Full Judgment Text
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CASE NO.:
Appeal (crl.) 972 of 2006
PETITIONER:
Gajanand Agarwal
RESPONDENT:
State of Orissa & Ors
DATE OF JUDGMENT: 18/09/2006
BENCH:
ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No. 3745 of 2006)
[With Criminal Appeal No 973 of 2006 (Arising out of SLP (Crl.) No.3746 of 2006]
ARIJIT PASAYAT, J.
Leave granted.
Challenge in these appeals is to the order of the learned
Single Judge of the Orissa High Court granting bail to the
respondent no.2 in each case. In criminal Appeal relating to
SLP (Criminal) 3745 of 2006 respondent no.2 is Bimal Kumar
Khetan whereas in the criminal appeal relating to SLP
(Criminal) 3746 of 2006, the respondent no.2 is Sunil Kumar
Khetan. The primary stand of the appellant is that the bail
was granted without application of mind, as no reason was
indicated as to why respondent no.2 (hereinafter referred to as
the ’accused’) was entitled to bail. It is pointed out that earlier
several petitions were rejected by leaned Additional Sessions
Judge and the High Court.
It is unnecessary to elaborately state the factual position
as stated by the appellant.
Bimal was married to the daughter of the appellant i.e.
Manisha (hereinafter referred to as ’deceased’). The marriage
between the deceased and the said accused took place on
9.5.2005. Within five months of marriage, the deceased was
found dead on 1.10.2005. The appellant lodged FIR at the
Jharsuguda police station and on the basis case was
registered and investigation was undertaken. The offences
indicated were under Sections 498A, 304B read with Section
34 of the Indian Penal Code, 1860 (in short the ’IPC’) and
Section 4 of the Dowry Prohibition Act, (in short ’the Act’)
Respondent no.2-Bimal was arrested on 3.10.2005. Rest of
the accused persons were found to be absconding and police
having failed to arrest them in spite of issuance of non-
bailable warrants of arrest made an application in terms of
Sections 82 and 83 of the Code of Criminal Procedure, 1973
(in short ’Cr.P.C.’) was filed. On 16.12.2005 father-in-law of
the deceased Kailash Khetan and mother-in-law Kanta Khetan
filed application in terms of Section 438 Cr.P.C. before the
High Court which was rejected. Process under Section 82 of
the Cr.P.C. was issued by the learned ADJM on 19.12.2005.
On 16.1.2006 respondent no.2 Bimal filed application for bail
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which was rejected on the ground that investigation was still
in progress. Liberty was granted to the accused to move the
Sessions Judge for bail after completion of investigation and
submission of final form. On 24.1.2006 application in terms
of Section 438 was filed by Sunil Kumar (respondent no.2 in
the connected appeals) and Sujata Khetan. The same were
rejected by order dated 24.1.2006. An application under
Section 438 Cr.P.C. was filed by Kailash and Kanta. The same
was again rejected by the High Court. On 27.1.2006 the Trial
Court issued orders in terms of Section 83 Cr.P.C. to attach
the moveable properties of the accused. On 30.1.2006 the
investigating officer submitted the charge-sheet/final report
before the learned SDJM indicating that a prima facie case has
been made against the respondent No.2-Bimal Kumar
Kailashnath (father-in-law), Kanta Devi (mother-in-law), Sunil
(brother-in-law) the respondent no.2 in the connected appeal
under Sections 498A, 304B, 302, 406 read with Section 34
IPC and Section 4 of the D.P. Act. The prosecution made a
further prayer to permit investigation in terms of Section
173(8) Cr.P.C. since some of the accused persons were still
absconding and were not arrested. After surrendering, Kanta
Khetan and Sujata Devi filed application for bail. The same
was rejected by learned SDJM. Learned Sessions Judge also
rejected the bail application. The applications filed by
Kailashnath and Sunil were also subsequently rejected. On
13.2.2006, respondent no.2 Bimal filed fresh bail application
before the Sessions Court, which was rejected. The learned
Additional Sessions Judge took note of factual position which
according to him were relevant for the purpose of rejecting the
bail application. It was noted that strong case under Section
302/304B IPC was made out. Sujata Devi filed bail petition
before the High Court after rejection of bail application by the
Sessions Judge. The High Court by order dated 6.3.2006
granted bail to her.
Interestingly, it was noted that the order was not to be
treated as a precedent so far as other accused persons are
concerned. The correctness of such a direction shall be dealt
with later. It is to be noted that on 22.3.2006 Kanta Devi
moved the High Court for bail. The High Court granted the
bail imposing condition similar to those which were stipulated
in case of Sujata Devi. Accused Sunil Kumar moved the High
Court for regular bail. By order dated 7.4.2006 the prayer was
rejected but liberty was granted to renew his prayer for bail
after the case was committed to the Court of Sessions. On
21.4.2006 the High Court granted bail to Kailashnath on the
ground that he was aged and was sick. Here again, the High
Court passed an order to the effect that same was not to be
treated as a precedent so far as other accused persons are
concerned. On 3.5.2006 accused Sunil Kumar moved the
Sessions Court for bail on the ground that his father requires
further treatment at Apollo Hospital and there was no male
member to accompany him. The learned Sessions Judge
rejected the prayer of bail by order dated 3.5.2006 suspecting
genuineness of the documents filed. It was noted that report
was dated 30.6.2006 i.e. date put on the advisory report, while
the application was made earlier. Because of this suspicious
document, the application for bail was rejected.
On 10.5.2006 another application for bail was moved by
respondent no.2 Bimal Kumar after case was committed to the
Court of Sessions. Learned Additional Sessions Judge rejected
the prayer in view of the fact that no changed circumstances
have been shown. On 18.5.2006 accused Sunil moved the
High Court for bail. The order granting bail to him is the
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subject-matter of challenge in one of the appeals.
