caselaws
Supreme Court of India
Jayaben vs Tejas Kanubhai Zala on 10 January, 2022Author: M.R. Shah
Bench: M.R. Shah, Sanjiv Khanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1655 OF 2021
Jayaben ..Appellant(S)
Versus
Tejas Kanubhai Zala & Anr. ..Respondent(S)
WITH
CRIMINAL APPEAL NO.1656 OF 2021
Jayaben ..Appellant(S)
Versus
Jaysukhbhai Devrajbhai Radadiya & Anr. ..Respondent(S)
JUDGMENT
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgments and orders dated 04.02.2019 and 05.04.2019
passed by the High Court of Gujarat at Ahmedabad in
R/Criminal Appeal No. 1502 of 2018 and R/Criminal Appeal
No.389 of 2019 by which the High Court has released the
Signature Not Verified
Digitally signed by R
Natarajan
respective respondents No.1 – accused, the original
Date: 2022.01.10
17:15:51 IST
Reason:
complainant has preferred the present appeals.
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2. For the sake of convenience, the facts in Criminal Appeal
No.1655 of 2021 arising out of the impugned judgment and
order dated 04.02.2019 passed in Criminal Appeal No.1502
of 2018 are narrated which are as under:
2.1 As per the case of the prosecution, the original complainant –
appellant herein, her aunt Smt. Savitaben and her husband
Mukeshbhai (deceased) went to collect scrap from the open
space outside a factory. When they were picking scrap on the
backside of the factory area, five persons (accused) came
there and started abusing them and thereafter initially
started beating all three of them outside the factory. That
thereafter five accused persons tied Mukeshbhai – husband
of the original complainant to the gate of the factory and
started beating him. As per the case of the prosecution
Jayaben – original complainant and her aunt were asked to
leave. They left and thereafter informed their relatives and
friends and when they returned, they found Mukeshbhai
unconscious and seriously injured. He was taken to the
hospital where he was declared dead. A First Information
Report was registered at Police Station, Shapar (Veraval) as
C.R. No. I/38 of 2018 against the five accused including
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respective respondents No.1 herein for the offences under
Sections 302, 114, 323 of the Indian Penal Code, Section
135, 37(1) of the Gujarat Police Act and Section 3(2)(5) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act. Investigation was carried out by the
concerned Dy.SP Gondal division and thereafter by Dy.SP
(SC & ST Cell) Rajkot Rural. After investigation all the
accused persons (five in numbers) came to be chargesheeted
for the offences under Sections 302, 342, 354, 323, 143, 147,
148, 149 of the Indian Penal Code 1860, Section 3(1)(r)(s),
3(2)(5) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and Section 135 of the
Gujarat Police Act, 1951 having committed the murder of the
deceased – Mukeshbhai – husband of the appellant –
Jayaben. That respondent No.1 herein moved a bail
application before the learned Sessions Court, Gondal
seeking release on bail, which came to be dismissed vide
order dated 18.09.2018. Feeling aggrieved and dissatisfied
with the order passed by the learned Sessions Court rejecting
the bail application and refusing to release respondent No.1 –
accused on bail, respondent No.1 – accused preferred present
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Criminal Appeal No.1502 of 2018 before the High Court. By
the impugned judgment and order dated 04.02.2019, the
High Court has released respondent No.1 – original accused –
Tejas Kanubhai Zala on bail in connection with the aforesaid
case. By subsequent judgment and order dated 05.04.2019
in another Criminal Appeal No.389 of 2019 another accused
– Jaysukhbhai Devrajbhai Radadiya respondent No.1 has
been released on bail mainly considering the fact that co
accused – Tejas Kanubhai Zala has been released on bail and
also by observing that so far as the said accused except the
fact that he was found standing near the place of incident
there is no further material against him.
3. Feeling aggrieved and dissatisfied with the impugned
judgments and orders passed by the High Court releasing
respective respondents No.1 on bail, the original complainant
has preferred the present appeals.
4. We have heard Shri Colin Gonsalves, learned Senior
Advocate appearing on behalf of the appellant, Ms. Aastha
Mehta, learned counsel appearing on behalf of the State and
Shri Huzefa Ahmadi learned Senior Advocate appearing on
behalf of respondent No.1 – accused Tejas Kanubhai Zala
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and Shri Purvish Jitendra Malkan, learned counsel
appearing on behalf of respondent No.1 – accused
Jaysukhbhai Devrajbhai Radadiya.
5. Shri Gonsalves, learned Senior Advocate appearing on behalf
of the appellant has vehemently submitted that in the facts
and circumstances of the case, the High Court has materially
erred in releasing the accused on bail in a case where the
husband of the complainant was murdered brutally.
