Full Judgment Text
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CASE NO.:
Appeal (crl.) 204 of 2007
PETITIONER:
Kumari Suman Pandey
RESPONDENT:
State of Uttar Pradesh and Anr
DATE OF JUDGMENT: 14/02/2007
BENCH:
Dr. ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No. 5851 of 2006)
Dr. ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the order passed by a
learned Single Judge of the Allahabad High Court, Lucknow
Bench granting bail to the respondent No.2-Jitendra Pratap
Singh (hereinafter referred to as the ’Accused’).
A brief reference to the factual aspect would be
necessary. On 14.5.2003 First Information Report (in short the
’FIR’) was lodged by the appellant alleging murder of her
younger brother-Ravish Kumar Pandey (hereinafter referred to
as the ’Deceased’). At the relevant point of time the deceased
was pursuing his studies in Era Medical College. In the FIR
name of respondent No.2 was indicated to be the sole accused.
One of the eye witnesses was stated to be one Priyanka Tiwari.
She appeared before the concerned Magistrate and her
statement was recorded in terms of Section 164 of the Code of
Criminal Procedure, 1973 (in short the ’Code’). In the
statement she specifically stated that murder of the deceased
was committed by respondent No.2 in her presence. Charge
sheet was filed on 19.11.2004. Cognizance was taken by the
concerned Magistrate. Thereafter, the investigation was
transferred to C.B.C.I.D. The order of the State Government
was challenged by the appellant by filing a writ petition
No.5874(M/B) of 2004 before the High Court. By order dated
13.1.2005 the writ petition was allowed and the order
transferring investigation to CBCID was quashed by the High
Court. Application for bail was filed by respondent No.2 before
the High Court which was numbered as Criminal Misc. Case
No.869 (B) of 2005. The said bail application was rejected by
order dated 15.3.2005 with the observation that if any fresh
bail application is filed, the same shall be considered after the
statements of the appellant and aforesaid Priyanka Tiwari are
recorded by the trial court in the trial proceedings. On
20.6.2005 appellant’s evidence was recorded and she
categorically stated that in her presence murder was
committed. On 25.8.2005 Priyanka Tiwari who was claimed to
an eye-witness was also examined and her evidence was
recorded by the trial court. The cross-examination was
concluded on 5.9.2005. In January, 2006 the respondent No.
2 filed the second bail application before the High Court which
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was numbered as Criminal Misc. Case No. 6282 (B) of 2005.
The said bail application was rejected reiterating the earlier
view that the application for bail can be considered after the
evidence of Priyanka Tiwari as recorded or if she failed to
appear for the purpose of recording her evidence. A certificate
was issued by the Ministry of Health, Ukrain that the summer
vacation of Priyanka Tiwari was between 3.7.2006 and
31.8.2006. This certificate was filed before the trial court. In
May, 2006 respondent No.2 filed the third bail application
which was number as Criminal Misc. Case No.2233(B) of
2006. The High Court by its impugned order dated 22.5.2006
has granted the bail.
According to the appellant after commencement of
summer vacation when Priyanka Tiwari came to India she
knew about the court’s proceeding and appeared on
28.7.2006. But on the said date the respondent No. 2 was not
represented. Therefore, the court issued Non-Bailable Warrant
(in short ’NBW’) and the matter was adjourned to 10.8.2006.
On 10.8.2006 when the matter was taken up, learned
counsel appearing for respondent No.2 submitted before the
Court that respondent No.2 had been arrested in some other
case and his absence may be exempted. The trial Court
rejected the application and adjourned the matter to
21.8.2006.
On 21.8.2006 the respondent No.2 again was not
present. The court had on the earlier occasion directed the
learned counsel appearing for respondent No.2 to indicate the
details of the case where he was purportedly arrested but
those details were not filed and the matter was further
adjourned to 21.9.2006. On 21.9.2006 also respondent No.2
did not appear.
In view of the aforesaid scenario it is stated by learned
counsel for the appellant that the grant of bail was
unwarranted and in any event the respondent no.2 has
misused the liberty of bail. Although notices on respondent
No.1-State and respondent No.2-accused had been served but
none has appeared to represent them when the matter was
taken up.
