16016 of 2021, 4265 of 2022 and 4823 of 2022, whereby, bail has been granted to the respondents-accused herein, namely, Vikas Vishnoi, Budharam and Rajendra Bishnoi respectively, in connection with First Information Report (“F.I.R.” for short) No 134 of 2020 registered at Police Station Mandore, District Jodhpur, Rajasthan for offences punishable under 2 Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC” for the sake of brevity) and Section 3 read with Sections 25 and 27 of the Arms Act, 1959. No 134 of 2020 dated 18 May, 2020 is stated to have been filed by the appellant herein between 2.45 hours and 2.55 hours in the night stating that his elder brother, Vikash Panwar, aged 25 years at the time had been in an extra marital live-in-relationship with Nirma @ Gudia, since three months, who was also married to Shrawan Jani and had two children from the said marriage.
No 81 of 2020 in Police Station Bilara, Jodhpur stating therein that the deceased-Vikash Panwar had kidnapped her daughter-in-law, Nirma. After conducting the investigation, the police filed a chargesheet before the Metropolitan Magistrate, Mahanagar, Jodhpur, on 19 August, 2022 against eight accused including the respondents-accused herein. Application seeking regular bail filed by the respondent-accused, Vikas Vishnoi before the High Court, under Section 439 of the Code of Criminal Procedure, 1973, was dismissed as withdrawn by an Order dated 16 April, 2021.
We have heard Sri Pradeep Chhindra, learned counsel appearing for the appellant, Sri B.S. Sri Pradeep Chhindra next contended that while considering an application for grant of bail, the Court’s exercise of discretion must be guided by reasons to be recorded in the Order granting bail. It was submitted that the investigating officers had collected overwhelming evidence in the form of statements of eye-witnesses and other witnesses who identified the 7 accused in pictures and in the CCTV footage wherein they were seen escaping the crime scene.
That where the prosecution has been able to produce prima-facie evidence in support of the charge(s) against the accused, it would not be a fit case for grant of bail.
It was further submitted that no matter how serious the nature of the alleged offences may be, the accused shall be entitled to be released on bail if the competent court is of the prima-facie view that the accused was/were not involved in the alleged crime. Learned counsel for respondent-accused, Vikas Vishnoi submitted that the only role ascribed to the said accused in the alleged crime is that he was riding on a motorcycle together with a co-accused at the time of incident. As regards the allegations against respondent-accused, Rajendra Bishnoi to the effect that he hit the deceased on his head with the butt of the pistol, it is submitted that the same were baseless and there was no evidence to prove the same. The prosecution witness Nirma @ Gudiya, in her police statement, has identified the petitioner and other co-accused persons in the CCTV footage, but in her court statement, she has not supported the prosecution story and turned hostile. Accordingly, the bail applications filed under Section 439 Cr.P.C.
While such a list is not exhaustive, it may be stated that if a Court takes into account such factors in deciding a bail application, it could be concluded that the decision has resulted from a judicious exercise of its discretion, vide Gudikanti Narasimhulu vs Public Prosecutor, High Court of Andhra Pradesh- [(1978) 1 SCC 240] ; 12 Prahlad Singh Bhati vs NCT, Delhi– [(2001) 4 SCC 280] ; Anil Kumar Yadav vs State (NCT of Delhi) –
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[(2018) 12 SCC 129].
Reference may also be made to recent decisions of this Court in Manoj Kumar Khokhar vs State of Rajasthan– [2022 SCC OnLine SC 30] and Jaibunisha vs Meharban – [ (2022) 5 SCC 465], wherein, on engaging in an elaborate discussion of the case law cited supra and after duly acknowledging that liberty of individual is an invaluable right, it has been held that an order granting bail to an accused, if passed in a casual and cryptic manner, de hors reasoning which would validate the grant of bail, is liable to be set aside by this Court while exercising power under Article 136 of the Constitution of India. While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail, courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing on the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a Court to arrive at a prima facie conclusion. However, the Court deciding a bail application cannot completely divorce its decision from material aspects of the case such as the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering with the evidence; criminal antecedents of the accused; and a prima-facie satisfaction of the Court in support of the charge against the accused. On a consideration of the same, the following aspects of the case would emerge: a) The allegations against respondent-accused, Budharam is for offences under Sections 302 and 120B of the IPC and Section 3 read with Sections 25 and 27 of the Arms Act, while against respondents-accused, Rajendra Bishnoi and Vikas Vishnoi the allegations are for offences under Sections 302 and 120B of the IPC.
Details as to the manner in which the deceased, Vikash Panwar and Nirma were traced by the accused, the acts of reconnaissance that were carried out by the accused before the alleged fateful incident and the manner in which each of the accused participated in the alleged 16 crime have been brought on record. The High Court has been swayed by the fact that one of the prosecution witnesses, namely, Nirma has turned hostile which is not an aspect that must be taken into account while considering an application for bail. The High Court has lost sight of the aforesaid vital aspects of the case and granted bail to the respondents-accused by passing very cryptic and casual orders, de hors cogent reasoning.
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The respondents-accused are on bail.
Case Title: ROHIT BISHNOI Vs. THE STATE OF RAJASTHAN (2023 INSC 642)
Case Number: Crl.A. No.-002078-002078 / 2023
