JAYABENversusTEJAS KANUBHAI ZALA & ANR

18                      [2022]
              SUPREME COURT    1 S.C.R. 18
                             REPORTS                      [2022] 1 S.C.R.


A                                 JAYABEN
                                      v.
                     TEJAS KANUBHAI ZALA & ANR
                     (Criminal Appeal No. 1655 of 2021)
B
                             JANUARY 10, 2022
             [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
            Appeal: Murder case – Complainant’s appeal against release
     of accused by High Court – Appellant-original complainant and
C    her aunt and one another are the eye witnesses who have identified
     the accused in Test Identification Parade(TIP) – The entire incident
     was captured/recorded in the CCTV footages and the mobile phone
     – During the course of the investigation, the punchnama of the
     place of the incident was prepared, statements of the witnesses were
D    recorded; test identification of the accused was carried out; CCTV
     footages and DVR from the place of incident were recovered – Pipe
     and the belt used in commission of the crime were recovered –
     Judgment of High Court releasing the accused on bail – Held: Not
     unsustainable both, on facts as well as on law – Deceased was
     brutally beaten by the accused and despite that and without
E    considering the seriousness of the offences alleged and despite the
     statements of the eyewitnesses, High Court released the accused on
     bail in a most perfunctory and casual manner – High Court did not
     at all consider the gravity of the offences alleged and the evidence
     collected during the investigation, which are forming part of the
F    charge sheet – In such a serious matter and looking to the gravity
     of the offences and considering the statements of eyewitnesses and
     that the entire incident was recorded in the CCTV footages and the
     mobile phone, the High Court has committed grave error in releasing
     respondents No.1- accused on bail.

G           Bail: 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 conditions etc., and while considering an order passed by the
     Court releasing the accused on bail.
H
                                      18
            JAYABEN v. TEJAS KANUBHAI ZALA & ANR                          19


       Administration of criminal justice – Release of accused in         A
murder case – Non filing of appeal by prosecution – Held: State
ought to have preferred appeals challenging the order passed by
the High Court releasing the accused on bail – 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 was the
                                                                          B
duty of the Director of prosecution to take prompt action which he
failed to perform.
      Administration of justice – In criminal matters – Director of
Prosecution – Role of – Held: It is a very important post in so far as
the administration of justice in criminal matters is concerned –
Director of Prosecution is appointed by the State Government in           C
exercise of powers u/s.25A CrPC – That his is a crucial role is evident
from conditions such as in s.25A(2) CrPC, 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       D
of the High Court – Code of Criminal Procedure, 1973 – s.25A.
      Allowing the appeals, the Court
       HELD: 1. 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           E
footings. There are different considerations while considering
the application for cancellation of bail for breach of 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,            F
necessary consequences shall have to follow and the bail has to
be cancelled. [Para 9.4][25-H; 26-A-B]
      2. 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         G
victim. 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
                                                                          H
20            SUPREME COURT REPORTS                       [2022] 1 S.C.R.


A    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. [Para 11][26-E-G]
            3. In the State there is a Director of Prosecution. Even the
     Director of Prosecution has failed to perform his duties in the
B    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 in the administration of justice is crucial. He is
C    appointed by the State Government in exercise of powers under
     Section 25A of the Code of Criminal Procedure. That his 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
D    Prosecution and that such an appointment shall be made with the
     concurrence of the Chief Justice of the High Court. [Para 11]
     [26-G-H; 27-A-B]
           4. The submissions on behalf of the State that it takes time
     to take a decision whether to prefer an appeal or not is not
E    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. [Para 11][27-C-D]
F
           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
     No. 1655 of 2021.
           From the Judgment and Order dated 04.02.2019 of the High Court
     of Gujarat at Ahmedabad in R/Criminal Appeal No.1502 of 2018.
G          With
           Criminal Appeal No. 1656 of 2021.
           Colin Gonsalves, Sr. Adv., Shiyas KR, Satya Mitra, Advs. for the
     Appellant.
H
             JAYABEN v. TEJAS KANUBHAI ZALA & ANR                                  21


      Huzefa Ahmadi, Sr. Adv., Pradhuman Gohil, Mrs. Taruna Singh                  A
Gohil, Ms. Ranu Purohit, R. Vishnu Kumar, Sahithya Krishna A., Rohan
Sharma, Purvish Jitendra Malkan, Jitendra Malkan, Ms. Dharita P
Malkan, Ms. Deepa Gorasia, Alok Kumar, Ms. Nandini Chhabra, Ms.
Bhavna Sarkar, Ms. Aastha Mehta, Ms. Deepanwita Priyanka, Ms.
Prerana Mohapatra, Advs. for the Respondents.
                                                                                   B
       The Judgment of the Court was delivered by
       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/               C
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.
      2. For the sake of convenience, the facts in Criminal Appeal
No.1655 of 2021 arising out of the impugned judgment and order dated               D
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.            E
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             F
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              G
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 &
                                                                                   H
22            SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A    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 –
B
     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
C    refusing to release respondent No.1 – accused on bail, respondent No.1
     – accused preferred present 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
D
     Appeal No.389 of 2019 another accused – Jaysukhbhai Devrajbhai
     Radadiya - respondent No.1 has been released on bail mainly considering
     the fact that co-accused – 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
E    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
F    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 and Shri Purvish Jitendra Malkan, learned counsel
     appearing on behalf of respondent No.1 – accused - Jaysukhbhai
G    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
H    murdered brutally.
            JAYABEN v. TEJAS KANUBHAI ZALA & ANR                             23
                        [M. R. SHAH, J.]

       5.1 It is submitted that the High Court has not at all appreciated    A
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
                                                                             B
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 which are not tenable the High Court has released accused
on bail.                                                                     C
        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    D
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   E
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.                                      F
      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       G
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    H
24            SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A    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
B
     prefer appeal, the State in the present case might not have yet preferred
     the appeal challenging the release of the respondents – accused on bail.
           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,
C
     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,
D
     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
E
     the submissions made by Shri Ahmadi, learned Senior Advocate appearing
     on behalf of the co-accused – 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
F    respective parties at length.
           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
G    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
H    investigating officer after a thorough investigation.
             JAYABEN v. TEJAS KANUBHAI ZALA & ANR                              25
                         [M. R. SHAH, J.]

       9.2 As per the case of the prosecution the accused tied deceased        A
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
                                                                               B
deceased – victim was shock and haemorrhage on 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/
                                                                               C
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           D
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
                                                                               E
of the offences alleged and the evidence collected during the investigation,
which are forming part of the charge 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,          F
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         G
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
                                                                               H
26            SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A    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 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
B
     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
C    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
D    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 non-bailable warrants
     be issued against them. The present appeals are accordingly allowed.
E
            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
F    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
G    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
H    concerned. It is the duty of the Director of Prosecution to take prompt
                JAYABEN v. TEJAS KANUBHAI ZALA & ANR                           27
                            [M. R. SHAH, J.]

decision. Given that crimes are treated as a wrong against the society as      A
a whole, the role of the Director of Prosecution 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
                                                                               B
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        C
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.                                                                  D
       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 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    E
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        F
Department and Legal Department, State of Gujarat to take further
corrective steps.


Devika Gujral                                               Appeals allowed.
                                                                               G




                                                                               H