Gujarat High Court
Sanjaybhai Manubhai Bhaliya vs State Of Gujarat on 13 June, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 16252 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 5114 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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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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SANJAYBHAI MANUBHAI BHALIYA
Versus
STATE OF GUJARAT
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Appearance:
MR HRIDAY BUCH(2372) for the Applicant(s) No. 1
MR RATHIN P RAVAL(5013) for the Respondent(s) No. 2,3
MR RONAK RAVAL, ASSISTANT PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 13/06/2022
ORAL JUDGMENT
1. Heard learned Advocate Mr. Hriday Buch on behalf of the applicant and learned APP Mr. Ronak Raval on behalf of the respondent- State, learned Advocate Mr. Rathin P. Raval on behalf of the respondents Page 1 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 no. 2 and 3.
2. Issue Rule returnable forthwith. Learned APP Mr. Raval as well as learned Advocate Mr. Raval on behalf of the respondents no. 2 and 3 waive service of rule on behalf of the respondent-State and respondents no. 2 and 3 respectively.
3. With consent of the parties, the present application is taken for final decision.
4. By way of this application, the applicant challenges order dated 19.08.2021 passed by the learned Additional Sessions Judge, Rajula in Criminal Miscellaneous Application No. 164 of 2021 whereby the present respondents no. 2 and 3 who are original accused no. 1 and 4 have been enlarged on regular bail.
5. It is the case of the applicant that the applicant herein was the first informant in FIR no. 11193024201046 of 2020 registered with the Jafrabad Police Station, Amreli on 16.11.2020 for offences punishable under Sections 302, 323, 504, 34, 143, 147, 148, 149 of the Indian Penal Code and Section 135 of the Gujarat Police Act. The allegation as leveled in the FIR is that the first informant, on the date of the incident at around Page 2 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 10:30pm had received an information that his brother Bharat was involved in quarrel where upon first informant rush to the spot in the village where he found that his brothers Bharat as well as Sachin were being assaulted by the accused, five accused as named in the FIR, the present respondents no. 2 and 3 being the accused no. 1-4. The first informant further alleges that brothers of the first informant, more particularly, his brother Bharat was being assaulted by the accused with sticks and whereas the first informant and his brother Sachin had tried to intervene whereupon even they had been assaulted by the accused. It appears that the said Bharat, had been taken to a nearby hospital where he had been declared dead. Thus, alleging the First Information Report came to be filed. Investigating Officer had filed the charge sheet arraigned all the five accused on 30.01.2021.
6. Learned Advocate Mr. Buch on behalf of the applicant would submit that originally accused no. 2, 3 and 4 had preferred Criminal Miscellaneous Application No. 28 of 2021 before the learned Sessions Court, Amreli at Rajula and whereas vide an order dated 02.03.2021, the learned Sessions Court had been pleased to reject such application. Learned Advocate Mr. Buch would submit that the said order has been challenged by the applicants therein, accused no. 2 to 4 before this Court by preferring Criminal Miscellaneous Application No. 5703 of 2021 and Page 3 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 whereas learned Co-ordinate Bench of this Court vide an order dated 09.08.2021 had permitted the applicants therein to withdraw the said application with liberty to file afresh before the learned Court below after the depositions of eye witnesses namely Mr. Sachin, Mr. Karan, Mr. Anil and Mr. Deva, which depositions are stated to be recorded by the learned Sessions Court.
