Full Judgment Text
REPORTABLE
,
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2008
(Arising out of SLP (Crl.) 2861 of 2007)
Lokesh Singh ….Appellant
Versus
State of U.P. & Anr. ….Respondents
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by learned Single
Judge of the Allahabad High Court, Lucknow Bench granting bail to the
respondent No.2 who is an accused in Case Crime No.178 of 2006, Police
Station-Ashiyana, District Lucknow. The accused persons faced trial for
alleged commission of offences punishable under Sections 302 and 120 B of
the Indian Penal Code, 1860 (in short the ‘IPC’).
3. As per the prosecution version Virendra Singh lodged information
at the police station that on 21.9.2006 at about 10 A.M. when his younger
brother Chandra Pal Singh (hereinafter referred to as the ‘deceased’),
Manager of Lucknow Public School had arrived on the gate of the college,
some unknown persons had shot him by making indiscriminating firing
and then he was taken to the hospital. The doctors declared that he had
been brought dead. During investigation it was found that the respondent
No.2 and another person named S.B. Singh had entered into criminal
conspiracy to commit murder of the deceased and said S.B. Singh had
arranged two shooters Ranvir Singh and Anant Kumar Verma who caused
the death of the deceased. In order to show the complicity of respondent
No.2 reference was made to the statement of one Munna Katiyar who
claimed to have overheard the conversations of respondent No.2 and S.B.
Singh before the incident relating to the plan to murder of the deceased.
This was disclosed to the investigating officer on 9.12.2006. The police
acted upon the information and transpired that the amount fixed for doing
the killing (in common parlance known as ‘supari amount’) was Rs.10
lakhs and a sum of Rs.5,87,000/- was paid to S.B. Singh through demand
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draft under a camouflage as if the payment was being made towards
consideration of purchase of construction materials as S. B. Singh happens
to be the proprietor of the concern dealing with the sale and purchase of
construction materials. It was pointed out by the prosecution that the
phone records clearly indicated a link between the respondent No.2 and
the killers. It was also pointed out that the document which was produced
to show that the payment was made for purchase of construction materials
was fake. Prayer for bail was rejected by order dated 7.2.2007 by learned
Sessions Judge, (in charge) Lucknow. An application was filed before the
High Court. By the impugned order High Court granted bail to the
respondent No.2.
4. Learned counsel for the appellant submitted that the High Court had
practically written a judgment of acquittal by not only referring to the
incriminating materials but also conclude about their unreliability. This, it
is submitted, is not the correct way of dealing with an application for bail.
5. Learned counsel for the respondent- State supported the stand of the
appellant.
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6. Learned counsel for the respondent No. 2 on the other hand submitted
that the conclusions of the trial court to deny bail were factually wrong and
legally unsustainable. The High Court has dealt with the stands of the
accused respondent No.2 and found that the prosecution version is totally
vulnerable and had no legs to stand. That being so it is submitted the order
does not suffer from any infirmity.
7. The conclusions of the High Court read as follows:
“Having heard learned counsel for the respective parties
as also the Additional Government Advocate, it is amply
evident that F.I.R. with respect to the present incident
was lodged against unknown persons on 21.09.2006 and
in the statements recorded during the course of
investigation, i.e. statement of the son of the deceased
recorded on 05.12.2006 and statement Munna Katiyar
recorded on 09.12.2006 it was disclosed that the
applicant had conspired and abated with respect to the
commission of the instant crime by hiring assassins
named above. It is much surprising that if the son of the
deceased and aforesaid Munna Katiyar were knowing
that the applicant and deceased Chandra Pal Singh were
on inimical terms, why these two persons kept mum and
at the very first opportunity did not disclose this fact to
the investigating agency and only in their statements
recorded under Section 161 Cr.P.C. which admittedly
were recorded after about tow and a half month from the
date of the incident, they disclosed the involvement of
the applicant in the present crime. As such, this court at
this juncture is of the opinion that at the most the
applicant can be said to be an accused under Section 120
B IPC read with Section 302 IPC for which an accused
can be sentenced to life imprisonment, but the
prosecution story as revealed till now, the manner in
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which the involvement of the applicant in the
commission of the crime has come into light and the
evidence collected by the investigating officer puts a
dent in the prosecution case. Besides it, involvement of
the applicant in the commission of the crime has been
disclosed at a very later stage of the investigation.
