Gujarat High Court
Bhagubha Hasubha Vaghela vs State Of Gujarat on 16 December, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 3339 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI 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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BHAGUBHA HASUBHA VAGHELA
Versus
STATE OF GUJARAT
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Appearance:
MR P.M.LAKHANI ADVOCATE with
MR NEEL P LAKHANI(10679) for the Applicant
MR RAHUL K DAVE ADVOCATE (3978) for the Respondent(s) No. 1
MR MANAN MEHTA APP for the Respondent - State
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 16/12/2022
ORAL JUDGMENT
1. By way of this application under Section 439 of the Code of Criminal Procedure, 1973 ['Cr.P.C', for Page 1 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 short], the applicant has prayed for regular bail in connection with FIR being CR.No.11993005200314 of 2020 registered with Adesar Police Station, Bhachau, Dist.Kutch for offences punishable under Sections 302, 143, 144, 147, 148, 149, 341, 384, 506(2), 120(b) and 34 of Indian Penal Code along with sections 25(1-a), 25(a), 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act. _ 2.1 The present applicant is one of the accused persons pursuant to FIR in respect of which accused Vishan Hira Koli, Pravin Hira Koli, Sidhrajsinh Bhagubha Vaghela, Khetabhai Parbat Koli, Vanraj Karshan Koli and Dinesh Karshan Akhiyani (Koli) were enlarged on bail by various orders passed by different coordinate Benches of this Court and the orders granting bail to those accused persons were challenged before the Hon'ble Supreme Court.
2.2 The Hon'ble Supreme, vide judgment dated 20.04.2021 quashed and set aside the order of this Court whereby bails were granted to each of those accused persons. At the relevant point of time though Page 2 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 present applicant was not enlarged on bail and, therefore, his case was not considered by the Hon'ble Supreme Court and, therefore, the present application is preferred.
3. The brief facts of the case are stated as under:
3.1 A First Information Report ("FIR") being CR No 11993005200314 was registered on 9 May 2020 at Police Station Aadesar, District East Kachchh -
Gandhidham for offences under Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506(2) and 34 of the Indian Penal Code, Sections 25(1-b) A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act. The appellant - Ramesh Bhavan Rathod - is the informant on whose statement, the FIR was registered at 1930 hours in respect of an incident which took place at 1300 hours. The incident took place in village Hamirpur which is at a distance of 20 kms from the police station. The incident which led to the commission of five murders had its genesis in a land dispute. The informant alleged that he and his brother Pethabhai had gone to their farm at 6:00 am. At 1 pm, Page 3 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 the informant, Pethabhai and his brother-in-law Akhabhai were returning home in a Scorpio vehicle with five other persons. When the vehicle reached the untarred road passing through the farm of Lakha Hira Koli and Kanji Bijal Koli, these two persons came out along with Lakha Hira Koli. Lakha Koli dashed his tractor on the front portion of the Scorpio vehicle. Kanji Koli parked his tractor on the rear side of the Scorpio, behind which another Sumo vehicle came to be stationed. The Scorpio and its occupants were waylaid. As the informant and others attempted to run away from the scene, he saw the homicidal incident which he describes in the following terms:
"..At that time I saw that Dhama Ghela Koli, Devendrsinh alias Lalubha Ghelubha Vaghela, Vishan Hira Koli, Bharat Mamu Koli, Dilip Mamu Koli, Ramshi Hira Koli, Pravin Hira Koli, Bhaghubha Hasubha Vaghela, Mohansang Umedasng Vaghela and Vanraj Karsan Koli and Dinesh Karsan Koli all come with weapons Pistol, Dhariya, Knife from the thorny fence nearby, in which Dhama Gela Koli and Devendrasinh alias Lalubha Gelubha Vaghela and Visan Hira Koli and Bharat Mamu Koli had fired rounds from Page 4 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 Rifles in their hand targeting Akhabhai and others at that time. Akhabhai Jeshangbhai Umat my Brother Pethabhai Bhavanbhai Rathod and Amara Jeshang Umat and Lalji Akhabhai Umat and Vela Panchabhai Umat injured due to firing and laying on land and that time Lakha Hira Koli's Wife, Kanji Bijal Koli's Wife Lakhman Bijal Koli's Wife and Dhama Ghela Koli's Wife and Vishan Hira Koli's Wife also come there, their name is I do not know, and Visan Hira Kofi talk with Akhabhai that why you are cultivating my father and grand father's land that is our land we also said before that this land you do not cultivate so today your life is over. This was said by Visan Hira Koli and thereafter Dilip Mamu Koli, Ramshi Hira Kofi, Bhaghubha Hasubha Vaghela Mohansang Umedsang Vaghela and Prabhu Ghela Koli, with Dhariya in their hands and in the hands Pravin Hira Koli, Siddhrajsinh Bhaghubha Vaghela, Kheta Parbat Koli, Vanraj Karsan Koli, and Dinesh Karsan Kofi with Lathi (Wooden Stick) and all together assaulted blindly with Dhariya & Lathi over the head and body of Akhabhai Jeshangbhai Umat and my brother Pethabhai Bhavanbhai Rathod and Amara Jeshang Umat and Lalji Akhabhai Umat and Vela Panchabhai Umat and those people when assaulted that time all five are shouting "save save" but those people are in large gathering so I cannot go near so I cannot save those five those because they will kill me so I ran away from and I go to my Village..."Page 5 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022
