Bharatbhai Bhimabhai Bharwad vs The State Of Gujarat

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

JUDGMENT

R. BANUMATHI, J.

Signature Not Verified Digitally signed by MAHABIR SINGH Leave granted.

Date: 2019.07.30 15:59:02 IST Reason: 1

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

2 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

3 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

4 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

5 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.

6

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

7 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

8 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.

9