Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 796

SUPREME COURT OF INDIA
R. BANUMATHI, A.S. BOPANNA, JJ.
Bharatbhai Bhimabhai Bharwad – Appellant
Versus
State of Gujarat and Others – Respondents
Criminal Appeal Nos. 1162-1163 of 2019, SLP (Crl.) Nos. 3204-3205 of 2019
Decided On : 30-07-2019

Advocates Appeared:
For the Petitioner(s) Abhishek Singh, Shreshth Arya, Advocates
For the Respondent(s):Sushil Kumar Jain, Advocate
(R-2 & R-3) :Puneet Jain, Christi Jain, Ankita Gupta, Harshit Khanduja, Harsh Jain, Pratibha Jain, Aniruddha P. Mayee, A. Rajarajan, Sanjeev Kr. Choudhary, Advocates

IMPORTANT POINT
Consideration applicable for cancellation of bail and consideration for challenging the order of grant of bail on the ground of arbitrary exercise of discretion are different.

Headnote:
Code of Criminal Procedure, 1973 - Section 439 and 439(2) - Consideration applicable for cancellation of bail u/s 439(2) - Different from consideration for challenging order of grant of bail on the ground of arbitrary exercise of discretion u/s 439 - In the former case court ordinarily looks for some supervening circumstances - In the latter case consideration is whether there was improper or arbitrary exercise of discretion in grant of bail - Instantly the very grant of bail challenged on the ground of arbitrary exercise of discretion ignoring the relevant materials to be considered in the application for bail - High Court incorrectly proceeding on the footing that it is an application only for cancellation of bail - Not sustainable. (Para 10)
       Facts of the case:
       The father of respondents No. 2 and 3-accused No. 1 and 2 were loaned money by the father of complainant-Bharatbhai Bhimabhai Bharwad. On 10.01.2019, the complainant-Bharatbhai and the witnesses were abused and assaulted.
       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.
       Challenging the order granting bail to respondents No. 2 and 3, the complainant- Bharatbhai filed Criminal Misc. Application before the High Court. 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 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.
       Finding of the Court:
       High Court proceeded on a wrong premise.
       Result: Appeal allowed.

JUDGMENT :

R. BANUMATHI, J.

1. Leave granted.

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 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 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 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 d

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2019 Supreme(SC) 796

SUPREME COURT OF INDIAR. BANUMATHI, A.S. BOPANNA, JJ.Bharatbhai Bhimabhai Bharwad – AppellantVersusState of Gujarat and Others – RespondentsCriminal Appeal Nos. 1162-1163 of 2019, SLP (Crl.) Nos. 3204-3205 of 2019Decided On : 30-07-2019

IMPORTANT POINTConsideration applicable for cancellation of bail and consideration for challenging the order of grant of bail on the ground of arbitrary exercise of discretion are different.

Cases Referred (2)

SUPREME COURT OF INDIA
R. BANUMATHI, A.S. BOPANNA, JJ.
Bharatbhai Bhimabhai Bharwad – Appellant
Versus
State of Gujarat and Others – Respondents
Criminal Appeal Nos. 1162-1163 of 2019, SLP (Crl.) Nos. 3204-3205 of 2019
Decided On : 30-07-2019

IMPORTANT POINT
Consideration applicable for cancellation of bail and consideration for challenging the order of grant of bail on the ground of arbitrary exercise of discretion are different.