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CASE NO.: Appeal (crl.)  198 of 2008

PETITIONER: Gobarbhai Naranbhai Singala

RESPONDENT: State of Gujarat & Ors.

DATE OF JUDGMENT: 29/01/2008

BENCH: ASHOK BHAN & ALTAMAS KABIR

JUDGMENT: JUDGMENT (Arising out of SLP(CRL) No. 6646 of 2005) WITH

CRIMINAL APPEAL NO. 199_OF 2008 (Arising out of SLP(CRL) No. 4283 of 2006)

Jayeshbhai @ Panchabhai Muljibhai Satodiya   Appellant(s)

Versus

Jayrajsinh Temubha Jadeja & Anr.                Respondent(s)         

BHAN, J.

1.              Leave granted. 2.              This judgment shall dispose of the Criminal Appeal  arising out of SLP(Crl) No. 4283/2006 (for short \0231st case\024)  and Criminal Appeal arising out of SLP(Crl) No. 6646/2005  (for short \0232nd case\024). 3.              The 1st case has been filed by the Complainant  Jayeshbhai @Panchabhai M. Satodiya seeking cancellation of  the bail granted to respondent Shri Jayrajsinh Temubha Jadeja  who, at that time, was a sitting Member of Legislative  Assembly of Gujarat (the first accused in Criminal Case No.1- 25/2004 registered under Sections 302, 307, 143, 147, 148,  149, 341, 120B, 201 IPC and Sections 25(1) A, (1-a), 27 of  the Arms Act and Section 135 of the Bombay Police Act at  Police Station Gondal City) for the alleged murder of Nilesh. 4.              The 2nd case has been filed by the complainant,  namely, Gobarbhai Naranbhai Singala seeking cancellation of  the bail granted to the respondents - Shri Shivbhadrasinh @  Gopalsinh Giriraj Jadeja (Respondent No.2 herein) and Shri  Jayrajsinh Themubha Jadeja (Respondent No.3 herein) [2nd and  3rd Accused in Criminal Case No.I-173/2005, wrongly mentioned  as I-102/2004 dated 19.3.2004] registered at Police Station  Malviya Nagar, Rajkot City, Rajkot under sections 143, 148,  149, 449, 302 IPC and 25(1)(b)(a) of the Arms Act, for the  alleged murder of appellant\022s son Vinodrai Singala.  5.              The facts in brief culminating into filing of these  appeals are narrated below. 6.              That, on 9th February, 2004 the complainant  Jayeshbhai [appellant in 1st case] along with Nilesh Rayani  and Ramjibhai Markana had allegedly gone to hostel.  While  coming back, they were followed by a car, which overtook  Jayeshbhai\022s vehicle driven by Ramjibhai. When they reached

