Jayaben vs Tejas Kanubhai Zala

 Jayaben vs Tejas Kanubhai Zala Supreme Court Judgment 2022:


REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1655 OF 2021

Jayaben                ..Appellant(S)

Versus

Tejas Kanubhai Zala & Anr.             ..Respondent(S)

WITH 

CRIMINAL APPEAL NO.1656 OF 2021

Jayaben                ..Appellant(S)

Versus

Jaysukhbhai Devrajbhai Radadiya & Anr.             ..Respondent(S)

J U D G M E N T 

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. 

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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

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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.SP Gondal division and thereafter by Dy.SP

(SC   &   ST   Cell)   Rajkot   Rural.   After   investigation   all   the

accused persons (five in numbers) came to be chargesheeted

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

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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 coaccused – 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

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and   Shri   Purvish   Jitendra   Malkan,   learned   counsel

appearing   on   behalf   of   respondent   No.1   –   accused   ­

Jaysukhbhai Devrajbhai Radadiya.

5. Shri Gonsalves, learned Senior Advocate appearing on behalf

of the appellant has vehemently submitted that in the facts

and circumstances of the case, the High Court has materially

erred in releasing the accused on bail in a case where the

husband of the complainant was murdered brutally. 

5.1 It is submitted that the High Court has not at all appreciated

the fact that after a thorough investigation, the accused were

chargesheeted 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. It is submitted

that   the   manner   in   which   the   accused   had   beaten   the

deceased   –   Mukeshbhai   and   due   to   multiple   injuries   he

succumbed   to   death,   the   High   Court   while   releasing   the

accused on bail, has not at all considered the gravity of the

offences alleged  against   the  accused  and   on  the  grounds

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which are not tenable the High Court has released accused

on bail.  

5.2 It is submitted that the High Court has not at all appreciated

the 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   as   well   as   by   CCTV.   Shri   Gonsalves,

learned Senior Advocate appearing on behalf of the appellant

has taken us to the relevant material from the charge sheet

as well as the photographs in which it is found that deceased

was tied by a rope to the gate and the accused were beating

the deceased.       

5.3 It   is   submitted   that   so   far   as   the   accused   Jaysukhbhai

Devrajbhai Radadiya is concerned, it cannot be said that he

was just standing and there is no further overt act by him. It

is submitted that as such he was the person who not only

beat the deceased but also he tied the deceased and ensured

that the deceased was not able to move.

5.4 It is submitted that the High Court has not at all considered

the   fact   that   all   the   accused   were   identified   in   the   Test

Identification Parade (TIP) by both the eye witnesses. 

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5.5 It   is   submitted   that   as   per   the   post   mortem   report,   the

deceased died due to ante mortem injuries caused due to

shock   and   haemorrhage   on   account   of   multiple   injuries

present over head and body caused by hard and blunt object.

5.6 It is submitted that in any case the High Court ought not to

have brushed aside the statements of eye witnesses at this

stage.   It   is   therefore   submitted   that   the   High   Court   has

materially erred in releasing the accused on bail.         

6. Ms. Aastha Mehta, learned counsel appearing on behalf of

the State has supported the appellant. It is urged that the

High Court in the facts and circumstances ought not to have

released the accused on bail in respect of a serious offence

where one person has been killed brutally. When we asked a

pointed question to the counsel appearing on behalf of the

State   why   in   such   a   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 to prefer appeal, the

State in the present case might not have yet preferred the

appeal challenging the release of the respondents – accused

on bail. 

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7. Shri Huzefa Ahmadi, learned Senior Advocate, appearing on

behalf of the accused Tejas Kanubhai Zala, has submitted

that in the present case accused has been released on bail in

the month of February, 2019 and since then, he is on bail. It

is submitted that after the accused has been released on bail,

there are no allegations of misuse of liberty and therefore this

Court may not cancel the bail granted by the High Court

after two and a half years. 

7.1 It   is   further   submitted   by   Shri   Ahmadi,   learned   Senior

Advocate,   appearing   on   behalf   of   the   accused   that   even

thereafter   the   trial   has   further   proceeded  and   except  the

investigating officer (IO), most of the witnesses are examined

and therefore also the bail may not be cancelled. 

7.2 Shri Purvish Jitendra Malkan, learned counsel appearing on

behalf of the accused – Jaysukhbhai Devrajbhai Radadiya,

has adopted the submissions made by Shri Ahmadi, learned

Senior   Advocate   appearing   on   behalf   of   the   co­accused   –

Tejas Kanubhai Zala and has requested not to cancel bail

after a period of two and a half years.      

8. We have heard learned counsel appearing on behalf of the

respective parties at length. 

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9. We have also gone through and considered the material on

record.   We   have   also   gone   through   and   considered   the

impugned orders passed by the High Court releasing accused

on bail.

9.1 At the outset, it is required to be noted that the respective

accused are facing charges 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. That the

accused have been chargesheeted by the investigating officer

after a thorough investigation.

9.2 As per the case of the prosecution the accused tied deceased

to the gate when the deceased, complainant and her aunt

were   collecting   scrap   outside   the   factory   premises.   The

accused have beaten the deceased when he was tied by pipe

and belt. He sustained serious multiple injuries and while

being taken to hospital he succumbed to the injuries and

died. As per the post mortem report, the cause of the death of

the   deceased   –   victim   was   shock   and   haemorrhage   on

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account of multiple injuries present over head and body,

caused by hard and blunt object.

