Supreme Court Sets Aside High Court Order on Bail: Bharatbhai Bhimabhai Bharwad vs. State of Gujarat (2019)

Introduction

Date of the Judgment: July 30, 2019. Citation: (2019) INSC 683. Judges: R. Banumathi, J. and A.S. Bopanna, J. This judgment addresses a critical question: When a High Court is approached to cancel bail, should it only consider supervening circumstances or also examine if the initial grant of bail was proper? The Supreme Court of India, in this case, clarified that a challenge to the grant of bail based on arbitrary exercise of discretion is distinct from a cancellation of bail due to changed circumstances. The bench comprised Justices R. Banumathi and A.S. Bopanna, with Justice R. Banumathi authoring the judgment.

Case Background

The case revolves around a violent incident that occurred on January 10, 2019, stemming from a financial dispute between the families of the complainant, Bharatbhai Bhimabhai Bharwad, and the accused, Kishanbhai and Alpeshbhai. The complainant’s father had loaned money to the father of the accused. On the day of the incident, the complainant and his witnesses were allegedly abused by the accused. Following this, Kishanbhai inflicted a sword blow on the head of Ajitbhai (complainant’s brother). When Ajitbhai tried to defend himself, his left hand palm was cut. Alpeshbhai also attacked Ajitbhai with a sword, causing injuries to his chest and right elbow. Additionally, Ravibhai (another accused) used a stick to injure the complainant, and Shaileshbhai, a friend of the complainant, sustained injuries on his hands. An FIR was lodged at Viramgam Rural Police Station under Sections 323, 324, 326, 307, 504, 506(2) and 114 of the Indian Penal Code (IPC).

Timeline

Course of Proceedings

The accused were arrested on January 16, 2019, and remanded to judicial custody on January 17, 2019. The Additional Sessions Judge, Viramgam, granted bail to respondents No. 2 and 3 on February 6, 2019, noting that while a prima facie case existed and the gravity of the offense was significant, the injured were discharged from the hospital, weapons were recovered, and key witness statements were recorded. The trial court also considered that the accused were young, had no criminal history, and were permanent residents, thereby ensuring their presence during trial. The complainant challenged this order before the High Court, arguing that the grant of bail was improper. The High Court, however, focused on the alleged breach of bail conditions and directed the complainant to approach the Sessions Court. The complainant then filed an application seeking to clarify the High Court’s order, which was dismissed.

Legal Framework

The case primarily involves the interpretation and application of Section 439 of the Code of Criminal Procedure (Cr.P.C.), which deals with the powers of the High Court or Court of Session to grant bail. Specifically, the case discusses Section 439(2) Cr.P.C., which pertains to the cancellation of bail. The Supreme Court also refers to Sections 323, 324, 326, 307, 504, 506(2) and 114 of the Indian Penal Code (IPC), under which the FIR was registered. These sections relate to voluntarily causing hurt, causing hurt by dangerous weapons, attempt to murder, intentional insult, criminal intimidation, and abetment, respectively.

The court also considered the following provisions of law:

• Section 323 of the Indian Penal Code (IPC): Deals with punishment for voluntarily causing hurt.
• Section 324 of the Indian Penal Code (IPC): Deals with voluntarily causing hurt by dangerous weapons or means.
• Section 326 of the Indian Penal Code (IPC): Deals with voluntarily causing grievous hurt by dangerous weapons or means.
• Section 307 of the Indian Penal Code (IPC): Deals with attempt to murder.
• Section 504 of the Indian Penal Code (IPC): Deals with intentional insult with intent to provoke breach of the peace.
• Section 506(2) of the Indian Penal Code (IPC): Deals with punishment for criminal intimidation.
• Section 114 of the Indian Penal Code (IPC): Deals with abettor present when the offence is committed.

Arguments

Appellant’s Submissions:

• The appellant argued that the High Court should have considered the gravity of the offense and the nature of the injuries sustained by Ajitbhai, who lost the use of his right thumb and four fingers of his left hand.
• The appellant contended that the High Court erred in treating the application as solely for cancellation of bail under Section 439(2) Cr.P.C., instead of recognizing it as a challenge to the initial grant of bail based on an arbitrary exercise of discretion by the trial court.
• The appellant relied on Anil Kumar Yadav v. State (NCT of Delhi) and Another (2018) 12 SCC 129 to argue that the trial court should have considered the seriousness of the offense, the impact of bail on witnesses, and the likelihood of tampering with evidence.
• The appellant argued that the High Court should have considered the “speaking to minutes” which highlighted that the challenge was to the grant of bail itself.

