LexBHARATBHAI BHIMABHAI BHARWAD versus STATE OF GUJARAT AND OTHERS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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BHARATBHAI BHIMABHAI BHARWAD
v.
STATE OF GUJARAT AND OTHERS
(Criminal Appeal Nos.1162-1163 of 2019)
JULY 30, 2019
[R. BANUMATHI AND A.S. BOPANNA, JJ.]
Bail:
Grant of bail – By trial court imposing certain conditions –
Application by the complainant u/s. 439(2) Cr.P.C. before High Court
challenging the exercise of discretion in granting bail – High Court
relegated the matter to trial court holding that the application was
for cancellation of bail – Application “speaking to minutes” in
respect of the order of the High Court was dismissed – Appeal to
Supreme Court – Held: Though the application before High Court
was u/s. 439(2) Cr.P.C. i.e. an application for cancellation of bail,
but the grounds raised in the application show that it was only
challenging the order of grant of bail on the ground that it was an
arbitrary exercise of discretion – The considerations applicable
for cancellation of bail and for challenging the order of grant of
bail on the ground of arbitrary exercise of discretion are different
– Matter is remitted to the High Court for consideration of the matter
afresh – Code of Criminal Procedure, 1973 – s. 439(2).
Allowing the appeals and remitting the matter to High Court,
the Court
HELD: 1.Though the application has been filed before the
High Court under Section 439(2) Cr.P.C. i.e. an application for
cancellation of bail, by perusal of the grounds raised in the
application, it is seen that the appellant has raised grounds
challenging the exercise of discretion in granting bail to
respondents No.2 and 3 under Section 439 Cr.P.C. and that the
order granting bail is unsustainable in law. In effect, the application
filed was only challenging the order of grant of bail on the ground
that it was an arbitrary exercise of discretion. The Court while
granting bail should exercise its discretion in judicious manner
by taking into consideration the relevant facts. [Para 9]
[953-E-G]
[2019] 10 S.C.R. 949
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SUPREME COURT REPORTS
[2019] 10 S.C.R.
State of U.P. Through CBI v. Amarmani Tripathi
(2005) 8 SCC 21 : [2005] 3 Suppl. SCR 454
– relied on.
2. The consideration applicable for cancellation of bail and
consideration for challenging the order of grant of bail on the
ground of arbitrary exercise of discretion are different. While
considering the application for cancellation of bail, the Court
ordinarily looks for some supervening circumstances like;
tampering of evidence either during investigation or during trial,
threatening of witness, the accused is likely to abscond and the
trial of the case getting delayed on that count etc. Whereas, in
an order challenging the grant of bail on the ground that it has
been granted illegally, the consideration is whether there was
improper or arbitrary exercise of discretion in grant of bail. The
appellant has challenged the very grant of bail on the ground of
arbitrary exercise of discretion ignoring the relevant materials
to be considered in the application for bail. Since the High Court
proceeded under the footing as if the appellant had filed the
application only for cancellation of bail for which, the consideration
is different, the impugned order is liable to be set aside and the
matter is remitted to the High Court for consideration of the
matter afresh. [Para 10] [953-H; 954-A-C]
Anil Kumar Yadav v. State (NCT of Delhi) and Another
(2018) 12 SCC 129 : [2017] 11 SCR 195
– referred to.
Case Law Reference
[2017] 11 SCR 195
referred to
Para 7
[2005] 3 Suppl. SCR 454 relied on
Para 9
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1162-1163 of 2019
From the Judgment and Order dated 26.02.2019 and 07.03.2019
of the High Court of Gujarat at Ahmedabad in R/Criminal Misc.
Application No. 3528 of 2019 and in R/Cr/MA/3528/2019 respectively.
Abhishek Singh, Shreshth Arya, Advs. for the Appellant.
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Sushil Kumar Jain, Sr. Adv., Puneet Jain, Ms. Christi Jain,
Ms. Ankita Gupta, Harshit Khanduja, Harsh Jain, Ms. Pratibha Jain,
Ms. Aastha Mehta, Aniruddha P. Mayee, Advs. for the Respondents.
The Judgment of the Court was delivered by
R. BANUMATHI, J.
1. Leave granted.
2. These appeals are preferred against the order dated 26.02.2019
passed by the High Court of Gujarat at Ahmedabad in Criminal Misc.
Application Nos.3528 of 2019 and 3529 of 2019 and order dated
07.03.2019 - “On note for speaking to minutes of order dated
26.02.2019 in R/CR.MA/3529/2019” in and by which the High Court
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