JAYABEN versus TEJAS KANUBHAI ZALA & ANR

[2022] 1 S.C.R.

JAYABEN

TEJAS KANUBHAI ZALA & ANR

(Criminal Appeal No. 1655 of 2021)

JANUARY 10, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Appeal: Murder case – Complainant’s appeal against releaseof accused by High Court – Appellant-original complainant andCher aunt and one another are the eye witnesses who have identifiedthe accused in Test Identification Parade(TIP) – The entire incidentwas captured/recorded in the CCTV footages and the mobile phone– During the course of the investigation, the punchnama of theplace of the incident was prepared, statements of the witnesses wereDrecorded; test identification of the accused was carried out; CCTVfootages and DVR from the place of incident were recovered – Pipeand the belt used in commission of the crime were recovered –Judgment of High Court releasing the accused on bail – Held: Notunsustainable both, on facts as well as on law – Deceased wasbrutally beaten by the accused and despite that and withoutEconsidering the seriousness of the offences alleged and despite thestatements of the eyewitnesses, High Court released the accused onbail in most perfunctory and casual manner – High Court did notat all consider the gravity of the offences alleged and the evidencecollected during the investigation, which are forming part of theFcharge sheet – In such serious matter and looking to the gravityof the offences and considering the statements of eyewitnesses andthat the entire incident was recorded in the CCTV footages and themobile phone, the High Court has committed grave error in releasingrespondents No.1- accused on bail.

GBail: Cancellation of bail and quashing and setting aside thewrong order passed by the High Court releasing the accused onbail stand on different footings – There are different considerationswhile considering the application for cancellation of bail for breachof conditions etc., and while considering an order passed by theCourt releasing the accused on bail.H

Administration of criminal justice – Release of accused inmurder case – Non filing of appeal by prosecution – Held: Stateought to have preferred appeals challenging the order passed bythe High Court releasing the accused on bail – It is for the State totake all the steps necessary for bringing the person who has actedagainst the social interest of the community to book – It was theduty of the Director of prosecution to take prompt action which hefailed to perform.

Administration of justice – In criminal matters – Director ofProsecution – Role of – Held: It is very important post in so far asthe administration of justice in criminal matters is concerned –Director of Prosecution is appointed by the State Government inexercise of powers u/s.25A CrPC – That his is crucial role is evidentfrom conditions such as in s.25A(2) CrPC, which stipulates aminimum legal experience of not less than ten years for person tobe eligible to be Directorate of Prosecution and that such anappointment shall be made with the concurrence of the Chief Justiceof the High Court – Code of Criminal Procedure, 1973 – s.25A.

Allowing the appeals, the Court

HELD: 1. As per the settled preposition of law, cancellationof bail and quashing and setting aside the wrong order passed bythe High Court releasing the accused on bail stand on differentfootings. There are different considerations while consideringthe application for cancellation of bail for breach of conditionsetc., and while considering an order passed by the Court releasingthe accused on bail. Once, it is found that the order passed bythe High Court releasing the accused on bail is unsustainable,necessary consequences shall have to follow and the bail has tobe cancelled. [Para 9.4][25-H; 26-A-B]2. By not filing the appeals by the State against the impugnedjudgments and orders releasing the accused on bail in such aserious matter, the State has failed to protect the rights of thevictim. This was the fit case where the State ought to havepreferred the appeals challenging the orders passed by the HighCourt releasing the accused on bail. In criminal matters the partywho is treated as the aggrieved party is the State which is thecustodian of the social interest of the community at large and so

Ait is for the State to take all the steps necessary for bringing theperson who has acted against the social interest of the communityto book. [Para 11][26-E-G]

