REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1162-1163   OF 2019 (Arising out of SLP(Crl.) Nos.3204-3205 of 2019)

BHARATBHAI BHIMABHAI BHARWAD             …Appellant

VERSUS

STATE OF GUJARAT AND OTHERS         ...Respondents                  

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

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2. These  appeals  are  preferred  against  the  order  dated

26.02.2019 passed by the High Court of Gujarat at Ahmedabad

in Criminal  Misc.  Application Nos.3528 of  2019 and 3529 of

2019 and order dated 07.03.2019 -  “On note for speaking to

minutes of order dated 26.02.2019 in R/CR.MA/3529/2019” in

and by which the High Court declined to interfere with the order

passed by the trial court granting bail to respondents No.2 and

3-accused  No.1  and  2  and  further  relegating  the  appellant-

complainant  to  approach  the Sessions  Court  on the alleged

breach of  condition  of  bail  and for  imposing the appropriate

conditions.

3. The father of respondents No.2 and 3-accused No.1 and

2 were loaned money by the father of complainant-Bharatbhai

Bhimabhai Bharwad and due to grudge about the transactions,

on 10.01.2019, the complainant-Bharatbhai and the witnesses

were  abused.  On  10.01.2019  at  15:30  hours,  Kishanbhai-

respondent  No.2-accused  No.1  inflicted  sword  blow  on  the

head of Ajitbhai (brother of complainant) and when Ajitbhai tried

to save himself by lifting his hand, his left hand palm was cut.

Alpeshbhai-respondent  No.3-accused  No.2  also  dealt  sword

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blow on the chest  of  Ajitbhai  and when prevented,  the blow

caused injuries on his right hand elbow. Ravibhai-accused No.3

has dealt indiscriminate blows of stick on the complainant and

caused injuries to him. Shaileshbhai-friend of complainant also

sustained  injuries  on  both  of  his  hands.  On  the  complaint

lodged  by  the  complainant,  FIR  was  registered  in  Crime

No.02/2019 at Viramgam Rural Police Station under Sections

323, 324, 326, 307, 504, 506(2) and 114 IPC.

4. Respondents  No.2  and  3  and  other  accused  were

arrested on 16.01.2019 and were remanded to judicial custody

on 17.01.2019. The respondents No.2 and 3-accused No.1 and

2  filed  bail  application  which  was  allowed  by  the  learned

Additional  Sessions  Judge,  Viramgam  vide order  dated

06.02.2019.  After  considering  the  arguments  and  also  the

materials  placed  before  the  court,  the  learned  Additional

Sessions Judge observed that  prima-facie case is  made out

against the accused and gravity of offence has to be taken into

consideration. However, the learned Additional Sessions Judge

granted  bail  on  the  ground  that  the  injured  Ajitbhai  was

discharged from the hospital on 24.01.2019 and other injured

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witness-Shaileshbhai  was  also  discharged  from  the  hospital

and that weapons allegedly used in the commission of offence

have  been  recovered  and  also  the  statements  of  important

witnesses  are  recorded.  The  trial  court  also  observed  that

accused are young, having no criminal antecedents and that

they  are  permanent  inhabitants  of  Sokli  village  and  their

presence can easily be secured and on those findings, granted

bail to respondents No.2 and 3  inter alia by imposing various

conditions.

5. Challenging the order granting bail to respondents No.2

and  3,  the  complainant-Bharatbhai  filed  Criminal  Misc.

Application No.3528 of 2019 before the High Court. The High

Court  observed  that  though  the  appellant  had  raised  other

grounds  challenging  the  grant  of  regular  bail  and  has  also

restricted his  arguments to the effect  that  there is  breach of

condition  of  bail.  Pointing  out  that  the  appellant-complainant

has restricted his arguments to the effect that there is breach of

condition of bail, the High Court relegated the appellant to the

Sessions Court to raise the objection on the alleged breach of

condition  and  imposing  the  appropriate  conditions.  Learned

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counsel for the appellant then filed an application before the

Registrar  “Speaking to  minutes  in  respect  of  common order

dated  26.02.2019  passed  in  Criminal  Misc.  Application

No.3528 of 2019 and 3529 of 2019”  inter alia contending that

the offence is very grave and that the appellant has challenged

the very exercise of discretion in granting bail to the accused

and therefore, prayed to circulate the “speaking to minutes” to

the Hon’ble  Judge in  respect  of  the order  dated 26.02.2019

which came to be dismissed vide order dated 07.03.2019.

