Rubina Salimbhai Vs. Metubha Diwansingh Solanki & Ors  Insc 311 (24 July 2003)
O R D
E R (Arising out of S.L.P.(Crl.)Nos.1072-1074 of 2003).
learned counsel for the parties.
appeals are preferred against the judgment and order of the High Court of
Gujarat at Ahmedabad dated 16.10.2002 made in Criminal Misc. Application
Nos.5894-96 of 2002 and other connected matters whereby the High Court allowed
the said application and directed the release of the petitioners mentioned
therein on conditions enumerated in the said order. In these appeals, learned
senior counsel for the appellant contends that the respondent-accused are
accused of very serious crime in which five persons have been murdered and
certain properties including the house of the victims set ablaze consequent to
which the respondent-accused have been charged of offences punishable under
Sections 302, 395, 397, 147, 149, 436, 427, 188 and 120-B of the IPC, and
Section 135 of the Bombay Police Act. Learned counsel further contends that the
learned Sessions Judge when considering the bail applications of the
respondent-accused after discussing the evidence on record and after perusing
the Police papers came to the conclusion that a prima facie case has been made
out against the said accused persons and further bearing in mind the
seriousness of the crime and the possibility of the said accused tampering with
the witnesses, held that they were not entitled to be enlarged on bail. Learned
counsel further submitted that by the impugned order the High Court without
properly considering the material on record and without assigning any reason
proceeded to enlarge the respondent-accused on bail consequent to which the
appellant apprehends no witness will come forward for fear of the clout wielded
by the respondent- accused in the village.
respondent-accused in appeal, though served, are not represented before us and
have chosen to remain ex parte.
the State of Gujarat is represented, learned senior counsel appearing for the
State, contended that it is because of the fact that the counsel appearing for
the parties did not press for a reasoned order, the High Court in the impugned
order, did not assign any reason for enlarging the respondent-accused on bail.
submits that it is not open to the appellant to make a grievance of the fact
that the impugned order is bereft of reasons. He submitted during the course of
arguments, the learned Judge of the High Court had considered the arguments
addressed on behalf of the parties and had also perused the material on record.
that as it may, we do not want to go into this controversy whether a concession
was made by the parties in regard to the necessity to give a reasoned order. We
think since the trial court has assigned reasons for refusing bail which
includes availability of material to establish prima facie case against the
respondent-accused, and looking to the gravity of the offence as also the
apprehension of the complainant as to the possibility of interference by the
accused with the investigation and threat to the prosecution witnesses in the
event of they being enlarged on bail, we think it would have been more
appropriate if the High Court could have at least briefly indicated the reasons
which it thought entitled the respondent-accused to bail. While saying so, we
are not unaware of the fact that any strong expression of opinion in the nature
of a finding in a bail application though not binding on the trial court, could
influence the mind of the trial court since such observation comes from the
High Court, still we think it appropriate that some indication of the grounds
on which the High Court rejected the findings recorded by the trial court,
should have been reflected in the order by which the High Court reversed such
finding. It is all the more necessary for the reason that there is always a
possibility of the order of the High Court being challenged in appeal before
this Court in which event this Court is entitled to know the basis of the impugned
order. For the above reasons, we are of the opinion that the impugned order of
the High Court should be set aside and the matter be remitted back to the High
Court for fresh consideration, bearing in mind the observations made in this
order. We also think it appropriate to direct the respondent- accused to be
continued on bail pursuant to the impugned order in view of the fact that they
have been on bail since 16.10.2002.
direction, however, will be subject to the final order that may be made by the
High Court after remand.
make it clear that we have not expressed any opinion on the merits of the
applications filed by the respondent- accused for enlargement on bail before
the High Court as also the contentions advanced on behalf of the parties before