R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 3.2 The incident resulted in the death of five persons. Among the twenty-two accused are Vishan Heera Koli (A-6), Pravin Heera Koli (A-10), Sidhdhrajsinh Bhagubha Vaghela (A-13), Kheta Parbat Koli (A-15), Vanraj Karshan Koli (A-16) and Dinesh Karshan Akhiyani (Koli) (A-17). The post-mortem was conducted on 10 May 2020. A panchnama is alleged to have been conducted at the scene of offence on the next day, i.e. on 10 May 2020, resulting in the recovery of, inter alia, two country made guns, two indigenous counterfeit guns, four dhariyas and one wooden stick.
3.3 On 13 May 2020, a cross FIR was registered at the behest of Vishan Heera Makwana (Koli) being FIR No 11993005200315 at Police Station Aadesar. The informant in the cross FIR claims to be an original resident of village Hamirpar and is presently residing at Village Anjar. The FIR states that after the lockdown had been declared on 25 March 2020, the informant had left Anjar to go to village Hamirpar. About fifteen years ago certain agricultural land had been sold to another person, who subsequently gave it for Page 6 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 cultivation to Akhabhai. Akhabhai was refusing to give the fields for cultivation to the informant as a result of which a quarrel had taken place on 7 May 2020. The informant's motor cycle had been taken away by the police. The issue had been settled at the intervention of persons belonging to the community and no complaint was filed. According to the cross FIR on 9 May 2020, the informant Vishan sent his nephew to the Police Station together with Akhabhai to retrieve the motor cycle. The cross FIR narrates Vishan's version of the incident which took place on 9 May 2020 in the following terms:
"..We have decide to kill Akhabhai hence I myself along with my Brother Lakhbhai Hira Koli, Dinesh Karshan Koli, and Lalubha Ghelubha Vaghela sat in Ritz Car and proceeded towards Bhimasar at the time I was driving the said Car and I tried to dash the said Car with Akhabhai and tried to kill him. But Akhabhai ran away nearby and we came to our field (Wadi) There after around 12'0 Clock noon Akhabhai ring me on my mobile phone and said that why you have tried to dashed by car of Lalubha. I have given false reply that I am sitting on my field (Wadi) I am not involved. Akhabhai told me we are coming to you field (Wadi) for quarrel be ready Page 7 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 for quarrel at that time I myself along with my brother Lakha Hira Koli, Ramsi Koli, Pravin, Dhama Gela Koli, Devendrasinh , Iliyas Lalubha Vaghela, Bharat Mamu Koli, Dilip Mamu Koli, Bhagubha Hansubha Vaghela, and his son Monsang Umedsang Vaghela, Prabhu Gela Koli, Kheta Parbar Koli, Vanraj Karshan Koli, Dinesh Darshan Koli were present there I have told this fact to them that Jeseng Umat along with his men are coming at our wadi for quarreling with us so we all armed with weapons we came near by our field's boundary and we all are become ready for quarrel and sat nearby Lakhman Bijal's field and that time white color jeep came that at about place near about wadi Ramesh Bhavan Rathod come down for jeep along with dhariya in his hand, Akhabhai came down with his gun, Akhabhai abused me "I have pride to save" at that time Ramesh Bhavan Rathod given blow with dhariya I have tried to save myself and I have lifted up my left hand so dhariya blow caused injury in my left hand I have fallen down on earth and blood coming out for my left hand at the time Akhabhai given blow of gun on my brother namely Ramsi on his hand- at that time Akha son Lalji - Amra Jeseng Umat - Vela Pancha Umat - Petha Bhavan Rathod - Akhabhai's younger son Dharmendra - Papu Gabha Umat, came down from jeep and tried to attack on me at that time my brother Pravin Dhama Gela Koli, Devendrasinh, Iliyas Lalubha Vaghela, Bharat Mamu Koli, Dilip Mamu Koli, Bhagubha Hansubha Vaghela, and his son Mohansang Page 8 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 Umedsang Vaghela, Prabhu Gela Koli, Kheta Parbat Koli, Vanraj Karsan Koli, Dinesh Karsan Koli, came along with the arms at that time Akho and his person's tried to ran away with the Scorpio jeep. My brother namely Lakhabhai dashed that jeep by tractor at that time my another cousin brother Kanji Bijal came with the another tractor and Lakhman Bijal came with the sumo jeep and dashed with the jeep of Akhabhai. At that time our ladies came down during quarrel Ramesh Bhavan Rathod- Papu Gabha Umat - Akhabhai Son Dharmendra ran away at that time the our persons who came there assaulted with the dhariya and lakdi's on Akhabhai- Velabhai-Pethabhai-Amrabhai And Lalji and this quarrel i have been injured..."