3. In the State there is Director of Prosecution. Even theDirector of Prosecution has failed to perform his duties in theBinstant case. The post of Director of Prosecution is veryimportant post in so far as the administration of justice in criminalmatters is concerned. It is the duty of the Director of Prosecutionto take prompt decision. Given that crimes are treated as wrongagainst the society as whole, the role of the Director ofProsecution in the administration of justice is crucial. He isCappointed by the State Government in exercise of powers underSection 25A of the Code of Criminal Procedure. That his crucialrole is evident from conditions such as in Section 25A (2) of theCode, which stipulates minimum legal experience of not lessthan ten years for person to be eligible to be Directorate ofDProsecution and that such an appointment shall be made with theconcurrence of the Chief Justice of the High Court. [Para 11][26-G-H; 27-A-B]

4. The submissions on behalf of the State that it takes timeto take decision whether to prefer an appeal or not is notEacceptable. The State ought to have been very serious even tomaintain the rule of law in serious matter like this where aperson was brutally murdered/killed while he was just collectingscrap outside the factory with his wife and aunt. It is the duty ofthe Director of Prosecution and the State to ensure that the guiltyare booked and punished. [Para 11][27-C-D]F

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 1655 of 2021.

From the Judgment and Order dated 04.02.2019 of the High Courtof Gujarat at Ahmedabad in R/Criminal Appeal No.1502 of 2018.GWith

Criminal Appeal No. 1656 of 2021.

Colin Gonsalves, Sr. Adv., Shiyas KR, Satya Mitra, Advs. for theAppellant.

Huzefa Ahmadi, Sr. Adv., Pradhuman Gohil, Mrs. Taruna SinghGohil, Ms. Ranu Purohit, R. Vishnu Kumar, Sahithya Krishna A., RohanSharma, Purvish Jitendra Malkan, Jitendra Malkan, Ms. Dharita PMalkan, Ms. Deepa Gorasia, Alok Kumar, Ms. Nandini Chhabra, Ms.Bhavna Sarkar, Ms. Aastha Mehta, Ms. Deepanwita Priyanka, Ms.Prerana Mohapatra, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentsand orders dated 04.02.2019 and 05.04.2019 passed by the High Courtof Gujarat at Ahmedabad in R/Criminal Appeal No. 1502 of 2018 and R/Criminal Appeal No.389 of 2019 by which the High Court has releasedthe respective respondents No.1 – accused, the original complainanthas preferred the present appeals.

2. For the sake of convenience, the facts in Criminal AppealNo.1655 of 2021 arising out of the impugned judgment and order dated04.02.2019 passed in Criminal Appeal No.1502 of 2018 are narratedwhich are as under: -

2.1 As per the case of the prosecution, the original complainant –appellant herein, her aunt Smt. Savitaben and her husband Mukeshbhai(deceased) went to collect scrap from the open space outside factory.When they were picking scrap on the backside of the factory area, fivepersons (accused) came there and started abusing them and thereafterinitially started beating all three of them outside the factory. That thereafterfive accused persons tied Mukeshbhai – husband of the originalcomplainant to the gate of the factory and started beating him. As perthe case of the prosecution Jayaben – original complainant and her auntwere asked to leave. They left and thereafter informed their relativesand friends and when they returned, they found Mukeshbhai unconsciousand seriously injured. He was taken to the hospital where he was declareddead. First Information Report was registered at Police Station, Shapar(Veraval) as C.R. No. I/38 of 2018 against the five accused includingrespective respondents No.1 herein for the offences under Sections 302,114, 323 of the Indian Penal Code, Section 135, 37(1) of the GujaratPolice Act and Section 3(2)(5) of the Scheduled Castes and the ScheduledTribes (Prevention of Atrocities) Act. Investigation was carried out bythe concerned Dy.SP Gondal division and thereafter by Dy.SP (SC &

