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TMI Blog2008 (1) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... e No. 1-25/2004 registered under Sections 302, 307, 143, 147, 148, 149, 341, 120B, 201 IPC and Sections 25(1) A, (1-a), 27 of the Arms Act and Section 135 of the Bombay Police Act at Police Station Gondal City) for the alleged murder of Nilesh. 4. The 2nd case has been filed by the complainant, namely, Gobarbhai Naranbhai Singala seeking cancellation of the bail granted to the respondents - Shri Shivbhadrasinh @ Gopalsinh Giriraj Jadeja (Respondent No. 2 herein) and Shri Jayrajsinh Themubha Jadeja (Respondent No. 3 herein) [2nd and 3rd Accused in Criminal Case No. 1-173/2005, wrongly mentioned as 1-102/2004 dated 19.3.2004] registered at Police Station Malviya Nagar, Rajkot City, Rajkot under Sections 143, 148, 149, 449, 302 IPC and 25(1)(b)(a) of the Arms Act, for the alleged murder of appellant's son Vinodrai Singala. 5. The facts in brief culminating into filing of these appeals are narrated below. That, on 9th February, 2004 the complainant Jayeshbhai [appellant in 1st case] along with Nilesh Rayani and Ramjibhai Markana had allegedly gone to hostel. While coming back, they were followed by a car, which overtook Jayeshbhai's vehicle driven by Ramjibhai. When they reache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf came in garden and heard a sound of firing and when I seen that were two persons who were fining out of which one Viranndev and other Gopalsinh after firing both of them ran away to the east side of building wall which I have seen I know them they are residing in Gondal. I do not know full name of the person, they were jumped the wall at that time on wall M.L.A. Jayrajsinh Jadeja was standing and the person who runaway has told him that they have completed Vinodrai Singala and revenge has been taken and telling this they got down the wall and runaway with them.(sic) 8. Pursuant to the cancellation of bail by the High Court in Criminal Case No. 1-25/2004, the respondent surrendered on 20th of March, 2004. After his arrest, the respondent filed an application for bail in Criminal Case No. 1-25/2004. 9. The High Court by its order dated 14th September, 2004 refused to grant bail to the respondent, inter alia, observing: From the aforesaid facts and looking to the statements of the witnesses, panchnama, reports, including ballistic report, prima facie reflects that there is direct involvement of the applicants in commissioning of the offences. The applicants were not available afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed by the appellant, seeking cancellation of the temporary bail was dismissed as infructuous on 10th February, 2006, as the respondent had already surrendered. 14. On 3rd of March, 2006, the respondent filed another application for temporary bail in Criminal Case No. I-25/2004, which was granted by the High Court for a period of one month from 6th March, 2006 to 5th of April, 2006. After expiry of the period of temporary bail, the respondent surrendered and thereafter filed a Criminal Misc. Application, which came up for hearing before the same Hon'ble Judge who had heard Crl. Misc. Application No. 7579/2004 filed earlier by the respondent in which prayer for grant of bail was turned down by his order dated 14th September, 2004. This time, the Hon'ble Judge granted regular bail to the respondent by observing thus: 5. Having heard the learned advocates for the rival sides and looking to the facts and circumstances of the case, it appears that the applicant is in judicial custody since March, 2004. Sessions case has not yet commenced and no prosecution witness has been examined. Moreover, this Court has twice granted temporary bail to the present applicant, initially f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail to the respondent in Crl. Case No. 1-25/2004, Jayeshbhai has filed the Appeal arising out of SLP(Crl) No. 4283/2006, seeking cancellation of bail. Heard learned Counsel appearing for the parties. 15. The High Court by the impugned order has granted bail to the respondent-Jayrajsinh Jadeja (in 2nd case) on three grounds - (i) that the respondent was in judicial custody since March, 2004; (ii) that trial had yet not commenced and no prosecution witness had been examined; and (iii) that the Court had tested the respondent twice by granting temporary bail to him with stringent conditions for a duration of one month each, i.e., from 27th December 2004 to 27th January, 2005 and 6th March, 2006 to 5th April, 2006 and, on both the occasions, the respondent had surrendered within time, without breach of any of the conditions. 16. From a reading of the impugned order it is found that the learned Judge, who incidentally happens to be the same Judge who had declined to release the respondent on bail earlier, did not advert to any of the reasons given by him declining to release the respondent on bail. There was no change of circumstances. The reasons given by the learned Judge in the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail. [Underlining is ours] 20. Shri Arun Jaitley, learned senior counsel appearing for the respondents, submitted that this Court should not ordinarily interfere in the matters relating to bail. It was pointed out that in the last two years, the respondent has not misused the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into 22 pages. The findings recorded therein touch upon the merits of the case. The learned Judge has proceeded as if an order of acquittal is being passed. This Court in Amarmani Tripathi's case (supra) has held that a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no pre-judging and no prejudice is caused. Only a brief examination is to be done to satisfy about the facts and circumstances or otherwise of a prima facie case. 25. Taking the overall view of the entire matter and in particular to the antecedents of the respondent-Jayrajsinh Temubha Jadeja, the alleged statements made by the witnesses, who were present at the spot, to the police and the admitted enmity between the parties (which is a double edged weapon to commit the crime as well as to falsely implicate), we are of the view that it was not a fit case to grant bail to the respondents in this case as well. Without elaborating further, we set aside the impugned orders granting bail to the respondents. Respondents are directed to surrender to the judicial custody forthwith. In case, the respondents do not surrender within seven days, steps be take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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