Gujarat High Court
Jaishreeben @ Payalben W/O Rohitbhai ... vs State Of Gujarat on 24 September, 2020
Equivalent citations: AIRONLINE 2020 GUJ 907
Author: A. P. Thaker
Bench: A. P. Thaker
R/CR.MA/276/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 276 of 2020
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JAISHREEBEN @ PAYALBEN W/O ROHITBHAI BORAD
D/O HARIBHAI MITTHABHAI BHALIYA
Versus
STATE OF GUJARAT
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Appearance:
MR VARUN MATHUR WITH MR ZUBIN BHARDA WITH MR.
DHRUVIN U MEHTA(9993) for the Applicant(s) No. 1
MS MAITHILI MEHTA APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 24/09/2020
ORAL ORDER
1. Heard Mr.Mathur, learned counsel with Mr.Bharda, learned counsel with Mr.Mehta, learned counsel for the applicant and Ms.Mehta, learned Additional Public Prosecutor for the respondent - State through Video Conferencing.
2. The present application is filed under Section 439 of the Code of Criminal Procedure in connection with an FIR being C.R.No.I - 115 of 2019 registered with Kadodara GIDC Police Station, District: Surat Rural for the offences punishable under Sections 302, 364, 120(B) and 201 etc. of the Indian Penal Code.
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3. Mr.Mathur, learned counsel with Mr.Bharda, learned counsel with Mr.Mehta, learned counsel for the applicant has submitted that the allegation against the applicant is that she connivance with other accused planned to kill her husband as her husband was living with another lady. He has submitted that the dead body of the deceased was found from the canal in de-compose manner. According to him, the entire case is based on the circumstantial evidence as none has witnessed killing of the husband of the applicant. He has also submitted that there is no material of conversation between the present applicant with other two accused. He has submitted that the applicant is a lady and not present at the place of occurrence and she has minor child i.e. daughter and mother-in-law. He has also submitted that the prosecution case regarding conspiracy is based solely on the presumption and there is no material to substantiate the charge against the present applicant that she has given contract to kill her husband. He has submitted that there is no any criminal antecedent against the applicant.
3.1 Mr.Mathur, learned counsel with Mr.Bharda, learned counsel with Mr.Mehta, learned counsel for the applicant has relied upon the decisions of the Apex Court in the case of Sushila Aggarwal Vs. State (NCT of Delhi) reported in (2020) 5 SCC 1 = AIR 2020 SC 831 and in the case of Myakala Dharmarajam and others Vs. The State of Telangana and another, reported in (2020) 2 SCC 743.
Page 2 of 8 Downloaded on : Fri Sep 25 02:02:08 IST 2020R/CR.MA/276/2020 ORDER 3.2 Mr.Mathur, learned counsel with Mr.Bharda, learned counsel with Mr.Mehta, learned counsel for the applicant has also submitted that the applicant will abide by all the conditions that may be imposed by this Court. He has prayed to enlarge the applicant on regular bail on appropriate terms conditions.
3.3 Mr.Mathur, learned counsel with Mr.Bharda, learned counsel with Mr.Mehta, learned counsel for the applicant has submitted that the applicant is falsely implicated in the alleged offence and the charge-sheet has already been filed and investigation is over. Learned counsel for the applicant further submits that considering the nature of evidence, role attributed to the applicant and punishment prescribed, this application for bail may kindly be considered and the applicant may be released on bail on stringent conditions.
4. Per contra, Ms.Maithili Mehta, learned Additional Public Prosecutor appearing on behalf of the respondent- State has vehemently opposed the grant of regular bail to the applicant on the ground of nature and gravity of the offence. She has submitted that as there was illicit relationship between the husband of the applicant and one Jyotiben, the applicant has given contract to kill her husband to other accused and there is statement of Jyotiben as well as Sagarbhai. She has submitted that the material available with the Investigating Agency, the facts of Page 3 of 8 Downloaded on : Fri Sep 25 02:02:08 IST 2020 R/CR.MA/276/2020 ORDER planning to kill her husband is borne out. She has submitted that there is prima facie material available against the applicant and, therefore, she may not be released on regular bail and the present application may be rejected.
