ISHWARJI NAGAJI MALI versus STATE OF GUJARAT AND ANOTHER on 18 January 2022

Conclusion

1. Feeling aggrieved and dissatisfied with the impugned order dated30.07.2021 passed by the High Court of Gujarat at Ahmedabad in CriminalMiscellaneous Application No. 9390 of 2021, by which the High Courthas directed to release respondent no.2 (accused) on bail in connectionwith FIR registered at C.R. No. I – 11195008201056 of 2020 with BhildiPolice Station for the offences punishable under Sections 302, 120(B),114, 304A of the IPC and under Sections 177, 184 & 134 of the MotorVehicles Act, the father of the deceased has preferred the present appeal.

2. The incident in question took place on the morning of 26.12.2020at 7:00 a.m. when respondent no.2 herein along with his wife, Daxaben(deceased) left their home in Deesa to visit Hanumanji Temple at Gelavillage and on their way at around 07:00 a.m. while they were walking,the deceased was hit by a speeding four-wheeler (while coloured SwiftDesire) from behind and which immediately fled away. That oneSevantibhai Ranchhodji Tank, cousin of respondent no.2 lodged the FIRagainst unknown persons initially for the offences punishable underSections 304A IPC and Sections 177, 184 & 134 of the Motor VehiclesAct on the basis of the story narrated by respondent no.2 that his wifewas accidentally hit by a speeding car when they were walking together.

2.1 That during the course of the investigation and consideringthe statements of the witnesses recorded during the course of theinvestigation and making analysis of the call details between respondentno.2 and his friend Kirtikumar Kanaji, it was revealed that respondentno.2 hatched a criminal conspiracy along with the other co-accused tokill his wife by giving Rs. 2 lakhs to the driver of the Swift Car for hitting the deceased from her back and planned to treat the offence as anaccident in collusion with each other. An application was made by theInvestigating Officer to add the offences punishable under Sections 302,120(B) and 114 of the IPC. By order dated 6.2.2021, the learned A

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AMagistrate permitted the Investigating Officer to also add the aforesaidoffences against the accused. Thereafter on conclusion of the detailedinvestigation and after recording the statements of as many as 40 persons/witnesses and having obtained the call details between respondent no.2and the co-accused, respondent no.2 and other co-accused have beencharged for the offences punishable under Sections 302, 120(B) and 114Bof the IPC.

2.2 That respondent no.2 filed a regular bail application beforethe learned Sessions Court. By a detailed order dated 19.05.2021, thelearned Additional Sessions Judge, Deodar rejected the said bailapplication. That thereafter, respondent no.2 filed a CriminalCMiscellaneous Application No. 9390 of 2021 before the High Court ofGujarat at Ahmedabad under Section 439 Cr.P.C. for regular bail.

By the impugned judgment and order, the learned Single Judge ofthe High Court has allowed the said application and has directed to releaserespondent no.2 on bail by observing in clauses (iv) and (v) of paragraphD4 as under and without adverting to the material collected during thecourse of the investigation and without considering the seriousness ofthe offence and the criminal conspiracy hatched by respondent no.2 tokill his wife for monetary benefits. The observations made in clauses(iv) and (v) of paragraph 4 read as under:E

“(iv) At the end of the submissions, it appears that the prosecutioncase rests on circumstantial evidence and therefore, it is not legaland proper to deny bail to the present applicant on such weakpiece of evidence.

F(v) The applicant has deep root in the society, no apprehension asto flee away or escape trial or tampering with the evidence/witnesses is expressed.”

Feeling aggrieved and dissatisfied with the impugned order passedby the learned Single Judge of the High Court directing to releaseGrespondent no.2 on bail, the father of the deceased has preferred thepresent appeal.

