Analysis, reasoning and conclusion
8. Having examined the rival contentions, the Court does not consider it necessary to go into the legal aspect pertaining to the applicability of the GCTOC Act in praesenti, as the current Appeal has been filed only for the purpose of seeking bail during the pendency of the trial.
9. Had there been no other case against the Appellant and no material, at least prima facie, to indicate his regular participation in any crime, the Court could have considered his prayer, but keeping in view his alleged role, we are not inclined to exercise discretion in his favour, for now. When we speak of discretion, we 9 have in mind “judicial discretion” as explained in Gudikanti Narasimhulu v Public Prosecutor, (1978) 1 SCC 240.
6 out of 12 accused obtained bail
10. The fact, that out of the twelve charge-sheeted accused, six co-accused have not been granted bail, five have availed the benefit of default bail and only one is on regular bail, have also persuaded this Court not to interfere. We have also considered the allegations levelled and perused carefully the statements of the witnesses shown to the Court. In Niranjan Singh v Prabhakar Rajaram Kharote, (1980) 2 SCC 559, this Court opined:
“3… Detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself.” (emphasis supplied)
11. In Vilas Pandurang Pawar v State of Maharashtra, (2012) 8 SCC 795, this Court observed “…Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record…”. We are in respectful agreement with the law exposited in these cases. We consciously refrain from detailing our views on the merits of the matter.
12. Insofar as parity is concerned, we need only reproduce the apt observations from Ramesh Bhavan Rathod v Vishanbhai Hirabhai Makwana (Koli), (2021) 6 SCC 230, of which we take note: “26.… Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law.” (emphasis supplied)
On facts bail is rejected till the recording of statements of protected witnesses
13. In the facts and circumstances, at the present juncture, this Court is not inclined to allow the prayer for enlarging the Appellant on bail. Accordingly, the prayer for bail is hereby rejected.
14. However, the stand taken on behalf of the State of Gujarat is that the prayer for bail of the Appellant may be considered only after the protected witnesses are examined. In this context, learned Additional Solicitor General has indicated that six months’ time be granted for recording statements of the protected witnesses.
15. In such light, it is observed that upon the completion of recording of statements of the said protected witnesses, the Appellant is at liberty to renew his plea for bail, if so advised.
Party
ATULBHAI VITHALBHAI BHANDERI vs. STATE OF GUJARAT – CRIMINAL APPEAL NO. 1390 OF 2023 (@ SPECIAL LEAVE PETITION (CRL.) NO.10051 OF 2022) – MAY 4, 2023.
https://main.sci.gov.in/supremecourt/2022/32563/32563_2022_2_1502_44245_Judgement_04-May-2023.pdf
