TaxTMI 
TaxTMI 
2021 (4) TMI 1276
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....of the Arms Act and Section 135 of the Gujarat Police Act. The Appellant-Ramesh Bhavan Rathod-is the informant on whose statement, the FIR was registered at 1930 hours in respect of an incident which took place at 1300 hours. The incident took place in village Hamirpur which is at a distance of 20 kms from the police station. The incident which led to the commission of five murders had its genesis in a land dispute. The informant alleged that he and his brother Pethabhai had gone to their farm at 6:00 am. At 1 pm, the informant, Pethabhai and his brother-in-law Akhabhai were returning home in a Scorpio vehicle with five other persons. When the vehicle reached the untarred road passing through the farm of Lakha Hira Koli and Kanji Bijal Koli, these two persons came out along with Lakha Hira Koli. Lakha Koli dashed his tractor on the front portion of the Scorpio vehicle. Kanji Koli parked his tractor on the rear side of the Scorpio, behind which another Sumo vehicle came to be stationed. The Scorpio and its occupants were waylaid. As the informant and others attempted to run away from the scene, he saw the homicidal incident which he describes in the following terms: ..At th....
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....ry of, inter alia, two country made guns, two indigenous counterfeit guns, four dhariyas and one wooden stick. 4. On 13 May 2020, a cross FIR was registered at the behest of Vishan Heera Makwana (Koli) being FIR No. 11993005200315 at Police Station Aadesar. The informant in the cross FIR claims to be an original resident of village Hamirpar and is presently residing at Village Anjar. The FIR states that after the lockdown had been declared on 25 March 2020, the informant had left Anjar to go to village Hamirpar. About fifteen years ago certain agricultural land had been sold to another person, who subsequently gave it for cultivation to Akhabhai. Akhabhai was refusing to give the fields for cultivation to the informant as a result of which a quarrel had taken place on 7 May 2020. The informant's motor cycle had been taken away by the police. The issue had been settled at the intervention of persons belonging to the community and no complaint was filed. According to the cross FIR on 9 May 2020, the informant Vishan sent his nephew to the Police Station together with Akhabhai to retrieve the motor cycle. The cross FIR narrates Vishan's version of the incident which took pl....
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....namely Lakhabhai dashed that jeep by tractor at that time my another cousin brother Kanji Bijal came with the another tractor and Lakhman Bijal came with the sumo jeep and dashed with the jeep of Akhabhai. At that time our ladies came down during quarrel Ramesh Bhavan Rathod-Papu Gabha Umat-Akhabhai Son Dharmendra ran away at that time the our persons who came there assaulted with the dhariya and lakdi's on Akhabhai-Velabhai-Pethabhai-Amrabhai And Lalji and this quarrel i have been injured... 5. Vishan was arrested on 18 May 2020. A further statement of the informant in the original FIR dated 9 May 2020 was recorded on 3 June 2020. After investigation, the charge-sheet was submitted by the investigating officer against Vishan and twenty-two co-Accused. On 31 August 2020, an application for interim bail moved by Vishan on medical grounds was rejected by the Sessions Judge, Bhachau, Kachchh taking note of the fact that the Accused had produced fake documents for the purpose of obtaining bail. An application seeking regular bail Under Section 439 of the Code of Criminal Procedure was rejected by the Additional Sessions Judge, Bhachau on 4 December 2020. 6. Among the twenty-t....
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....f the incident on 9th May 2020 is in effect substituted by the complainant in the additional statement dated 3rd June 2020 by narrating altogether different details. At this juncture, this Court is not going into the details of the incident as it may affect the trial at the later point of time. Suffice is to say prima facie appears that the applicant has been involved in alleged offences due to pending proceedings of the previous offences and enmity with the complainant side... 9. In addition, the Single Judge observed that: (i) The Accused was in jail since 19 May 2020; (ii) The charge-sheet had been filed after investigation; and (iii) The trial was likely to take time as 110 witnesses were to be examined. Reliance was placed on the decision of this Court in Sanjay Chandra v. Central Bureau of Investigation 2012 (1) SCC 40. The orders granting bail to A-10 and A-15 (21 December 2020); to A-16 (19 January 2021); and to A-17 (20 January 2021) are based on parity. 10. The main Accused, Vishan (A-6) was granted bail on 21 December 2020. The reasons adduced by the Single Judge of the High Court are contained in paragraphs 7, 8 and 9 of the order whi....
