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2024 DIGILAW 1687 (GUJ)

Kevin Hasmukhbhai Patel v. Parth Kamal Kothari

2024-08-08

GITA GOPI

body2024
ORDER : Gita Gopi, J. 1. Heard Mr. Bhunesh Rupera, learned advocate for the applicant, Mr. Darshan Varandani, learned advocate for respondent no.1 and Mr. Hardik Mehta, learned APP for the respondent–State. 2. RULE. Learned advocates waives service of Rule on behalf of the respective respondents. 3. The applicant is the original complainant. The brother of the deceased has made a prayer for quashing and setting aside the bail granted to respondent no.1-accused on 1.7.2023 vide order passed by the learned Sessions Judge, Vadodara in Criminal Misc. Application no.1500 of 2023 in connection with FIR no.11196030220696/2022 registered with Sayajiganj Police Station, Vadodara City under Section 302 of the IPC and Section 135 of the Gujarat Police Act. 4. Learned advocate Mr. Bhunesh Rupera for the applicant submitted that younger brother of the complainant Daksh was killed on 3.10.2022. The police had recovered knife, knife cover and mobile phone of the deceased from the place as pointed out by the accused. The CCTV footage captured shows that the accused and the deceased were last seen together. The CCTV footage of the places from where the accused had purchased the knife, water bottle, string, though available on record has not been considered by the learned Sessions Judge. The shopkeeper has supported the recovery of the mobile phone from the roof top of the shop and vital evidence in the form of CCTV footage has been totally ignored by the learned Sessions Judge. Advocate Mr. Rupera submitted that the statement of Darshan Devendra Bhatt, tutor of the deceased and the accused, whose tuition class was attended by both the deceased and the accused reflects the conversation which he had with the accused who was seeking advise from the tutor for self defence in case of commission of murder. Advocate Mr. Rupera submitted that as per the postmortem report, multiple stab wounds 21 in number have been noted apart from other incise wounds and even the major stab wound in the abdominal cavity. The brutal murder though gets reflected in the postmortem report, the learned Sessions Judge has totally ignored the prima facie evidence on record and without assigning any reasons has granted the bail. Advocate Mr. Rupera submitted that CCTV footage of the control room of the cross road shows that the deceased and the accused had gone together but while returning back, the accused was all alone. Advocate Mr. Advocate Mr. Rupera submitted that CCTV footage of the control room of the cross road shows that the deceased and the accused had gone together but while returning back, the accused was all alone. Advocate Mr. Rupera submitted that the learned Judge has mechanically passed the order of granting bail though it is a case of brutal murder. 5. Advocate Mr. Darshan Varandani for the respondent no.1 – accused submitted that the learned Judge has observed the arguments in the order and considering the age of the applicant as 19 and since he was pursuing his academics with M.S. University of Vadodara in 2nd year commerce and when the investigation is over and charge-sheet has been filed having not found any criminal antecedents and have observed his conduct during the temporary bail and considering the fact that there is no direct evidence to connect him with the crime and the entire case is based on circumstantial evidence, benefit of bail has been granted and thus, submitted that the order being reasoned order, bail should not be cancelled at the stage when the charge had already been framed. 6. Mr. Hardik Mehta, learned APP has produced a report of Police Inspector, Sayajiganj Police Station, Vadodara City, wherein it has been noted that initially the complaint was given against an unknown person and the cause of death was for the injuries on stomach and chest. The FSL and dog squad was called on the spot with the Government photographer. The deceased spectacles, chapals, blood samples were seized. The photographs of the place of the offence was recorded and CD was produced. The CCTV footage of the place of incident and the surrounding areas were checked and it was seen that the deceased was lastly seen with the accused and both had come at Alankar tower and thereafter, on inquiring from the accused, the cause was inappropriate utterance of the deceased for the sister of the accused and girl friend. Reconstruction panchnama was also drawn of the place where the accused had thrown and the knife cover was recovered and the place at which the accused had thrown mobile phone of the deceased was also found and recovered. The clothes of the accused as well as moped used during the offence was also recovered. Reconstruction panchnama was also drawn of the place where the accused had thrown and the knife cover was recovered and the place at which the accused had thrown mobile phone of the deceased was also found and recovered. The clothes of the accused as well as moped used during the offence was also recovered. As per the police record, the accused had purchased the knife from the Reliance Mart Mall at Manjalpur and nylon wire from Maheshwari Store, Manjalpur and after coming at Alankar tower, he had purchased water bottle from New Samrat Pan House and in identification parade, cashier of Reliance Mall, owner of Maheshwari Store and New Samrat Pan House had identified the accused. His presence was captured in CCTV footage near the Reliance Mall, Alankar tower, New Samrat Pan House, Capital Hair Saloon. The CD was produced by the Reliance Mall and Capital Hair Saloon along with the certificate. 