3.4 Vishan was arrested on 18 May 2020. A further statement of the informant in the original FIR dated 9 May 2020 was recorded on 3 June 2020. After investigation, the charge-sheet was submitted by the investigating officer against Vishan and twenty-two co- accused. On 31 August 2020, an application for interim bail moved by Vishan on medical grounds was rejected by the Sessions Judge, Bhachau, Kachchh taking note of the fact that the accused had produced fake documents for the purpose of obtaining bail. An application seeking regular bail under Section 439 of Page 9 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 the Cr.P.C. was rejected by the Additional Sessions Judge, Bhachau on 4 December 2020.
3.5 In view of the aforesaid background pursuant to the aforesaid incident, the present applicant has preferred this application.
4.1 Learned advocate Mr.Neel Lakhani submitted that though name of present applicant is there in the FIR, he was not present at the scene of offence at the relevant point time as he was present at his residence at a distance 24 km away from scene of offence at Rapar and for that he has made request to the ACP, Kutch East at Gandhidham on 13.05.2020 to get CCTV footage of his neighbour Manubhai Mali, however, footage are not taken.
4.2 Learned advocate Mr.Lakhani further submitted that the present applicant is ready and willing to undergo Narco test and he has already made an application before this Court for necessary direction to the State Authorities to conduct Narco test of the present application and for that purpose he preferred Page 10 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 Special Criminal Application No.6812 of 2020 which is pending before this Court.
4.3 Learned advocate Mr.Lakhani further submitted that no motive is still assigned to the applicant and in absence of there being any motive, the present applicant is required to be enlarged on bail. He further submitted that even as per the FSL report there are no blood stains on the clothes of present applicant and therefore also he is required to be enlarged on bail.
4.4 Learned advocate Mr.Lakhani also drew attention of this Court to the fact that the complainant made contradictory statements at the time of registering the FIRs as well as subsequently when during the course of investigation when the statements are recorded and on the basis of aforesaid submissions prayed that present applicant may be enlarged on bail.
5.1 Learned Additional Public Prosecutor Mr.Manan Mehta vehemently opposed the present application and submitted that on account of the incident for which FIR has been registered, five persons were brutally Page 11 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 murdered and considering the fact that this is 'rarest of the rare case' wherein heinous crime has been committed and considering the fact that the present applicant is involved in commission of aforesaid heinous crime he may not be enlarged on bail.
5.2 Learned Additional Public Prosecutor Mr.Mehta drew attention of this Court to the affidavit filed by Investigating Officer Sumit Savjibhai Desai, Police Inspector, LCB Police Station, Gandhidham, Kutch East and pointed out from the affidavit that there are as many as three eyewitnesses to the incident viz. Rameshbhai Bhavanbhai Rathod, Devrajbhai @ Pappubhai Gabhaibhai Umat and 12 years old son of deceased Akhabhai viz. Dharmendra (Dhamo) Akhabhai Umat all three have not only specifically narrated the role of the present applicant who was carrying Dhariya but have also in their statements categorically stated that the applicant has taken active part in commission of offence. He submitted that Dhariya has been recovered from the present applicant and there were blood stains even on Dhariya as well. Therefore, Page 12 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 considering the active role of the present applicant, discretionary powers under Section 439 of Cr.P.C. may not be exercised in favour of present applicant.
5.3 Learned Additional Public Prosecutor Mr.Manan Mehta drew attention of this Court to the observations made by Hon'ble Supreme Court while cancelling the bail granted to the co-accused persons six in numbers having similar role as the present applicant and relied upon observations made in paras:29 to 42 and prayed for rejection of the present application.
