CAV Order

1. The applicant State has filed the present application under Section 439(2) and 482 of the Code of Criminal Procedure, 1973 for cancellation of regular bail granted to the respondent - accused, who is shown as accused no. 3 in the FIR, by the 4th Additional Sessions Judge, Bharuch vide order passed in Criminal Misc. Application No. 387 of 2021 on 31.05.2021. It is pertinent to observe that, the FIR came to be registered by Nabipur Police Station, Bharuch vide C.R. No. 11199038200048 of 2020 under Sections 302, 394, 201, 120B and 114 of the Indian Penal Code, 1860 against 6 accused persons.

2. Heard learned APP Ms. Jirga Jhaveri for the applicant State, who has submitted that, only because the body of the deceased was not found and further investigation was in progress, the learned Sessions Court had granted bail to the respondent. The said order was ex-facie, illegal, perverse and erroneous. 2.1 Ms. Jhaveri has further submitted that, the entire incident was captured on CCTV and the footages were recovered by the Investigation Officer. The reasons given by the learned Sessions Judge, while enlarging the respondent accused on bail are not tenable, and accordingly, this application be allowed and the bail, which was granted to the respondent - accused by the learned 4th Additional Sessions Judge of Bharuch be cancelled, and he be arrested and remitted to custody.

3. Heard learned advocate Mr. Devansh Kakkad on behalf of Mr. Adilhushain M. Saiyed for the respondent - accused. Mr. Kakkad has submitted that, the order passed by the learned 4th Additional Sessions Judge is exhaustive, wherein, the learned Judge had discussed all the aspects of the investigation, which was carried out, and thereafter, relying upon the factual aspects coupled with the legal proposition, had enlarged the respondent accused on bail, subject to conditions. According to Mr. Kakkad, the order passed by the learned Additional Sessions Judge being just, valid, legal and proper, does not require any interference from this court, and accordingly, this application should be rejected.

4. As per the prosecution case, the accused nos. 1 and 2, namely, Sufiyaben Patel and Sumaiyaben Patel had borrowed money from the deceased Mohammad Umarji Chetan. Accused Sufiyaben Patel had called up the deceased to collect the money which was lent to her, and accordingly, the deceased was called at accused no. 2 - Sumaiyaben's house, pursuant to which, the deceased had come to accused no. 2 - Sumaiyaben's house, however thereafter, he had never returned. It is the case of the prosecution that, on verifying the footages from four CCTV cameras, which were affixed at accused no. 2 - Sumaiyaben's shop and residence, it was found that, the accused no. 1 - Sufiyaben, accused no. 2 - Sumaiyaben, accused no. 3 - Rashid Umarji Valibhai Patel i.e. the present applicant, accused no. 4 - Aziz Abdul Vora Patel alias Ajit, accused no. 5 - Mehboob Ibrahim Diwan and one juvenile in conflict with law, with each other's consent had murdered the deceased i.e. Mohammadbhai Umarji Chetan with a wire, and thereafter, having robed his dead body in a blanket and a plastic, had taken him away in a Vista Car. It is also alleged that, the applicant as well as other co-accused had destroyed the evidence.

5. On perusing the impugned order passed by the learned 4th Additional Sessions Judge, Bharuch in Criminal Misc. Application No. 387 of 2021, the learned Judge had meticulously noted the timings of the CCTV footages of all the four cameras in his order. It further transpires that, the learned Additional Sessions Judge after discussing various case laws had concluded that, the police were still trying to locate the body of the deceased, and even after more than a year having passed, the police was unable to lay its hands upon the body of the deceased. The fact that, the CCTV footages were already collected by the Investigation Officer and, though the same being crucial piece of electronic evidence, considering the ratio laid down by the Hon'ble Apex Court in the case of Sanjay Razak vs. The State of Bihar rendered in Criminal Appeal No(s). 1070 of 2017, wherein, the issue of failure on the part of the police to recover the dead body was discussed at length, the learned Sessions Judge had allowed the application and had granted bail to the respondent accused.

6. In the opinion of this court, the order passed by the learned 4th Additional Sessions Judge of Bharuch is a well reasoned order, which does not require any interference from this court. Also, the respondent accused has not committed breach of any of the bail conditions. Hence, it does not appear that the order of the learned Sessions Judge is either perverse or erroneous or illegal.

7. The Supreme Court in the recent judgement in case of Abhimanue Etc. Etc. v. State of Kerala reported in 2025 (0) AIR SC 4439 in paragraph no.17 has held as under:

          "17. Law is well settled that cancellation of bail is distinct from revocation of an order granting bail. Bail may be cancelled when the accused violates any of the conditions imposed. On the other hand, an order granting bail can be revoked if such an order is found to be perverse or illegal. In P v. State of Madhya Pradesh6, a three-judge Bench of this Court, after analyzing various previous decisions, discussed the distinction between the two. Relevant paragraphs of the decision are reproduced below:

           ...

          ...

          ...

          25. Some of the circumstances where bail granted to the accused under Section 439(1) CrPC can be cancelled are enumerated below:

          (a) If he misuses his liberty by indulging in similar/other criminal activity;

          (b) If he interferes with the course of investigation;

          (c) If he attempts to tamper with the evidence;

          (d) If he attempts to influence/threaten the witnesses;

          (e) If he evades or attempts to evade court proceedings;

          (f) If he indulges in activities which would hamper smooth investigation;

          (g) If he is likely to flee from the country;

          (h) If he attempts to make himself scarce by going underground and/or becoming unavailable to the investigating agency;

          (i) If he attempts to place himself beyond the reach of his surety.

          (j) If any facts may emerge after the grant of bail which are considered unconducive to a fair trial.

          We may clarify that the aforesaid list is only illustrative in nature and not exhaustive. (emphasis ours)"

8. In the opinion of this court, the prosecution will be required to prove the validity and authenticity of the CCTV footages at the time of trial. Further, as per the prosecution case, when all the accused persons had entered into a criminal conspiracy and had abetted each other in commission of the offence, the applicant - State has preferred cancellation of bail granted to the respondent - accused only. The applicant - State in ground - C of its application had mentioned that, all the accused had committed the murder of very senior citizen person, who was aged around 80 years. If this be so, the applicant - State ought to have preferred applications for cancellation of bail, which came to be granted to the remaining accused persons as well.

9. It will not be out of context to observe that, co- accused Aziz Abdul Vohra Patel, whose role is akin to that of the present respondent - accused, the applicant - State has not preferred any application for cancelling Aziz's bail.

10. In the event, this court is not inclined to exercise discretion in favour of the applicant - State, and hence, the present application is hereby rejected.