Tags Bail

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 2587 of 2014, Judgment Date: Dec 16, 2014

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL  APPEAL NO.2587 OF 2014
               (Arising out of S.L.P. (Crl.) No. 8469 of 2014)


Neeru Yadav                                  ... Appellant

                                   Versus

State of U.P and another                         ...Respondents



                               J U D G M E N T

Dipak Misra, J.

Leave granted.

The  present  appeal,  by  special  leave,  calls  in  question  the   legal
substantiality  and defensibility of the order dated  22.09.2014  passed  by
the  High  Court  of  judicature  at  Allahabad  in  Criminal   Misc.   Bail
Application No. 31078 of 2014 whereby the  learned  Judge,  in  exercise  of
power under Section 439 of Code of  Criminal  Procedure,  1973  (Cr.PC)  had
admitted the 2nd respondent to bail in Crime No. 237 of 2013 instituted  for
offences punishable under Sections  147, 148, 149, 302, 307, 394, 411,  454,
506, 120B and 34 of the Indian Penal Code (IPC).

As the impugned order would reveal, it was contended on behalf  of  the  2nd
respondent  that  similarly  placed  co-accused,  Ashok,  had  already  been
enlarged on bail by the High Court by  order  dated  23.9.2013  in  Criminal
Misc. Bail Application No. 21876 of 2013 and role of the  accused-respondent
No.2 was identical to that of Ashok Kumar  and  he  should  be  released  on
bail.  Thus the foundation of the prayer  for  grant  of  bail  was  on  the
bedrock of parity.  The said prayer for  grant  of  bail  was  opposed  with
vehemence by the learned A.G.A. contending, inter  alia,  that  the  accused
had criminal antecedents and the role attributed to him was different.   The
same was controverted by the accused asserting  that  the  said  aspect  had
been explained in the affidavit attached to the bail application.

As the factual narration would further undrape,  the  learned  Single  Judge
keeping in view the aforesaid aspects passed the following order:-

"Considering the submission made by the learned counsel  for  the  applicant
as well as learned A.G.A., this Court is of the view that the applicant  has
made out a case for grant of bail on the ground of party.

In view of the above, let the applicant, Mitthan Yadav be released  on  bail
on his executing a personal bond and furnishing two  sureties  each  in  the
like amount to the satisfaction of the court concerned  in  Case  Crime  No.
237 of 2013, under sections 147, 148, 149, 302, 307,  394,  411,  454,  506,
120B and 34 I.P.C., P.S. Kavinagar, district-Ghaziabad  with  the  following
conditions:-

(a)   The applicant shall attend the court according to  the  conditions  of
the bond executed by him.

(b)   The applicant shall not directly or indirectly  make  any  inducement,
threat or promise to any person acquainted with the facts of the case so  as
to dissuade him from disclosing such facts to the Court  or  to  any  police
officer or tamper with the evidence."

Being aggrieved by the  aforesaid  order,  the  wife  of  the  deceased  has
preferred this appeal for setting aside the order.

At this juncture, it is apt  to  note  that  2nd  respondent  had  moved  an
application for bail before  the  learned  Additional  District  &  Sessions
Judge, Ghaziabad who took note of the factual matrix, which is as follows:-

"As per the prosecution story complainant Sakek Chand has lodged the  report
at PS Kavi Nagar that  accused  Mitthan,  Manoj,  lala  Kapil  and  Budhu  @
Budhpal were keeping enmity with  the  brother  of  the  complainant  Salekh
Chand on their consuming wine in front of the house of complainant  and  due
to this fear brother the complainant had keep a private gunner.  On  25.2.13
at about 11.00 a.m. complainant and his brother Yashvir,  Munir  and  Deepak
were sitting in the house and suddenly above all accused carrying weapon  in
their hands entered into the house  of  the  complainant  and  began  hectic
firing.  Brother  of  the  complainant  received  several  bullet  injuries.
Complainant ran raising  noise  and  also  caught  him  and  cause  grievous
injuries on his head, due to which he  fell  down.   Hearing  the  voice  of
firing gunner also came and his rifle was snatched him them  and  also  gave
beatings to him and injured  him.   When  people  of  the  village  gathered
accused fled away  giving  threatening.   People  of  the  village  admitted
brother of the complainant in hospital where doctor declared him dead."

Learned Additional District & Sessions  Judge,  after  taking  note  of  the
aforesaid allegations,  declined  to  grant  bail.   Being  unsuccessful  to
secure bail from the Court of Session, the  2nd  respondent  approached  the
High Court and as has been stated hereinbefore, the High Court has  admitted
him to bail.