5. In the case of Myakala Dharmarajam and others (supra), the Apex Court has held and observed in paras-7 as under:-
"7. The factors to be considered while granting bail have been held by this Court to be the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the evidence and witnesses, and obstructing the course of justice, etc. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. For the purpose of bail, the court must not undertake meticulous examination of the evidence collected by the police and comment on the same."
5.1 In the case of Sushila Aggarwal Vs. State (NCT of Delhi) (supra), the Apex Court has held and observed in paras-45 and 46 as under:-
"45. The concept of bail i.e. preserving the liberty of citizen - even accused of committing offences, but subject to conditions, dates back to antiquity.Page 4 of 8 Downloaded on : Fri Sep 25 02:02:08 IST 2020
R/CR.MA/276/2020 ORDER Justinian I in the collections of laws and interpretations which prevailed in his times, Codex Justinianus (or "Code Jus") in Book 9 titled Title 3(2) stipulated that "no accused person shall under any circumstances, be confined in prison before he is convicted." The second example of a norm of the distant past is the Magna Carta which by Clause 44 enacted that "people who live outside the forest need not in turure appear before the Royal Justices of the forest in answer to the general summons unless they are actually involved in proceedings or are sureties for someone who has been seized for a forest offence." Clear parliamentary recognition of bail took shape in later enactments in the UK through the Habeas Corpus Act, 1677 and the English Bill of Rights, 1689 which prescribed that "excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
46. Bail ipson facto has not been defined under the Code. It is now widely recognised as a norm which includes the governing principles enabling the setting of accused person on liberty subject to safeguards, required to make sure that he is present whenever needed. The justification for bail (to one accused of commission or committing a crime) is that it preserves as person who is under cloud of having transgressed law but not convicted for it, from the rigors of a detention."
6. Having considered the submissions canvassed by both the sides and the material placed on record, it is prima facie found that the entire case of the prosecution is based on the circumstantial evidence and dead body of the applicant's husband has been found on the canal in de-compose manner. It also reveals from the material on record that the present applicant's husband died and there was Mutual Page 5 of 8 Downloaded on : Fri Sep 25 02:02:08 IST 2020 R/CR.MA/276/2020 ORDER Understanding Agreement / Live in Relationship Agreement regarding the relationship between the deceased and Janvi. On perusal of the copy of the report, it appears that there was no injury on the body.
7. In view of the settled view, at the time of deciding the bail application, the entire evidence is not required to be scrutinized minutely. The principle for granting bail is well settled. It is an admitted fact that the present applicant is in jail since 08.07.2019 and she being a lady to look after her minor child. It is also an admitted fact that the charge-sheet has been filed and the investigation is over and, therefore, there is no question of pendency of any investigation. Further the entire case of the prosecution is based on the circumstantial evidence and the fact that the accused is a lady and having perused the materials placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant regular bail to the applicant.
8. This Court has considered following aspects;
(i) The case is based on the circumstantial evidence;
(ii) The fact that the accused is in jail since 08.07.2019;
(iii) The investigation is over and the charge-sheet is led;
(iv) The applicant - accused is a lady, aged about 29 years;
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(v) The assurance given by the learned counsel for the applicant that she will abide by all the conditions that may be imposed by this Court;
9. This Court has also taken into consideration the law laid down by the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 SCC 40;
10. In the result, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an FIR being C.R.No.I - 115 of 2019 registered with Kadodara GIDC Police Station, District:
Surat Rural, on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one local surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that she shall;
[a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution;
[c] surrender her passport, if any, to the lower court within a week;
[d] not leave the State of Gujarat without prior permission of the concerned Trial Court;
[e] furnish latest address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the Trial Court;Page 7 of 8 Downloaded on : Fri Sep 25 02:02:08 IST 2020
R/CR.MA/276/2020 ORDER
11. The Authorities will release the applicant only if she is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the concerned Trial Court will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the Trial Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail. Rule is made absolute accordingly. Direct service is permitted.
12. Registry is directed to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode. Learned advocate for the applicant is also permitted to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode.
(DR. A. P. THAKER, J) VR PANCHAL / SALIM Page 8 of 8 Downloaded on : Fri Sep 25 02:02:08 IST 2020