AST Cell) Rajkot Rural. After investigation all the accused persons (fivein numbers) came to be chargesheeted for the offences under Sections302, 342, 354, 323, 143, 147, 148, 149 of the Indian Penal Code 1860,Section 3(1)(r)(s), 3(2)(5) of the Scheduled Castes and the ScheduledTribes (Prevention of Atrocities) Act, 1989 and Section 135 of the GujaratPolice Act, 1951 having committed the murder of the deceased –BMukeshbhai – husband of the appellant – Jayaben. That respondentNo.1 herein moved bail application before the learned Sessions Court,Gondal seeking release on bail, which came to be dismissed vide orderdated 18.09.2018. Feeling aggrieved and dissatisfied with the orderpassed by the learned Sessions Court rejecting the bail application andCrefusing to release respondent No.1 – accused on bail, respondent No.1– accused preferred present Criminal Appeal No.1502 of 2018 beforethe High Court. By the impugned judgment and order dated 04.02.2019,the High Court has released respondent No.1 – original accused – TejasKanubhai Zala on bail in connection with the aforesaid case. Bysubsequent judgment and order dated 05.04.2019 in another CriminalDAppeal No.389 of 2019 another accused – Jaysukhbhai DevrajbhaiRadadiya - respondent No.1 has been released on bail mainly consideringthe fact that co-accused – Tejas Kanubhai Zala has been released onbail and also by observing that so far as the said accused except the factthat he was found standing near the place of incident there is no furtherEmaterial against him.

3. Feeling aggrieved and dissatisfied with the impugned judgmentsand orders passed by the High Court releasing respective respondentsNo.1 on bail, the original complainant has preferred the present appeals.

4. We have heard Shri Colin Gonsalves, learned Senior AdvocateFappearing on behalf of the appellant, Ms. Aastha Mehta, learned counselappearing on behalf of the State and Shri Huzefa Ahmadi learned SeniorAdvocate appearing on behalf of respondent No.1 – accused - TejasKanubhai Zala and Shri Purvish Jitendra Malkan, learned counselappearing on behalf of respondent No.1 – accused - JaysukhbhaiGDevrajbhai Radadiya.

5. Shri Gonsalves, learned Senior Advocate appearing on behalfof the appellant has vehemently submitted that in the facts andcircumstances of the case, the High Court has materially erred in releasingthe accused on bail in case where the husband of the complainant wasHmurdered brutally.

5.1 It is submitted that the High Court has not at all appreciatedthe fact that after thorough investigation, the accused werechargesheeted for the offences under Sections 302, 342, 354, 323, 143,147, 148, 149 of the Indian Penal Code 1860, Section 3(1)(r)(s), 3(2)(5)of the Scheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) Act, 1989 and Section 135 of the Gujarat Police Act, 1951. Itis submitted that the manner in which the accused had beaten thedeceased – Mukeshbhai and due to multiple injuries he succumbed todeath, the High Court while releasing the accused on bail, has not at allconsidered the gravity of the offences alleged against the accused andon the grounds which are not tenable the High Court has released accusedon bail.

5.2 It is submitted that the High Court has not at all appreciatedthe fact that in fact the complainant and her aunt are the eye witnesses.It is submitted that even the entire incident was recorded in mobile aswell as by CCTV. Shri Gonsalves, learned Senior Advocate appearingon behalf of the appellant has taken us to the relevant material from thecharge sheet as well as the photographs in which it is found that deceasedwas tied by rope to the gate and the accused were beating the deceased.

5.3 It is submitted that so far as the accused JaysukhbhaiDevrajbhai Radadiya is concerned, it cannot be said that he was juststanding and there is no further overt act by him. It is submitted that assuch he was the person who not only beat the deceased but also he tiedthe deceased and ensured that the deceased was not able to move.

5.4 It is submitted that the High Court has not at all consideredthe fact that all the accused were identified in the Test IdentificationParade (TIP) by both the eye witnesses.

5.5 It is submitted that as per the post mortem report, the deceaseddied due to ante mortem injuries caused due to shock and haemorrhageon account of multiple injuries present over head and body caused byhard and blunt object.

5.6 It is submitted that in any case the High Court ought not tohave brushed aside the statements of eye witnesses at this stage. It istherefore submitted that the High Court has materially erred in releasingthe accused on bail.

