caselaws
Supreme Court of India
Ishwarji Nagaji Mali vs The State Of Gujarat on 18 January, 2022Author: M.R. Shah
Bench: M.R. Shah, Sanjiv Khanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 70 OF 2022
Ishwarji Nagaji Mali …Appellant
Versus
State of Gujarat and another …Respondents
JUDGMENT
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned order dated
30.07.2021 passed by the High Court of Gujarat at Ahmedabad in
Criminal Miscellaneous Application No. 9390 of 2021, by which the High
Court has directed to release respondent no.2 (accused) on bail in
connection with FIR registered at C.R. No. I – 11195008201056 of 2020
with Bhildi Police Station for the offences punishable under Sections
Signature Not Verified
302, 120(B), 114, 304A of the IPC and under Sections 177, 184 & 134 of
Digitally signed by
Rajni Mukhi
Date: 2022.01.18
14:12:02 IST
Reason:
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the Motor Vehicles Act, the father of the deceased has preferred the
present appeal.
2. The incident in question took place on the morning of 26.12.2020
at 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 Gela
village 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 Swift
Desire) from behind and which immediately fled away. That one
Sevantibhai Ranchhodji Tank, cousin of respondent no.2 lodged the FIR
against unknown persons initially for the offences punishable under
Sections 304A IPC and Sections 177, 184 & 134 of the Motor Vehicles
Act on the basis of the story narrated by respondent no.2 that his wife
was accidentally hit by a speeding car when they were walking together.
2.1 That during the course of the investigation and considering the
statements of the witnesses recorded during the course of the
investigation and making analysis of the call details between respondent
no.2 and his friend Kirtikumar Kanaji, it was revealed that respondent
no.2 hatched a criminal conspiracy along with the other co-accused to
kill 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 an
accident in collusion with each other. An application was made by the
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Investigating Officer to add the offences punishable under Sections 302,
120(B) and 114 of the IPC. By order dated 6.2.2021, the learned
Magistrate permitted the Investigating Officer to also add the aforesaid
offences against the accused. Thereafter on conclusion of the detailed
investigation and after recording the statements of as many as 40
persons/witnesses and having obtained the call details between
respondent no.2 and the co-accused, respondent no.2 and other co-
accused have been charged for the offences punishable under Sections
302, 120(B) and 114 of the IPC.
2.2 That respondent no.2 filed a regular bail application before the
learned Sessions Court. By a detailed order dated 19.05.2021, the
learned Additional Sessions Judge, Deodar rejected the said bail
application. That thereafter, respondent no.2 filed a Criminal
Miscellaneous Application No. 9390 of 2021 before the High Court of
Gujarat at Ahmedabad under Section 439 Cr.P.C. for regular bail.
By the impugned judgment and order, the learned Single Judge of
the High Court has allowed the said application and has directed to
release respondent no.2 on bail by observing in clauses (iv) and (v) of
paragraph 4 as under and without adverting to the material collected
during the course of the investigation and without considering the
seriousness of the offence and the criminal conspiracy hatched by
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respondent no.2 to kill his wife for monetary benefits. The observations
made in clauses (iv) and (v) of paragraph 4 read as under:
“(iv) At the end of the submissions, it appears that the
prosecution case rests on circumstantial evidence and
therefore, it is not legal and proper to deny bail to the present
applicant on such weak piece of evidence.
(v) The applicant has deep root in the society, no
apprehension as to flee away or escape trial or tampering with
the evidence/witnesses is expressed.”
Feeling aggrieved and dissatisfied with the impugned order passed
by the learned Single Judge of the High Court directing to release
respondent no.2 on bail, the father of the deceased has preferred the
present appeal.
3. Shri Pradhuman Gohil, learned Advocate appearing on behalf of
the appellant has vehemently submitted that in the facts and
circumstances of the case, the High Court has committed a grave error in
releasing respondent no.2 on bail.
3.1 It is vehemently submitted that while releasing respondent no.2 on
bail, the High Court has not adverted to any of the material collected
during the course of the investigation which are the part of the charge
sheet and that the nature and gravity of the offence.
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3.2 It is submitted that the High Court, as such, has not assigned any
reasons except that it is a case of circumstantial evidence which can be
said to be a weak piece of evidence.
3.3 It is submitted that the impugned order passed by the High Court
releasing respondent no.2 on bail is contrary to the law laid down by this
Court in the case of Ramesh Bhavan Rathod v. Vishanbhai Hirabhai
Makwana (Koli) and others, reported in (2021) 6 SCC 630, as well as the
recent decision of this Court in the case of Bhoopendra Singh v. State of
Rajasthan & another (Criminal Appeal No. 1279 of 2021, decided on
29.10.2021) and decision of this Court in the case of Mahipal v. Rajesh
Kumar, reported in (2020) 2 SCC 118.
3.4 It is submitted that in the present case during the course of the
investigation, it has been revealed that respondent no.2 was in financial
difficulty; he got insurance accidental policy in the joint names of himself
and his wife of Rs. 60 lakhs on 29.09.2020. It is submitted that thereafter
he (respondent no.2 herein) hatched the criminal conspiracy with the
other co-accused to kill her wife to get the monetary benefits and
ultimately killed his wife on 26.12.2020.
3.5 It is submitted that during the course of the investigation, the
Investigating Officer has collected ample material to complete the chain
of events. It is submitted that the Investigating Officer has collected the
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call details between respondent no.2 and co-accused Kirtikumar Kanaji
and the co-accused driver of the Swift Car and it has been found that all
the three were in touch with each other and they talked between 4:22
a.m. to 6:25 a.m. on the date of the incident and thereafter the deceased
was hit by the co-accused Maheshbhai at 7:00 a.m. It is submitted that
therefore the High Court ought not to have release respondent no.2 on
bail.
