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2024 DIGILAW 2203 (GUJ)

Hiteshbhai Arvindbhai Baria v. State Of Gujarat

2024-12-13

DIVYESH A.JOSHI

body2024
JUDGMENT : DIVYESH A. JOSHI, J. 1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State. 2. The present successive application is filed under Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023, for regular bail in connection with the FIR being C.R. No.11823026230518 of 2023 registered with the Amletha Police Station, Narmada of the offence punishable under Sections 302, 201 & 120B of the IPC. 3. The facts in brief leading to the filing of the present application are that the complainant, namely, Kiritbhai Ratilal Jadav (Bhoi), i.e, the father of the deceased, lodged the present FIR, inter alia, alleging therein that the accused named in the FIR, namely, Ashwinbhai Bariya was having illicit relationship with one Urvashiben, residing next to the house of the complainant and, therefore, he used to frequently visit the house of Urvashiben. The son of the complainant, namely, Danteshwar @ Dnatu once scolded Ashwinbhai Bariya when he was sitting outside the house of Urvashiben that why you are sitting here, keeping grudge of which, the accused No.1- Ashwinbhai Rameshbhai Bariya, in collusion with the accused Nos.2 and 3 in the charge-sheet papers, i,e. Urvashiben and the present applicant-accused, hatched a criminal conspiracy to kill the deceased, and as a part of the said conspiracy, the accused Nos.2 and 3 developed friendship with the deceased, and on 25.05.2023, the accused Nos.2 and 3 took the deceased for under the pretext of outing, and they took him to Zarvani, Kanji, Vandri, Piplod, Deshipada village in the white coloured Hyundai Company’s i-20 of accused No.1, and while returning on 26.05.2023, at around 1:30, as per the plan, the accused Nos.2, strangulated the deceased in the running car, due to which, the deceased became unconscious. Thereafter, the accused stopped the car near one canal at Moje Virpor village, situated between Dholar to Virpor village at Ankleshwar-Rajpipla Highway, and at that time, the deceased regained consciousness and started altercation with the accused Nos.2 and 3, and therefore, the accused No.1 inflicted blow on the head of the deceased with the steel wrench and then strangulated the deceased with the seat belt of the car, and thereby killed the deceased. Then, the accused Nos.1 and 2 thrown away the body of the deceased in the canal and then the accused No.1 took away the mobile phone of the deceased and thrown it away into the the shrubs near Rajpipla- Ankleshwar Highway road, and thereby committed the offence of murder as well as destroying the evidence. Hence, the impugned FIR. 4. Learned advocate Mr. K.T. Beladiya appearing for the applicant has submitted that the applicant-accused was arrested on 02.06.2023 and since then he is in jail. Learned advocate Mr. Beladiya has also submitted that the investigation has already been completed and charge-sheet has also been filed. He has submitted that this is a third round of litigation, and the earlier two bail applications came to be withdrawn. Learned advocate Mr. Beladiya has also submitted that the applicant-accused has not been named in the FIR, and subsequently, during the course of investigation, on the basis of the statement made by the accused No.1, his name has come on surface, which is not admissible in the eye of law being hit by Section 25 of the Evidence Act. It is further submitted that there is no eye witness to the alleged incident, and everything which has been alleged against the applicantaccused is on assumption and presumption and he has been falsely implicated in the present offence. It is moreso submitted that the applicant-accused does not know Urvashiben or Narendrasinh Mangrol. Learned advocate Mr. Beladiya has further submitted that the applicant-accused is completely unaware about the incident and has not played any role in the commission of the alleged offence. Even, in the FIR, all that is alleged is against the accused No.1-Ashwinbhai and the same does not reflect the name as well as the role played by the applicant-accused. He has also submitted that in the present case, charge-sheet has also been filed, which ultimately culminated into Sessions Case No.47 of 2023, and total 13 witness have been examined so far, in which, most of the witnesses have turned hostile. He has further submitted that from the material evidences produced by the prosecution, there is nothing coming out against the applicant-accused, connecting him with the present offence. Learned advocate Mr. He has further submitted that from the material evidences produced by the prosecution, there is nothing coming out against the applicant-accused, connecting him with the present offence. Learned advocate Mr. Beladiya has also submitted that the trial is likely to take considerable long period of time, and as such, keeping the applicant-accused behind the bar for such an indefinite period, would be nothing but a pre-trial conviction for the applicantaccused. It is further submitted that the applicant-accused is a young man, aged about 28 years, having no past antecedents. Moreover, the other similarly situated co-accused, namely, Urvashiben, i.e, the accused No.3 has already been enlarged on bail by this very court. Under the circumstances, learned advocate Mr. Beladiya prays that the applicant may be enlarged on bail on any suitable terms and conditions. 