3. Shri Pradhuman Gohil, learned Advocate appearing on behalfof the appellant has vehemently submitted that in the facts andcircumstances of the case, the High Court has committed a grave errorin releasing respondent no.2 on bail.H

3.1 It is vehemently submitted that while releasing respondentno.2 on bail, the High Court has not adverted to any of the materialcollected during the course of the investigation which are the part of thecharge sheet and that the nature and gravity of the offence.

3.2 It is submitted that the High Court, as such, has not assignedany reasons except that it is a case of circumstantial evidence whichcan be said to be a weak piece of evidence.

3.3 It is submitted that the impugned order passed by the HighCourt releasing respondent no.2 on bail is contrary to the law laid downby this Court in the case of Ramesh Bhavan Rathod v. VishanbhaiHirabhai Makwana (Koli) and others, reported in (2021) 6 SCC 630,as well as the recent decision of this Court in the case of BhoopendraSingh v. State of Rajasthan & another (Criminal Appeal No. 1279 of2021, decided on 29.10.2021) and decision of this Court in the case ofMahipal v. Rajesh Kumar, reported in (2020) 2 SCC 118.

3.4 It is submitted that in the present case during the course of theinvestigation, it has been revealed that respondent no.2 was in financialdifficulty; he got insurance accidental policy in the joint names of himselfand his wife of Rs. 60 lakhs on 29.09.2020. It is submitted that thereafterhe (respondent no.2 herein) hatched the criminal conspiracy with theother co-accused to kill her wife to get the monetary benefits andultimately killed his wife on 26.12.2020.

3.5 It is submitted that during the course of the investigation, theInvestigating Officer has collected ample material to complete the chainof events. It is submitted that the Investigating Officer has collected thecall details between respondent no.2 and co-accused Kirtikumar Kanajiand the co-accused driver of the Swift Car and it has been found that allthe three were in touch with each other and they talked between 4:22a.m. to 6:25 a.m. on the date of the incident and thereafter the deceasedwas hit by the co-accused Maheshbhai at 7:00 a.m. It is submitted thattherefore the High Court ought not to have release respondent no.2 onbail.

4. Ms. Archana Pathak Dave, learned counsel appearing on behalfof the State of Gujarat has supported the appellant. It is submitted thatlooking to the nature and gravity of the offence committed by respondentno.2, the High Court ought not to have released respondent no.2 on bail.It is submitted that after a detailed investigation, respondent no.2 and the A

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Aother co-accused have been charge-sheeted for the offences underSections 302 and 120(B) IPC for having hatched the criminal conspiracyand killed the wife of respondent no.2 for monetary benefits.

5. Ms. Neelam Singh, learned Advocate appearing on behalf ofrespondent no.2 while opposing the present appeal has submitted that asBinvestigation has been completed and charge-sheet has been filed andthe custodial interrogation of respondent no.2 is not required and thereforethe High Court has not committed any error in releasing respondent no.2on bail, more particularly when the prosecution case rests oncircumstantial evidence.C6. We have heard the learned counsel for the respective partiesat length. We have gone through the impugned judgment and order passedby the High Court releasing respondent no.2 on bail. Except makingobservations in clauses (iv) and (v) of paragraph 4, reproducedhereinabove, no further reasons have been assigned by the High Courtwhile releasing respondent no.2 on bail. Even the High Court has not atDall adverted to the material collected during the course of the investigation.The High Court has not at all considered the material/evidence collectedduring the course of the investigation even prima facie and has directedto release respondent no.2 in such a serious offence of hatchingconspiracy to kill his wife, by simply observing that as it is a case ofEcircumstantial evidence, which is a weak piece of evidence, it is notlegal and proper to deny bail to respondent no.2. Merely because theprosecution case rests on circumstantial evidence cannot be a ground torelease the accused on bail, if during the course of the investigation theevidence/material has been collected and prima facie the complete chainof events is established. As observed hereinabove, while releasingFrespondent no.2 on bail, the learned Single Judge of the High Court hasnot at all adverted to and/or considered any of the material/evidencecollected during the course of the investigation, which is a part of thecharge-sheet.