6. We have heard Mr. Abhishek Singh, learned counsel for

the  appellant  and  Mr.  Sushil  Kumar  Jain,  learned  senior

counsel for respondents No.2 and 3 and perused the impugned

orders and other materials on record.

7. Placing reliance upon Anil Kumar Yadav v. State (NCT of

Delhi)  and  Another  (2018)  12  SCC  129  at  paras  (17-18),

learned  counsel  for  the  appellant  has  submitted  that  while

granting  bail,  the  relevant  considerations  like;  nature  of

seriousness of the offence; the impact of grant of bail that may

make on the prosecution witnesses; likelihood of his tampering

the  evidence  and  others  aspects  should  be  taken  into

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consideration.  It  was  submitted  that  due  to  the  attack  by

respondents No.2 and 3, injured Ajitbhai has lost the use of his

right thumb and four fingers of his left  hand are immobilized

which  shows  the  gravity  of  offence  and  seriousness  of

allegations.  It  was  further  submitted  that  though the  petition

was filed before the High Court under Section 439(2) Cr.P.C.-

the provision meant for cancellation of bail, the appellant in fact

has challenged the very exercise of discretion in favour of the

accused,  in view of  gravity of  the offence and the nature of

injuries sustained by Ajitbhai. It was submitted that though the

learned Additional Sessions Judge referred to the  prima-facie

materials showing involvement of the accused, has erroneously

exercised the discretion in granting bail to the accused and the

appellant  challenged the  arbitrary  exercise  of  discretion  and

this  was  not  taken  note  by  the  High  Court.  Drawing  our

attention  to  “speaking  to  minutes”, the  learned  counsel

submitted that in view of the grounds raised in the “speaking to

minutes”, the High Court should have afforded an opportunity to

the appellant  to  speak to  minutes  in  respect  of  order  dated

26.02.2019.

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8. Learned  senior  counsel  for  respondents  No.2  and  3

submitted  that  the  appellant  having  restricted  his  arguments

only to the effect that there was breach of condition of bail and

while so, the appellant is not justified in challenging the order

dated 06.02.2019.  

9. Though the  application  has  been  filed  before  the  High

Court  under  Section  439(2)  Cr.P.C.  i.e.  an  application  for

cancellation  of  bail,  by  perusal  of  the  grounds raised in  the

application,  it  is  seen that  the  appellant  has  raised grounds

challenging  the  exercise  of  discretion  in  granting  bail  to

respondents No.2 and 3 under Section 439 Cr.P.C. and that the

order  granting  bail  is  unsustainable  in  law.  In  effect,  the

application filed was only challenging the order of grant of bail

on the ground that it  was an arbitrary exercise of discretion.

The Court while granting bail should exercise its discretion in

judicious manner by taking into consideration the relevant facts

as  held  in  State  of  U.P.  Through  CBI  v.  Amarmani  Tripathi

(2005) 8 SCC 21.  

10. It  is  well  settled  that  the  consideration  applicable  for

cancellation of bail and consideration for challenging the order

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of grant of bail on the ground of arbitrary exercise of discretion

are different. While considering the application for cancellation

of  bail,  the  Court  ordinarily  looks  for  some  supervening

circumstances  like;  tampering  of  evidence  either  during

investigation or during trial, threatening of witness, the accused

is likely to abscond and the trial of the case getting delayed on

that count etc.  Whereas, in an order challenging the grant of

bail  on  the  ground  that  it  has  been  granted  illegally,  the

consideration  is  whether  there  was  improper  or  arbitrary

exercise  of  discretion  in  grant  of  bail.  The  appellant  has

challenged the  very  grant  of  bail  on  the  ground of  arbitrary

exercise  of  discretion  ignoring  the  relevant  materials  to  be

considered  in  the  application  for  bail.  Since  the  High  Court

proceeded under the footing as if  the appellant had filed the

application  only  for  cancellation  of  bail  for  which,  the

consideration is different, the impugned order is liable to be set

aside  and  the  matter  is  remitted  to  the  High  Court  for

consideration of the matter afresh.

11. In the result, the impugned orders of the High Court dated

26.02.2019 and 07.03.2019 are set aside and these appeals

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are allowed and the matter is remitted to the High Court  for

consideration of Criminal Misc. Application Nos.3528 of 2019

and 3529 of 2019 afresh.  The High Court shall proceed with

the matter as if the application challenges the order of grant of

bail and proceed with the matter in accordance with law.  

                                                   ………………………….J.                                                                [R. BANUMATHI]

………………………….J.                                                                [A.S. BOPANNA]

New Delhi; July 30, 2019.

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