6.1 Learned advocate Mr.Rahul Dave also made submissions on similar line and opposed the bail application and he submitted that though the bail application is preferred on the ground of alibi, the similar ground was taken by son of the present applicant viz. Siddhrajsinh, who was enlarged on bail by this Court, however, subsequently that order of bail has been quashed and set aside by Hon'ble Supreme Court vide the judgment relied upon by learned Additional Public Prosecutor Mr.Mehta.
Page 13 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 7.1 Heard learned advocates for the respective parties, perused the record and considered the judgments cited by learned Additional Public Prosecutor Mr.Manan Mehta which is in respect of co-accused of the very FIR.
7.2 As far as submission in respect of alibi or motive is concerned, both the aforesaid questions are matter of trial as the aforesaid questions cannot be adjudicated by any documentary evidence but can be adjudicated only by leading evidence. Considering the fact that there are three eye witnesses including 12 years old son of deceased person viz. Dharmendra @ Dhamo Umat and all the three persons have categorically stated that present applicant was present at the scene of offence as also considering the fact that there is recovery of Dhariya at the instance of the present applicant, these are sufficient reasons not to grant bail to the present applicant more particularly taking into consideration the fact that the in the incident five persons have lost their lives.
Page 14 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 7.3 Further, keeping in mind the observations made by Hon'ble Supreme Court in respect of the same FIR while cancelling the bail granted by coordinate Bench of this Court, the Hon'ble Supreme Court observed as under:
"19. The rival submissions now fall for analysis.
20. The first aspect of the case which stares in the face is the singular absence in the judgment of the High Court to the nature and gravity of the crime. The incident which took place on 9 May 2020 resulted in five homicidal deaths. The nature of the offence is a circumstance which has an important bearing on the grant of bail. The orders of the High Court are conspicuous in the absence of any awareness or elaboration of the serious nature of the offence. The perversity lies in the failure of the High Court to consider an important circumstance which has a bearing on whether bail should be granted. In the two-judge Bench decision of this Court in Ram Govind Upadhyay v. Sudharshan Singh the nature of the crime was recorded as "one of the basic considerations" which has a bearing on the grant or denial of bail. The considerations which govern the grant of bail were elucidated in the judgment of this Court without attaching an exhaustive nature or character to them. This emerges from the following extract:Page 15 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022
R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 "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 Page 16 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 course of events, the accused is entitled to an order of bail."
This Court further laid down the standard for overturning an order granting 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 bail bereft of any cogent reason cannot be sustained."
21 The principles governing the grant of bail were reiterated by a two judge Bench in Prasanta Kumar Sarkar v. Ashis Chatterjee:
"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;Page 17 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022
R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022
(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.
[internal citation omitted]"
Explicating the power of this Court to set aside an order granting bail, this Court held:
"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..."
22 We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, Page 18 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P.6, this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed:
"17. Coming to the case at hand, it is found that when a stand was taken that the 2nd Respondent was a history sheeter, it was imperative on the part of the High Court to scrutinize every aspect and not capriciously record that the 2nd Respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order clearly exposes the non- application of mind. That apart, as a matter of fact it has been brought on record that the 2nd Respondent has been charge sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside."
23 Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two Page 19 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 orders both dated 21 December 2020, the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22 October 2020 on the ground (as the High Court recorded) that he was "assigned similar role of armed with stick (sic)". Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law.
24 The narration of facts in the earlier part of this judgement would indicate that on 22 October 2020, a Single Judge of the High Court granted bail to Sidhdhrajsinh (A-13), The Single Judge noted that the name of A-13 is shown in the FIR for the incident which took place on 9 May Page 20 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 2020. The circumstance which weighed with the Single Judge was that the informant in the subsequent statement which was recorded twenty- five days after the FIR on 3 June 2020, does not advert to overt act which was attributed in the FIR; though the presence of A-13 is shown, no specific role is attributed to him in the subsequent statement. Observing that the details in regard to the chronology of events which took place on 9 May 2020 "is in effect substituted" in the subsequent statement dated 3 June 2020, the High Court held that it appears that A-13 was roped in due to the pendency of previous proceedings and enmity with the side of the informant. Holding that this was sufficient to grant bail, the learned Judge observed:
"15. Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order." (emphasis supplied)
25. The order which was passed on 22 October 2020 in the case of A-13 was relied upon, on grounds of parity, in the case of Pravin (A-10) and Kheta (A-15), by orders of a Single Judge of the High Court, dated 21 December 2020. In the case of Vishan (A-6), bail was granted on 21 December 2020 by the Single Judge who had passed orders dated 22 October 2020 in the case of A-10 and A-15. The only reasons which have been indicated in the order of the Single Judge is that bail was being granted taking into consideration the facts of the case, the nature of Page 21 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 the allegations, gravity of offences and role attributed to the accused. Thereafter, by an order dated 19 January 2021 bail was granted to Vanraj (A-16) purely on the basis of parity. On 20 January 2021, the order granting bail to Vanraj (A-16) was followed in the case of Dinesh (A-17) on the ground of parity.
