Ghanchi Rubina Salimbhai vs Metubha Diwansingh Solanki & Ors

(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

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)