5.1 It is submitted that the High Court has not at all appreciated
the fact that after a thorough investigation, the accused were
chargesheeted for the offences under Sections 302, 342, 354,
323, 143, 147, 148, 149 of the Indian Penal Code 1860,
Section 3(1)(r)(s), 3(2)(5) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and
Section 135 of the Gujarat Police Act, 1951. It is submitted
that the manner in which the accused had beaten the
deceased – Mukeshbhai and due to multiple injuries he
succumbed to death, the High Court while releasing the
accused on bail, has not at all considered the gravity of the
offences alleged against the accused and on the grounds
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which are not tenable the High Court has released accused
on bail.
5.2 It is submitted that the High Court has not at all appreciated
the fact that in fact the complainant and her aunt are the eye
witnesses. It is submitted that even the entire incident was
recorded in mobile as well as by CCTV. Shri Gonsalves,
learned Senior Advocate appearing on behalf of the appellant
has taken us to the relevant material from the charge sheet
as well as the photographs in which it is found that deceased
was tied by a rope to the gate and the accused were beating
the deceased.
5.3 It is submitted that so far as the accused Jaysukhbhai
Devrajbhai Radadiya is concerned, it cannot be said that he
was just standing and there is no further overt act by him. It
is submitted that as such he was the person who not only
beat the deceased but also he tied the deceased and ensured
that the deceased was not able to move.
5.4 It is submitted that the High Court has not at all considered
the fact that all the accused were identified in the Test
Identification Parade (TIP) by both the eye witnesses.
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5.5 It is submitted that as per the post mortem report, the
deceased died due to ante mortem injuries caused due to
shock and haemorrhage on account of multiple injuries
present over head and body caused by hard and blunt object.
5.6 It is submitted that in any case the High Court ought not to
have brushed aside the statements of eye witnesses at this
stage. It is therefore submitted that the High Court has
materially erred in releasing the accused on bail.
6. Ms. Aastha Mehta, learned counsel appearing on behalf of
the State has supported the appellant. It is urged that the
High Court in the facts and circumstances ought not to have
released the accused on bail in respect of a serious offence
where one person has been killed brutally. When we asked a
pointed question to the counsel appearing on behalf of the
State why in such a serious matter, the State has not
preferred appeal, she has fairly conceded that the State also
should have filed the appeal. She has stated that may be
because it takes time in taking decision to prefer appeal, the
State in the present case might not have yet preferred the
appeal challenging the release of the respondents – accused
on bail.
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7. Shri Huzefa Ahmadi, learned Senior Advocate, appearing on
behalf of the accused Tejas Kanubhai Zala, has submitted
that in the present case accused has been released on bail in
the month of February, 2019 and since then, he is on bail. It
is submitted that after the accused has been released on bail,
there are no allegations of misuse of liberty and therefore this
Court may not cancel the bail granted by the High Court
after two and a half years.
7.1 It is further submitted by Shri Ahmadi, learned Senior
Advocate, appearing on behalf of the accused that even
thereafter the trial has further proceeded and except the
investigating officer (IO), most of the witnesses are examined
and therefore also the bail may not be cancelled.
7.2 Shri Purvish Jitendra Malkan, learned counsel appearing on
behalf of the accused – Jaysukhbhai Devrajbhai Radadiya,
has adopted the submissions made by Shri Ahmadi, learned
Senior Advocate appearing on behalf of the coaccused –
Tejas Kanubhai Zala and has requested not to cancel bail
after a period of two and a half years.
8. We have heard learned counsel appearing on behalf of the
respective parties at length.
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9. We have also gone through and considered the material on
record. We have also gone through and considered the
impugned orders passed by the High Court releasing accused
on bail.
9.1 At the outset, it is required to be noted that the respective
accused are facing charges for the offences under Sections
302, 342, 354, 323, 143, 147, 148, 149 of the Indian Penal
Code 1860, Section 3(1)(r)(s), 3(2)(5) of the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
and Section 135 of the Gujarat Police Act, 1951. That the
accused have been chargesheeted by the investigating officer
after a thorough investigation.
9.2 As per the case of the prosecution the accused tied deceased
to the gate when the deceased, complainant and her aunt
were collecting scrap outside the factory premises. The
accused have beaten the deceased when he was tied by pipe
and belt. He sustained serious multiple injuries and while
being taken to hospital he succumbed to the injuries and
died. As per the post mortem report, the cause of the death of
the deceased – victim was shock and haemorrhage on
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account of multiple injuries present over head and body,
caused by hard and blunt object.