However, without commenting furthermore, I am
of the opinion that the applicant applicant is entitled to
be enlarged on bail.”
8. While dealing with an application for bail, there is a need to indicate
in the order, reasons for prima facie concluding why bail was being granted
particularly where an accused was charged of having committed a serious
offence. It is necessary for the courts dealing with application for bail to
consider among other circumstances, the following factors also before
granting bail, they are:
1. The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or
apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge.
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9. Any order de hors such reasons suffers from non-application of mind
as was noted by this Court, in Ram Govind Upadhyay v. Sudarshan Singh
and Ors. [(2002) 3 SCC 598], Puran etc. v. Rambilas and Anr. Etc. [(2001)
6 SCC 338)] and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu
Yadav & Anr. [JT 2004 (3) SC 442].
10. Though a conclusive finding in regard to the points urged by the
parties is not expected of the Court considering the bail application, yet
giving reasons is different from discussing merits or demerits. As noted
above, at the stage of granting bail a detailed examination of evidence and
elaborate documentation of the merits of the case has not to be undertaken.
But that does not mean that while granting bail some reasons for prima facie
concluding why bail was being granted is not required to be indicated.
11. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr.
(2004 (7) SCC 528) In para 11 it was noted as follows:
“11. The law in regard to grant or refusal of bail is very
well settled. The court granting bail should exercise its
discretion in a judicious manner and not as a matter or
course. Though at the stage of granting bail a detailed
examination of evidence and elaborate documentation of
the merit of the case need not be undertaken, there is a
need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly
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where the accused is charged of having committed a
serious offence. Any order devoid of such reasons would
suffer from non-application of mind. It is also necessary
for the court granting bail to consider among other
circumstances, the following factors also before granting
bail; they are:
(a) The nature of accusation and the severity of
punishment in case of conviction and the nature of
supporting evidence.
(b) Reasonable apprehension of tampering with the
witness or apprehension of threat to the
complainant.
(c)
Prima facie satisfaction of the court in support of
the charge. (See Ram Govind Upadhyay v.
Sudarshan Singh (2002 (3) SC 598) and Puran v.
Rambilas (2001 (6) SCC 338).”
12. It was also noted in the said case that the conditions laid down under
Section 437 (1)(i) are sine qua non for granting bail even under Section 439
of the Code.
13. In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was noted as
follows:
“11 . Further, it is to be kept in mind that the concept of
setting aside the unjustified illegal or perverse order is
totally different from the concept of cancelling the bail
on the ground that the accused has misconducted himself
or because of some new facts requiring such
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cancellation. This position is made clear by this Court in
Gurcharan Singh v. State (Delhi Admn.) . In that case the
Court observed as under: (SCC p. 124, para 16)
“If, however, a Court of Session had admitted an
accused person to bail, the State has two options.
It may move the Sessions Judge if certain new
circumstances have arisen which were not earlier
known to the State and necessarily, therefore, to
that court. The State may as well approach the
High Court being the superior court under Section
439(2) to commit the accused to custody. When,
however, the State is aggrieved by the order of the
Sessions Judge granting bail and there are no new
circumstances that have cropped up except those
already existing, it is futile for the State to move
the Sessions Judge again and it is competent in
law to move the High Court for cancellation of the
bail. This position follows from the subordinate
position of the Court of Session vis-à-vis the High
Court.”
14. Above being the position, we are of the view that the High Court was
not justified in granting bail to respondent No.2. The order granting bail is
set aside. The respondent No.2 who was released on bail shall surrender to
custody forthwith. We make it clear that we have not expressed any opinion
on merits of the case.
15. Appeal is allowed.
…………......................J.
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(Dr. ARIJIT PASAYAT)
……….........................J.
(C.K. THAKKER)
New Delhi,
October 21, 2008
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