Supreme Court: In a case where a scrap picker was beaten to death and the Gujarat High Court had released one of the accused on bail despite the entire incident been recorded in the CCTV footages and the mobile phone, the bench of MR Shah and BV Nagarathna, JJ has cancelled the bail and has observed 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.
Factual Background
The complainant, her aunt Savitaben and her husband Mukeshbhai (deceased) 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) came there and started abusing them and thereafter initially started beating all three of them outside the factory. They then tied Mukeshbhai to the gate of the factory and started beating him. The 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.
The High Court had released one of the accused 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 material against him.
Analysis
Cancellation of Bail
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, the Court noticed that the High Court has committed a grave error in releasing the accused on bail. Hence, the judgments and orders passed by the High Court releasing the accused on bail were found to be unsustainable both, on facts as well as on law.
“The High Court has not at all considered the gravity of the offences alleged and the evidence collected during the investigation, which are forming part of the charge sheet.”
The Court also rejected the submissions that 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.
“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.”
Hence, 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.
State’s failure in filing appeal
The Court noticed that the present 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.”
Director of Prosecution’s duty
The Court noticed 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.
“It takes time to take a decision whether to prefer an appeal or not”
The Court rejected the contention that it takes time to take a decision whether to prefer an appeal or not. 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.
The Court, hence, observed 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 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.”
[Jayaben v. Tejas Kanubhai Zala, 2022 SCC OnLine SC 24, decided on 10.01.2022]
*Judgment by: Justice MR Shah
Counsels
For Appellant: Senior Advocate Colin Gonsalves
For Accused: Senior Advocate Huzefa Ahmadi and Advocate Purvish Jitendra Malkan
For State: Advocate Aastha Mehta
Thanks to public spirited advocates like Collin Gonsalves this savage lynching of a rag picker would have been buried by the cash over justice phenomenon that has become the norm.