Gujarat High Court
Sagar Nanabhai Koli vs State Of Gujarat on 20 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 24720 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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Approved for Reporting Yes No
No
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SAGAR NANABHAI KOLI
Versus
STATE OF GUJARAT
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Appearance:
MS TASNIM A ZABUAWALA(10756) for the Applicant(s) No. 1
MR. SOHAM JOSHI, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 20/01/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned APP waives service of
notice of rule for and on behalf of the respondent-State.
2 The present successive application is filed under Section
483 of the Bhartiya Nagrik Suraksha Sanhita, 2023, for regular
bail in connection with the FIR being C.R. No.11210056222824
of 2022 registered with the Dindoli Police Station, Surat City of
the offence punishable under Sections 302 and 34 of the IPC.
3. The relevant facts, as per the evidence adduced and the
First Information Report, are that the complaint came to be
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lodged by one Dhirajbhai Raghavbhai Bathvar, Police Sub-
Inspector, Dindoli Police Station, Surat City, inter alia, alleging
therein that on 16.12.2022, from 20:00 hours to 24:00 hours
and on 17.12.2022, from 00:00 hours to 08:00 hours, he was
on his duty along with the writer Yashpalsinh Rajendrasinh,
and during that period, at around 4:10 a.m., he was orally
informed by one on duty staffer that a dead body of one
person is lying on the railway track opposite Nandanvan
Township, upon which, he immediately rushed to the scene of
offence where he found a dead body of one unknown person,
aged between 25 and 30 years near the railway track from
Mumbai to Surat, and on seeing the dead body, his upper lip
was found to be incised and there was a bleeding from his
nose and mouth. The strangulation marks were also found on
his neck. Scratches were also found on the different parts of
his body, which was prima facie, indicative of the fact that the
deceased was assassinated by someone, and as such, he
informed his superior officer, who also reached at the scene of
offence, and then upon search being carried out at the nearby
places, no information with regard to the identify of the
deceased was found out, and therefore, the impugned FIR has
been lodged against the unknown persons.
4. Thereafter, during the course of investigation, it revealed
that the wife of the deceased, namely, Poonam was having
illicit relationship with accused Rahul Koli since last two
months from the date of the incident, and the deceased having
suspected his wife Poonam of the said illicit relationship with
the accused Rahul, started beating and abusing his wife
Poonam, keeping a grudge of the same, accused Poonam, on
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17.12.2022, after an altercation being taken place with the
deceased, called his love interest accused Rahul to eliminate
the deceased, and accordingly, on 17.12.2022, accused
Poonam and accused Rahul Koli along with the present
applicant-accused throttled the deceased to death with her
'Dupatta'. Later, they dumped the body of the deceased on
the railway tracks near Nandanvan Township.
5. Thereafter, the applicant-accused came to be arrested on
19.12.2022, and produce before the concerned Magistrate, and
after completion of the remand period, was sent to the judicial
custody at Lajpore Central Jail, Surat.
6. Then, at the end of the investigation, charge-sheet also
came to be filed against the applicant-accused as well as the
other co-accused before the competent court.
7. After the filing of the charge-sheet, the applicant-accused
filed an application before the learned trial court, seeking to be
released on bail, which was not entertained by the concerned
trial court, against which, the applicant-accused approached
this Court by means of Criminal Misc. Application No.10629 of
2023, which was permitted to be withdrawn with a liberty to
file fresh application after twelve months if the trial is not
ended by that time. Then, as the said period has been over
and trial is still pending, the applicant-accused again
approached the learned trial court by means of Criminal Misc.
Application No.8414 of 2024, which was also rejected by the
concerned trial court. Hence, the applicant-accused is here
before this Court with the present application.
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8. Learned advocate Mr. A.A. Zabuawala for learned
advocate Ms,. Tasnim Zabuawala appearing for the applicant
submitted that the applicant-accused was arrested on
19.12.2022 and since then he is in jail. Now the investigation
has already been completed and charge-sheet has also been
filed. Learned advocate Mr. Zabuawala further submitted that
this is a second round of litigation, and the earlier bail
application filed by the applicant-accused came to be
withdrawn, reserving liberty in favour of the applicant-accused
to again approach this Court after a period of twelve months if
the trial is not ended by that time. He submitted that the said
period of twelve months has already been over, and the trial is
still pending, and it is likely to take considerable long period of
time to conclude, and as such, keeping the applicant-accused
behind the bar for such an indefinite period of time when he
has already undergone two years incarceration, would be
nothing but a pre-trial conviction. Learned advocate Mr.