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near Central Talkies at about 8.15 p.m., three persons,  namely Jairajsinh Jadeja, Amarjit Singh and Bhagat came out  of the car and allegedly fired at the Jayeshbhai\022s car.  The  said fire hit the glass of the car.  Jayeshbhai was hit by  the shattered pieces of glass.  Ramjibhai, who was driving  the car at that point of time, to save himself, came out of  the vehicle and tried to run away.  But finding that there  was another car which was following them, he again entered  the vehicle.  Meanwhile, the deceased Nilesh started driving  the vehicle.  The respondent-Jayrajsinh Jadeja again fired  which hit Nilesh Rayani.  The car went out of control and hit  another car and thereafter side railing on the road.  The  appellant and Ramjibhai ran away from the scene and, while  running, they saw that the Nilesh Rayani was being beaten by  other persons.  Nilesh died on the spot.  The appellant came  to his house where Vinubhai Singala and others were present.   Appellant thereafter narrated the story to Vinubhai Singala  and then they went to meet Ramjibhai, who was hiding in the  Town hall out of fear. They lodged the report, i.e., Case  No.1-25/2004 under Sections 302, 143, 147, 148, 149, 341,  307, 120B, 201 IPC, Sections 25(1)(a) and 27 of the Arms Act  and Section 135 of the Bombay Police Act. 7.              On 17th February, 2004 the respondent was released  on anticipatory bail by the Additional Sessions Judge, Rajkot  in Criminal Misc. Application No. 28/2004.  The State of  Gujarat filed CPA No.102/2004 in the High Court, seeking  cancellation of the anticipatory bail granted to the  respondent. Appellant also filed CRA No.92/2004 for the same  relief.  Anticipatory bail granted to the respondent was  cancelled by the High Court on 5th March, 2004. 8.              On 19th March, 2004 Vinubhai Singala (Vinod Rai  Singala) was murdered.  The respondent was named in the FIR  as one of the assailants.  The case was registered as  Criminal Case No.  I-173/05 at P.S. Malviya Nagar, Rajkot.   The said FIR was lodged by Gobarbhai Naranbhai Singala,  father of the deceased Vinubhai Singala, appellant in the 1st  Appeal under Sections 143, 148, 149, 447, 302 IPC and  23(1)(b) of Arms Act.  In the said FIR it was inter alia  alleged: \023Today at about 8/00 to 8/30 a.m. my son Vinodrai  was reading newspaper in garden of bungalow  compound and was seating in the coat, nearby  Vanupuriyabhai was seating.  And after giving grass  to my cow myself came in garden and heard a sound  of firing and when I seen that were two persons who  were fining out of which one Viranndev and other  Gopalsinh after firing both of them ran away to the  east side of building wall which I have seen I know  them they are residing in Gondal.   I do not know  full name of the person, they were jumped the wall  at that time on wall M.L.A. Jayrajsinh Jadeja was  standing and the person who runaway has told him  that they have completed Vinodrai Singala and  revenge has been taken and telling this they got  down the wall and runaway with them.\024(sic)

9.              Pursuant to the cancellation of bail by the High  Court in Criminal Case No.I-25/2004, the respondent  surrendered on 20th of March, 2004.  After his arrest, the  respondent filed an application for bail in Criminal Case  No.I-25/2004. 10.     The High Court by its order dated 14th September,  2004 refused to grant bail to the respondent, inter alia,  observinging:

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\023From the aforesaid facts and looking to the  statements of the witnesses, panchnama, reports,  including ballistic report, prima facie reflects  that there is direct involvement of the applicants  in commissioning of the offences.  The applicants  were not available after the offence is committed  as narrated in para 6 and para 8 of the judgment by  the trial court.  Looking to gravamen of charge  against the present applicants, their involvement  (prima facie clearer from the record of the case),  quantum of punishment, their tenancy (sic) to  remain away from police (as per para 6 and para 8  of judgment of the trial court), leads me to  believe that they may not be available at the time  of trial and due to cumulative effect of all the  aforesaid factors, I am not inclined to use  discretionary power, to enlarge the present  applicants on bail, there, is no substance in the  present application and hence, the present  application is rejected.  Notice is discharged.\024  

11.     Aggrieved against the rejection of bail by the High  Court in Crl. Misc. Application No. 7579/2004, the respondent  filed a petition being SLP (Crl) No.1128/2005 before this  Court. 12.     This Court while rejecting the petition on 18th  February, 2005, observed as under: \023Delay condoned. It is stated that the petitioner has been in  custody since 28th March 2004 and in the case of the  co-accused whose bail application was rejected,  this Court made an observation on 1.11.2004, that  the bail application could be renewed after six  months.

