IMPORTANT POINT
Cancellation of bail and quashing and setting aside wrong order passed by High Court releasing accused on bail stand on different footings – Once, it is found that order passed by High Court releasing accused on bail is unsustainable, necessary consequences shall have to follow and bail has to be cancelled.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgments and orders dated 04.02.2019 and 05.04.2019 passed by the High Court of 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 released the respective respondents No. 1-accused, the original complainant has preferred the present appeals.

2. For the sake of convenience, the facts in Criminal Appeal No. 1655 of 2021 arising out of the impugned judgment and order dated 04.02.2019 passed in Criminal Appeal No. 1502 of 2018 are narrated which 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 a factory. When they were picking scrap on the backside of the factory area, five persons (accused) came there and started abusing them and thereafter initially started beating all three of them outside the factory. That thereafter five accused persons tied Mukeshbhai-husband of the original complainant to the gate of the factory and started beating him. As per the case of the prosecution Jayaben-original complainant and her aunt were asked to leave. They left and thereafter informed their relatives and friends and when they returned, they found Mukeshbhai unconscious and seriously injured. He was taken to the hospital where he was declared dead. A First Information Report was registered at Police Station, Shapar (Veraval) as C.R. No. I/38 of 2018 against the five accused including respective respondents No. 1 herein for the offences under Sections 302, 114, 323 of the Indian Penal Code, Section 135, 37(1) of the Gujarat Police Act and Section 3(2)(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. Investigation was carried out by the concerned Dy. S.P. Gondal division and thereafter by Dy. S.P. (SC & ST Cell) Rajkot Rural. After investigation all the accused persons (five in numbers) came to be charge-sheeted 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 of Atrocities) Act, 1989 and Section 135 of the Gujarat Police Act, 1951 having committed the murder of the deceased-Mukeshbhai-husband of the appellant-Jayaben. That respondent No. 1 herein moved a bail application before the learned Sessions Court, Gondal seeking release on bail, which came to be dismissed vide order dated 18.09.2018. Feeling aggrieved and dissatisfied with the order passed by the learned Sessions Court rejecting the bail application and refusing to release respondent No. 1-accused on bail, respondent No. 1-accused preferred present Criminal Appeal No. 1502 of 2018 before the High Court. By the impugned judgment and order dated 04.02.2019, the High Court has released respondent No. 1-original accused-Tejas Kanubhai Zala on bail in connection with the aforesaid case. By subsequent judgment and order dated 05.04.2019 in another Criminal Appeal No. 389 of 2019 another accused-Jaysukhbhai Devrajbhai Radadiya respondent No. 1 has been released on bail mainly considering the fact that co-accused-Tejas Kanubhai Zala has been released on bail and also by observing that so far as the said accused except the fact that he was found standing near the place of incident there is no further material against him.

3. Feeling aggrieved and dissatisfied with the impugned judgments and orders passed by the High Court releasing respective respondents No. 1 on bail, the original complainant has preferred the present appeals.

4. We have heard Shri Colin Gonsalves, learned Senior Advocate appearing on behalf of the appellant, Ms. Aastha Mehta, learned counsel appearing on behalf of the State and Shri Huzefa Ahmadi learned Senior Advocate appearing on behalf of respondent No. 1-accused Tejas Kanubhai Zala and Shri Pur