7. The learned Judge while granting the bail has made the observations in Paragraph 7 as under:- “7. On perusing the Charge Sheet, it appears that, the deceased and the applicant had gone together for the Navratri celebration in the night of 03/10/2022, however, the deceased had not returned home. This Court is in agreement with the submission of Ld.APP Mr.Chavan that, the statements of the witnesses from whom, the applicant had purchased a knife, a nylon thread and a water bottle have been recorded, and they have identified the applicant. In the same breach, this Court is also in agreement with the submission of Ld. Advocate Mr.Bajpai that, there is no direct evidence as regards the complicity of the applicant in the crime and he came to be arrested only on the basis of his confession before the police. So far as the theory of “last seen together” is concerned, it would be matters of evidence at the time of trial. The applicant has been previously granted temporary bail on four occasions, during which, he has not misused his liberty. It is true that, the crime which has been allegedly committed by the applicant is heinous in nature, however, considering the evidence which has come on record, the entire case rests on the circumstantial evidence. The applicant has been previously granted temporary bail on four occasions, during which, he has not misused his liberty. It is true that, the crime which has been allegedly committed by the applicant is heinous in nature, however, considering the evidence which has come on record, the entire case rests on the circumstantial evidence. On perusing the Charge Sheet, the fact that the applicant had stolen ornaments from his maternal aunt’s house, has not gone unnoticed by this Court, however, the said fact will not come in the way of deciding the present bail application. The prosecution will be required to prove the entire chain of evidence at the time of trial, so as to prove the guilt of the applicant in the crime.” 8. It would be quite appropriate to refer to the case of Puran Vs. Rambilas, reported in (2001) 6 SCC 338 , where it was held by the Hon’ble Supreme Court, that the concept of setting aside an unjustified, illegal or perverse order is absolutely different from canceling an order of bail on the ground that the accused has misconducted himself or because of some new facts requiring cancellation. 9. Ingeminating the aforesaid principle, the Hon’ble Apex Court in case of Ranjit Singh Vs. State of M.P., reported in (2013) 16 SCC 791, observed in paragraph no.19 as under: “19. ...There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court.” 10. The Hon’ble Supreme Court in case of Narendra Amin Vs. State of Gujarat, reported in 2008 (13) SCC 515 , noted that the Court dealing with cancellation application is required to find whether irrelevant material of substantial nature was taken into account or relevant material omitted from consideration while granting bail. If so, order granting bail would be perverse, justifying cancellation, in that context, stand of no supervening circumstances has no relevance in such a case. 11. The scope of the power of High Court under section 439(2) has been considered by the Hon’ble Supreme Court in case of Gurcharan singh & Ors. Vs. If so, order granting bail would be perverse, justifying cancellation, in that context, stand of no supervening circumstances has no relevance in such a case. 11. The scope of the power of High Court under section 439(2) has been considered by the Hon’ble Supreme Court in case of Gurcharan singh & Ors. Vs. State (Delhi Administration), reported in 1978 AIR 179, held that under Section 498(2) of the old Code, it was provided that a person, who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail by any court including the Court of Session, if it thinks appropriate to do so. Relevant paragraph of the judgment is reproduced herein: “16. Section 439 of the new Code on the other hand confers special powers on the High Court or the Court of Session regarding bail. This was also the position under Section 498 Cr.P.C. of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under subsection (1) to be arrested and may commit him to custody. In other words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed, to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. In other words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed, to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-à-vis the High Court.” 12. As per the police, after the murder the accused had called his tutor–Darshan Devendra Bhatt for his advise of self defence in case of murder. The statement of tutor-Darshan Devendra Bhatt was recorded in connection with the mobile conversation. After the murder, the accused had gone to see his friend Mayuresh, Jef and Rahin and their statements were also recorded. 13. The statement of tutor-Darshan Devendra Bhatt was recorded in connection with the mobile conversation. After the murder, the accused had gone to see his friend Mayuresh, Jef and Rahin and their statements were also recorded. 13. As per the police, the accused and the deceased had come to Sayajiganj Alankar tower on their own moped and after committing murder, the accused had returned back alone and that all had been captured in CCTV footage. The postmortem note reflects the injuries caused. The clothes, blood, spectacles and chapal of the deceased and accused have been recovered for the investigation. 14. It appears that the learned Judge has not considered all these evidence which have come on record. The fact of last seen together gets corroborated with CCTV footage and the statements of the shop owners from where he had purchased the knife and nylon string and water bottle. The deceased and the accused going at Sayajiganj Alankar tower on their own moped has been captured the murder has taken place in the basement at Alankar tower. The fact that the accused had come back alone corroborated with the injuries with multiple stab wounds 21 in number on the front of chest and abdominal area, incise wound were noted and apart from that the incise wound on the neck are prima facie evidence on record about the brutality of the murder. The learned Judge has not considered the seriousness of the offence. The act of the accused with an intent to create false evidence by meeting his friends after the murder and even the fact of the advise sought from the tutor to create evidence of false alibi has not been considered seriously by the learned Sessions Judge. The nature and gravity of the offence is a prime consideration in the matters of murder. The learned Sessions Judge has not considered the relevant factors for examining the case to grant the bail and has allowed the bail in perfunctory manner. 15. In view of the above, the order dated 1.7.2023 passed by the learned Sessions Judge, Vadodara in Criminal Misc. Application no.1500 of 2023 granting bail to the respondent no.1-accused is quashed and set aside. Resultantly, the bail granted by the learned Sessions Judge gets cancelled. The accused to surrender before the concerned Police Station within a period of 10 (ten) days from the date of this order. 16. Application no.1500 of 2023 granting bail to the respondent no.1-accused is quashed and set aside. Resultantly, the bail granted by the learned Sessions Judge gets cancelled. The accused to surrender before the concerned Police Station within a period of 10 (ten) days from the date of this order. 16. Accordingly, the present application is allowed in the above terms. Rule is made absolute to the aforesaid extent.