Respondents’ Submissions:

• The respondents argued that the appellant had restricted his arguments before the High Court to the breach of bail conditions and, therefore, could not challenge the initial grant of bail.

Issues Framed by the Supreme Court

The Supreme Court framed the following issue:

1. Whether the High Court was correct in relegating the appellant to the Sessions Court for breach of bail conditions, without considering the challenge to the grant of bail itself?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court relied on Anil Kumar Yadav v. State (NCT of Delhi) and Another (2018) 12 SCC 129* to highlight the factors that should be considered while granting bail, emphasizing the importance of considering the nature and seriousness of the offense.
• The Supreme Court referred to State of U.P. Through CBI v. Amarmani Tripathi (2005) 8 SCC 21* to underscore that the court must exercise its discretion judiciously while granting bail, taking into account all relevant facts.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the distinction between an application for cancellation of bail and a challenge to the grant of bail itself. The court emphasized that the High Court had erred in treating the appellant’s application solely as one for cancellation of bail based on breach of conditions, without considering the appellant’s challenge to the initial grant of bail due to arbitrary exercise of discretion. The court noted that the High Court should have considered the seriousness of the offense, the nature of the injuries sustained, and the principles laid down in Anil Kumar Yadav v. State (NCT of Delhi) and Another (2018) 12 SCC 129. The court also took into account that the appellant had raised the issue of the arbitrary exercise of discretion in the “speaking to minutes” application, which was not considered by the High Court.

The Supreme Court’s reasoning was based on the following points:

• The Court emphasized that the consideration for cancellation of bail is different from the consideration for challenging the grant of bail.
• The Court noted that while considering an application for cancellation of bail, the court looks for supervening circumstances like tampering of evidence or threatening of witnesses.
• The Court held that when challenging the grant of bail, the consideration is whether there was improper or arbitrary exercise of discretion in granting bail.
• The Court observed that the High Court had proceeded as if the appellant had only filed the application for cancellation of bail, which was incorrect.
• The Court stated that the High Court should have considered the grounds raised by the appellant challenging the exercise of discretion in granting bail.

The Supreme Court quoted the following from the judgment:

“It is well settled that 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 Supreme Court did not discuss any alternative interpretations. The court’s decision was unanimous, with both judges agreeing to set aside the High Court’s order and remit the matter for fresh consideration.

Key Takeaways

• A challenge to the grant of bail based on arbitrary exercise of discretion is different from an application for cancellation of bail due to changed circumstances.
• When an order granting bail is challenged, the court must examine whether the discretion was exercised judiciously, considering all relevant facts.
• The High Court should not relegate the appellant to the Sessions Court for breach of bail conditions without considering the challenge to the grant of bail itself.
• The courts must consider the seriousness of the offense, the nature of injuries, and the impact of bail on witnesses while granting bail.
• The principles laid down in Anil Kumar Yadav v. State (NCT of Delhi) and Another (2018) 12 SCC 129 should be followed while granting bail.

Directions

The Supreme Court set aside the impugned orders of the High Court dated 26.02.2019 and 07.03.2019 and remitted the matter to the High Court for fresh consideration. The High Court was directed to proceed with the matter as if the application challenges the order of grant of bail and to decide the matter in accordance with law.

Development of Law

The ratio decidendi of this case is that a challenge to the grant of bail based on arbitrary exercise of discretion is distinct from an application for cancellation of bail due to changed circumstances. This clarifies the approach that High Courts should take when dealing with such applications. This judgment reinforces the principle that courts must exercise discretion judiciously while granting bail, taking into consideration all relevant facts and circumstances.

Conclusion

The Supreme Court’s judgment in Bharatbhai Bhimabhai Bharwad vs. State of Gujarat and Others clarifies the distinction between challenging the grant of bail and seeking its cancellation. The court emphasized that the High Court erred in not considering the appellant’s challenge to the initial grant of bail based on arbitrary exercise of discretion. The matter was remitted to the High Court for fresh consideration, ensuring a more thorough review of the bail order. This judgment serves as a reminder to lower courts to exercise their discretion judiciously while granting bail, considering all relevant factors, and to High Courts to address the challenge to grant of bail itself.