26. From the above conspectus of facts, it is evident that essentially the only order which contains a semblance of reasoning is the order dated 22 October 2020 granting bail to A-13. As a matter of fact, the submissions which have been made on behalf of the accused substantially dwell on the same line of logic in justifying the grant of bail on the ground that in the subsequent statement dated 3 June 2020 of the informant, the genesis and details of the incident which took place on 9 May 2020 as elaborated in the FIR have undergone a substantial change.
27. In granting bail to the six accused, the High Court has committed a serious mistake by failing to recognize material aspects of the case, rendering the orders of the High Court vulnerable to assail on the ground of perversity. The first circumstance which should have weighed with the High Court but which has been glossed over is the seriousness and gravity of the offences. The FIR which has been lodged on 9 May 2020 adverts to the murder of five persons on the side of the informant in the course of the incident as a result of which offences punishable under Page 22 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506(2) read with Section 34 of the Indian Penal Code were alleged. This is apart from the invocation of the provisions of Sections 25(1-b) A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act. The FIR which was lodged on 9 May 2020 notes that the incident took place at 1:00 pm. A group of persons from the side of the informant, including the deceased, were returning home at about 1:00 pm. The genesis of the incident is that the path of their vehicle was blocked both from the front and the rear by tractors of the accused. The FIR specifically refers to the presence of the accused Vishan (A-6), Sidhdhrajsinh Bhagubha Vaghela (A-13), Vanraj Karshan Koli (A-16), Kheta Parbat Koli (A-15), Pravin Heera Koli (A-10) and Dinesh Karshan Akhiyani (Koli) (A-17). It states that the accused had all come to the scene of offence with pistols, dhariyas and knives and that initially Vishan (A-6) and two others had fired from their rifles as a result of which five persons fell to the ground. Some of these accused - Vishan (A-6), Sidhdhrajsinh (A-13), Vanraj (A-16), Kheta (A-15), Pravin (A-10) and Dinesh (A-17) are alleged to have assaulted with dhariyas and lathis over the head and body of Akhabhai, Pethabhai, Amara, Lalji and Vela. All of them were rushed to the Government Hospital where they were pronounced dead.
28. Four days after the FIR was lodged by the informant on 9 May 2020, a cross FIR was Page 23 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 lodged by Vishan (A-6). This FIR contains a narration of the pre-existing dispute over land and to an incident which had taken place on 7 May 2020 which was resolved with the intervention of the community. The cross FIR dated 13 May 2020 stated that Vishan (A-6) sent his nephew together with Akhabhai to the police station to retrieve his motorcycle. The cross FIR specifically states that the side of the accused had decided to kill Akhabhai and in pursuance of this design he proceeded in his vehicle together with his brother and some of the other accused and tried to kill Akhabhai by dashing his car against him. The translation of the actual intent in the cross FIR is questioned by Mr Nikhil Goel by submitting that correctly translated from Gujarati, the intent would be to assault and not to kill. Be that as it may, the cross FIR indicates the presence of all these accused and of their being armed with weapons to assault the deceased. A-6, in fact, states that in the course of the incident which took place, he was assaulted on his hand with a dhariya. The cross FIR contains a narration of how Akhabhai and the others tried to run away from the scene but were way-laid and assaulted. The cross FIR also then states that several women from the side of the accused came to the scene of occurrence.
29 A reading of the cross FIR which was lodged by Vishanbhai (A-6) on 13 May 2020 indicates:
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(i) An intent on the part of the accused to launch an assault on the deceased;
(ii) The manner in which their pre-meditated design was sought to be achieved by assaulting Akhabhai and the other deceased persons;
(iii) An effort was made by Akhabhai and the other deceased to run away but this was prevented in the course of the assault; and
(iv) The accused had come armed with weapons to execute their intent.