Zabuawala also submitted that the FIR came to be lodged
against unknown persons, and during the course of
investigation, on the basis of the circumstantial evidence, the
applicant-accused has been implicated in the present offence,
and therefore, it can be said that the entire case of the
prosecution is based upon the circumstantial evidence. As far
as the elimination of the deceased is concerned, the evidences
collected by the investigating officer are also not sufficient to
connect the present applicant-accused with the alleged
offence. He submitted that now, the investigation is completed
and charge-sheet is filed. The entire case is based on
circumstantial evidence and the chain of the circumstantial
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evidence is not completed. Considering that the applicant-
accused is behind bar since 19.12.2022 and there is no
progress in the trial, the applicant-accused be released on bail.
Learned advocate Mr.Zabuawala submitted that there is no
eye-witness to the present incident, and the statements
recorded and the evidences collected by the investigator, do
not indicate, in any manner, that there is any involvement of
the accused or he has played any active role in the
commission of the offence. It is submitted that the prosecution
case rests on circumstantial evidence and therefore, it is not
legal and proper to deny bail to the present applicant on such
weak piece of evidence. Moreover, the applicant-accused is a
youth aged about 19 years only, having no past criminal
antecedents. Under the circumstances, learned advocate Mr.
Zabuawala prays that the applicant-accused may be enlarged
on bail on any suitable terms and conditions.
9. The learned APP strongly opposed the said application on
the ground that there was illicit relationship between the wife
of the deceased and the accused-Rahul Koli and the deceased
was hurdle in the said relationship, and therefore, all the
accused, in collusion with each other, have eliminated him. He
submitted that though case is based on the circumstantial
evidence, but the materials collected by the investigating
officer sufficiently shows the involvement of the present
applicant-accused. If the applicant-accused is released on bail,
he would tamper with the prosecution evidence. Thus, in the
peculiar facts and circumstances of the case, the trial court
has not committed any error in not releasing the applicant-
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accused on bail. It is also submitted that while deciding the
application for bail based on circumstantial evidence, the Court
should have to advert to the materials collected during the
course of the investigation which are the part of the charge
sheet and also to keep in mind the nature and gravity of the
offence. It is submitted that during the course of the
investigation, the Investigating Officer has collected ample
material to complete the chain of events. Learned APP further
submitted that looking to the papers of charge-sheet and the
role attributed to the applicant-accused, it appears that he has
actively participated in committing the murder of an innocent
person. In view of that, the resent application deserves to be
dismissed.
10. I have heard the learned counsel for the respective
parties at length and perused the materials placed on record.
11. It is well settled that while granting bail, a balance needs
to be maintained between the personal liberty and the
possibility of an accused evading the process of law which may
result in the subversion of justice and the erosion of
administration of criminal system.
12. In the instant case, the applicant-accused has been
implicated as an accused in a very serious crime. The facts of
the case and the materials collected point towards the
complicity of the applicant-accused. The applicant-accused is
charged with an offence of killing the husband of one lady co-
accused who was having illicit relationship with another co-
accused, namely, Rahul Koli. Record prima facie reveals that
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the applicant-accused was a co-conspirator in making the
alleged criminal conspiracy to assassinate the deceased. Co-
accused Rahul was having illicit relationship with the wife of
the deceased, due to which, altercation broke up between the
deceased and the accused-wife on the night of the murder,
and therefore, upon the say of the accused-wife, the present
applicant-accused, along with the other co-accused Rahul went
to the house of the deceased and, they all, throttled him to
death very brutally. The presence of the accused can be seen
from the evidence collected by the investigator in the form of
DVR of C.C.T.C. footages installed near the house of the
deceased. Not only that, the present applicant-accused was
also found to be there in the C.C.T.V. footages near the railway
station, dumping the dead body of the deceased on the railway
track, which establishes the chain of events against the
applicant-accused in committing the present offence. The
applicant-accused is found, both at the house of the deceased,
and then near the railway station where the dead body of the
deceased was dumped. In the C.C.T.V footages, the applicant-
accused is clearly seen taking the dead body in a rickshaw and
dumping it on the railway tracks from the one bridge. The
crime has been committed in a very brutal manner, and all the
accused persons have tried to mislead the police first and have
also tried to give it a colour of an accident. Record further
reveals that Panch witness have already been examined and
only the evidences remain to be examined. Prosecution
witnesses have supported the case of the prosecution. Merely
because the prosecution case rests on circumstantial evidence
cannot be a ground to release the accused on bail, if during
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the course of the investigation the evidence/material has been
collected and prima facie the complete chain of events is
established.