5. The learned APP appearing on behalf of the respondent- State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned APP has submitted that from the charge-sheet papers, it clearly appears that the accused No.1-Ashwinbhai had an illicit relationship with the accused No.3-Urvashiben, for which, there was an altercation between the accused No.1 and the deceased as the deceased was residing next to the house of Urvashiben and he disliked Ashwinbhai visiting frequently the house of Urvashiben. Therefore, keeping grudge of the same, all the accused persons, hatched a criminal conspiracy, as a part of which, the applicant-accused and Urvashiben developed frinedship with the deceased and took him for outing where in the running car the applicant-accused strangulated the deceased. Thus, from the contents of the charge-sheet papers, a prima facie case is made out against the applicant-accused. Learned APP has further submitted that the role of the present applicant-accused is quite serious that the role of the accused who has been enlarged on bail by this Court and, therefore, the applicant-accused is not entitled to get the benefit of parity. Thus, considering the role attributed to the applicant-accused as well as the peculiar facts and circumstances of the present case, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused. 6. I have heard the learned counsel for the respective parties at length. I have gone through the impugned judgment and order passed by the trial court rejecting the bail application of the applicant-accused. 6. I have heard the learned counsel for the respective parties at length. I have gone through the impugned judgment and order passed by the trial court rejecting the bail application of the applicant-accused. It appears from a bare reading of the order passed by the trial court that sufficient reasons have been assigned by the trial court while rejecting the bail application of the applicant. The trial court has very well adverted to the material collected during the course of the investigation. The trial court has also taken into consideration all material aspects while rejecting the bail application in such a serious offence of hatching conspiracy to kill the deceased. Merely because the prosecution case rests on circumstantial evidence cannot be a ground to release the accused on bail, if during the course of the investigation the evidence/material has been collected and prima facie the complete chain of events is established. As observed herein above, while rejecting the bail application of the applicant-accused, the trial court has adverted to and/or considered all the materials/evidences collected during the course of the investigation, which is a part of the charge-sheet. It is argued by learned advocate for the applicant that the other coaccused has been enlarged on bail by this very Court and, therefore, the case of the applicant-accused may be considered on the ground of parity. I am of the opinion that in a case of committing murder and hatching conspiracy to kill a person and looking to the seriousness of the offence, the aforesaid can hardly be a ground to release the accused on bail. 7. At this stage, few decisions of the Hon’ble Supreme Court on grant of bail are required 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 Article 21 of the Constitution of India in the context of liberty of a person under trial, has laid down the key factors that have to be considered while granting bail, which are extracted as under: “7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. 8. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. 8. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. 9. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record – particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further about the criminal record of a defendant, is therefore not an exercise in irrelevance.” b) In Prahlad Singh Bhati vs. NCT of Delhi & ORS – (2001) 4 SCC 280 the Hon’ble Supreme Court highlighted the aspects which are to be considered by a court while dealing with an application seeking bail. The same may be extracted as follows: “The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behavior, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.” c) The Supreme Court in Ram Govind Upadhyay vs. Sudarshan Singh, (2002) 3 SCC 598 , speaking through Banerjee, J., emphasized that a court exercising discretion in matters of bail, has to undertake the same judiciously. In highlighting that bail cannot be granted as a matter of course, bereft of cogent 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 a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail — more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.” d) In Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav & Anr., (2004) 7 SCC 528 , the Hon’ble Apex Court held that although it is established that a court considering a bail application cannot undertake a detailed examination of evidence and an elaborate discussion on the merits of the case, the court is required to indicate the prima facie reasons justifying the grant of bail. e) In Prasanta Kumar Sarkar vs. Ashis Chaterjee, (2010) 14 SCC 496 the Hon’ble Supreme Court observed that where a High Court has granted bail mechanically, the said order would suffer from the vice of non-application of mind, rendering it illegal. e) In Prasanta Kumar Sarkar vs. Ashis Chaterjee, (2010) 14 SCC 496 the Hon’ble Supreme Court observed that where a High Court has granted bail mechanically, the said order would suffer from the vice of non-application of mind, rendering it illegal. The Supreme Court held as under with regard to the circumstances under which an order granting bail may be set aside. In doing so, the factors which ought to have guided the Court’s decision to grant bail have also been detailed as under: “It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the 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.” f) In Neeru Yadav vs. State of UP & Anr., (2016) 15 SCC 422 , after referring to a catena of judgments of the Supreme Court on the considerations to be placed at balance while deciding to grant bail, it is observed in paragraphs 15 and 18 as under: “15. This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner. x x x 18. Before parting with the case, we may repeat with profit that it is not an appeal for cancellation of bail as the cancellation is not sought because of supervening circumstances. The annulment of the order passed by the High Court is sought as many relevant factors have not been taken into consideration which includes the criminal antecedents of the accused and that makes the order a deviant one. Therefore, the inevitable result is the lancination of the impugned order.” 