Though we are not inclined to interfere at this  stage, we would like to give liberty to the  petitioner to renew bail application before the  High Court after four months.  Such bail  application, if filed, shall be considered on its  own merits.\024(sic)

13.     Respondents filed M.A. No.8305/2004 seeking bail.    On 26th October, 2005 the High Court granted bail to the  respondents herein in CR No.I-173/2005, lodged by the  appellant in the 2nd  case - Gobarbhai. 14.     Against the aforesaid order, the complainant  Gobarbhai has filed the Appeal arising out of SLP(Crl) No.  6646/2005, seeking cancellation of the bail granted to the  respondents, in which this Court issued notice on 16th of  December, 2005. 15.     In Criminal Case No.1-25/2004 (incident of 9th  February 2004) respondent filed an application for temporary  bail, which was granted by the High Court on 23rd of December,  2005 for one month.  Respondent was released on bail on 27th  December, 2005.  Appellant filed an application for  cancellation of temporary bail granted to the respondent.  In  the meantime, on expiry of the period of temporary bail  granted to the respondent, the respondent had surrendered on  27.1.2006.  Thus, application filed by the appellant, seeking  cancellation of the temporary bail was dismissed as  infructuous on 10th February, 2006, as the respondent had  already surrendered. 16.     On 3rd of March, 2006, the respondent filed another  application for temporary bail in Criminal Case No. I-

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25/2004, which was granted by the High Court for a period of  one month from 6th March, 2006 to 5th of April, 2006.  After  expiry of the period of temporary bail, the respondent  surrendered and thereafter filed a Criminal Misc.  Application, which came up for hearing before the same  Hon\022ble Judge who had heard Crl.Misc. Application No.  7579/2004 filed earlier by the respondent in which prayer for  grant of bail was turned down by his order dated 14th  September, 2004.  This time, the Hon\022ble Judge granted  regular bail to the respondent by observing thus: \0235.  Having heard the learned advocates for the  rival sides and looking to the facts and  circumstances of the case, it appears that the  applicant is in judicial custody since March, 2004.   Sessions case has not yet commenced and no  prosecution witness has been examined.  Moreover,  this Court has twice granted temporary bail to the  present applicant, initially for the period from  27th December, 2005 to 27th January, 2006 with  stringent conditions and the present applicant had  surrendered to the judicial custody in time without  any breach of conditions.  Similarly, for the  second time also, this Court had granted temporary  bail to the present applicant for the period from  6th March, 2006 to 5th March, 2006 (sic) with  stringent conditions and at that time also, the  applicant had surrendered to judicial custody in  time without any breach of conditions.  The offence  being Cr. No.I.102 of 2004 was registered in the  intervening period wherein charge sheet has already  been filed which is not against the present  applicant.  Thus, twice this court has tested the  present applicant for one month.  On each of the  occasions, the conditions imposed by this Court  have been fulfilled and obeyed by the applicant  coupled with the fact that no prosecution witness  has yet been examined though period of more than  two years have elapsed.

6.      In view of the above facts and circumstances  of the case, this application is required to be  allowed and the applicant is required to be  enlarged on bail.  Accordingly, the applicant is  hereby ordered to be enlarged on bail in pursuance  of the offence registered bearing C.R. No.I 25/2004  at Gondal Police Station on his furnishing a bond  of Rs.50,000/- (Rs. Fifty Thousand) and solvent  surety of the like amount, on the following terms  and conditions that he shall:

(a) not take undue advantage of his liberty or  abuse his liberty;

(b) not act in a manner injurious to the interest  of the prosecution;

) maintain law and order;

(d) mark his presence on every Tuesday and Friday  in a week at Sector 21, Police Station, Gandhinagar  between 9.00 a.m. to 2.00 p.m.;

(e) not leave the State of Gujarat without prior  permission of the Sessions Court concerned;

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(f) furnish the address of his residence at the  time of execution of the bond and shall not change  the residence without prior permission of this  Court;

(g) not enter into the local limits of district  Rajkot without prior permission of this Court, but  for attending the Court in connection with this  case he will be free to enter the limits for a  period to the extent necessary and will leave the  limits thereafter soon after the case is adjourned;