30 In other words with the contents of the cross FIR as they stand, it was impossible for any judicial mind, while adjudicating upon the applications for the grant of bail, to gloss over:
(i) The presence of the accused at the scene of occurrence on 9 May 2020;
(ii) The accused being armed with weapons to accost Akhabhai and the other persons accompanying him;
(iii) The intent to assault them; and
(iv) The actual incident in the course of which Akhabhai and four other persons of his group were waylaid and assaulted, resulting in five homicidal deaths.Page 25 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022
R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 31 The Post Mortem reports which have been produced on the record indicate the extensive nature of the bodily injuries which were sustained by each of the five deceased persons. It is true that in the FIR dated 9 May 2020, it was alleged that the deceased were fired upon as a result of which they fell to the ground whereas, in the statement dated 3 June 2020, it has been stated that the injuries were sustained as a result of dhariyas and sticks. Whether the deaths occurred as a result of bullet wounds or otherwise can make no difference on whether a case for the grant of bail was made out once a plain reading of the cross FIR indicates both the presence of the accused and the execution of their plan to assault the side of the informant with the weapons which were in the possession of the accused. The High Court in its first order dated 22 October 2020 was persuaded to grant bail on the specious ground that the details of the incident as they appeared in the subsequent statement of the informant dated 3 June 2020 are at variance with the FIR dated 9 May 2020. These are matters of trial. The High Court has, however, clearly overlooked the cross FIR dated 13 May 2020 lodged by A-6 and the implications of the content of the FIR on the basic issue as to whether bail should be granted. As a matter of fact, it is also important to note that the presence of women on the side of the accused is a fact which is noted in the cross FIR itself. Bail having been granted to A-18 to A-22 has not been the subject matter of the challenge in these Page 26 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 proceedings. Hence, it is not necessary to dwell on that aspect any further. It is important for the purpose of evaluating this batch of cases at the present stage to also note the invocation of the provisions of the Section 149 of the Indian Penal Code.
32 Our analysis above would therefore lead to the conclusion that there has been a manifest failure of the High Court to advert to material circumstances, especially the narration of the incident as it appears in the cross FIR which was lodged on 13 May 2020. Above all, the High Court has completely ignored the gravity and seriousness of the offence which resulted in five homicidal deaths. This is clearly a case where the orders passed by the High Court suffered from a clear perversity.
33 There is another aspect of this batch of cases which it is necessary to note. In the order of the High Court dated 22 October 2020 granting bail to Sidhdhrajsinh (A-13), there was a reference to the submission of the Public Prosecutor to the criminal antecedents of A-13 bearing on previous FIRs registered against him in 2017 and 2019. This aspect bearing on the criminal antecedents of A-13 has not been considered in the reasons which have been adduced by the Single Judge. In Ash Mohammad v. Shiv Raj Singh7, this Court has held that criminal antecedents of the accused must be weighed for the purpose of granting bail. That apart, it is important to note that the ground on which A-13 was granted bail is that in Page 27 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 the subsequent statement dated 3 June 2020, the overt act which was attributed in the FIR was found to be missing. Having said this, the learned Judge observed that the order shall not be treated as a precedent to claim bail on the basis of parity in any other case.
34 We are left unimpressed with and disapprove of the above observation of the Single Judge. Whether parity can be claimed by any other accused on the basis of the order granting bail to A-13 ought not to have been pre-judged by the Single Judge who was dealing only with the application for the grant of bail to A-13. The observation that the grant of bail to A-13 shall not be considered as a precedent for any other person who is accused in the FIR on grounds of parity does not constitute judicially appropriate reasoning. Whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused. In the event that parity is claimed in such a case thereafter, it is for that court before whom parity is claimed to determine whether a case for the grant of bail on reasons of parity is made out. In other words, the observations of the Single Judge which have been noticed above are inappropriate and erroneous. Moreover, as observed above in para 23, even while considering the ground of parity not only the weapon, but individual role Page 28 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 attributed to each accused must be considered. We have dwelt on this aspect of the matter in order to ensure that the position in law is corrected in terms as explained above. As we have noted earlier, bail was thereafter granted to Pravin (A-10) and Kheta (A-15) by orders dated 21 December 2020 on the ground of parity as claimed with the order dated 22 October 2020. The Single Judge observed that the Additional Public Prosecutor had not made any point of distinction. Subsequently, parity was the basis on which bail was sought in the case of Vanraj (A-
16) who was granted bail on 19 January 2021. While granting bail, the Single Judge observed that:
"the learned advocates appearing on behalf of the respective parties do not press for further reasoned orders"
A similar observation is contained in the order dated 20 January 2021 of the Single Judge granting bail to Dinesh (A-17). Finally on this aspect we would also advert to the order of the High Court dated 21 December 2020 granting bail to Vishan (A-6) which again contains a statement that the "advocates appearing on behalf of the respective parties do not press for a further reasoned order".