9.3 The appellant herein – original complainant and her aunt
and one another are the eye witnesses who have identified
the accused in Test Identification Parade (TIP). The entire
incident has been captured/recorded in the CCTV footages
and the mobile phone. During the course of the investigation,
the punchnama of the place of the incident has been
prepared, statements of the witnesses are recorded; test
identification of the accused has been carried out; CCTV
footages and DVR from the place of incident have been
recovered. Pipe and the belt used in commission of the crime
have been recovered. It can be seen that the deceased
Mukeshbhai was brutally beaten by the accused and despite
the above and without considering the seriousness of the
offences alleged and despite the statements of the eye
witnesses, the High Court by the impugned orders have
released the accused on bail in a most perfunctory and
casual manner. The High Court has not at all considered the
gravity of the offences alleged and the evidence collected
during the investigation, which are forming part of the charge
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sheet. We refrain from making further observations on merits
as the trial is going on. Suffice it to say that in such a serious
matter and looking to the gravity of the offences and
considering the statements of eye witnesses and that the
entire incident has been recorded in the CCTV footages and
the mobile phone, the High Court has committed a grave
error in releasing the respective respondents No.1 – accused
on bail. The judgments and orders passed by the High Court
releasing the accused on bail are unsustainable both, on
facts as well as on law.
9.4 Now so far as the submissions on behalf of the accused that
after the accused are released on bail by the impugned
judgments and orders passed by the High Court, more than
two and a half years have passed and there are no allegations
of misuse of liberty and therefore, the bail may not be
cancelled is concerned, the aforesaid cannot be accepted. As
per the settled preposition of law, cancellation of bail and
quashing and setting aside the wrong order passed by the
High Court releasing the accused on bail stand on different
footings. There are different considerations while considering
the application for cancellation of bail for breach of
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conditions etc., and while considering an order passed by the
Court releasing the accused on bail. Once, it is found that
the order passed by the High Court releasing the accused on
bail is unsustainable, necessary consequences shall have to
follow and the bail has to be cancelled.
10. In view of the above and for the reasons stated above, both
these appeals succeed. The impugned judgments and orders
passed by the High Court releasing the accused on bail in
connection with First Information Report being C.R. No.I/38
of 2018 registered at Police Station, Shapar (Veraval) for the
offences under Sections 302, 114, 323 of the Indian Penal
Code, Section 135, 37(1) of the Gujarat Police Act and
Section 3(2)(5) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, are hereby quashed and
set aside. As the accused are on bail we direct accused
respondent No.1 – Tejas Kanubhai Zala in Criminal Appeal
No.1655 of 2021 and accused respondent No.1 –
Jaysukhbhai Devrajbhai Radadiya in Criminal Appeal
No.1656 of 2021, to surrender before the concerned jail
authority within a period of one week from today, failing
which the nonbailable warrants be issued against them. The
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present appeals are accordingly allowed.
11. Before parting, we may observe that by not filing the appeals
by the State against the impugned judgments and orders
releasing the accused on bail in such a serious matter, the
State has failed to protect the rights of the victim. We are of
the opinion that this was the fit case where the State ought
to have preferred the appeals challenging the orders passed
by the High Court releasing the accused on bail. In criminal
matters the party who is treated as the aggrieved party is the
State which is the custodian of the social interest of the
community at large and so it is for the State to take all the
steps necessary for bringing the person who has acted
against the social interest of the community to book.
It is reported that in the State there is a Director of
Prosecution. Even the Director of Prosecution has failed to
perform his duties in the instant case. The post of Director of
Prosecution is a very important post in so far as the
administration of justice in criminal matters is concerned. It
is the duty of the Director of Prosecution to take prompt
decision. Given that crimes are treated as a wrong against
the society as a whole, the role of the Director of Prosecution
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in the administration of justice is crucial. He is appointed by
the State Government in exercise of powers under Section
25A of the Code of Criminal Procedure. That his is a crucial
role is evident from conditions such as in Section 25A (2) of
the Code, which stipulates a minimum legal experience of not
less than ten years for a person to be eligible to be
Directorate of Prosecution and that such an appointment
shall be made with the concurrence of the Chief Justice of
the High Court.
The submissions by Ms. Aastha Mehta learned counsel
appearing on behalf of the State that it takes time to take a
decision whether to prefer an appeal or not is not acceptable.
The State ought to have been very serious even to maintain
the rule of law in a serious matter like this where a person
was brutally murdered/killed while he was just collecting
scrap outside the factory with his wife and aunt. It is the
duty of the Director of Prosecution and the State to ensure
that the guilty are booked and punished.
We hope and trust that in future the State
Government/legal department of State Government and the
Director of Prosecution shall take prompt decision in matters
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such as this and challenge the order passed by the trial court
and/or the High Court as the case may be where it is found
that the accused are released on bail in serious offences like
the present.
We hope and trust that our observations will reach the
State Government/legal department of the State of Gujarat
and the Director of Prosecution of State of Gujarat. We direct
the Registry to send the copy of this order to the Principal
Chief Secretary and Secretary, Home Department and Legal
Department, State of Gujarat to take further corrective steps.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(B. V. NAGARATHNA)
New Delhi,
January 10, 2022
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