(h) surrender his passport, if any, to the lower  court within a week.\024

17.     Aggrieved against the aforesaid order granting bail  to the respondent in Crl. Case No. I-25/2004, Jayeshbhai has  filed the Appeal arising out of SLP(Crl) No. 4283/2006,  seeking cancellation of bail.         18.       Heard learned counsel appearing for the parties. 19.     The High Court by the impugned order has granted  bail to the respondent-Jayrajsinh Jadeja (in 2nd case) on  three grounds \026 (i) that the respondent was in judicial  custody since March, 2004; (ii) that trial had yet not  commenced and no prosecution witness had been examined; and  (iii) that the Court had tested the respondent twice by  granting temporary bail to him with stringent conditions for  a duration of one month each, i.e., from 27th December 2004 to  27th January, 2005 and 6th March, 2006 to 5th April, 2006 and,  on both the occasions, the respondent had surrendered within  time, without breach of any of the conditions.   20.     From a reading of the impugned order it is found  that the learned Judge, who incidentally happens to be the  same Judge who had declined to release the respondent on bail  earlier, did not advert to any of the reasons given by him  declining to release the respondent on bail.  There was no  change of circumstances.  The reasons given by the learned  Judge in the impugned order for grant of bail are untenable. 21.     That the respondent did not misuse his liberty while  on temporary bail twice by itself is no ground to grant bail  in a murder case especially when he was allegedly involved in  a subsequent case of murder.  It may be mentioned here that  apart from the present two cases of murder, respondent has  been named in 10 other criminal cases in the last 25 years or  so, out of which 5 cases were under Section 307 IPC for  attempt to murder and another under Section 302 IPC for  committing murder.  We are informed at the Bar that the  respondent has been acquitted in most of the cases for want  of sufficient evidence.  This speaks volumes.  We refrain  from saying anything further, lest it may prejudice the trial  in these two cases. 22.     The other reason given in the impugned order is that  the trial of the case has not progressed / begun.  We find  from the record that between 2nd June, 2004 and 19th December,  2005 the case was listed before the trial court 31 times and  on each date, it had to be adjourned on the ground that one  or the other accused was not present.  There are 16 accused  in the case.  It is not clear from the record whether the  accused were not brought by the police from the jail or that  they were on bail  and had not appeared of their own, but the  fact remains that the complainants were not in any way  instrumental in delaying the trial between 2nd June, 2004 and  19th December, 2005.  It was brought to our notice that the  only witness who has been examined so far has turned hostile.   Trial was stayed by the High Court on 15th February, 2007 at

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the instance of the appellant as Shri R.R. Trivedi, A.P.P.,  to whom the case had been assigned for conducting the trial  and was allegedly the counsel for the respondent in some  other case earlier, continued to appear in the case in spite  of the fact that he was replaced by another A.P.P.  It just  shows that the trial was not progressing smoothly.  In any  case, complainant party was in no way responsible for any  delay in trial. 23.     The third reason given by the High Court for grant  of bail, that the respondent had been in jail for the last  more than 2 years, is equally untenable in view of the  observations made by this Court in State of U.P. vs. Amarmani  Tripathi [(2005) 8 SCC 21]:  "the condition laid down under Section 437(1)(i) is  sine qua non for granting bail even under Section  439 of the Code. In the impugned order it is  noticed that the High Court has given the period of  incarceration already undergone by the accused and  the unlikelihood of trial concluding in the near  future as grounds sufficient to enlarge the accused  on bail, in spite of the fact that the accused  stands charged of offences punishable with life  imprisonment or even death penalty. In such cases,  in our opinion, the mere fact that the accused has  undergone certain period of incarceration (three  years in this case) by itself would not entitle the  accused to being enlarged on bail, nor the fact  that the trial is not likely to be concluded in the  near future either by itself or coupled with the  period of incarceration would be sufficient for  enlarging the appellant on bail when the gravity of  the offence alleged is severe and there are  allegations of tampering with the witnesses by the  accused during the period he was on bail." [Underlining is ours]     