6.1. Learned Advocate Mr. Buch would submit that in spite of the application for regular bail of the accused no. 2, 3 and 5 not being entertained by the learned Sessions Court and such order being not interfered by this Court, learned Sessions Court vide the order impugned, had released the present respondents no. 2 and 3 i.e. the accused no. 1 and 4 on regular bail vide order dated 19.08.2021. Learned Advocate Mr. Buch would take this Court through the reasonings of the learned Sessions Court and whereas it is submitted by learned Advocate Mr. Buch that the reasonings, by the learned Sessions Court reflect complete non-application of mind by the learned Sessions Court. It is submitted that the first informant is stated not to have witnessed the incident and whereas from a bare reading of the First Information Report it becomes clear that the first informant was a witness. It is also mentioned that from FIR it does not appear that the applicants therein i.e. accused No. 1 and 4 had any weapons in their hands whereas it is submitted that the First Information Report distinctly mentions the respondents no. 2 and 3 Page 4 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 having weapons. It is mentioned that the respondents no. 2 and 3 when they were arrested, at that time no weapon was recovered from them and even in the Discovery Panchnama no weapons are stated to be discovered from them. It is submitted that as such the same is an erroneous finding since the Discovery Panchnama specifically mentions two wooden sticks i.e. the weapons with which the respondents no. 2 and 3 had allegedly assaulted the deceased, being discovered at the instance of the said accused. It is further submitted that while learned Sessions Court states that the Post Mortem Report does not mention any serious injuries on the body of the deceased and whereas the Post Mortem Report does not clearly states with regard to the cause of the death, whereas it is submitted that the Post Mortem report clearly reflects around 23 ante mortem injuries suffered by the deceased. The cause of the death is also specifically mentioned in the Post Mortem Report i.e. "Asphyxia due to manual strangulation and smothering". It is further submitted by learned Advocate Mr. Buch that the learned Sessions Court inter alia observes that there does not appear to be any incident with regard to an offence punishable under Section 302 having happened whereas apart from the first informant, four eye witnesses who have seen the incident and who have specifically mentioned about the role played by each of the accused. Learned Advocate Mr. Buch would thus submit that the respondents no. 2 and 3 - accused no. 1 & 4, having played a very specific role and whereas Page 5 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 the accused being alleged of having committed a heinous offence, which has resulted in the death of a young person, based upon an order which reflects absolute non-application of mind, the accused ought not have been granted regular bail.
7. Learned APP Mr. Ronak Raval on behalf of the applicant-State in Criminal Miscellaneous Application No. 5114 of 2022 has supported the submissions of learned Advocate Mr. Buch for the applicant. Learned APP Mr. Raval has reiterated the submissions made by learned Advocate Mr. Buch that the learned Sessions Court had committed a grave error in coming to conclusion with regard to the incident in question with regard to the weapon held by the present applicant as well as with regard to the aspect of Discovery Panchnama and also with regard to the injuries mentioned in the Post Mortem Note. Learned APP Mr. Raval would submit that the impugned order, reflecting absolute non-application of mind by the learned Sessions Court, observations of the Hon'ble Apex Court in case of Mahipal vs. Rajesh Kumar @ Polia & Anr. in Criminal Appeal No. 1843 of 2019 dated 05.12.2019 would squarely be applicable and whereas relying upon the said decision, learned APP Mr. Raval would submit that this Court may quash and set aside the order grating the regular bail in case of respondents no. 2 and 3. Page 6 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022
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8. As against the submissions made by learned Advocate Mr. Buch and learned APP Mr. Raval on behalf of the applicant, learned Advocate Mr. Raval on behalf of the respondents no. 2 and 3 would submit that as such a plain reading of the averments made in the application, more particularly, the prayer of the applicants, reflect that the applicant seeks cancellation of bail granted by the learned Sessions Court. Learned Advocate Mr. Raval would submit that the parameters for cancellation of bail are well settled and whereas according to learned Advocate Mr. Raval, unless it is shown that the accused who have been released on bail by a Court concerned, are stated to have misused the liberty granted to them, until then an application for cancellation may not be considered. Learned Advocate Mr. Raval has relied upon the decision of this Court in case of Ramesh Ravaji Thakor vs. State of Gujarat dated 07.07.2014 in Criminal Miscellaneous Application (for cancellation of bail) No. 15021 of 2013 and decision of the Hon'ble Apex Court in case of X vs. State of Telangana reported in 2018 (16) SCC page. 511 in support of his submissions.
8.1. Learned Advocate Mr. Raval would further submit that as such, while this Court had refused to interfere in case of accused no. 2, 3 and 5 at the relevant point of time and whereas liberty had been reserved in favour of the said accused, to approach the learned Sessions Court after deposition of the eye witnesses are over and whereas it is submitted by Page 7 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 learned Advocate Mr. Raval that as such now the depositions of the said witnesses named in the order are over whereas while 3 of the 4 witnesses have supported the case of the prosecution yet, thereafter in view of the liberty granted by this Court, the accused nos. 2, 3 & 5 had approached learned Sessions Court and whereas learned Sessions Court had been pleased to release the said applicants on regular bail. It is further submitted by learned Advocate Mr. Raval that the trial is at an advanced stage and whereas it would serve no purpose if the bail order granted by learned Sessions Court is interfered by this Court at this stage. Having regard to such submissions, learned Advocate Mr. Raval would submit that the present application may be dismissed by this Court.