At this juncture, it would be appropriate to take note of a
decision of this Court in Omar Usman Chamadia v. Abdul and
Anr. (JT 2004 (2) SC 176). In para 10, it was observed as
follows:
"However, before concluding, we must advert
to another aspect of this case which has
caused some concern to us. In the recent past,
we had several occasions to notice that the
High Courts by recording the concessions
shown by the counsel in the criminal
proceedings refrain from assigning any reason
even in orders by which it reverses the orders
of the lower courts. In our opinion, this is not
proper if such orders are appealable, be it on
the ground of concession shown by learned
counsel appearing for the parties or on the
ground that assigning of elaborate reasons
might prejudice the future trial before the
lower courts. The High Court should not,
unless for very good reasons desist from
indicating the grounds on which their orders
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are based because when the matters are
brought up in appeal, the court of appeal has
every reason to know the basis on which the
impugned order has been made. It may be that
while concurring with the lower court’s order,
it may not be necessary for the said appellate
court to assign reasons but that is not so while
reversing such orders of the lower courts. It
may be convenient for the said court to pass
orders without indicating the grounds or basis
but it certainly is not convenient for the court
of appeal while considering the correctness of
such impugned orders. The reasons need not
be very detailed or elaborate, lest it may cause
prejudice to the case of the parties, but must
be sufficiently indicative of the process of
reasoning leading to the passing of the
impugned order. The need for delivering a
reasoned order is a requirement of law which
has to be complied with in all appealable
orders. This Court in a somewhat similar
situation has deprecated the practice of non-
speaking orders in the case of State of Punjab
and Ors. v. Jagdev Singh Talwandi (AIR 1984
SC 444)".
The view was reiterated in V.D. Chaudhary v. State of
Uttar Pradesh and Anr. (2005 (7) SCALE 68).
Even on a cursory perusal the High Court’s order shows
complete non-application of mind. Though detailed
examination of the evidence and elaborate documentation of
the merits of the case is to be avoided by the Court while
passing orders on bail applications, yet a court dealing with
the bail application should be satisfied as to whether there is a
prima facie case, but exhaustive exploration of the merits of
the case is not necessary. The court dealing with the
application for bail is required to exercise its discretion in a
judicious manner and not as a matter of course.
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.
Any order dehors of 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),
Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav
& Anr. (JT 2004 (3) SC 442). Chaman Lal v. State of U.P. and
Anr. (JT 2004 (6) SC 540), Kamaljit Singh v. State of Punjab
and Anr. (2005) 7 SCC 326), Gajanand Agarwal v. State of
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Orissa & Ors. (JT 2006 (12) SC 55) and Anwari Begum v. Sher
Mohammad and Another (2005) 7 SCC 326).
The High Court noted that the first application was
rejected as the witnesses was apprehending danger to their
lives and the trial was going to commence and therefore, it was
not proper to release the applicant on bail. Second application
was moved when there was no significant progress and
Priyanka Tiwari was not examined. The High Court noted that
in spite of adjournments Priyanka Tiwari did not appear.
According to the High Court the fact that Priyanka Tiwari was
not appearing though her dates of appearance have been fixed
entitled the appellant to be released on bail. The reasoning of
the High Court is totally fallacious. It is evident from the
material on record that the trial court was informed of the fact
that Priyanka Tiwari was pursuing her studies abroad and
would be available to appear as witness during summer
vacation. The fact that the trial court adjourned the matter for
a few dates notwithstanding this intimation cannot be a factor
to release the respondent No.2 who chose not to appear and
made a prayer for exemption on the ground that he was in
custody in some other case. The details of theses cases were
not furnished to the Court though ample opportunity was
granted. The appellant is, therefore, justified in her grievances
that there has been misuse of the liberty and that the
appellant has unnecessarily prolonged the trial. The evidence
of Priyanka Tiwari was of vital importance to the case, but she
had to go back to pursue her studies. Therefore, her evidence
was not recorded. This is a factor which has been lost sight of.
High Court instead has unnecessarily emphasized on the
number of adjournments which, as noted above, has no
relevance. The order of bail passed by the High Court is not
sustainable and is accordingly set aside.
The appeal is allowed.