7. One another reason given by the High Court to releaseGrespondent no.2 on bail is that the accused has deep root in the societyand no apprehension as to flee away or escape trial or tampering withthe evidence/witnesses is expressed. In a case of committing the offenceunder Section 302 read with 120B IPC and in a case of hatchingconspiracy to kill his wife and looking to the seriousness of the offence,Hthe aforesaid can hardly be a ground to release the accused on bail.

ISHWARJI NAGAJI MALI v. STATE OF GUJARAT AND ANOTHER[M. R. SHAH, J.]

8. At this stage, few decisions of this Court on grant of bail arerequired to be referred to.

a)In Gudikanti Narasimhulu & Ors. vs. Public Prosecutor,High Court of Andhra Pradesh — (1978) 1 SCC 240,Krishna Iyer, J., while elaborating on the content of Article21 of the Constitution of India in the context of liberty of aperson under trial, has laid down the key factors that haveto be considered while granting bail, which are extractedas under:

“7. It is thus obvious that the nature of the charge is thevital factor and the nature of the evidence also ispertinent. The punishment to which the party may beliable, if convicted or conviction is confirmed, also bearsupon the issue.

8. Another relevant factor is as to whether the courseof justice would be thwarted by him who seeks thebenignant jurisdiction of the Court to be freed for thetime being.

9. Thus the legal principles and practice validate theCourt considering the likelihood of the applicantinterfering with witnesses for the prosecution orotherwise polluting the process of justice. It is not onlytraditional but rational, in this context, to enquire into theantecedents of a man who is applying for bail to findwhether he has a bad record – particularly a recordwhich suggests that he is likely to commit seriousoffences while on bail. In regard to habituals, it is partof criminological history that a thoughtless bail order hasenabled the bailee to exploit the opportunity to inflictfurther about the criminal record of a defendant, istherefore not an exercise in irrelevance.”

b)In Prahlad Singh Bhati vs. NCT of Delhi & ORS – (2001)4 SCC 280 this Court highlighted the aspects which are tobe considered by a court while dealing with an applicationseeking bail. The same may be extracted as follows:

“The jurisdiction to grant bail has to be exercised on thebasis of well settled principles having regard to the

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SUPREME COURT REPORTS

circumstances of each case and not in an arbitrarymanner. While granting the bail, the court has to keep inmind the nature of accusations, the nature of evidencein support thereof, the severity of the punishment whichconviction will entail, the character, behavior, means andstanding of the accused, circumstances which arepeculiar to the accused, reasonable possibility of securingthe presence of the accused at the trial, reasonableapprehension of the witnesses being tampered with, thelarger interests of the public or State and similar otherconsiderations. It has also to be kept in mind that for thepurposes of granting the bail the Legislature has usedthe words “reasonable grounds for believing” instead of“the evidence” which means the court dealing with thegrant of bail can only satisfy it as to whether there is agenuine case against the accused and that theprosecution will be able to produce prima facie evidencein support of the charge.”

c)This Court in Ram Govind Upadhyay vs. SudarshanSingh – (2002) 3 SCC 598, speaking through Banerjee,J., emphasized that a court exercising discretion in mattersof bail, has to undertake the same judiciously. In highlightingthat bail cannot be granted as a matter of course, bereft ofcogent reasoning, this Court observed as follows:

“3. Grant of bail though being a discretionary order —but, however, calls for exercise of such a discretion in ajudicious manner and not as a matter of course. Orderfor bail bereft of any cogent reason cannot be sustained.Needless to record, however, that the grant of bail isdependent upon the contextual facts of the matter beingdealt with by the court and facts, however, do alwaysvary from case to case. While placement of the accusedin the society, though may be considered but that byitself cannot be a guiding factor in the matter of grant ofbail and the same should and ought always to be coupledwith other circumstances warranting the grant of bail.The nature of the offence is one of the basicconsiderations for the grant of bail — more heinous isthe crime, the greater is the chance of rejection of the ISHWARJI NAGAJI MALI v. STATE OF GUJARAT AND ANOTHER