9. Learned Advocate Mr. Buch in rejoinder would submit that as such in case of Mahipal(supra), relied upon by learned APP Mr. Raval, the Hon'ble Apex Court has clearly explained the distinction between an application praying for quashing of an order granting bail and an application praying for canceling a bail. Learned Advocate Mr. Buch would submit that an order granting bail which is unjustified, illegal and perverse could be set aside by this Court and whereas insofar as an application for cancellation of bail, the same could be set aside if there is any prima facie material to show that the accused has misconducted himself or there are supervening circumstances warranting cancellation. Page 8 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022
R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 9.1. Learned Advocate Mr. Buch would further draw the attention of this Court to averments made in the application and would submit that while undoubtedly averments raising apprehension of the applicant of the respondents no. 2 and 3 not fulfilling the bail conditions or attempting to hamper the prosecution or exploit, threaten/ intimidate the witnesses have been mentioned in the application, at the same time, learned Advocate Mr. Buch would submit that the thrust of the application is challenging the order granting bail, more particularly, on account of the perverse reasoning of the learned Sessions Court. Learned Advocate Mr. Buch would also draw the attention of this Court to the prayer 9(B) where the applicant has prayed for canceling order of the bail and for quashing and setting aside the said order. Learned Advocate Mr. Buch would therefore, submit that the present is a case praying for cancellation/ quashing of bail on the ground of perversity of the order in question and not on the ground of the respondents no. 2 and 3 having misused the liberty granted to them and hence leaned Advocate Mr. Buch would submit that this case would be covered by the decision of the Hon'ble Apex Court in case of Mahipal (supra) and whereas the decisions relied upon by learned Advocate Mr. Raval would not have any applicability.
10. Heard learned Advocates for the respective parties who has not Page 9 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 submitted anything else.
11. At the outset, certain prima facie aspects are required to be noted. [1] The FIR filed by the first informant, on the date of the incident i.e. approximately 3 hours after the incident in question, specifically states the respondents no. 2 and 3 as accused and also alleges specific role played by the said respondents, more particularly, the FIR stating that the respondents no. 2 and 3 had assaulted the deceased with stick as well as with hands.
[2] Four eye witnesses i.e. as named in order dated 09.08.2021 of this Court whereby bail application of other accused nos. 2, 3 & 5 had not been considered, had witnessed the incident and whereas all four of the witnesses in their statements to the Investigating Officer have clearly stated with regard to role played by each of the accused, more particularly, the applicants before this Court being accused no. 1 & 4. The accused no. 1 & 4 are stated to have assaulted the deceased with sticks and whereas it is also mentioned that when the first informant as well as his brother Sachin and others had tried to intervene, even the said persons had also assaulted.
[3] The Sessions Court vide order dated 02.03.2021 i.e. approximately 5 Page 10 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 months before the date of the impugned order had rejected bail applications of accused no. 2, 3 and 5 and whereas such order had not been interfered by this Court vide order dated 09.08.2021, i.e. also prior to date of the impugned order releasing the respondents no. 2 and 3 (accused no. 1 & 4) on regular bail.
12. Having noted the salient aspects as above and reading the same along with the impugned order, insofar as the findings of the learned Sessions Court are concerned, it appears that the learned Sessions Court has inter alia noted that the first informant appears not to have witnessed the incident. Learned Sessions Court also finds that according to the first information, the accused before the Court i.e. respondent no. 2 and 3 herein do not appear to have used any weapon and thus the said accused having assaulted the deceased with any weapons is not coming out.
12.1. In the considered opinion of this Court, the said finding of the learned Sessions Court reflects absolute non-application of mind on part of the learned Sessions Court whereas it appears from a plain reading of the FIR that the first informant has clearly stated about the role played by the present respondents no. 2 and 3 in assaulting the deceased and whereas in the First Information Report it is mentioned that the first informant had witnessed the respondents no. 2 and 3 assaulting the deceased with sticks. Apart from the same as it appears, there were four Page 11 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 eye witnesses who also mentioned about the present respondents no. 2 and 3 having assaulting the deceased with sticks. It also appears that statements of the said witnesses had been recorded under Section-164 of the Code of Criminal Procedure and whereas as informed by the learned Advocates, three of the four witnesses have also deposed in favour of the prosecution.
12.2. Insofar as the finding by the learned Sessions Court that no weapons having been discovered at the instance of the present accused, it clearly appears that the learned Sessions Court had erred at that stage also since the Discovery Panchnama clearly reflects about the sticks having been discovered at the instance of the accused no. 1 and 4 i.e. the respondents no. 2 and 3. Though it would attempted to be submitted by learned Advocate Mr. Raval on behalf of the respondents no. 2 and 3 that at the stage of the said weapons being discovered, it is mentioned that there were no blood stains on the said weapons, which submission in the considered opinion of this Court may not be germane for considering this application, more particularly, in view of that fact that this Court is considering an order whereby in spite of weapons being discovered at the instance of the respondents no. 2 and 3 herein, the learned Sessions Court had noted that no weapons had been discovered at the instance of the said accused. The learned Sessions Court also notes that the applicants have prima facie not injured the deceased using any weapons, which also is a Page 12 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 factually incorrect finding, more particularly, as noted herein above in addition to the first informant, four witnesses have clearly stated that they had witnessed the respondents no. 2 and 3 assaulting the deceased with sticks.
