BHARATBHAI BHIMABHAI BHARWAD versus STATE OF GUJARAT AND OTHERS on 30 July 2019

1. Leave granted.

2. These appeals are preferred against the order dated 26.02.2019passed by the High Court of Gujarat at Ahmedabad in Criminal Misc.Application Nos.3528 of 2019 and 3529 of 2019 and order dated07.03.2019 - “On note for speaking to minutes of order dated26.02.2019 in R/CR.MA/3529/2019” in and by which the High Courtdeclined to interfere with the order passed by the trial court granting bailto respondents No.2 and 3-accused No.1 and 2 and further relegatingthe appellant-complainant to approach the Sessions Court on the allegedbreach of condition of bail and for imposing the appropriate conditions.

3. The father of respondents No.2 and 3-accused No.1 and 2were loaned money by the father of complainant-Bharatbhai BhimabhaiBharwad and due to grudge about the transactions, on 10.01.2019, thecomplainant-Bharatbhai and the witnesses were abused. On 10.01.2019at 15:30 hours, Kishanbhai-respondent No.2-accused No.1 inflicted swordblow on the head of Ajitbhai (brother of complainant) and when Ajitbhaitried to save himself by lifting his hand, his left hand palm was cut.Alpeshbhai-respondent No.3-accused No.2 also dealt sword blow onthe chest of Ajitbhai and when prevented, the blow caused injuries onhis right hand elbow. Ravibhai-accused No.3 has dealt indiscriminateblows of stick on the complainant and caused injuries to him. Shaileshbhai-friend of complainant also sustained injuries on both of his hands. On thecomplaint lodged by the complainant, FIR was registered in Crime No.02/2019 at Viramgam Rural Police Station under Sections 323, 324, 326,307, 504, 506(2) and 114 IPC.

4. Respondents No.2 and 3 and other accused were arrested on16.01.2019 and were remanded to judicial custody on 17.01.2019. Therespondents No.2 and 3-accused No.1 and 2 filed bail application whichwas allowed by the learned Additional Sessions Judge, Viramgam videorder dated 06.02.2019. After considering the arguments and also thematerials placed before the court, the learned Additional Sessions Judge A

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Aobserved that prima-facie case is made out against the accused andgravity of offence has to be taken into consideration. However, the learnedAdditional Sessions Judge granted bail on the ground that the injuredAjitbhai was discharged from the hospital on 24.01.2019 and other injuredwitness-Shaileshbhai was also discharged from the hospital and thatweapons allegedly used in the commission of offence have beenBrecovered and also the statements of important witnesses are recorded.The trial court also observed that accused are young, having no criminalantecedents and that they are permanent inhabitants of Sokli village andtheir presence can easily be secured and on those findings, granted bailto respondents No.2 and 3 inter alia by imposing various conditions.

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5. Challenging the order granting bail to respondents No.2 and 3,the complainant-Bharatbhai filed Criminal Misc. Application No.3528 of2019 before the High Court. The High Court observed that though theappellant had raised other grounds challenging the grant of regular bailand has also restricted his arguments to the effect that there is breach ofDcondition of bail. Pointing out that the appellant-complainant has restrictedhis arguments to the effect that there is breach of condition of bail, theHigh Court relegated the appellant to the Sessions Court to raise theobjection on the alleged breach of condition and imposing the appropriateconditions. Learned counsel for the appellant then filed an application before the Registrar “Speaking to minutes in respect of common orderEdated 26.02.2019 passed in Criminal Misc. Application No.3528of 2019 and 3529 of 2019”inter alia contending that the offence isvery grave and that the appellant has challenged the very exercise ofdiscretion in granting bail to the accused and therefore, prayed to circulatethe “speaking to minutes” to the Hon’ble Judge in respect of the orderFdated 26.02.2019 which came to be dismissed vide order dated07.03.2019.

6. We have heard Mr. Abhishek Singh, learned counsel for theappellant and Mr. Sushil Kumar Jain, learned senior counsel forrespondents No.2 and 3 and perused the impugned orders and otherGmaterials on record.

7. Placing reliance upon Anil Kumar Yadav v. State (NCT ofDelhi) and Another (2018) 12 SCC 129 at paras (17-18), learnedcounsel for the appellant has submitted that while granting bail, therelevant considerations like; nature of seriousness of the offence; the impact of grant of bail that may make on the prosecution witnesses;likelihood of his tampering the evidence and others aspects should betaken into consideration. It was submitted that due to the attack byrespondents No.2 and 3, injured Ajitbhai has lost the use of his rightthumb and four fingers of his left hand are immobilized which shows thegravity of offence and seriousness of allegations. It was further submittedthat though the petition was filed before the High Court under Section439(2) Cr.P.C.-the provision meant for cancellation of bail, the appellantin fact has challenged the very exercise of discretion in favour of theaccused, in view of gravity of the offence and the nature of injuriessustained by Ajitbhai. It was submitted that though the learned AdditionalSessions Judge referred to the prima-facie materials showing involvementof the accused, has erroneously exercised the discretion in granting bailto the accused and the appellant challenged the arbitrary exercise ofdiscretion and this was not taken note by the High Court. Drawing ourattention to “speaking to minutes”, the learned counsel submitted thatin view of the grounds raised in the “speaking to minutes”, the HighCourt should have afforded an opportunity to the appellant to speak tominutes in respect of order dated 26.02.2019.

8. Learned senior counsel for respondents No.2 and 3 submittedthat the appellant having restricted his arguments only to the effect thatthere was breach of condition of bail and while so, the appellant is notjustified in challenging the order dated 06.02.2019.

9. Though the application has been filed before the High Courtunder Section 439(2) Cr.P.C. i.e. an application for cancellation of bail,by perusal of the grounds raised in the application, it is seen that theappellant has raised grounds challenging the exercise of discretion ingranting bail to respondents No.2 and 3 under Section 439 Cr.P.C. andthat the order granting bail is unsustainable in law. In effect, the applicationfiled was only challenging the order of grant of bail on the ground that itwas an arbitrary exercise of discretion. The Court while granting bailshould exercise its discretion in judicious manner by taking intoconsideration the relevant facts as held in State of U.P. Through CBI v.Amarmani Tripathi (2005) 8 SCC 21.

10. It is well settled that the consideration applicable forcancellation of bail and consideration for challenging the order of grantof bail on the ground of arbitrary exercise of discretion are different.

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AWhile considering the application for cancellation of bail, the Courtordinarily looks for some supervening circumstances like; tampering ofevidence either during investigation or during trial, threatening of witness,the accused is likely to abscond and the trial of the case getting delayedon that count etc. Whereas, in an order challenging the grant of bail onthe ground that it has been granted illegally, the consideration is whetherBthere was improper or arbitrary exercise of discretion in grant of bail.The appellant has challenged the very grant of bail on the ground ofarbitrary exercise of discretion ignoring the relevant materials to beconsidered in the application for bail. Since the High Court proceededunder the footing as if the appellant had filed the application only forCcancellation of bail for which, the consideration is different, the impugnedorder is liable to be set aside and the matter is remitted to the High Courtfor consideration of the matter afresh.

11. In the result, the impugned orders of the High Court dated26.02.2019 and 07.03.2019 are set aside and these appeals are allowed Dand the matter is remitted to the High Court for consideration of CriminalMisc. Application Nos.3528 of 2019 and 3529 of 2019 afresh. The HighCourt shall proceed with the matter as if the application challenges theorder of grant of bail and proceed with the matter in accordance withlaw.

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Kalpana K. Tripathy

Appeals allowed and matter remitted to High Court F

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