Questioning the legal acceptability of the impugned order, it  is  contended
by Mr. Malkan, learned counsel for the appellant that  the  High  Court  has
failed to appreciate the role  ascribed  to  Ashok  Kumar  and  to  the  2nd
respondent who had fired on the deceased; and further  the  High  Court  has
absolutely remained oblivious  to  the  criminal  antecedents  of  the  said
accused.  That apart, it is contended by him that the  trial  has  commenced
and at that stage it was absolutely improper on the part of the  High  Court
to enlarge the accused on bail brushing aside the fact  that  the  man  with
criminal antecedents has the potentiality to  intimidate  the  rest  of  the
witnesses. In essence, the submission is that the gravity  of  the  offence,
the manner in which it has been committed and the  criminal  antecedents  of
the accused - the 2nd respondent, have been  totally  ignored  by  the  High
Court and bail has been granted on non-consideration of the material  facts,
which makes the order vulnerable.

Mr. Ratnakar Dash, learned senior counsel appearing for the State  of  Uttar
Pradesh, supporting the stand of the appellant  submitted  that  though  the
State has not assailed the legal acceptability of the  impugned  order,  yet
the fact remains that when the real victim has approached this Court and  on
a perusal of the facts which have been asserted, it is quite  manifest  that
the 2nd respondent is a history-sheeter and the order  passed  by  the  High
Court should be nullified.

Mr. Praveen Chaturvedi, learned counsel appearing for the  respondent  no.2,
resisting the aforesaid stand and stance put forth by  the  learned  counsel
for the appellant as well as the learned senior counsel for  the  State  has
canvassed that the High  Court  has  appositely  applied  the  principle  of
parity and, therefore, the order passed by it  cannot  be  faulted.   It  is
urged by him that when the trial has commenced and many witnesses have  been
examined, there was no justification not to release the  2nd  respondent  on
bail on such terms and conditions which have been  determined  by  the  High
Court.  It is put  forth  by  him  that  the  number  of  cases  which  were
instituted against the 2nd respondent are not that grave and in  some  cases
he has been acquitted, but unfortunately, emphasis  has  been  laid  on  the
same by the appellant and also learned senior counsel for the State.  It  is
further contended that in the absence of any failure to abide by  the  terms
and conditions imposed by the High Court  while  granting  the  accused  the
benefit of bail, this Court should not interfere  as  that  would  seriously
jeopardize the liberty of the respondent no.2.

The pivotal issue that emanates for consideration is  whether  the  impugned
order passed by the High Court deserves legitimate acceptation  and  put  in
the compartment of a legal, sustainable order so that this Court should  not
interfere with the same in exercise of jurisdiction  under  Article  136  of
the Constitution of India.  In this context, a fruitful  reference  be  made
to the pronouncement in Ram Govind Upadhyay v. Sudarshan  Singh[1],  wherein
this Court has observed that grant of bail though discretionary  in  nature,
yet such exercise cannot be arbitrary, capricious and injudicious, for   the
heinous nature of the crime warrants  more  caution  and  there  is  greater
change of rejection of  bail,  though,  however  dependant  on  the  factual
matrix of the matter.  In the said decision, reference was made  to  Prahlad
Singh Bhati v. NCT, Delhi[2] and the Court opined thus:

 "(a) While granting bail the court has to keep in mind not only the  nature
of the accusations, but the severity of the punishment,  if  the  accusation
entails  a  conviction  and  the  nature  of  evidence  in  support  of  the
accusations.

(b) Reasonable apprehensions of the witnesses being  tampered  with  or  the
apprehension of there being a threat for the complainant should  also  weigh
with the court in the matter of grant of bail.

(c) While it is not expected to have the entire  evidence  establishing  the
guilt of the accused beyond reasonable doubt but there ought always to be  a
prima facie satisfaction of the court in support of the charge.
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(d) Frivolity in prosecution should always be considered and it is only  the
element of genuineness that shall have to be considered  in  the  matter  of
grant of bail, and in the  event  of  there  being  some  doubt  as  to  the
genuineness of the prosecution, in the normal course of events, the  accused
is entitled to an order of bail."

In Chaman Lal V. State of U.P.[3], the Court has laid down certain  factors,
namely, the  nature  of  accusation,  severity  of  punishment  in  case  of
conviction  and   the   character   of   supporting   evidence,   reasonable
apprehension of tampering with the witness or apprehension of threat to  the
complainant, and prima facie satisfaction of the Court  in  support  of  the
charge which are to be kept in mind.

