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Jayaben v. Tejas Kanubhai Zala

The post of Director of Prosecution is a very important post in so far as the administration of justice in criminal matters is concerned. It is the duty of the Director of Prosecution to take prompt decision.

Given that crimes are treated as a wrong against the society as a whole, the role of the Director of Prosecution in the administration of justice is crucial. He is appointed by the State Government in exercise of powers under Section 25A of the Code of Criminal Procedure. That his is a crucial role is evident from conditions such as in Section 25A (2) of the Code, which stipulates a minimum legal experience of not less than ten years for a person to be eligible to be Directorate of Prosecution and that such an appointment shall be made with the concurrence of the Chief Justice of the High Court.

In criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interest of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interest of the community to book.

The submissions appearing on behalf of the State that it takes time to take a decision whether to prefer an appeal or not is not acceptable. The State ought to have been very serious even to maintain the rule of law in a serious matter like this where a person was brutally murdered/killed while he was just collecting scrap outside the factory with his wife and aunt. It is the duty of the Director of Prosecution and the State to ensure that the guilty are booked and punished. We hope and trust that in future the State Government/legal department of State Government and the Director of Prosecution shall take prompt decision in matters such as this and challenge the order passed by the trial court and/or the High Court as the case may be where it is found that the accused are released on bail in serious offences like the present. We hope and trust that our observations will reach the State Government/legal department of the State of Gujarat and the Director of Prosecution of State of Gujarat. We direct the Registry to send the copy of this order to the Principal Chief Secretary and Secretary, Home Department and Legal Department, State of Gujarat to take further corrective steps.

Penal Code, 1860 – Ss. 302, 342, 354, 323, 143, 147, 148 & 149 – Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 – S. 3(1)(r)(s) & 3(2)(5) – Police Act, 1951 (Gujarat) – S. 135 – Cancellation of Bail – Once, it is found that the order passed by the High Court releasing the accused on bail is unsustainable, necessary consequences shall have to follow and the bail has to be cancelled.

Now so far as the submissions on behalf of the accused that after the accused are released on bail by the impugned judgments and orders passed by the High Court, more than two and a half years have passed and there are no allegations of misuse of liberty and therefore, the bail may not be cancelled is concerned, the aforesaid cannot be accepted. As per the settled preposition of law, cancellation of bail and quashing and setting aside the wrong order passed by the High Court releasing the accused on bail stand on different footings. There are different considerations while considering the application for cancellation of bail for breach of conditions etc., and while considering an order passed by the Court releasing the accused on bail.

Case Number : Criminal Appeal No. 1655 & 1656 of 2021; January 10, 2022

Hon’ble Mr. Justice M.R. Shah has pronounced the reportable judgment of the Bench comprising His Lordship and Hon’ble Mrs. Justice B.V. Nagarathna.

For Appellant(s) Mr. Colin Gonsalves Sr Adv. Ms. Hetvi Patel, Adv. Mr. Shiyas KR, Adv. Mr. Satya Mitra, AOR For Respondent(s) Mr. Hzefa. A. Ahmadi, Sr Adv Mr. Pradhuman Gohil, Adv Ms. Taruna Singh Gohil, AOR Ms. Ranu Purohit, Adv Mr. R. Vishnu Kumar, Adv Mr. Alapati Sahithya Krishna, Adv Mr. Rohan Sharma, Advocate Mr. Purvish Jitendra Malkan, AOR Mr. Jitendra Malkan, Adv Ms. Dharita P Malkan, Adv Ms. Deepa Gorasia, Adv Mr. Alok Kumar, Adv Ms. Nandini Chhabra, Adv Ms. Bhavna Sarkar, Adv Ms. Aastha Mehta, Adv. Ms. Deepanwita Priyanka, AOR

Case Link : https://pdf.caselaw.in/sc/2022/01/1171/

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