6. Ms. Aastha Mehta, learned counsel appearing on behalf of theState has supported the appellant. It is urged that the High Court in the

Afacts and circumstances ought not to have released the accused on bailin respect of serious offence where one person has been killed brutally.When we asked pointed question to the counsel appearing on behalf ofthe State why in such serious matter, the State has not preferred appeal,she has fairly conceded that the State also should have filed the appeal.She has stated that may be because it takes time in taking decision toBprefer appeal, the State in the present case might not have yet preferredthe appeal challenging the release of the respondents – accused on bail.

7. Shri Huzefa Ahmadi, learned Senior Advocate, appearing onbehalf of the accused Tejas Kanubhai Zala, has submitted that in thepresent case accused has been released on bail in the month of February,C2019 and since then, he is on bail. It is submitted that after the accusedhas been released on bail, there are no allegations of misuse of libertyand therefore this Court may not cancel the bail granted by the HighCourt after two and half years.

7.1 It is further submitted by Shri Ahmadi, learned Senior Advocate,Dappearing on behalf of the accused that even thereafter the trial hasfurther proceeded and except the investigating officer (IO), most of thewitnesses are examined and therefore also the bail may not be cancelled.

7.2 Shri Purvish Jitendra Malkan, learned counsel appearing onbehalf of the accused – Jaysukhbhai Devrajbhai Radadiya, has adoptedEthe submissions made by Shri Ahmadi, learned Senior Advocate appearingon behalf of the co-accused – Tejas Kanubhai Zala and has requestednot to cancel bail after period of two and half years.

8. We have heard learned counsel appearing on behalf of theFrespective parties at length.

9. We have also gone through and considered the material onrecord. We have also gone through and considered the impugned orderspassed by the High Court releasing accused on bail.

9.1 At the outset, it is required to be noted that the respectiveGaccused are facing charges for the offences under Sections 302, 342,354, 323, 143, 147, 148, 149 of the Indian Penal Code 1860, Section3(1)(r)(s), 3(2)(5) of the Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, 1989 and Section 135 of the Gujarat PoliceAct, 1951. That the accused have been chargesheeted by theinvestigating officer after thorough investigation.H

9.2 As per the case of the prosecution the accused tied deceasedto the gate when the deceased, complainant and her aunt were collectingscrap outside the factory premises. The accused have beaten thedeceased when he was tied by pipe and belt. He sustained serious multipleinjuries and while being taken to hospital he succumbed to the injuriesand died. As per the post mortem report, the cause of the death of thedeceased – victim was shock and haemorrhage on account of multipleinjuries present over head and body, caused by hard and blunt object.

9.3 The appellant herein – original complainant and her aunt andone another are the eye witnesses who have identified the accused inTest Identification Parade (TIP). The entire incident has been captured/recorded in the CCTV footages and the mobile phone. During the courseof the investigation, the punchnama of the place of the incident has beenprepared, statements of the witnesses are recorded; test identificationof the accused has been carried out; CCTV footages and DVR fromthe place of incident have been recovered. Pipe and the belt used incommission of the crime have been recovered. It can be seen that thedeceased - Mukeshbhai was brutally beaten by the accused and despitethe above and without considering the seriousness of the offences allegedand despite the statements of the eye witnesses, the High Court by theimpugned orders have released the accused on bail in most perfunctoryand casual manner. The High Court has not at all considered the gravityof the offences alleged and the evidence collected during the investigation,which are forming part of the charge sheet. We refrain from makingfurther observations on merits as the trial is going on. Suffice it to saythat in such serious matter and looking to the gravity of the offencesand considering the statements of eye witnesses and that the entireincident has been recorded in the CCTV footages and the mobile phone,the High Court has committed grave error in releasing the respectiverespondents No.1 – accused on bail. The judgments and orders passedby the High Court releasing the accused on bail are unsustainable both,on facts as well as on law.