[M. R. SHAH, J.]

bail, though, however, dependent on the factual matrixof the matter.”

d)In Kalyan Chandra Sarkar vs. Rajesh Ranjan aliasPappu Yadav & Anr. – (2004) 7 SCC 528, this Courtheld that although it is established that a court considering abail application cannot undertake a detailed examination ofevidence and an elaborate discussion on the merits of thecase, the court is required to indicate the prima facie reasonsjustifying the grant of bail.

e)In Prasanta Kumar Sarkar vs. Ashis Chaterjee — (2010)14 SCC 496 this Court observed that where a High Courthas granted bail mechanically, the said order would sufferfrom the vice of non-application of mind, rendering it illegal.This Court held as under with regard to the circumstancesunder which an order granting bail may be set aside. Indoing so, the factors which ought to have guided the Court’sdecision to grant bail have also been detailed as under:

“It is trite that this Court does not, normally, interferewith an order passed by the High Court granting orrejecting bail to the accused. However, it is equallyincumbent upon the High Court to exercise its discretionjudiciously, cautiously and strictly in compliance with thebasic principles laid down in a plethora of decisions ofthis Court on the point. It is well settled that, amongother circumstances, the factors to be borne in mindwhile considering an application for bail are: (i) whetherthere is any prima facie or reasonable ground to believethat the accused had committed the offence; (ii) natureand gravity of the accusation; (iii) severity of thepunishment in the event of conviction; (iv) danger of theaccused absconding or fleeing, if released on bail; (v)character, behaviour, means, position and standing of theaccused; (vi) likelihood of the offence being repeated;(vii) reasonable apprehension of the witnesses beinginfluenced; and (viii) danger, of course, of justice beingthwarted by grant of bail.”

f)In eeru Yadav vs. State of UP & Anr. – (2016) 15 SCC422, after referring to a catena of judgments of this Court A

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on the considerations to be placed at balance while decidingto grant bail, it is observed in paragraphs 15 and 18 as under:

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“15. This being the position of law, it is clear as cloudlesssky that the High Court has totally ignored the criminalantecedents of the accused. What has weighed withthe High Court is the doctrine of parity. A history-sheeterinvolved in the nature of crimes which we havereproduced hereinabove, are not minor offences so thathe is not to be retained in custody, but the crimes are ofheinous nature and such crimes, by no stretch ofimagination, can be regarded as jejune. Such cases docreate a thunder and lightening having the effectpotentiality of torrential rain in an analytical mind. Thelaw expects the judiciary to be alert while admitting thesekind of accused persons to be at large and, therefore,the emphasis is on exercise of discretion judiciously andnot in a whimsical manner.

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18. Before parting with the case, we may repeat withprofit that it is not an appeal for cancellation of bail asthe cancellation is not sought because of superveningcircumstances. The annulment of the order passed bythe High Court is sought as many relevant factors havenot been taken into consideration which includes thecriminal antecedents of the accused and that makes theorder a deviant one. Therefore, the inevitable result isthe lancination of the impugned order.”

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8.1 In Anil Kumar Yadav vs. State (NCT of Delhi) – (2018) 12SCC 129, it is observed and held by this Court that while granting bail,the relevant considerations are, (i) nature of seriousness of the offence;(ii) character of the evidence and circumstances which are peculiar toGthe accused; and (iii) likelihood of the accused fleeing from justice; (iv)the impact that his release may make on the prosecution witnesses, itsimpact on the society; and (v) likelihood of his tampering.

