Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 603 (GUJ)

Dipak Rohit Pradhan v. State Of Gujarat

2024-03-20

DIVYESH A.JOSHI

body2024
JUDGMENT : 1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State. 2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.I-11210012231364 of 2023 registered with the Chawk Bazar Police Station, Surat of the offence punishable under Sections 302, 324, 323, 504, 114 of IPC and Section 135 of the G.P. Act. 3. The case of the prosecution, in brief, is that the present complaint has been filed by the brother of the deceased stating that on 22.10.2023, the brother of the complainant, i.e, the deceased, namely, Jaydev left the house at around 9:00 p.m. and went to Vishramnagar for playing Garba. 3.1 Thereafter, on 23.10.2023, when the complainant and the other family members were sleeping, at that time, at around 1:30 a.m., the friends of Jaydev, namely, Sanjay Mohanbhai Baraiya and Yuvraj Bhoyee came to the house of the complainant and woken them up and told them that in the yesterday afternoon, as some unknown person clicked the photo of one Shitalben in the Vishramnagar area, the brother of the complainant Jaydev, Pawan and Haresh started beating that person, and as one Pappu Rohit Pradhan who was present over there, came in the rescue of that unknown person, Shitalben, Pawan and Haresh got enraged and started beating Pappu Pradhan by giving kicks and fist blows. They further informed the complainant that today, i.e., on 23.10.2023, when both of them along with Jaydev, Haresh and Pawan were present in the Vishramnagar Society at around 1:00 a.m., at that time, Dipak Pradhan and his brother Pappu Pradhan along with two other persons came to them with a knife in their hands, and keeping a grudge of the yesterday’s quarrel, hurled abuses to Jaydev and Dipak Pradhan and Pappu Pradhan inflicted knife blows indiscriminately to the Jaydev whereas the other two persons also gave kicks and fist blows to Jaydev. Thereafter, as Dipak Pradhan also got injured in the said quarrel, fled from the spot. They also told the complainant that , thereafter, they called the 108 ambulance and the deceased was taken to the Smimer Hospital for treatment. Thereafter, as Dipak Pradhan also got injured in the said quarrel, fled from the spot. They also told the complainant that , thereafter, they called the 108 ambulance and the deceased was taken to the Smimer Hospital for treatment. 3.2 Thereafter, the complainant along with his mother Suvarnaben went to the Smimer Hospital in a rented rickshaw who after reaching the hospital, found that his brother Jaydev was undergoing treatment in the emergency ward in an unconscious condition. Multiple injuries were found to be there on the different parts of the body of the Jaydev. Thereafter, at around 3:00 a.m.. the doctors declared his as dead. Hence, the present FIR. 4. Learned advocate Mr. Maulik Nanavati assisted by learned advocate Mr. Tolia appearing for the applicant has submitted that the incident in question took place on 23.10.2023 for which the FIR came to be lodged on the very same day and the applicant-accused also got arrested on the even date. Learned advocate for the applicant has also submitted that the investigation has already been completed and charge-sheet has also been filed. It is moreso submitted that the allegations levelled in the FIR are to the effect that on the date of the incident, the applicant-accused accompanied by other co-accused persons had gone to the place where the deceased was sitting carrying a deadly weapons and slain the deceased by inflicting knife blows indiscriminately to him. Learned advocate Mr. Nanavati would further submit that the Muddamal knife used in the commission of the offence has not been recovered at the instance of the applicant-accused but it has been recovered from the other co-accused. In fact, the applicant-accused also received injuries in the said scuffle and, therefore, there were cross-complaints filed by the rival sides. Learned advocate Mr. Nanavati further submits that as per the postmortem report, the deceased died due to the knife injuries, however, there is no recovery of any knife at the instance of the applicant-accused. Under the circumstances, learned advocate Mr. Nanavati 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. Under the circumstances, learned advocate Mr. Nanavati 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 the name of the present applicant-accused is there in the FIR since beginning and his role has been specifically spelt out from the body of the complaint. It is further submitted that there is an eye-witness to the said incident who was sitting over there along with the deceased. Moreover, the blood stained cloths of the applicant-accused has also been seized by the investigator. Therefore, considering the role attributed to the applicant-accused, 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. 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 murder. 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 also appears that the incident did not take place in a haste, but it was a pre-planned attack by the accused persons upon the deceased keeping a grudge of the quarrel that was taken place just before a day from the incident in question and the applicant-accused has played a key role in committing the offence. The allegations made against the applicant-accused are serious in nature and, therefore, looking to the seriousness of the offence, I do not find any good 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. The allegations made against the applicant-accused are serious in nature and, therefore, looking to the seriousness of the offence, I do not find any good 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 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.” b) 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. 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.” c) 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. d) 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. 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.” e) 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. 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. 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.” f) 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. 8. 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. 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.” 9. 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 on a very trivial issue, the applicant-accused along with other co-accused, assaulted the deceased and slain him. There is an eye-witness to the incident in question who was sitting there along with the deceased. 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. 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 applicant-accused. 10. For the foregoing reasons, the present application fails and is hereby rejected. Rule is discharged.