In this context, we may profitably refer to the  dictum  in  Prasanta  Kumar
Sarkar v. Ashis Chatterjee[4], wherein it has been held that  normally  this
Court does not interfere with the order passed by  the  High  Court  when  a
bail application is allowed or declined, but the High Court has  a  duty  to
exercise its discretion cautiously and strictly.  Regard being  had  to  the
basic principles laid down by this  Court  from  time  to  time,  the  Court
enumerated number of considerations and some  of  the  considerations  which
are relevant for the present purpose are; whether  there  is  likelihood  of
the offence being repeated and whether there  is  danger  of  justice  being
thwarted by grant of bail.

We have referred to certain principles to be kept  in  mind  while  granting
bail, as has been laid down by this Court from time to  time.   It  is  well
settled in law that cancellation of bail after it  is  granted  because  the
accused has  misconducted  himself  or  of  some  supervening  circumstances
warranting such cancellation have occurred is  in  a  different  compartment
altogether than an order granting bail which  is  unjustified,  illegal  and
perverse.  If in a case, the relevant factors which should have  been  taken
into consideration while dealing with the application for bail and have  not
been taken note of bail or  it  is  founded  on  irrelevant  considerations,
indisputably the superior court can set aside the order of such a  grant  of
bail.  Such a case belongs to a different category  and  is  in  a  separate
realm. While dealing with a case of second nature, the Court does not  dwell
upon  the  violation  of  conditions  by  the  accused  or  the  supervening
circumstances that have happened subsequently.  It, on the contrary,  delves
into the justifiability and the soundness of the order passed by the  Court.

In the case at hand, two aspects have been highlighted before us.  One,  the
criminal  antecedents  of  the  2nd  respondent   and   second,   the   non-
applicability of the principles  of  parity  on  the  foundation  that   the
accusations against the accused Ashok  and  2nd  respondent  are  different.
First, we shall dwell upon the criminal  antecedents.   The  appellant,  the
real victim, being the wife of the deceased, has annexed  a  chart  relating
to the criminal history of the accused.   The  State  has  filed  a  counter
affidavit.  We think it apt to refer to the cases which find  place  in  the
counter affidavit filed by the state.  Be it clarified though  it  has  been
filed as a counter affidavit, it is not in oppugnation of the prayer  sought
in the petition.  On the contrary, it is supportive of the stand  put  forth
in the petition.    It has been asseverated that the respondent  no.2  is  a
history-sheeter and number of cases  have  been  lodged  against  him.   The
following are the details of the cases:-

"(i)   Case  crime  No.  1009/2006  u/s  302/201/34   IPC   Police   Station
Shahibabad, District Ghaziabad.

(ii)  Case crime No.  1007/2006  u/s  302  IPC  Police  Station  Shahibabad,
District Ghaziabad.

(iii) Case crime No. 360/2008 u/s 302/201  IPC  Police  Station  Shahibabad,
District Ghaziabad.

(iv)  Case crime No. 1614/2008 u/s 364/302/201  IPC  Police  Station  Sihani
Gate, District Ghaziabad.

(v)   Case crime No. 495/2008 u/s 8/15 NDPS Act, Police Station Kavi  Nagar,
District Ghaziabad.

(vi)  Case crime No. 496/2008 u/s 25 Arms Act, Police  Station  Kavi  Nagar,
District Ghaziabad.

(vii) Case crime No.  405/2008  u/s  307  IPC  Police  Station  Kavi  Nagar,
Ghaziabad.

(viii)      Case crime No. 913/2008 u/s 25 Arms  Act,  Police  Station  Kavi
Nagar, Ghaziabad.

(ix)  Case crime No. 1247/2009 u/s  147/323/324/506  IPC  P.S.  Kavi  Nagar,
Ghaziabad.

(x)   Case crime No.  116/2011  u/s  307  IPC  Police  Station  Kavi  Nagar,
Ghaziabad.

(xi)  Case  crime  No.  170/2011  u/s  25  Arms  Act,  P.S.  Sec-58,  Noida,
Gautambudh Nagar.

(xii) Case crime No. 2372013  u/s  247/148/149/302/307/  394/411/506/120B/34
IPC P.S. Kavi Nagar, Ghaziabad.

(xiii)      Case crime No. 330/2013 u/s 60  Excise  Act,  P.S.  Kavi  Nagar,
Ghaziabad.

(xiv) Case crime No. 1091/2013 u/s 384/506 IPC P.S. Kavi Nagar, Ghaziabad.