8.2 Emphasizing on giving brief reasons while granting bail, it isobserved by this Court in the case of Ramesh Bhavan Rathod (supra)that though it is a well settled principle that in determining as to whetherH

bail should be granted, the High Court, or for that matter, the SessionsCourt deciding an application under Section 439 Cr.P.C. would not launchupon a detailed evaluation of the facts on merits since a criminal trial isstill to take place. It is further observed that however the Court grantingbail 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 grantbail. It is observed that the outcome of the application has a significantbearing on the liberty of the accused on one hand as well as the publicinterest in the due enforcement of criminal justice on the other and therights of the victims and their families are at stake as well and thereforewhile granting bail, the Court has to apply a judicial mind and recordbrief reasons for the purpose of deciding whether or not to grant bail. Itis further observed by this Court in the aforesaid decision in paragraph36 as under:

“36. Grant of bail Under Section 439 of the Code of CriminalProcedure is a matter involving the exercise of judicial discretion.Judicial discretion in granting or refusing bail-as in the case of anyother discretion which is vested in a court as a judicial institution-is not unstructured. The duty to record reasons is a significantsafeguard which ensures that the discretion which is entrusted tothe court is exercised in a judicious manner. The recording ofreasons in a judicial order ensures that the thought processunderlying the order is subject to scrutiny and that it meets objectivestandards of reason and justice.”

9. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the present case, the impugned order passed bythe High Court directing to release respondent no.2 herein on bail isunsustainable both, on law as well as on facts. Whatever reasons aregiven by the High Court are not germane. As observed hereinabove, theHigh Court has not at all adverted to the relevant material/evidencecollected during the course of the investigation, which are the part of thecharge-sheet. During the course of the investigation and even as per thecharge-sheet it is alleged that for the monetary benefits, respondent no.2hatched a criminal conspiracy with other co-accused to kill his wife andtried to make out an accidental case. During the course of theinvestigation, it has been revealed that respondent no.2 took the accidentalinsurance policy jointly with his wife on 29.09.2020 of Rs. 60 lakhs. Thedate of the offence is 26.12.2020 at 7:00 a.m. During the course of the A

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Ainvestigation and from the call details, it has been revealed that respondentno.2 was in constant touch on phone with the other co-accused from4:22 a.m. to 6:25 a.m. on 26.12.2020. During the course of theinvestigation and as per the charge-sheet, according to the prosecution,as a part of the conspiracy, respondent no.2 – Lalitbhai Ganpatji Tanktook his wife to Hanumanji Temple on foot and as he got the chance inBthe way, he made phone call to the co-accused Kirtikumar Kanaji tofinalise the plan. Kirtikumar Kanaji made phone call to another co-accusedMahesh (driver of the Swift Car) and thereafter the co-accused Maheshhit the deceased Daxaben by the said car and committed murder fromthe back side so as to consider it as an accidental death. During all theseCtimes, all the accused were in touch on phone calls. Therefore, lookingto the seriousness of the offence and looking to the nature and gravity ofthe offence committed by respondent no.2, the High Court ought not tohave released respondent no.2 on bail. While releasing respondent no.2on bail, the High Court has not at all considered the parameters to beconsidered while releasing the accused on bail and that too in a seriousDoffence of murder and hatching conspiracy to kill his wife. The impugnedorder passed by the High Court releasing respondent no.2 cannot besustained and the same deserves to be quashed and set aside.

10. In view of the above and for the reasons stated above, thepresent appeal is allowed. The impugned judgment and order datedE30.07.2021 passed by the learned Single Judge of the High Court ofGujarat at Ahmedabad in Criminal Miscellaneous Application No. 9390/2021, releasing respondent no.2 herein on bail is hereby quashed and setaside. Since, we have quashed and set aside the impugned order releasingrespondent no.2 herein on bail, respondent no.2 is directed to surrenderFbefore the concerned Court/Jail authorities, within a period of one weekfrom today. However, it is observed that the observations made in thisjudgment are for the purpose of deciding the question of bail only andthe trial Court shall proceed with the trial of the case and decide thesame in accordance with law and on the basis of the evidence led byboth sides.G

Divya Pandey

(Assisted by : Roopanshi Virang, LCRA)

Appeal allowed.

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