9.3 The appellant herein – original complainant and her aunt

and one another are the eye witnesses who have identified

the accused in Test Identification Parade (TIP). The entire

incident has been captured/recorded in the CCTV footages

and the mobile phone. During the course of the investigation,

the   punchnama   of   the   place   of   the   incident   has   been

prepared,   statements   of   the   witnesses   are   recorded;   test

identification   of   the   accused  has   been  carried   out;  CCTV

footages   and   DVR   from   the   place   of   incident   have   been

recovered. Pipe and the belt used in commission of the crime

have been  recovered. It can  be seen that  the deceased  ­

Mukeshbhai was brutally beaten by the accused and despite

the above and without considering the seriousness of the

offences   alleged   and   despite   the   statements   of   the   eye

witnesses,   the   High   Court   by   the   impugned   orders   have

released   the   accused   on   bail   in   a   most   perfunctory   and

casual manner.  The High Court has not at all considered the

gravity   of   the   offences   alleged   and   the   evidence   collected

during the investigation, which are forming part of the charge

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sheet. We refrain from making further observations on merits

as the trial is going on. Suffice it to say that in such a serious

matter   and   looking   to   the   gravity   of   the   offences   and

considering the statements of eye witnesses and that the

entire incident has been recorded in the CCTV footages and

the mobile phone, the High Court has committed a grave

error in releasing the respective respondents No.1 – accused

on bail. The judgments and orders passed by 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 that

after   the   accused   are   released   on   bail   by   the   impugned

judgments and orders passed by the High Court, more than

two and a half years have passed and there are no allegations

of   misuse   of   liberty   and   therefore,   the   bail   may   not   be

cancelled is concerned, the aforesaid cannot be accepted. As

per the settled preposition of law, cancellation of bail and

quashing and setting aside the wrong order passed by the

High Court releasing the accused on bail stand on different

footings. There are different considerations while considering

the   application   for   cancellation   of   bail   for   breach   of

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conditions etc., and while considering an order passed by the

Court releasing the accused on bail. Once, it is found that

the order passed by the High Court releasing the accused on

bail is unsustainable, necessary consequences shall have to

follow and the bail has to be cancelled.    

10. In view of the above and for the reasons stated above, both

these appeals succeed. The impugned judgments and orders

passed by the High Court releasing the accused on bail in

connection with First Information Report being C.R. No.I/38

of 2018 registered at Police Station, Shapar (Veraval) 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, are hereby quashed and

set aside. As the accused are on bail we direct accused ­

respondent No.1 – Tejas Kanubhai Zala in Criminal Appeal

No.1655   of   2021   and   accused   ­   respondent   No.1   –

Jaysukhbhai   Devrajbhai   Radadiya   in   Criminal   Appeal

No.1656   of   2021,   to   surrender   before   the   concerned   jail

authority within a period of one week from today, failing

which the non­bailable warrants be issued against them. The

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present appeals are accordingly allowed.

11. Before parting, we may observe that by not filing the appeals

by the State against the impugned judgments and orders

releasing the accused on bail in such a serious matter, the

State has failed to protect the rights of the victim. We are of

the opinion that this was the fit case where the State ought

to have preferred the appeals challenging the orders passed

by the High Court releasing the accused on bail. In criminal

matters the party who is treated as the aggrieved party is the

State which is the custodian of the social interest of the

community at large and so it is for the State to take all the

steps   necessary   for   bringing   the   person   who   has   acted

against the social interest of the community to book. 

It is reported that in the State there is a Director of

Prosecution. Even the Director of Prosecution has failed to

perform his duties in the instant case. The post of Director of

Prosecution   is   a   very   important   post   in   so   far   as   the

administration of justice in criminal matters is concerned. It

is the duty of the Director of Prosecution to take prompt

decision. Given that crimes are treated as a wrong against

the society as a whole, the role of the Director of Prosecution

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in the administration of justice is crucial.  He is appointed by

the State Government in exercise of powers under Section

25A of the Code of Criminal Procedure.  That his is a crucial

role is evident from conditions such as in Section 25A (2) of

the Code, which stipulates a minimum legal experience of not

less   than   ten   years   for   a   person   to   be   eligible   to   be

Directorate of Prosecution and that such an appointment

shall be made with the concurrence of the Chief Justice of

the High Court. 

The submissions by Ms. Aastha Mehta learned counsel

appearing on behalf of the State that it takes time to take a

decision whether to prefer an appeal or not is not acceptable.

The State ought to have been very serious even to maintain

the rule of law in a serious matter like this where a person

was brutally murdered/killed while he was just collecting

scrap outside the factory with his wife and aunt. It is the

duty of the Director of Prosecution and the State to ensure

that the guilty are booked and punished. 

We   hope   and   trust   that   in   future   the   State

Government/legal department of State Government and the

Director of Prosecution shall take prompt decision in matters

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such as this and challenge the order passed by the trial court

and/or the High Court as the case may be where it is found

that the accused are released on bail in serious offences like

the present. 

We hope and trust that our observations will reach the

State Government/legal department of the State of Gujarat

and the Director of Prosecution of State of Gujarat.  We direct

the Registry to send the copy of this order to the Principal

Chief Secretary and Secretary, Home Department and Legal

Department, State of Gujarat to take further corrective steps.

…………………………………J.

(M. R. SHAH)

…………………………………J.

(B. V. NAGARATHNA)

New Delhi, 

January 10, 2022

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