Anuradha W/O Rohit Vasnabhai Bammaniya vs State Of Gujarat

J. C. Doshi, J

Admit. Learned A.P.P. waives service of notice of admission for the respondent – State.

By way of the present appeal under Section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the ‘Act, 1989’)., the appellant – original accused challenges the order dated 24/05/2023 passed in CR.MA No.4167of 2023 by the learned Special Judge (Atrocity), Special Atrocity Court No.10, Ahmedabad City, whereby, the learned Court below refused to grant regular bail under Section 439 of the Code of Criminal Procedure to the appellant in connection with the F.I.R. being CR No.11191003230027 of 2023 registered with Khokhra Police Station for the offence punishable under Sections 302, 328, 120-B of the Indian Penal Code and under sections 3(2)(5) and 3(2)(5-a) of the Act.

Heard learned Advocate for the appellant and learned APP and learned Advocate appearing for the first informant.

Learned Advocate for the appellant – accused would submit that considering the charge-sheet papers, essential ingredients of the offence under the IPC and Atrocities Act are not made out. He would further submit that present appellant is behind the bars since 13/01/2023. He would further submit that the investigation is over and charge-sheet is filed and thus evidence of the prosecution is secured with the hands of the IO. He would further submit that no direct or indirect role is attributed to the appellant in the charge-sheet papers and therefore appellant-accused may be released on regular bail by imposing stringent conditions as may be deemed fit and proper by this Hon’ble Court. By making above submissions, he would urge to grant the bail to the appellant-accused.

On the other hand, learned Advocate appearing for the first informant would submit that prima facie reading of the charge-sheet papers would indicate the role of present appellant-accused. Learned Advocate for the org. complainant has submitted that appellant-accused and deceased were stayed together in one Hotel on the date of incident and therefore presence of the appellant-accused is established and therefore looking to such evidence prima facie surfaces on record, he may not be enlarged on bail.

Learned APP would object in granting of bail to the appellant – accused inter-alia on the ground that filing of charge-sheet is not sufficient to grant bail; but on the contrary, it will R/CR.A/1361/2023 ORDER DATED: 06/12/2023 strengthen the charge against the accused. She would further submit that appellant is involved in the heinous crime of murder and thus no case is made out for grant of bail.

Having heard learned Advocates appearing for the respective parties and considering the well famous parameters for grant or refusal of bail i.e. balancing personal liberty and investigational power of police; freedom of individual vis-a-vis security of State; and balance between individual liberty and interest of society etc., alongwith nature of accusation, nature of evidence in support of the accusation; severity of the punishment which conviction will entail; I am inclined to exercise the discretion in favour of the appellant-accused inter alia on the ground that appellant-accused is a lady accused and no prima-facie direct role has been alleged against her. Appellant is behind bars since last six months. What further appears from the charge-sheet papers is that she is in deep love with the accused no.1 and under the conspiracy to kill the victim, she has aided the main accused. Learned APP as well as learned Advocate for the first informant though opposed to grant of bail inter alia on the ground that Whats App messages and Chats indicate that present appellant is involved in commission of crime; however the same would be subject to the evidence that may be recorded during the course of trial and to be proved on touchstone of the evidence. At this juncture, no case is made out to deny the bail on that ground. Furthermore, as per charge-sheet papers, the appellant has not administered celphose to the deceased; but it is alleged that it is the accused no.1 who administered celphose under the pretext of curing illness to the deceased. Though it was argued by learned Advocate for the first informant that appellant were stayed together in the hotel on the date of incident which prima facie unfolded the offence of conspiracy. Merely staying in hotel on that day by itself would not be sufficient to prove the conspiracy at this juncture and therefore on this ground the bail cannot be denied to the appellant-accused. Thus, the present appeal deserves consideration.

At this juncture, this Court may recollect the law laid down in the case of State of Rajasthan vs. Balchand [AIR 1977 SC 244] which reads thus:

"The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences of intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. We do not intend to be exhaustive but only illustrative."

A useful reference can also be made to the decision of the Hon’ble Apex Court in case of Jagjeet Singh vs. Ashish Mishra (2022) 9 SCC 321, reiterated and approved the factors to be considered for grant of bail as was laid down in the case of Prasanta Kumar Sarkar vs. Ashis Chatterjee (2010) 14 SCC 496 in para 9 thereof:

"9. ... However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima face or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced;

and

(viii) danger, of course, of justice being thwarted by grant of bail.”

Thus, the present appeal deserves consideration.

In the result, the present appeal is allowed. The Impugned order dated 24/05/2023 passed in CR.MA No.4167of 2023 by the learned Special Judge (Atrocity), Special Atrocity Court No.10, Ahmedabad City is hereby quashed and set aside. The appellant is ordered to be released on bail in connection with F.I.R. being CR No.11191003230027 of 2023 registered with Khokhra Police Station on executing bond of Rs.10,000/-(Rupees Ten Thousand only) with one surety of like amount to the satisfaction of the Trial Court and subject to the conditions that the appellant shall:-

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injurious to the interest of the prosecution;

[c] mark his presence for one year before the concerned Police Station between 10:00 a.m. and 12:00 p.m. on every 3rd Monday of English Callender month;

[d] not to leave limits of State of Gujarat without prior permission of the Sessions Judge concerned;

[e] appear before the Investigation Officer concerned, as and when required for investigation purpose and attend Court concerned regularly.

[f] furnish the present address of residence along with the proof and mobile number to the I.O. concerned and also to the Court at the time of execution of the bond and shall not change the residence and mobile number without prior permission of Sessions Court concerned;

[12] The competent authority will release the appellant only if he is not required in connection with any other offence for the time being.

[13] If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to take appropriate action in the matter.

[14] Bail bond to be executed before the lower court having jurisdiction to try the case. It will be open to the concerned Court to delete, modify or relax any of the above conditions in accordance with law.

[15] At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the appellant on bail.