35 We disapprove of the observations of the High Court in a succession of orders in the present Page 29 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 case recording that the Counsel for the parties "do not press for a further reasoned order". The grant of bail is a matter which implicates the liberty of the accused, the interest of the State and the victims of crime in the proper administration of criminal justice. It is a well- settled principle that in determining as to whether bail should be granted, the High Court, or for that matter, the Sessions Court deciding an application under Section 439 of the CrPC would not launch upon a detailed evaluation of the facts on merits since a criminal trial is still to take place. These observations while adjudicating upon bail would also not be binding on the outcome of the trial. But the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail. This is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other. The rights of the victims and their families are at stake as well. These are not matters involving the private rights of two individual parties, as in a civil proceeding. The proper enforcement of criminal law is a matter of public interest. We must, therefore, disapprove of the manner in which a succession of orders in the present batch of cases has recorded that Page 30 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 counsel for the "respective parties do not press for further reasoned order". If this is a euphemism for not recording adequate reasons, this kind of a formula cannot shield the order from judicial scrutiny.
36 Grant of bail under Section 439 of the CrPC is a matter involving the exercise of judicial discretion. Judicial discretion in granting or refusing bail - as in the case of any other discretion which is vested in a court as a judicial institution - is not unstructured. The duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner. The recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice. This Court in Chaman Lal v. State of U.P.8 in a similar vein has held that an order of a High Court which does not contain reasons for prima facie concluding that a bail should be granted is liable to be set aside for non-application of mind. This Court observed:
"8. Even on a cursory perusal the High Court's order shows complete non-application of mind. Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications. Yet a court dealing with the bail Page 31 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 application should be satisfied, as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course.
9. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence..."
37 We are also constrained to record our disapproval of the manner in which the application for bail of Vishan (A-6) was disposed of. The High Court sought to support its decision to grant bail by stating that it had perused the material on record and was granting bail "without discussing the evidence in detail" taking into consideration:
(1) The facts of the case;
(2) The nature of allegations;
(3) Gravity of offences; and (4) Role attributed to the accused.
As a matter of fact there is no discussion or analysis of circumstances at all. This lone sentence in the order of the Single Judge leaves a Court before which the order granting bail is Page 32 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 challenged, completely without guidance on the considerations which weighed with the High Court in granting bail. We appreciate that in deciding whether or not to grant bail the High Court is not at a stage where it adjudicates upon guilt. This is to be analyzed during the course of criminal trial where evidence has been recorded. But surely, the order of the High Court must indicate some reasons why the Court has either granted or denied bail. The Sessions Judges in the present case have indicated their reasons for the ultimate conclusion. This unfortunately has not been observed in the order of the High Court dated 21 December 2020. Dealing with a similar formulation as in the present case, this Court has held recently held as follows in Sonu v. Sonu Yadav:
"11. In the earlier part of this judgment, we have extracted the lone sentence in the order of the High Court which is intended to display some semblance of reasoning for justifying the grant of bail. The sentence which we have extracted earlier contains an omnibus amalgam of (i) "the entire facts and circumstances of the case"; (ii) "submissions of learned Counsel for the parties"; (iii) "the nature of offence"; (iv) "evidence"; and (v) "complicity of accused". This is followed by an observation that the "applicant has made out a case for bail", "without expressing any opinion on the merits of the case". This does not constitute the kind of reasoning which is Page 33 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 expected of a judicial order. The High Court cannot be oblivious, in a case such as the present, of the seriousness of the alleged offence, where a woman has met an unnatural end within a year of marriage. The seriousness of the alleged offence has to be evaluated in the backdrop of the allegation that she was being harassed for dowry; and that a telephone call was received from the accused in close- proximity to the time of death, making a demand. There are specific allegations of harassment against the accused on the ground of dowry. An order without reasons is fundamentally contrary to the norms which guide the judicial process. The administration of criminal justice by the High Court cannot be reduced to a mantra containing a recitation of general observations. That there has been a judicious application of mind by the judge who is deciding an application under Section 439 of the CrPC must emerge from the quality of the reasoning which is embodied in the order granting bail. While the reasons may be brief, it is the quality of the reasons which matters the most. That is because the reasons in a judicial order unravel the thought process of a trained judicial mind. We are constrained to make these observations because the reasons indicated in the judgment of the High Court in this case are becoming increasingly familiar in matters which come to this Court. It is time that such a practice is discontinued Page 34 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 and that the reasons in support of orders granting bail comport with a judicial process which brings credibility to the administration of criminal justice."