8. In Anil Kumar Yadav vs. State (NCT of Delhi), (2018) 12 SCC 129 , it is observed and held by the Hon’ble Supreme 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 to the accused; and (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. 9. Emphasizing on giving brief reasons while granting bail, it is observed by the Supreme Court in the case of Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana (Koli) and others, reported in (2021) 6 SCC 630 that though it is a well settled principle that in determining as to whether bail should be granted, the High Court, or for that matter, the Sessions Court deciding an application under Section 439 Cr.P.C. would not launch upon a detailed evaluation of the facts on merits since a criminal trial is still to take place. It is further observed that however the Court granting bail 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 grant bail. It is observed that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other and the rights of the victims and their families are at stake as well and therefore while granting bail, the Court has to apply a judicial mind and record brief reasons for the purpose of deciding whether or not to grant bail. It is further observed by this Court in the aforesaid decision in paragraph 36 as under: “36. Grant of bail Under Section 439 of the Code of Criminal Procedure is a matter involving the exercise of judicial discretion. Judicial discretion in granting or refusing bail-as in the case of any other discretion which is vested in a court as a judicial institution-is not unstructured. The duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner. The recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice.” 10. Applying the law laid down by the Hon’ble Supreme Court in the aforesaid decisions to the facts of the present case, the impugned order passed by the trial court directing not to release the applicant-accused on bail is sustainable both, on law as well as on facts. Whatever reasons are given by the trial court are genuine and germane. As observed herein above, the trial court has very well adverted to the relevant material/evidence collected during the course of the investigation, which are the part of the charge-sheet. During the course of the investigation and even as per the chargesheet it is alleged that keeping grudge against the deceased due some altercation took place between the accused No.1 and the deceased, the applicant-accused hatched a criminal conspiracy along with other co-accused to kill the deceased. During the course of the investigation and even as per the chargesheet it is alleged that keeping grudge against the deceased due some altercation took place between the accused No.1 and the deceased, the applicant-accused hatched a criminal conspiracy along with other co-accused to kill the deceased. During the course of the investigation, the name of the present applicant-accused has come on surface, and the specific role and the overt act committed by the applicant-accused in the commission of the crime is clearly mentioned in the charge-sheet papers. Thus, the trial court has rightly considered all the materials available on record while rejecting the bail application of the applicant-accused in a serious offence of murder and hatching conspiracy to kill the deceased. Mere filing of consecutive applications for bail does not entitle the applicant-accused for grant of bail, without there being any substantial change of circumstances. The same also does not reduce the seriousness of the offence, in which, one innocent person has lost his life. Therefore, looking to the seriousness of the offence and the nature and gravity of the offence committed by the applicant-accused, I am not inclined to exercise my discretion in favour of the applicantaccused. 11. So far as the ground of parity is concerned, the Hon’ble Supreme Court, in the case of Tarun Kumar vs. Asst. Director, Directorate of Enforcement, SLP (Crl.) No. 9431 of 2023, Bela M. Trivedi, J., speaking for the Bench has observed thus; “18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/ operator/ controller of various shell companies were granted bail on the ground of infirmity and medical grounds. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/ operator/ controller of various shell companies were granted bail on the ground of infirmity and medical grounds. The co-accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by the High Court, however the said order of High Court has been challenged by the respondent before this Court by filing being SLP (Crl.) No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order while repelling the said submission made on behalf of the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-to-day operations of the company. It was also observed that the appellant’s role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court.” 12. For the foregoing reasons, the present application fails and is hereby rejected. Rule is discharged.