24.     Shri Arun Jaitley, learned senior counsel appearing  for the respondents, submitted that this Court should not  ordinarily interfere in the matters relating to bail.  It  was pointed out that in the last two years, the respondent  has not misused the liberty granted to him.  There is no  doubt that this Court does not ordinarily interfere in the  matters granting bail but the same is subject to certain  exceptions.  When the basic requirements necessary for  grant of bail are completely ignored by the High Court,  this Court would be justified in canceling the bail. In the  present case, three witnesses, who had allegedly seen the  occurrence, have unequivocally in their statements under  Section 161 Cr.P.C. have stated that the respondent, was  present at the time of occurrence and he had fired with his  gun.  Prima facie a case for grant of bail was not made  out. 25.     This Court in Amarmani Tripathi\022s case (supra) had  held that while considering the application for bail, what  is required to be looked is,  (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 charge; (iii) severity of the punishment in the  event of conviction; (iv) danger of 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 tampered with; and  (viii) danger, of course, of justice being thwarted by

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grant of bail.         26.     In Panchanan Mishra v. Digambar Mishra, [(2005) 3 SCC  143], this Court while considering the question of cancellation  of bail, observed: "The object underlying the cancellation of bail is  to protect the fair trial and secure justice being  done to the society by preventing the accused who  is set at liberty by the bail order from tampering  with the evidence in the heinous crime.... It  hardly requires to be stated that once a person is  released on bail in serious criminal cases where  the punishment is quite stringent and deterrent,  the accused in order to get away from the clutches  of the same indulge in various activities like  tampering with the prosecution witnesses,  threatening the family members of the deceased  victim and also create problems of law and order  situation."

27.     We are of the view that the High Court has  completely ignored the general principles, for grant of  bail in a heinous crime of commission of murder in which  the sentence, if convicted, is death or life imprisonment. 28.     In the second case, another learned Judge has  granted the bail by the impugned order which runs into 22  pages.  The findings recorded therein touch upon the merits  of the case.  The learned Judge has proceeded as if an  order of acquittal is being passed.  This Court in Amarmani  Tripathi\022s case (supra) has held that a detailed  examination of the evidence is to be avoided while  considering the question of bail, to ensure that there is  no pre-judging and no prejudice is caused.  Only a brief  examination is to be done to satisfy about the facts and  circumstances or otherwise of a prima facie case.   29.     Taking the overall view of the entire matter and in  particular to the antecedents of the respondent-Jayrajsinh  Temubha Jadeja, the alleged statements made by the  witnesses, who were present at the spot, to the police and  the admitted enmity between the parties (which is a double  edged weapon to commit the crime as well as to falsely  implicate), we are of the view that it was not a fit case  to grant bail to the respondents in this case as well.   Without elaborating further, we set aside the impugned  orders granting bail to the respondents.  Respondents are  directed to surrender to the judicial custody forthwith.   In case, the respondents do not surrender within seven  days, steps be taken, in accordance with law, to apprehend  them.  30.     The counsel appearing for the State of Gujarat has  informed us that Shri R.R. Trivedi has been replaced by Ms.  Amita Ben Sippy as the new A.P.P. to conduct the trial.   She has assured us that Shri R.R. Trivedi will not appear  and conduct the trial in either of these two cases.  Thus,  the grievance of the appellants on the basis of which the  trial was stayed, stands redressed. Stay of trial granted  by the High Court on 15th February, 2007 is vacated. Trial  of the case to begin forthwith. Trial Court is directed to  take up the trial on day to day basis and, if possible,  conclude the same within the next six months from the date  of production of a certified copy of this judgment.  The  prosecution as well as defence counsel is directed to  cooperate in conducting the trial on day to day basis.  In  case, any of the accused who is on bail and does not  appear, then his bail be cancelled and he be taken into

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custody. 31.     Nothing stated herein above be taken as an  expression of opinion on merits of the matter.  The trial  court shall proceed with the trial in accordance with law,  without in any manner being influenced by the observations  made herein above or in the Orders passed by the High Court  granting bail to the respondents.          32.    With these observations, the appeals are allowed.