12.3. Insofar as the aspect with regard to the Post Mortem Report is concerned, while the learned Sessions Court notes that the Post Mortem Report does not reflect any serious injuries being caused to the deceased and whereas the Post Mortem Report also does not specifically state with regard to the cause of death. As it appears the learned Sessions Court had completely erred on this aspect also, more particularly, since perusal of the Post Mortem Report clearly reflects 22 ante mortem injuries having been sustained by the deceased. The Post Mortem Note also states with regard to the deceased having died on account of asphyxia due to manual strangulation and smothering.
13. Shockingly the learned Sessions Court while granting bail to the applicants also observes that prima facie no incident for an offence under Section-302 appears to have happened in the instant case. This Court, is at pains to understand such a finding on part of the learned Sessions Court, more particularly, in view of the overwhelming evidence which was present before the learned Sessions Court which would show that the deceased, having been assaulted by the accused, had died even before he Page 13 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 could be taken to the hospital. There being ample material in form of the FIR, in form of statements of four witnesses and in form of the Post Mortem Report which all point towards the deceased having been done to death, yet the learned Sessions Court having observed as mentioned herein above, is unfathomable by this Court.
14. Having regard to the discussion herein above, it clearly appears that the observations of the learned Sessions Court while releasing the accused no. 1 and 4 i.e. the respondents no. 2 and 3, clearly reflects absolute non-application of mind on part of the learned Sessions Court and whereas the findings could be held to be nothing less than perverse.
15. Furthermore it appears, as has been submitted by learned Advocate for the applicant, and also on the basis of the averments in the application, that it is not the case of the applicant that the bail granted to the respondents no. 2 and 3, should be canceled on account of the respondents no. 2 and 3 having misused the liberty granted to them or on account of some supervening circumstances which had occurred in the interregnum rather as noted from the submissions of learned Advocate and as found from the averments made in the application, the main ground for challenging the order is that the order granting bail to the respondents no. 2 and 3 was completely unjustified. At this stage this Page 14 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 Court seeks to rely upon the observations of the Hon'ble Apex Court in case of Mahipal vs. Rajesh Kumar reported in 2020 2SCC page no. 118, more particularly, paragraph no. 14, 16 and 17 thereof which are reproduced herein below for benefit.
Paragraph 14: "The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case by case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding. The decision of this Court in Prasanta has been consistently followed by this Court in Ash Mohammad v Shiv Raj Singh, Ranjit Singh v State of Madhya Pradesh, Neeru Yadav v Page 15 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 State of U.P., Virupakshappa Gouda v State of Karnataka, and State of Orissa v Mahimananda Mishra."
Paragraph 15: "The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted. In Neeru Yadav v State of Uttar Pradesh,12 the accused was granted bail by the High Court. In an appeal against the order of the High Court, a two judge Bench of this Court surveyed the precedent on the principles that guide the grant of bail. Justice Dipak Misra (as the learned Chief Justice then was) held:
"...It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court..."
Paragraph 16: "Where a court considering an application for bail Page 16 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 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 (2015) 15 SCC 422 from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment. The order of the High Court in the present case, in so far as it is relevant reads:
"2. Counsel for the petitioner submits that the petitioner has been falsely implicated in this matter. Counsel further submits that, the deceased was driving his motorcycle, which got slipped on a sharp turn, due to which he received injuries on various parts of body including ante-mortem head injuries on account of which he died. Counsel further submits that the challan has already been presented in the court and conclusion of trial may take long time.
3. Learned Public Prosecutor and counsel for the complainant have opposed the bail application.
4. Considering the contentions put-forth by the counsel for the petitioner and taking into account the facts and circumstances of the case and without expressing opinion on the merits of the case, this court deems it just and proper to enlarge the petitioner on bail."
Paragraph 17: "In assessing the rival submissions, it is necessary to advert to the findings of the post-mortem report dated 3 December 2018. On the basis of the injuries, the post-mortem report concluded:
"All above mentioned injuries are ante mortem in nature. Duration within about 6 hrs prior to death.
