeal No. 801 of 2020), reported in (2020) 13
Scale 191 wherein this Court observed that a default bail
illegally or erroneously granted under Section 167(2) CrPC can
be cancelled under Section 439(2) CrPC."
16. Thus, while applying the law laid down herein above, in the
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facts of the present case, the leaned Court below has exercised
the discretion on some extraneous consideration, ignoring the
order passed by the co-ordinate Bench of this Court. Such
irrelevant consideration is therefore required to be set aside.
Grant of bail does not appear to be proper at the first instance.
The nature of offence and charge against the respondent-
accused is of very serious nature and it was noted by the co-
ordinate Bench while permitting withdrawal of the bail
application filed after charge-sheet and yet overlooking such
aspect; without assigning any reasons, in absence of any change
circumstance, the learned Court below erroneously exercised the
discretion of bail in favour of the respondent-accused. Thus, the
said order cannot be permitted to stand.
17. For the foregoing reasons, order dated 18/02/2022 passed
in CR.MA No.27 of 2022 by the learned Additional Sessions
Judge, Rajula granting regular bail to the respondent - org.
accused is hereby quashed and set aside. Respondent - org.
accused no.2 is directed to surrender himself before the
concerned Police Station / Sessions Court within seven days
from today. Failure to do so, concerned PI is directed to secure
his presence by arresting him. The SP concerned is also directed
to supervise the proceeding for securing presence of the
respondent-accused.
Learned APP to forward the copy of this order to SP
concerned for compliance of the direction given by this Court.
(J. C. DOSHI,J)
sompura
