Paragraph numbers below are the court’s original numbering, recovered from the source text.
17. Aggrieved against the aforesaid order granting bail to B 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.
18. Heard learned counsel appearing for the parties. c
19. 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 D 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 E of the conditions.
20. 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 F to release the respondent on bail. There was no change of circumstances. The reasons given by the learned Judge in the =-4 impugned order for grant of bail ~re untenable.
21. That the respondent did not misuse his liberty while on temporary bail twice by itself is no ground to grant bail in a murder G case especially when he was allegedly involved in a subsequent –i case of murder. It may be mentioned here that apart from the present two cases of murder, respondent has been named in """' 10 other criminal cases in the last 25 years or so, out of which 5 cases were under Section 307 IPC for attempt to murder and H [2008] 2 S.C.R. -+- A another under Section 302 IPC for committing murder. We are informed ;:it the Bar that the respondent has.been acquitted in most of the cases for want of sufficient evidence. This speaks volumes. We refrain from saying anything further, lest it may prejudice the trial in these two cases.
22. The other reason given in the impugned order is that the trial of the case has not progressed I begun. We find from the record that between 2nd June, 2004 and 19th December, 2005 the case was listed before the trial court·31 times and on c each date, it had to be adjourned on the ground that one or the other accused was not present. There are 16 accused in the case. It is not clear from the record whether the accused were not brought by _the police from the jail or that they were on bail and had not appeared of their own, but the fact remains that the complainants were not in any way instrumental in delaying the D trial. between 2nd June, 2004 and 19th December, 2005. It was brought to our notice that the only witness who has been examined so far has turned hostile. Trial was stayed by the High Court on 15th February, 2007 at the instance of the appellant as Shri R.R. Trivedi, A.P.P., to whom the case had been assigned E for conducting the trial and was allegedly the counsel for the respondent in some other case earlier, continued to appear in the case in spite of the fact that he was replaced by another A.P.P. It just shows that the trial was not progressing smoothly. In any case, complainant party was in no way responsible for F any delay in trial.
23. The third reason given by the High Court for grant of y bail, that the respondent had been in jail for the last more than 2 years, is equally untenable in view of the observations made by this Court in State of U.P vs. Amarmani Tripathi [(2005) 8 SCC G 21): "the condition laid down under Section 437(1 )(i) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already GOBARBHAI NARANBHAI SINGALA v. STATE OF GUJARAT & ORS. [BHAN, J.] undergone by the accused and the unlikelihood of trial A 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 B 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 c sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are a/legations of tampering with the witnesses by the accused during the period he was on bail." [Italics is ours] 0
24. 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 liberty granted to him. There is no doubt that this Court does E not ordinarily interfere in the matters granting bail but the same is subject to certain exceptions. When the basic requirements necessary for grant of bail are completely ignored by the High Court, this Court would be justified in canceling the bail. In the present case, three witnesses, who had allegedly seen the F occurrence, have unequivocally in their statements under Section 161 Cr.P.C. have stated that the respondent, was present at the time of occurrence and he had fired with his gun. Prima facie a case for grant of bail was not made out.
25. This Court in Amarmani Tr!pathi's case (supra) had G held that while considering the application. for bail, what is required to be looked is, (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused H A 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 tampered with; and (viii) c danger, of course, of justice being thwarted by grant of bail.
26. In Panchanan Mishra v. Digambar Mishra, [(2005) 3 SCC 143], this Court while .considering the question of .cancellation of bail, observed: "The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime …. It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems· of law and . order situation."
27. We are of the view that the High Court has completely ignored the general principles, for grant of bail in a heinous crime of commission of murder in which the sentence, if convicted, is death or life imprisonment.
28. In the second case, another learned Judge has granted the bail by the impugned order which runs 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) G 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 ci'rcUmstances or otherwise of a prima facie case. t GOBARBHAI NARANBHAI SINGALA v. STATE OF GUJARAT & ORS. [BHAN, J.]
29. Taking the overall view of the entire matter and in A 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 B 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 c days, steps be taken, in accordance with law, to apprehend them.
30. The counsel appearing for the State of Gujarat has informed us that Shri R.R. Trivedi has been replaced by Ms. Arnita Ben Sippy as the new A.P.P. to conduct the trial. She has assured us that Shri R.R. Trivedi will not appear and conduct D the trial in either of these two cases. Thus, the grievance of the appellants on the basis of which the trial was stayed, stands redressed. Stay of trial granted by the High Court on 15th February, 2007 is vacated. Trial of the case to begin forthwith. Trial Court is directed to take up the trial on day to day basis E and, if possible, conclude the same within the next six months from the date of production of a certified copy of this judgment. The prosecution as well as defence counsel is directed to cooperate in conducting the trial on day to day basis. In case, any of the accused who is on bail and does not appear, then his bail be cancelled and he be taken into custody.
31. Nothing stated herein above be taken as an expression of opinion on merits of the matter. The trial court shall proceed with the trial in accordance with law, without in any manner being influenced by the observations made herein above or in the G Orders passed by the High Court granting bail to the respondents.
32. With these observations, the appeals are allowed. K.K.T. Appeals allowed.