'State & Director Of Prosecution Failed In Duties' : Supreme Court Pulls Up Gujarat Govt For Not Appealing Against Bail Order In Murder Case

The State of Gujarat and its Director of Prosecution came under the criticism of the Supreme Court for not filing appeal against a High Court order granting bail to the accused in a case where a Dalit man was brutally murdered while he was collecting scrap outside a factory.

A bench comprising Justice MR Shah and Justice BV Nagarathna noted that the High Court's bail order was "most perfunctory and casual", but the State did not appeal against it.

Aggrieved with the High Court order, the complainant(the widow of the victim) filed appeal before the Supreme Court.

While allowing the appeal and setting aside the High Court's judgement in Jayaben V. Tejas Kanubhai Zala & Anr, the bench said,

"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 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 book."

Remarking that the post of Director of Prosecution is a very important post in so far as the administration of justice in criminal matters is concerned, the bench further observed that even the Director of Prosecution had failed to perform his duty in the instant case

"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 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 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 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," bench also observed.

Factual Background

The appellant ("original complainant"), her aunt and her husband had went to collect scrap from the open space outside a factory. When they were picking scrap on the backside of the factory area, five persons ("accused(s)") came there and started abusing them and thereafter initially started beating all three of them outside the factory. Thereafter, the accused(s) asked the complainant and her aunt to leave, tied appellant's husband to the factory's gate and started beating him.

The appellant's husband was thereby found unconscious and seriously injured. He was declared dead when he was taken to hospital. A FIR was thus registered against the accused(s) u/s 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.

Pursuant to the investigation, the accused(s) were chargesheeted for the offences u/s 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 for committing murder of appellant's husband.

Tejas Kanubhai Zala moved a bail application before the learned Sessions Court seeking release on bail, which came to be dismissed on September 18, 2018. Aggrieved, the accused approached the High Court. The High Court on February 4, 2019 released Tejas Kanubhai Zala and on April 5, 2019 also released co accused Jaysukhbhai Devrajbhai Radadiya on bail.

Aggrieved, the appellant approached the Top Court.

Submission Of Counsels

Appearing for the appellant, Senior Advocate Colin Gonsalves submitted that the High Court had materially erred in releasing the accused on bail in a case where the husband of the complainant was murdered brutally. He further submitted that the High Court, while releasing the accused on bail, had not at all considered the gravity of the offences alleged against the accused.

Advocate Astha Mehta for the State submitted that the High Court in the 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. On the court's question as to why the State had not preferred an appeal in such a serious matter, Ms Mehta submitted that the State also should have filed the appeal. She further stated that may be because it took time in taking decision to prefer appeal, the State in the present case might not have yet preferred the appeal challenging the release of the respondents/accused on bail.

Representing the accused Tejas Kanubhai Zala, Senior Advocate Huzefa Ahmadi argued that in the present case the accused had been released on bail in the month of February, 2019 and since then, he is on bail. It was further submitted that after the accused had been released on bail, there were 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.

Advocate Purvish Jitendra Malkan for the accused Jaysukhbhai Devrajbhai Radadiya adopted the submissions of Senior Counsel representing Tejas Kanubhai Zala.

Supreme Court's Analysis

Rejecting the submissions made by accused(s) counsel regarding non cancellation of bail since more than 2.5 years were passed and there were no allegation of misuse of liberty, the bench in the judgement authored by Justice MR Shah said,

"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 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, necessary consequences shall have to follow and the bail has to be cancelled."

Case Title: Jayaben V. Tejas Kanubhai Zala & Anr.| Criminal Appeal No.1655 Of 2021 & Jayaben V. Jaysukhbhai Devrajbhai Radadiya & Anr.| Criminal Appeal No.1656 Of 2021

Coram: Justices MR Shah and BV Nagarathna

Citation : 2022 LiveLaw (SC) 29

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