We the members of medical board are of the opinion that cause of death is Page 17 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 COMA brought about as a result of ante mortem head injuries mentioned in this PMR, sufficient to cause death in ordinary course of nature. However final opinion will be given after receiving FSL reports of above sent samples."
A total of twenty-seven ante-mortem injuries were recorded of which seven were found to be inflicted on the head. This led the members of the medical board to conclude that the cause of death was coma brought about by the result of the head injuries. The learned counsel for the first respondent contended that the deceased fell from the bike and sustained injuries which led to his death. However, it is not for the court to assess in detail the evidence on record to come to a conclusive finding on a chain of causation. A court assessing a plea of bail is required to find a prima facie view of the possibility of the commission of the crime by the accused and not conclude that the alleged crime was in fact committed by the accused beyond reasonable doubt." (emphasis supplied) 15.1. Having regard to the observations of the Hon'ble Apex Court in case of Mahipal(supra) at paragraph 14, 15 & 16, it clearly appears that the Hon'ble Apex Court has inter alia drawn a distinction between an application for cancellation of appeal on the ground that there was an improper or arbitrary exercise of discretion and an application for cancellation of bail where it is alleged that there are existence of supervening circumstances or violation of conditions of bail by the person who has been granted bail.
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16. Having regard to the said findings, in the considered opinion of this Court, the observations relied upon from judgment of this Court Ramesh R. Thakor(supra) as well as judgment of the Hon'ble Apex Court State of Telangana(supra) by learned Advocate on behalf of the respondents no. 2 and 3, which are with regard to an aspect when bail is sought to be canceled on the ground that the accused have misused the liberty granted them, would not be applicable.
17. Furthermore, appreciating the law laid down by the Hon'ble Apex Court in Mahipal(supra) at paragraph no. 17 as herein above, that a Court assessing a bail application is required to reach a prima facie view of possibility of commission of the crime by the accused and whereas the Court is not required to conclude that the crime was committed by the accused beyond reasonable doubt, it appears that even this primary consideration had been ignored by the learned Sessions Court and whereas in spite of prima facie material, the Sessions Court has come to a conclusion otherwise as regards the role of the accused no. 1 & 4 - respondents no. 2 & 3 herein. Furthermore, the Hon'ble Apex Court in Mahipal (supra) has laid down a test to be followed when challenge is to an order granting bail on the ground that there was an improper or arbitrary exercise of discretion. The test being that whether the order granting bail is perverse, illegal or unjustified. In the instant case it Page 19 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 clearly appears on the basis of the discussion as herein above that the order granting bail was completely unjustified, illegal and suffer from gross perversity.
18. This Court also notes that in the instant case, in case of accused no. 2, 3 and 5, the very same learned Sessions Court vide an order dated 02.03.2021 had rejected the bail application of the said accused and whereas the said order had not been interfered by this Court. In view of such a circumstance, the same Sessions Court, having gone ahead and granted bail to the present respondents no. 2 and 3 i.e. accused no. 1 and 4, is in this considered opinion of this Court completely unjustifiable.
18.1. Insofar as the submission made by learned Advocate Mr. Raval that the trial is at an advanced stage and canceling bail or quashing and setting aside order granting bail to respondents no. 2 and 3 would not serve any purpose, in the considered opinion of this Court, the primary aspect which is required to be seen while granting bail, in case of a cognizable offence is with regard to the role played by each of the accused and the nature & gravity of the accusation. In the instant case, accused having prima facie played a vital role in causing the death of the deceased and the allegation against the accused being that they had participated in assault with using sticks and the Post Mortem Report showing approximately 22 ante mortem injuries suffered by the deceased, Page 20 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022 R/CR.MA/16252/2021 JUDGMENT DATED: 13/06/2022 in the considered opinion of this Court also reflects on the perversity of the reasons stated in the order of the learned Sessions Court granting bail to the respondents no. 2 and 3 which was completely unjustified and in view of such a scenario, even if the trial is at an advanced stage, the illegal and perverse order of the learned Sessions Court, cannot be allowed to continue any further.
19. Having regard to the discussion & reasoning as herein above, in the considered opinion of this Court, order dated 19.08.2021, deserves interference and hence, the same is quashed and set aside.
20. At the request of learned Advocate Mr. Raval, time to surrender is granted to the accused for a period of four weeks from the date of this order is uploaded on the web portal of the Gujarat High Court.
(NIKHIL S. KARIEL,J) Mrs. J. J. Kedia Page 21 of 21 Downloaded on : Sat Dec 24 18:44:17 IST 2022