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Gujarat High Court · body

2017 DIGILAW 1146 (GUJ)

Devchand Jinabhai Bambhaniya v. State of Gujarat

2017-07-03

RAJESH H.SHUKLA

body2017
ORDER : RAJESH H. SHUKLA, J. The present application has been filed by the applicant-accused under Section 439 of Criminal Procedure Code for regular bail. 2. The applicant-accused is charged with having committed offences under Sections 120-B, 143, 147, 148, 149, 302, 324, 323, 506(2), 427 and 447 of the Indian Penal Code and under Section 135 of the Gujarat Police Act, for which, FIR being I-C.R.No.18/2015 has been lodged with Nava Bandar Marine Police Station. 3. Heard learned advocate, Shri B.M Mangukiya for the applicant and learned PP Shri Mitesh Amin for the respondent-State. 4. Learned advocate, Shri Mangukiya referred to the background of the facts and Rojkam to emphasis that there is a delay in trial. He submitted that the complainant had filed Special Criminal Misc. Application No. 4841/2015 and, therefore as some directions have been issued, it has caused delay. For that purpose, he referred to the order passed by the High Court in Special Criminal Misc. Application No. 4841/2015 (Coramv: J.B Pardiwala, J.). He also referred to the order passed by the Court below in Criminal Misc. Application No. 22 2/2017 for grant of bail and submitted that the observations made by the Court below are incorrect inasmuch as it has been observed about the conspiracy and it has also been observed that further investigation is made by the Investigating Officer and on the other hand, the trial is pending. He also submitted that the applicant is not attributed with any specific role. He, therefore, submitted that the present application may be allowed. He also submitted that in fact, the trial is yet to start as evidence of the witnesses have not started and, therefore, the present application may be allowed. He also submitted that PM Report does not corroborate about the injury, which could have been caused by the applicant. He, therefore, submitted that as there is delay in trial and it is likely to take some time, the present application may be allowed. 5. Learned Public Prosecutor, Shri Amin resisted the application. He referred to the background of the facts and submitted that it is a case of double murder. He further emphasized that first aspect which is required to be clarified is that the order in Special Criminal Misc. 5. Learned Public Prosecutor, Shri Amin resisted the application. He referred to the background of the facts and submitted that it is a case of double murder. He further emphasized that first aspect which is required to be clarified is that the order in Special Criminal Misc. Application No. 4841/2015 passed by the coordinate bench has no bearing on the trial inasmuch as it has not affected the progress of the trial. He submitted that order was passed in the year 2015 and, therefore, it cannot be said that there is any delay. He emphasized that in fact, other co-accused have absconded and, therefore as recorded in the order of the Court below, non-bailable warrant have been issued and because of such circumstances, the trial may not have proceeded. However, learned APP Shri Amin referred to the papers and submitted that the applicant is attributed with specific role of assault to both the deceased persons with wooden log as stated by the witnesses, who are the eye witnesses. He referred to the statements of the witnesses like Kantibhai Parmar etc. He further submitted that not only that, the weapon is also discovered through the applicant. He submitted that no other accused has been considered for grant of bail except one Pravinbhai, who was released on temporary bail and, thereafter has J absconded. Learned Public Prosecutor submitted that therefore as other co-accused have been absconded, the present application may not be entertained and in any case, it does not justify the grant of bail at this stage when the trial court is proceeding with the trial. 6. In view of these rival submissions, it is required to be considered whether the present application deserves consideration. 7. Though learned advocate, Shri Mangukiya has much emphasized on the aspect of delay in trial, it is not in dispute that the trial has already commenced and, therefore pending trial, this application for grant of bail on the ground that the trial may take time and there are number of witnesses, who are to be examined, cannot be readily accepted. 8. Another aspect which has been focused by learned advocate, Shri Mangukiya that in Special Criminal Application (for direction) No. 4841/2015, the High Court (Coram: J.B Pardiwala, J.) vide order dated 20.08.2015 has issued directions and, therefore, there is a delay. 8. Another aspect which has been focused by learned advocate, Shri Mangukiya that in Special Criminal Application (for direction) No. 4841/2015, the High Court (Coram: J.B Pardiwala, J.) vide order dated 20.08.2015 has issued directions and, therefore, there is a delay. However as submitted by learned Public Prosecutor, Shri Amin, this order of the High Court in Special Criminal Application No. 4841/2015 is dated 20.08.2015, where the direction was issued with regard to the Deputy Superintendent of Police to take over the investigation and, thereafter, much water has flown. Further as it is reflected, other co-accused had not been arrested and as submitted, warrant has been issued. Therefore, the submission made by learned advocate, Shri Mangukiya on the ground of delay are misconceived. 9. Another facet of submission on merits that there is no specific role attributed to the applicant and reliance is placed on PM Report that no injury is caused by the applicant and, therefore, the present application may be allowed, is also misconceived. For that purpose, as referred to by learned Public Prosecutor, Shri Amin relying on the statement of the witnesses including Kantilal Parmar and other witnesses, it cannot be said that there is no role attributed to the applicant. Further weapon is also discovered at the instance of the applicant and, therefore, it would suggest the involvement of the applicant-accused prima facie. Moreover the submission that no injury is caused by the applicant relying upon PM Report is a matter of appreciation of evidence and at this stage, when the trial is in progress, it cannot be considered either way as it is a matter of appreciation of evidence on the basis of the material and no conclusion can be arrived at in such application. Moreover learned Public Prosecutor has submitted that no other accused has been released and one accused, who was released on temporary bail, has also absconded. Therefore having regard to the aforesaid relevant aspect as well as broad guidelines/criteria for the grant of bail and having regard to the nature and gravity of the offence that it is a case of double murder coupled with the fact that the trial is in progress and also severity of punishment, it would not justify the exercise of discretion. Therefore having regard to the aforesaid relevant aspect as well as broad guidelines/criteria for the grant of bail and having regard to the nature and gravity of the offence that it is a case of double murder coupled with the fact that the trial is in progress and also severity of punishment, it would not justify the exercise of discretion. The Hon'ble Apex Court has also made observation in a judgment in case of Virupakshappa Gouda v. State of Karnataka, reported in (2017) 5 SCC 407 referring to this very aspect while dealing with the successive bail application has dealt with similar submission that the accused is presumed to be innocent till he is found guilty. The Hon'ble Apex Court has also observed that “bail application cannot be allowed solely or exclusively on ground that fundamental principle of criminal jurisprudence is that accused is presumed to be innocent till found guilty by competent court”. Thereafter, it has been again reiterated relevant criteria for grant of bail and it has been observed, The court has to keep in mind what has been stated in Chaman Lal v. State of U.P. The requisite factors are: (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge. In Prasanta Kumar Sarkar v. Ashis Chatterjee, it has been opined that while exercising the power for grant of bail, the court has to keep in mind certain circumstances and factors. We may usefully reproduce the said passage:— “9….among other circumstances, the factors which are to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to be believed that fthe accused had committed the offence. (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.” 10. It is also required to be stated that while considering such application for bail, the Legislature has used word “reasonable ground for believing” instead of “the evidence”, which means the court dealing with the grant of bail can only satisfy itself as to whether there is a prima facie case against the accused. Moreover, the Court has to strike a balance between the individual right or liberty and the right of the society in general. However a useful reference can also be made to the judgment of the Hon'ble Apex Court in case of Neeru Yadav v. State of U.P, reported in (2014) 16 SCC 508 , wherein it has been observed in Paragraph No. 17, “The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the 2nd respondent. We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human 1 rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilization rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law.” 11. Therefore, the present application deserves to be rejected and accordingly stands rejected. Rule is discharged.