38 What has been observed in the above extract equally applies to the facts of the present case. There is no question now of ordering a remand to the High Court in the case of Vishan (A-6) since the question of bail has been argued fully before this Court. Moreover, the case of Vishan (A-6) has been considered together with the entire batch of cases in which bail has been granted- initially on 22 October 2020 in the case of Sidhdharajsinh (A-13), which has been followed on the grounds of parity in the case of the other accused.
39 The High Court has relied upon the decision of this Court in Sanjay Chandra v. Central Bureau of Investigation10. While considering the grant of bail in certain cases arising out of the 2G Spectrum Scam, this Court observed as follows:
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial Page 35 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
Elaborating further, the Court held "22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances."
At the same time, the Court recognized in paragraph 24 of its decision that:
"24. In the instant case, we have already noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge". The offences Page 36 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice"."
In Mahipal v. Rajesh Kumar Alias Polia11 this Court observed as follows:
"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 hand, an Page 37 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 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 ofU.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527] , the accused was granted bail by the High Court [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] . In an appeal against the order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] of the High Court, a two-Judge Bench of this Court surveyed the precedent on the principles that guide the grant of bail. Dipak Misra, J. (as the learned Chief Justice then was) held: (Neeru Yadav case [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527] , SCC p. 513, para 12) "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 have not been taken note of, or bail is founded on Page 38 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 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."
In Mahipal (supra), this Court outlined the standards governing the setting aside of bail by this Court in the following terms:
"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." These two standards were reiterated in a recent decision of this Court in Prabhakar Tewari v. State of U.P.12.
40 The considerations which must weigh with the Court in granting bail have been formulated in the decisions of this Court in Ram Govind Upadhyay v. Sudarshan Singh13 and Prasanta Page 39 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022 R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 Kumar Sarkar v. Ashis Chatterjee14(noted earlier). These decisions as well as the decision in Sanjay Chandra (supra) were adverted to in a recent decision of a two judge Bench of this Court dated 19 March 2021 in The State of Kerala v. Mahesh where the Court observed:
"22...All the relevant factors have to be weighed by the Court considering an application for bail, including the gravity of the offence, the evidence and material which prima facie show the involvement of applicant for bail in the offence alleged, the extent of involvement of the applicant for bail, in the offence alleged, possibility of the applicant accused absconding or otherwise defeating or delaying the course of justice, reasonable apprehension of witnesses being threatened or influenced or of evidence being tempered with, and danger to the safety of the victim (if alive), the complainant, their relatives, friends or other witnesses...."
Similarly, the Court held that the grant of bail by the High Court can be set aside, consistent with the precedents we have discussed above, when such grant is based on non-application of mind or is innocent of the relevant factors for such grant.
41 For the reasons which we have indicated above, we have come to the conclusion that the orders granting bail to the respondent-
Page 40 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022 accused Vishan Heera Koli (A-6), Pravin Heera Koli (A-10), Sidhdhrajsinh Bhagubha Vaghela (A-13), Kheta Parbat Koli (A-15), Vanraj Karshan Koli (A-16) and Dinesh Karshan Akhiyani (Koli) (A-17) suffer from a clear perversity. We accordingly allow these appeals and set aside the following orders of the High Court:
Sr Name of Accus Date of SLP No.
No accused ed order by
No. High
Court
1 Vishan Heera 6 21 790 of
Koli December 2021
2020
2 Pravin Heera 10 21 1246-47 of
Koli December 2021
2020
3 Sidhdhrajsinh 13 22 1249 of
Bhagubha October 2021
Vaghela 2020
4 Kheta Parbat 15 21 1246-47 of
Koli December 2021
2020
5 Vanraj 16 19 1248 of
Karshan Koli January 2021
2021
6 Dinesh 17 20 1245 of
Karshan January 2021
Akhiyani 2021
Page 41 of 42
Downloaded on : Sat Dec 24 03:49:11 IST 2022
R/CR.MA/3339/2021 JUDGMENT DATED: 16/12/2022
(Koli)
42 All the above accused are directed to
surrender forthwith. The copy of the order shall be forwarded to the Sessions Judge to secure compliance forthwith."
8. In view of the aforesaid observations made by the Hon'ble Supreme Court in respect of co-accused persons and considering the fact that role attributed to the present applicant cannot be said to be any different role to the role attributed to the other co-accused persons and since the role is almost similar, in view of aforesaid observations, even the present applicant is not entitled to bail and accordingly this application for enlarging him on regular bail is required to be rejected and the same is rejected.
9. Rule is discharged. No order as to costs.
(NIRZAR S. DESAI,J) MISHRA AMIT V. Page 42 of 42 Downloaded on : Sat Dec 24 03:49:11 IST 2022