(xv)  Case crime No. 1238/2013  u/s  2/3  Gangster  Act,  P.S.  Kavi  Nagar,
Ghaziabad.

Note:- The respondent Mitthan has been declared  as  History  Sheetor  being
H.S. No. 39-A P.S. Kavi Nagar".


In the reply filed by the respondent no.2 contended,  inter  alia,  that  he
has been acquitted in certain case.  However, in the course of  hearing,  we
have been apprised that most of the cases instituted against the  respondent
no.2 are still pending and some of them are under Section 302 IPC and  other
heinous offences.

In the case at hand the 2nd respondent, as the allegations would  show,  had
fired at the deceased.  Two persons were also injured in  the  attack.   The
occurrence took place in the broad day light.  As we find from the  FIR  and
statement recorded under Section 161 CrPC,  the  allegations  against  Ashok
and the 2nd respondent are different.  That apart, the number and nature  of
crimes registered against the 2nd respondent speaks voluminously about   his
antecedents.

The issue that is presented before us is whether this Court  can  annul  the
order passed  by  the  High  Court  and  curtail  the  liberty  of  the  2nd
respondent.  We are not  oblivious  of  the  fact  that  the  liberty  is  a
priceless treasure for a human being.  It is founded  on  the  bed  rock  of
constitutional right and accentuated further on human rights principle.   It
is basically a natural right.  In fact, some regard it  as  the  grammar  of
life. No one would like to lose his liberty or barter it for all the  wealth
of the world.  People from centuries have fought for  liberty,  for  absence
of liberty causes sense of  emptiness.   The  sanctity  of  liberty  is  the
fulcrum of any civilized society.  It is  a  cardinal  value  on  which  the
civilisation rests.  It cannot be allowed to be paralysed  and  immobilized.
Deprivation of liberty of a person has enormous impact on his mind  as  well
as body.  A  democratic  body  polity  which  is  wedded  to  rule  of  law,
anxiously guards liberty.  But, a pregnant and significant one, the  liberty
of an individual is not absolute.  The  society  by  its  collective  wisdom
through process of law can withdraw the liberty that it  has  sanctioned  to
an individual when an individual becomes a danger to the collective  and  to
the societal order.  Accent on individual liberty  cannot  be  pyramided  to
that extent which would bring chaos and anarchy to  a  society.   A  society
expects responsibility and accountability from the member,  and  it  desires
that the citizens should obey the law, respecting it as a  cherished  social
norm.  No individual can make an attempt to create a concavity in  the  stem
of social stream.  It  is  impermissible.   Therefore,  when  an  individual
behaves in a disharmonious manner ushering in disorderly  things  which  the
society disapproves, the legal consequences are bound to  follow.   At  that
stage, the Court has a duty.  It cannot abandon  its  sacrosanct  obligation
and pass an order at its own whim or caprice.  It has to be  guided  by  the
established parameters of law.

Coming to the case at hand, it is found that when a  stand  was  taken  that
the 2nd respondent was a history sheeter, it was imperative on the  part  of
the High Court to scrutinize every aspect and not capriciously  record  that
the 2nd respondent is entitled to be admitted  to  bail  on  the  ground  of
parity.  It can be stated with absolute certitude that it was not a case  of
parity  and,  therefore,  the  impugned  order  clearly  exposes  the   non-
application of mind.  That apart, as a matter of fact it  has  been  brought
on record that the 2nd respondent has been  charge  sheeted  in  respect  of
number of other heinous offences. The High Court has failed to take note  of
the same.  Therefore, the order has to pave the path of extinction, for  its
approval by  this  court  would  tantamount  to  travesty  of  justice,  and
accordingly we set it aside.

Consequently, the appeal is allowed and the order passed by the  High  Court
admitting the respondent no.2 on bail is set aside.  The  respondent  no.  2
is commanded to surrender to custody forthwith failing  which  it  shall  be
the duty of the Investigating Agency to take him into  custody  immediately.
We may hasten to clarify that what we have stated here is only  to  be  read
and understood for the purpose of annulling the order of grant of  bail  and
they would have no bearing on the trial.   The  learned  trial  Judge  shall
proceed with the trial as per the evidence brought on record.

                                  ........................................J.
                                                  [DIPAK MISRA]

                                  ........................................J.
                                             [UDAY UMESH LALIT]

NEW DELHI
DECEMBER 16, 2014.

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[1]     (2002) 3 SCC 598
[2]     (2001) 4 SCC 280

[3]     (2004) 7 SCC 525
[4]      (2010) 14 SCC 496


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