9.4 Now so far as the submissions on behalf of the accused thatafter the accused are released on bail by the impugned judgments andorders passed by the High Court, more than two and half years havepassed and there are no allegations of misuse of liberty and therefore,the bail may not be cancelled is concerned, the aforesaid cannot beaccepted. As per the settled preposition of law, cancellation of bail and

Aquashing and setting aside the wrong order passed by the High Courtreleasing the accused on bail stand on different footings. There aredifferent considerations while considering the application for cancellationof bail for breach of conditions etc., and while considering an orderpassed by the Court releasing the accused on bail. Once, it is found thatthe order passed by the High Court releasing the accused on bail isBunsustainable, necessary consequences shall have to follow and the bailhas to be cancelled.

10. In view of the above and for the reasons stated above, boththese appeals succeed. The impugned judgments and orders passed bythe High Court releasing the accused on bail in connection with FirstCInformation Report being C.R. No.I/38 of 2018 registered at PoliceStation, Shapar (Veraval) for the offences under Sections 302, 114, 323of the Indian Penal Code, Section 135, 37(1) of the Gujarat Police Actand Section 3(2)(5) of the Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, are hereby quashed and set aside. As theDaccused are on bail we direct accused - respondent No.1 – TejasKanubhai Zala in Criminal Appeal No.1655 of 2021 and accused -respondent No.1 – Jaysukhbhai Devrajbhai Radadiya in Criminal AppealNo.1656 of 2021, to surrender before the concerned jail authority withina period of one week from today, failing which the non-bailable warrantsbe issued against them. The present appeals are accordingly allowed.E

11. Before parting, we may observe that by not filing the appealsby the State against the impugned judgments and orders releasing theaccused on bail in such serious matter, the State has failed to protectthe rights of the victim. We are of the opinion that this was the fit casewhere the State ought to have preferred the appeals challenging theForders passed by the High Court releasing the accused on bail. In criminalmatters the party who is treated as the aggrieved party is the Statewhich is the custodian of the social interest of the community at largeand so it is for the State to take all the steps necessary for bringing theperson who has acted against the social interest of the community toGbook.

It is reported that in the State there is Director of Prosecution.Even the Director of Prosecution has failed to perform his duties in theinstant case. The post of Director of Prosecution is very importantpost in so far as the administration of justice in criminal matters isHconcerned. It is the duty of the Director of Prosecution to take prompt

decision. Given that crimes are treated as wrong against the society asa whole, the role of the Director of Prosecution in the administration ofjustice is crucial. He is appointed by the State Government in exerciseof powers under Section 25A of the Code of Criminal Procedure. Thathis is crucial role is evident from conditions such as in Section 25A (2)of the Code, which stipulates minimum legal experience of not lessthan ten years for person to be eligible to be Directorate of Prosecutionand that such an appointment shall be made with the concurrence of theChief Justice of the High Court.The submissions by Ms. Aastha Mehta learned counsel appearingon behalf of the State that it takes time to take decision whether toprefer an appeal or not is not acceptable. The State ought to have beenvery serious even to maintain the rule of law in serious matter like thiswhere person was brutally murdered/killed while he was just collectingscrap outside the factory with his wife and aunt. It is the duty of theDirector of Prosecution and the State to ensure that the guilty are bookedand punished.

We hope and trust that in future the State Government/legaldepartment of State Government and the Director of Prosecution shalltake prompt decision in matters such as this and challenge the orderpassed by the trial court and/or the High Court as the case may bewhere it is found that the accused are released on bail in serious offenceslike the present.

We hope and trust that our observations will reach the StateGovernment/legal department of the State of Gujarat and the Directorof Prosecution of State of Gujarat. We direct the Registry to send thecopy of this order to the Principal Chief Secretary and Secretary, HomeDepartment and Legal Department, State of Gujarat to take furthercorrective steps.

Devika Gujral

Appeals allowed.