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CASE NO.: Appeal (crl.)  885-887 of 2003

PETITIONER: Ghanchi Rubina Salimbhai                                 

RESPONDENT: Vs. Metubha Diwansingh Solanki & Ors.                        

DATE OF JUDGMENT: 24/07/2003

BENCH: B.P.Singh

JUDGMENT:                                  O R D E R

     (Arising out of S.L.P.(Crl.)Nos.1072-1074 of 2003).

       Heard learned counsel for the parties.

       Leave granted.

       These appeals are preferred against the judgment and  order of the High Court of Gujarat at Ahmedabad dated  16.10.2002 made in Criminal Misc. Application Nos.5894-96  of 2002 and other connected matters whereby the High Court  allowed the said application and directed the release of the  petitioners mentioned therein on conditions enumerated in the  said order. In these appeals, learned senior counsel for the  appellant contends that the respondent-accused are accused of  very serious crime in which five persons have been murdered  and certain properties including the house of the victims set  ablaze consequent to which the respondent-accused have been  charged of offences punishable under Sections 302, 395, 397,  147, 149, 436, 427, 188 and 120-B of the IPC, and Section 135  of the Bombay Police Act. Learned counsel further contends  that the learned Sessions Judge when considering the bail  applications of the respondent-accused after discussing the  evidence on record and after perusing the Police papers came to  the conclusion that a prima facie case has been made out  against the said accused persons and further bearing in mind the  seriousness of the crime and the possibility of the said accused  tampering with the witnesses, held that they were not entitled to  be enlarged on bail. Learned counsel further submitted that by  the impugned order the High Court without properly  considering the material on record and without assigning any  reason proceeded to enlarge the respondent-accused on bail  consequent to which the appellant apprehends no witness will  come forward for fear of the clout wielded by the respondent- accused in the village.

       The respondent-accused in appeal, though served, are not  represented before us and have chosen to remain ex parte.  While the State of Gujarat is represented, learned senior counsel  appearing for the State, contended that it is because of the fact  that the counsel appearing for the parties did not press for a  reasoned order, the High Court in the impugned order, did not  assign any reason for enlarging the respondent-accused on bail.  He submits that it is not open to the appellant to make a

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grievance of the fact that the impugned order is bereft of  reasons. He submitted during the course of arguments, the  learned Judge of the High Court had considered the arguments  addressed on behalf of the parties and had also perused the  material on record.

       Be that as it may, we do not want to go into this  controversy whether a concession was made by the parties in  regard to the necessity to give a reasoned order. We think since  the trial court has assigned reasons for refusing bail which  includes availability of material to establish prima facie case  against the respondent-accused, and looking to the gravity of  the offence as also the apprehension of the complainant as to  the possibility of interference by the accused with the  investigation and threat to the prosecution witnesses in the  event of they being enlarged on bail, we think it would have  been more appropriate if the High Court could have at least  briefly indicated the reasons which it thought entitled the  respondent-accused to bail. While saying so, we are not  unaware of the fact that any strong expression of opinion in the  nature of a finding in a bail application though not binding on  the trial court, could influence the mind of the trial court since  such observation comes from the High Court, still we think it  appropriate that some indication of the grounds on which the  High Court rejected the findings recorded by the trial court,  should have been reflected in the order by which the High  Court reversed such finding. It is all the more necessary for the  reason that there is always a possibility of the order of the High  Court being challenged in appeal before this Court in which  event this Court is entitled to know the basis of the impugned  order. For the above reasons, we are of the opinion that the  impugned order of the High Court should be set aside and the  matter be remitted back to the High Court for fresh  consideration, bearing in mind the observations made in this  order. We also think it appropriate to direct the respondent- accused to be continued on bail pursuant to the impugned order  in view of the fact that they have been on bail since 16.10.2002.  This direction, however, will be subject to the final order that  may be made by the High Court after remand.             We make it clear that we have not expressed any opinion  on the merits of the applications filed by the respondent- accused for enlargement on bail before the High Court as also  the contentions advanced on behalf of the parties before us. N.Santosh Hegde)