4. Ms. Archana Pathak Dave, learned counsel appearing on behalf of
the State of Gujarat has supported the appellant. It is submitted that
looking to the nature and gravity of the offence committed by respondent
no.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
other co-accused have been charge-sheeted for the offences under
Sections 302 and 120(B) IPC for having hatched the criminal conspiracy
and killed the wife of respondent no.2 for monetary benefits.
5. Ms. Neelam Singh, learned Advocate appearing on behalf of
respondent no.2 while opposing the present appeal has submitted that
as investigation has been completed and charge-sheet has been filed
and the custodial interrogation of respondent no.2 is not required and
therefore the High Court has not committed any error in releasing
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respondent no.2 on bail, more particularly when the prosecution case
rests on circumstantial evidence.
6. We have heard the learned counsel for the respective parties at
length. We have gone through the impugned judgment and order
passed by the High Court releasing respondent no.2 on bail. Except
making observations in clauses (iv) and (v) of paragraph 4, reproduced
hereinabove, no further reasons have been assigned by the High Court
while releasing respondent no.2 on bail. Even the High Court has not at
all adverted to the material collected during the course of the
investigation. The High Court has not at all considered the
material/evidence collected during the course of the investigation even
prima facie and has directed to release respondent no.2 in such a
serious offence of hatching conspiracy to kill his wife, by simply
observing that as it is a case of circumstantial evidence, which is a weak
piece of evidence, it is not legal and proper to deny bail to respondent
no.2. 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
hereinabove, while releasing respondent no.2 on bail, the learned Single
Judge of the High Court has not at all adverted to and/or considered any
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of the material/evidence collected during the course of the investigation,
which is a part of the charge-sheet.
7. One another reason given by the High Court to release respondent
no.2 on bail is that the accused has deep root in the society and no
apprehension as to flee away or escape trial or tampering with the
evidence/witnesses is expressed. In a case of committing the offence
under Section 302 read with 120B IPC and in a case of hatching
conspiracy to kill his wife and looking to the seriousness of the offence,
the aforesaid can hardly be a ground to release the accused on bail.
8. At this stage, few decisions of this 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. 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.
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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
this 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) This Court in Ram Govind Upadhyay vs. Sudarshan Singh – (2002)
3 SCC 598, speaking through Banerjee, J., emphasized that a court
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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, this 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
this 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. This Court held as under with
regard to the circumstances under which an order granting bail may be
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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 this 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
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emphasis is on exercise of discretion judiciously and
not in a whimsical manner.
xxx
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.”
8.1 In Anil Kumar Yadav vs. State (NCT of Delhi) – (2018) 12 SCC
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 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 .
8.2 Emphasizing on giving brief reasons while granting bail, it is
observed by this Court in the case of Ramesh Bhavan Rathod (supra)
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
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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.”
9. Applying the law laid down by this Court in the aforesaid decisions
to the facts of the present case, the impugned order passed by the High
Court directing to release respondent no.2 herein on bail is
unsustainable both, on law as well as on facts. Whatever reasons are
given by the High Court are not germane. As observed hereinabove, the
High Court has not at all adverted to the relevant material/evidence
collected during the course of the investigation, which are the part of the
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charge-sheet. During the course of the investigation and even as per the
charge-sheet it is alleged that for the monetary benefits, respondent no.2
hatched a criminal conspiracy with other co-accused to kill his wife and
tried to make out an accidental case. During the course of the
investigation, it has been revealed that respondent no.2 took the
accidental insurance policy jointly with his wife on 29.09.2020 of Rs. 60
lakhs. The date of the offence is 26.12.2020 at 7:00 a.m. During the
course of the investigation and from the call details, it has been revealed
that respondent no.2 was in constant touch on phone with the other co-
accused from 4:22 a.m. to 6:25 a.m. on 26.12.2020. During the course
of the investigation and as per the charge-sheet, according to the
prosecution, as a part of the conspiracy, respondent no.2 – Lalitbhai
Ganpatji Tank took his wife to Hanumanji Temple on foot and as he got
the chance in the way, he made phone call to the co-accused Kirtikumar
Kanaji to finalise the plan. Kirtikumar Kanaji made phone call to another
co-accused Mahesh (driver of the Swift Car) and thereafter the co-
accused Mahesh hit the deceased Daxaben by the said car and
committed murder from the back side so as to consider it as an
accidental death. During all these times, all the accused were in touch
on phone calls. Therefore, looking to the seriousness of the offence and
looking to the nature and gravity of the offence committed by respondent
no.2, the High Court ought not to have released respondent no.2 on bail.
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While releasing respondent no.2 on bail, the High Court has not at
all considered the parameters to be considered while releasing the
accused on bail and that too in a serious offence of murder and hatching
conspiracy to kill his wife. The impugned order passed by the High Court
releasing respondent no.2 cannot be sustained and the same deserves
to be quashed and set aside.
10. In view of the above and for the reasons stated above, the present
appeal is allowed. The impugned judgment and order dated 30.07.2021
passed by the learned Single Judge of the High Court of Gujarat at
Ahmedabad in Criminal Miscellaneous Application No. 9390/2021,
releasing respondent no.2 herein on bail is hereby quashed and set
aside. Since, we have quashed and set aside the impugned order
releasing respondent no.2 herein on bail, respondent no.2 is directed to
surrender before the concerned Court/Jail authorities, within a period of
one week from today. However, it is observed that the observations
made in this judgment are for the purpose of deciding the question of bail
only and the trial Court shall proceed with the trial of the case and decide
the same in accordance with law and on the basis of the evidence led by
both sides.
………………………………….J. [M.R. SHAH]
NEW DELHI; …………………………………..J.
JANUARY 18, 2022. [SANJIV KHANNA]
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