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2024 Supreme(Guj) 1236
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Gita Gopi, J.
Saurabh Sushil Nevatiya – Applicant
Versus
State Of Gujarat & Anr. – Respondents
R/Criminal Misc. Application (For Cancellation Of Bail) No. 8816 of 2024
Decided On : 02-07-2024
Advocate Appeared:
For the Applicant : Mr Yatin Oza, Senior Counsel With Mr Virat G Popat
For the Respondent: Mr Hardik A Dave, Mr Hardik Mehta, Addl Public Prosecutor
The court clarified that common intention is crucial for liability under IPC Sections 147 and 149, and mere presence is insufficient to deny bail.
Headnote:
Bail - Criminal Procedure - Section 439(2) - The court discussed the provisions of IPC Sections 302, 323, 34, 143, 147, and 149, emphasizing the need for common intention in determining culpability, ultimately affirming the bail granted by the Sessions Judge.
Fact of the Case:
The applicant challenged the bail granted to the respondent in a murder case, arguing that the respondent instigated a mob to beat the deceased, leading to his death.
Finding of the Court:
The court found no irregularity in the Sessions Judge's bail order, noting that the respondent's actions were not directly linked to the deceased's death and that the common intention was not sufficiently established.
Issues: Whether the Sessions Judge erred in granting bail without adequately considering the evidence and the implications of common intention under IPC Sections 147 and 149.
Ratio Decidendi: The court held that the presence of common intention among the accused must be established for liability under IPC Sections 147 and 149, and the lack of direct involvement of the respondent in the fatal act justified the bail.
Result: The application for cancellation of bail is rejected.
ORDER :
Gita Gopi
1. The present revision has been filed under Section 439 (2) of the Code of Criminal Procedure, 1973 challenging the legality and validity of order dated 30.04.2024 recorded in Criminal Misc. Application No.3202 of 2024 by the learned Sessions Judge, Surat, whereby the learned Sessions Judge has enlarged the respondent No.2 on bail in connection with FIR being CR No.11210068240156 of 2024 registered with Vesu Police Station, Surat under Sections 302, 323, 34, 143, 147 and 149 of the Indian Penal Code. (for short ‘the IPC’).
2. Heard learned Senior Counsel Mr. Yatin Oza with learned advocate Mr. Virat G Popat for the applicant, learned APP Mr.Hardik Mehta for respondent – State and learned advocate Mr. Hardik A. Dave for respondent No.2 – original accused.
3. Learned Senior Counsel Mr. Yatin Oza submitted that the present applicant is original complainant. He is a brother of the deceased and he has prayed for cancellation of bail of respondent No.2, granted by the Sessions Court.
3.1 Learned Senior Counsel Mr. Oza submitted that the deceased was beaten by the people first in the complex and then respondent No.2 called the employees of the institute and other persons who are owning shops in the complex and instigated them to beat the deceased in the basement of the complex and the deceased succumbed to the injuries. Referring to the provisions of Sections 147 and 149 of the IPC, it is stated that when the police has invoked the provisions of such sections, it can be said that there is common intention of all the accused and they have gathered as unlawful assembly and as per the case of the prosecution respondent No.2 is the main perpetrator of the offence, who all in furtherance of criminal conspiracy had beaten him to death.
3.2 Learned Senior Counsel Mr. Oza submitted that the learned Sessions Judge has failed to appreciate the evidence on record and has not given any reason while granting the bail and the only observations which are made to the effect that the role of the respondent No.2 can be considered during the trial. Learned Senior Counsel further submitted that it was the common intention of the people who were gathered there to mercilessly beat the deceased with an intent to take his life and therefore, they have taken the deceased to basement.
3.3 Learned Senior Counsel Mr. Oza submitted that at first instance of the alleged act, the brother of the deceased had already asked for pardon from the two of the persons and therefore the deceased has gone out of the mall while as per the case of learned Senior Counsel Mr. Oza states that the present respondent No.2 had asked his employee to bring the deceased back and from about a distance of 2 kms, the deceased was brought back by the employee of the respondent No.2 to the basement.
3.4 Referring to the judgment in case of Kumar Singh vs. State of Rajasthan reported in 2021 (8) Scale 543 and in case of Manno Lal Jaiswal vs. State of Uttar Pradesh reported in 2022 (15) SCC 248, learned Senior Counsel Mr. Oza submitted that when the accused is charged for the offence punishable under Section 149 of the IPC and when his presence has been established, the individual role and / or overt act by the individual accused is not significant and / or relevant. The common intention of all persons is required to be considered and thus stated that the order granting bail is not a reasoned order and learned Sessions Judge has failed to take into consideration the legal position and the fact that the accused had common intention to kill the deceased.
3.5 Learned APP submitted that the impugned order is perverse and no person can be permitted to have law in their hands and the act of mob-lynching should be deprecated.
4. Per contra, learned advocate Mr. Hardik Dave for respondent No.2 submitted that the respondent No.2 is running coaching institute in the mall. It is also submitted that the allegation of indecent act is not a sole act but a continuous act of perversion and stated th