13. That apart, while determining the case based on
circumstantial evidence, the court should have to borne in
mind the aspect of motive, which assumes great significance in
the case based on circumstantial evidence. It is not as if
motive alone becomes the crucial link in the case to be
established by the prosecution, but it is one of the important
factors to be kept in mind while determining the guilt or the
innocence of the accused. In the case on hand, material
indicates that the present applicant-accused went to the house
of the deceased along with other co-accused to eliminate the
deceased, and the presence of the accused at the house of
the deceased is found out from the C.C.T.V footage, which
clearly establishes the motive of the applicant-accused. Why
the applicant-accused went to the house of the deceased being
a stranger, and that too in the midnight, and the presence of
the applicant-accused at the house of the deceased can be
considered to be one of the chain of events like a cloudless
sky, pointing towards the complicity of the applicant-accused.
14. At this stage, few decisions of the Hon'ble Apex Court on
grant of bail are required to be referred to.
a) In Gudikanti Narasimhulu & Ors. vs. Public Prosecutor,
High Court of Andhra Pradesh, reported in (1978) 1 SCC 240,
Krishna Iyer, J., while elaborating on the content of Article 21 of
the Constitution of India in the context of liberty of a person
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under trial, has laid down the key factors that have to be
considered while granting bail, which are extracted as under:
"7. It is thus obvious that the nature of the charge is the
vital factor and the nature of the evidence also is
pertinent. The punishment to which the party may be
liable, if convicted or conviction is confirmed, also bears
upon the issue.
8. Another relevant factor is as to whether the course of
justice would be thwarted by him who seeks the
benignant jurisdiction of the Court to be freed for the
time being.
9. Thus the legal principles and practice validate the
Court considering the likelihood of the applicant
interfering with witnesses for the prosecution or
otherwise polluting the process of justice. It is not only
traditional but rational, in this context, to enquire into the
antecedents of a man who is applying for bail to find
whether he has a bad record - particularly a record which
suggests that he is likely to commit serious offences
while on bail. In regard to habituals, it is part of
criminological history that a thoughtless bail order has
enabled the bailee to exploit the opportunity to inflict
further about the criminal record of a defendant, is
therefore not an exercise in irrelevance."
b) In Prahlad Singh Bhati vs. NCT of Delhi & Ors., reported in
(2001) 4 SCC 280, the Hon'ble Supreme Court highlighted the
aspects which are to be considered by a court while dealing
with an application seeking bail. The same may be extracted
as follows:
"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
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conviction will entail, the character, behavior, 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."
c) The Hon'ble Supreme Court in Ram Govind Upadhyay vs.
Sudarshan Singh, reported in (2002) 3 SCC 598, speaking
through Banerjee, J., emphasized that a court exercising
discretion in matters of bail, has to undertake the same
judiciously. In highlighting that bail cannot be granted as a
matter of course, bereft of cogent reasoning, the Court
observed as follows:
"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
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. While placement of the accused
in the society, though may be considered but that by
itself cannot be a guiding factor in the matter of grant of
bail and the same should and ought always to be coupled
with other circumstances warranting the grant of bail.
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."
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d) In Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu
Yadav & Anr., reported in (2004) 7 SCC 528, the Hon'ble
Supreme Court held that although it is established that a court
considering a bail application cannot undertake a detailed
examination of evidence and an elaborate discussion on the
merits of the case, the court is required to indicate the prima
facie reasons justifying the grant of bail.
15. In Prasanta Kumar Sarkar (s) vs. Ashis Chatterjee,
reported in (2010) 14 SCC 496, the Apex Court has laid down
the parameters for granting or refusing the grant of bail, which
are as follows;
"(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."
16. Applying the aforesaid principles to the facts of the
present case, I am of the opinion that there are reasonable
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ground that the applicant-accused has committed the offence.
Applicant-accused is accused of committing murder of an
innocent person in a brutal fashion. If convicted, applicant-
accused is like to be sentenced for life imprisonment, and even
more.
17. Even though the applicant-accused is in judicial custody
since last more than two years, however looking to the nature
of the offence and the manner in which it has been committed,
I am not inclined to exercise discretion in favour of the
applicant-accused at this juncture.
18. In the result, the present application fails and is hereby
rejected. Rule is discharged.
(DIVYESH A. JOSHI,J)
VAHID