The date for framing of charge was fixed to 6.6.2006.
Accused Bimal filed bail application before the High Court. By
order dated 22.6.2006 bail has been granted. The orders
passed in the cases of Bimal and Sunil read as follows:
Bimal’s case
"Heard learned counsel for the petitioner
and learned counsel for the State.
Mr. Dhal, learned counsel for the
petitioner submits that the cause of death
was not known and the other accused
persons have been released on bail, so the
present petitioner also be released on bail.
Mr. Naik, learned counsel for the
informant, at the other hand, strongly
repudiates the submissions made by Mr. Dhal
and submit that though cause of the death
was not known and causing suspicion, but
some blood stained clothes were found.
Considering the submissions made and
perusing the materials available and in the
peculiar facts and circumstances of the case,
I direct that the petitioner, who is in custody
for ten months, be released on bail on
executing a bond of Rs.50,000/- (Rupees Fifty
thousand) with two local sureties each for the
like amount to the satisfaction of the learned
Addl. Sessions Judge, Jharsuguda in S.T.
case No.24/2006. With further conditions
that he shall not threaten or coerce the
witnesses, shall not indulge in any criminal
activity, shall appear in court on each date to
which the case stands posted for trial and
shall cooperate with the investigation.
Deviation of any of the conditions shall entail
cancellation of bail.
The PLAPL is disposed of."
(Underlined for emphasis)
Sunil’s case
"Perused the case diary and other
materials available on record. The petitioner
is the brother-in-law. He is in custody for
quite some time. In the peculiar facts and
circumstances of the case I direct that the
petitioner who is in custody be released on
bail on his executing bond for Rs.25,000/-
(Rupees Twenty five thousand) with two local
sureties, each for the like amount to the
satisfaction of the Court below, with further
conditions that he shall not indulge in any
criminal activity, shall appear before the
Court on each date to which the case will be
posted for trial. Violation of any of the above
conditions will entail cancellation of bail.
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This order shall however not be treated
as precedent so far as husband is concerned."
(Underlined for emphasis)
Learned counsel for the appellant submitted that no
reason has been indicated by the High Court for granting bail
except stating that " in the peculiar facts and circumstances of
the case" the bail was being grated because the accused is in
custody for ten months". Similar is the case of Sunil Kumar.
It is urged that as to what the peculiar facts and
circumstances of the case are, the High Court did not indicate
even it did not refer to the various orders passed earlier by the
learned Additional Sessions Jude and by the High Court on
the earlier occasions. Even factually the High Court is not
correct in stating that the accused was in custody for ten
months. In fact, he was arrested on 3.10.2005 and the date of
order is 22.6.2006.
Learned counsel for respondent no.2 submitted that
though the High Court order’s prima facie does not disclose
reasons, the various materials were placed in support of the
prayer for bail which were not considered. According to him
High Court was justified in granting bail. The Hon’ble Judge
had earlier dealt with the matter and was, therefore,
conversant with the materials on record. That probably is the
reason for holding that peculiar circumstances existed.
This Court had occasion to deal with similar casual
disposal of the bail application.
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
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
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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)".
These aspects were recently highlighted 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)] and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias
Pappu Yadav & Anr. [JT 2004 (3) SC 442].
The above position was highlighted by this Court in
Chaman Lal v. State of U.P. and Anr. (JT 2004 (6) SC 540), and
in Kamaljit Singh v. State of Punjab and Anr. (2005 (7) SCC
326).
In the case of Sunil the order is still more queer. Bail was
granted to him as he was the brother-in-law and has been in
custody for quite some time.
The least that the High Court could have done is to refer
to the earlier orders and, in fact, as to how the scenario had
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changed to warrant a departure from the earlier view
expressed. That apparently has not been done. In case of
Sunil, learned Additional Sessions Judge, had observed as to
how the non-genuine documents were pressed into service
while applying for bail. That aspect has not been even noted
by the High Court.
Nothing more is needed at this stage to set aside the
impugned order of the High Court.
What is more baffling is that in the impugned orders
there is no mention about the States’ stand. Was it a silent
spectator before the High Court? Similar callousness was
deprecated by this Court in Salim Khan v. Sanjai Singh and
Anr. (2002 (9) SCC 670).
While allowing these appeals we direct reconsideration of
the applications for bail by the High Court in accordance with
law keeping in view the principles set out above.
Before parting the appeals we would take note of the
direction by the High Court that its order is not to be treated
as a precedent. In fairly well settled that orders of bail are not
necessarily orders of any precedent value. Apart from that the
correcting of orders stating that they shall not be treated as a
precedent has been dealt by this Court.
In State of Punjab and Anr. v. Rajesh Syal [2002 (8) SCC
158] it was observed as follows:
"Before concluding, we would like to
observe, with respect, that by directing that
the order which was passed in V.K. Sharma
case [(2000) 9 SCC 449] should not be treated
as a precedent implies that the said order is
otherwise not in accordance with law and
therefore should not be regarded as a
precedent. This Court has ample jurisdiction
to pass orders under Article 142(1) of the
Constitution which may be necessary for
doing complete justice in any case or matter.
But even in exercising this power, it is more
than doubtful that an order can be passed
contrary to law. In V.K. Sharma case this
Court did not purport to exercise any
jurisdiction under Article 142. The decision
to direct the applicant to file applications to
be moved for consolidation of the cases
pending in different courts for different
offences to be tried in a single court was not
in accordance with law, and the said decision
in V.K. Sharma and that of P.K. Sharma (WP
(Crl.) Nos. 72-75 of 2000, dated 5.5.2000 (SC)
are overruled."
The appeals are accordingly allowed.