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....hat the primary basis on which the first order granting bail was passed by the High Court in the case of Sidhdhrajsinh Bhagubha Vaghela (A-13) on 22 October 2020 is that while the FIR was registered on 9 May 2020, the statement of the informant was recorded on 3 June 2020, in which there have been substantial changes in the genesis of the incident including the nature of the weapons. While the allegation in the FIR is that Vishan (A-6) fired several rounds from a rifle together with other persons, the subsequent statement would indicate that the injuries had been caused not as a result of the use of firearms but by a sharp weapon. The following submissions have been urged: (i) The cross FIR lodged by Vishan (A-6) on 13 May 2020 indicates that an incident had taken place on 9 May 2020; (ii) During the course of the incident, five homicidal deaths resulted on the side of the informant (of the FIR dated 9 May 2020); (iii) The cross FIR lodged on 13 May 2020 contains a reference to: a. The Accused being armed with weapons; b. Pre-meditation on the part of the Accused to waylay and assault the side of the informant; and c. The assaul....
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.... (iii) The grant of bail on the basis of parity alone to Vanraj Karshan Koli (A-16), Kheta Parbat Koli (A-15), Pravin Heera Koli (A-10) and Dinesh Karshan Akhiyani (Koli) (A-17). 16. Mr. Aniruddha P. Mayee, learned Counsel appearing on behalf of the State of Gujarat has supported the submissions of the Appellant in the challenge to the orders granting bail on the following grounds: (i) The grant of bail by the High court to the six Accused persons in this batch is not justified having regard to the following circumstances: a. The main Accused Vishan (A-6) was a resident of Anjar and had come to Hamirpur; b. There was an earlier incident which had taken place involving an altercation with the deceased Akhabhai; c. A compromise was arrived at in the course of the dispute with the intervention of the community; d. As the cross FIR by Vishan (A-6) narrates, on 9 May 2020-the conduct of the Accused was pre-meditated; e. The incident took place at 1:00 pm when the side of the informant (in the FIR dated 9 May 2020) was returning from their fields for lunch when they were waylaid and obstructed by vehicles of the Accused both at t....
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.... of the informant were hit by bullets and were lying on the land which is belied by the Post Mortem reports not indicating gunshot injuries; and (xii) The nature of the incident is sought to be altered in the statement which was recorded on 3 June 2020. The earlier version which refers to gunshot injuries is replaced with dhariya injuries and by the attempted use of fire arms. In summation, it has been urged on behalf of the Accused that (i) The presence of the Accused at the scene of offence on 9 May 2020 is established by the cross FIR; (ii) The Post Mortem reports would demonstrate that all the injuries were sustained by the deceased with sharp edged weapons and not as a result of fire arms or sticks; (iii) There are three versions of the incident, which are contained in the FIR, the subsequent statement and the cross FIR. A charge sheet has also been submitted after the investigation of the cross FIR; (iv) As many as twenty-two persons have been roped in; (v) While the Sessions Judge had noticed the improvement which was made in the subsequent statement, bail was denied only on the basis of the presence of the Accused; an....
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....e court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the Accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the Accused is entitled to an order of bail. This Court further laid down the standard for overturning an order granting bail in the following terms: 3. Grant of bail though being a discretionary order--but, however, calls for exercise of such a discretion in a judiciou....
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....was a history sheeter, it was imperative on the part of the High Court to scrutinize every aspect and not capriciously record that the 2nd Respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the 2nd Respondent has been charge sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside. 23. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21 December 2020, the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22 October 2020 on the ground (as the High Court recorded) that he was "assigned similar role of armed with stick (sic....
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....020 in the case of A-10 and A-15. The only reasons which have been indicated in the order of the Single Judge is that bail was being granted taking into consideration the facts of the case, the nature of the allegations, gravity of offences and role attributed to the Accused. Thereafter, by an order dated 19 January 2021 bail was granted to Vanraj (A-16) purely on the basis of parity. On 20 January 2021, the order granting bail to Vanraj (A-16) was followed in the case of Dinesh (A-17) on the ground of parity. 26. From the above conspectus of facts, it is evident that essentially the only order which contains a semblance of reasoning is the order dated 22 October 2020 granting bail to A-13. As a matter of fact, the submissions which have been made on behalf of the Accused substantially dwell on the same line of logic in justifying the grant of bail on the ground that in the subsequent statement dated 3 June 2020 of the informant, the genesis and details of the incident which took place on 9 May 2020 as elaborated in the FIR have undergone a substantial change. 27. In granting bail to the six Accused, the High Court has committed a serious mistake by failing to recognize mater....
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....esign he proceeded in his vehicle together with his brother and some of the other Accused and tried to kill Akhabhai by dashing his car against him. The translation of the actual intent in the cross FIR is questioned by Mr. Nikhil Goel by submitting that correctly translated from Gujarati, the intent would be to assault and not to kill. Be that as it may, the cross FIR indicates the presence of all these Accused and of their being armed with weapons to assault the deceased. A-6, in fact, states that in the course of the incident which took place, he was assaulted on his hand with a dhariya. The cross FIR contains a narration of how Akhabhai and the others tried to run away from the scene but were way-laid and assaulted. The cross FIR also then states that several women from the side of the Accused came to the scene of occurrence. 29. A reading of the cross FIR which was lodged by Vishanbhai (A-6) on 13 May 2020 indicates: (i) An intent on the part of the Accused to launch an assault on the deceased; (ii) The manner in which their pre-meditated design was sought to be achieved by assaulting Akhabhai and the other deceased persons; (iii) An effort was ma....
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....spect any further. It is important for the purpose of evaluating this batch of cases at the present stage to also note the invocation of the provisions of the Section 149 of the Indian Penal Code. 32. Our analysis above would therefore lead to the conclusion that there has been a manifest failure of the High Court to advert to material circumstances, especially the narration of the incident as it appears in the cross FIR which was lodged on 13 May 2020. Above all, the High Court has completely ignored the gravity and seriousness of the offence which resulted in five homicidal deaths. This is clearly a case where the orders passed by the High Court suffered from a clear perversity. 33. There is another aspect of this batch of cases which it is necessary to note. In the order of the High Court dated 22 October 2020 granting bail to Sidhdhrajsinh (A-13), there was a reference to the submission of the Public Prosecutor to the criminal antecedents of A-13 bearing on previous FIRs registered against him in 2017 and 2019. This aspect bearing on the criminal antecedents of A-13 has not been considered in the reasons which have been adduced by the Single Judge. In Ash Mohammad v. Shiv....
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.... parties do not press for further reasoned orders. A similar observation is contained in the order dated 20 January 2021 of the Single Judge granting bail to Dinesh (A-17). Finally on this aspect we would also advert to the order of the High Court dated 21 December 2020 granting bail to Vishan (A-6) which again contains a statement that the "advocates appearing on behalf of the respective parties do not press for a further reasoned order". 35. We disapprove of the observations of the High Court in a succession of orders in the present case recording that the Counsel for the parties "do not press for a further reasoned order". The grant of bail is a matter which implicates the liberty of the Accused, the interest of the State and the victims of crime in the proper administration of criminal justice. It is a well-settled principle that in determining as to whether bail should be granted, the High Court, or for that matter, the Sessions Court deciding an application Under Section 439 of the Code of Criminal Procedure would not launch upon a detailed evaluation of the facts on merits since a criminal trial is still to take place. These observations while adjudicating upon bail wo....
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....satisfied, as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. 9. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an Accused was charged of having committed a serious offence... 37. We are also constrained to record our disapproval of the manner in which the application for bail of Vishan (A-6) was disposed of. The High Court sought to support its decision to grant bail by stating that it had perused the material on record and was granting bail "without discussing the evidence in detail" taking into consideration: (1) The facts of the case; (2) The nature of allegations; (3) Gravity of offences; and (4) Role attributed to the Accused. As a matter of fact there is no discussion or analysis of circumstances at all. This lone sentence in the order of the Single Judge leaves a Court before which the order granting bail is challenged, completely without guidance on....
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....rom the quality of the reasoning which is embodied in the order granting bail. While the reasons may be brief, it is the quality of the reasons which matters the most. That is because the reasons in a judicial order unravel the thought process of a trained judicial mind. We are constrained to make these observations because the reasons indicated in the judgment of the High Court in this case are becoming increasingly familiar in matters which come to this Court. It is time that such a practice is discontinued and that the reasons in support of orders granting bail comport with a judicial process which brings credibility to the administration of criminal justice. 38. What has been observed in the above extract equally applies to the facts of the present case. There is no question now of ordering a remand to the High Court in the case of Vishan (A-6) since the question of bail has been argued fully before this Court. Moreover, the case of Vishan (A-6) has been considered together with the entire batch of cases in which bail has been granted-initially on 22 October 2020 in the case of Sidhdhrajsinh (A-13), which has been followed on the grounds of parity in the case of the other Ac....
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.... imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice". In Mahipal v. Rajesh Kumar Alias Polia (2020) 2 SCC 118 this Court observed as follows: 16. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., : (2014) 16 SCC 508: (2015) 3 SCC (Cri.) 527], the Accused was granted bail by the High Court [Mitthan Yadav v....