MEENA DEVI vs. THE STATE OF UTTAR PRADESH

CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 808 OF 2022 [ARISING OUT OF PETITION FOR SPECIAL LEAVE TO APPEAL (CRIMINAL) NO. 5102 OF 2019 MEENA DEVI ..... APPELLANT VERSUS THE STATE OF U.P. AND ANOTHER ..... RESPONDENTS J U D G M E N T Hima Kohli J. 1. Leave granted. th 2. This appeal is directed against the order dated 19 September, 2018 passed by the learned Single Judge of the High Court of Allahabad in Criminal Miscellaneous Bail Application No. 609 of 2018 whereunder the application filed by the respondent No. 2 under Section 439 of the 1 Criminal Procedure Code was allowed and he was enlarged on bail subject to certain conditions stipulated therein. The original complainant, wife of the deceased has preferred this appeal by way of special leave Signature Not Verified Digitally signed by satish kumar yadav Date: 2022.11.17 17:04:00 IST Reason: against the said order before this Court. 1 For short ‘the Cr.P.C.’ Page 1 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 3. Initially, petitions for special leave to appeal were filed against two respondents namely, Shivraj Singh alias Lalla Babu [respondent No. 2] nd and Sonu [respondent No. 3]. However, by an order dated 2 July, 2019, the petition qua the respondent No. 3 was dismissed and notice was issued in respect of the second respondent while taking note of the th fact that vide judgment dated 20 December, 2012, passed by this Court in Criminal Appeal No. 1416 of 2012, bail granted to the said respondent had been cancelled. As a result, Petition for Special Leave to Appeal (Crl.) No. 5103 of 2019 filed by the respondent No. 3 was disposed of. 4. On the basis of a complaint made by Smt. Meena Devi, wife of the deceased, FIR No. 173 of 2012 was registered at P.S. Civil Lines, District Badaun for the offence punishable under Section 302 of the 2 Indian Penal Code . It was stated by the appellant/complainant that when she and her husband, Narain Singh were returning home on a th motorcycle in the evening of 16 June, 2012, after having visited Badaun where he was to appear in the Court in a case pending trial against the respondent No. 2 herein, four out of the five accused persons came in a Jeep, intercepted them and started firing gunshots at Narain Singh on point blank range. Though the complainant’s brother, Sanjeev Kumar Singh accompanied by one Hari Singh, who were following the 2 For short ‘the IPC’ Page 2 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 deceased and his wife, had tried to save him and take him to the District Hospital, he succumbed to the injuries on route. The complainant stated that the dispute between the parties related to the ownership of a school namely, Janta Junior High School, Madhukar Police Station, Tehsil Shahbad, where her husband was employed as the Head Master. th Earlier, on 13 December, 2011, the same set of the accused persons had abducted her husband from Asafpur Railway Station, Faizganj, Behata. Respondent No. 2 who claimed ownership of the aforesaid school was instrumental in the said abduction. A case relating to the said abduction was pending trial in a Court in Badaun where the deceased was the prime witness. While in detention in jail at Badaun, respondent No. 2 had hatched a conspiracy with four co-accused persons and planned to eliminate the deceased against whom he bore a grudge of having deposed against him as a witness in the kidnapping case. 5. After the investigation was complete in FIR No.173 of 2012, the respondent No.2 was charged with the offence under Section 302 read with 149 and 120B IPC. Charges were framed against him and the co- rd accused persons on 3 January, 2014. During the trial, respondent th No.2 was admitted to bail. Vide common judgment dated 6 January, 2018, the Sessions Court held the respondent No. 2 and the other co- Page 3 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 accused persons as guilty for the offence under Section 302 read with Sections 149 and 120B IPC. Respondent No.2 was sentenced to undergo life imprisonment. Resultantly, bail granted to the respondent No. 2 and three other co-accused was cancelled. 6. The role of the respondent No. 2 in having hatched a conspiracy with the other co-accused persons of shooting down the deceased, has th been elaborately dealt with in paras 53 to 55 of the judgment dated 6 January, 2018 passed by the Learned Additional Sessions Judge, Badaun wherein the testimonies of the three eye witnesses namely, P.W.-1, the appellant/complainant herein, P.W.-2, Sanjeev Kumar Singh (brother of the complainant) and P.W.-3, Hari Singh who was accompanying P.W.-2, were considered extensively and it was observed that there was a past history of enmity between the deceased and the respondent No.2 relating to the management of the school. The deceased had even lodged a complaint of his attempted abduction against the respondent No.2. Respondent No. 2 had also got FIR Nos. 343/2003 registered against the deceased under Sections 420, 468, 469 and 471 IPC and the latter was even arrested by the police in the said case. Reference was also made by the trial Court to a letter sent by the respondent No. 2 from jail, threatening to eliminate the deceased. Thus motive to eliminate the deceased due to the past grudge was Page 4 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 established against the respondent No. 2 who was indicated in the crime alongwith the other co-accused who were closely related to him. 7. Aggrieved by the judgment of conviction and order of sentence passed by the trial Court, respondent No. 2 herein and the other accused persons preferred appeals before the High Court, registered as Criminal Appeal Nos. 609 and 610 of 2018. Accompanying the said appeals, were applications moved by them for grant of regular bail. In the impugned order, the High Court has recorded the following submissions made by the learned counsel for the respondent No.2 :- “The contention of counsel for the appellant is that the appellant was on bail during the trial and he has not abused or misused the liberty of bail granted to him. However, he has a criminal history of 28 cases including the present two cases which have been explained in paragraph 36. The further contention is that if the prosecution story is believed to be true in toto, the only role assigned to the appellant is of hatching a conspiracy. The further contention is that the role of conspiracy has also been assigned only after the letter was received after three days of the incident and that is also a photostat copy. The original letter has not seen the day of light. There is no explanation regarding the original letter.” 8. The said bail application was vehemently opposed by the learned counsel who appeared for the appellant/complainant herein and made the following submissions before the High Court:- “The learned counsel for the complainant submitted that the appellant is a hardened criminal but he does not dispute the fact that the only role assigned to the appellant is that of hatching a conspiracy and that too from a jail. The appellant is hereby restrained to approach the complainant or his family members to threaten them. If threat is extended to the complainant or his family members, liberty is given to Page 5 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 the complainant to move a bail cancellation application before this Court.” 9. After noting the submissions of learned counsel for the respondent No. 2 and counsel for the complainant and recording that the learned counsel for the State had also opposed the prayer for bail, the High Court proceeded to pass the following order: - “In view of the aforesaid, let the appellant - Shivraj Singh alias Lalla Babu convicted and sentenced in S.T. No. 523 of 2013 arising out of Case Crime No. 605 of 2012 under Section 302/149, 120B IPC, Police State Civil Lines, District Badaun be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned.” 10. Assailing the impugned order, Ms. Abha R. Sharma, learned counsel appearing for the appellant/complainant has submitted that the High Court failed to offer any reasons for exercising its discretion in favour of the respondent No.2 and granting him bail; that there was sufficient evidence brought on record before the trial Court which would leave no manner of doubt that the appellant’s husband had been shot dead in broad daylight on account of a conspiracy hatched by the respondent No.2 with the co-accused persons who were closely related to him, while he was still in jail; that the deceased had suffered six firearm injuries at the hands of the other co-accused persons who had acted specifically on the instructions of the respondent No.2; that the High Court has overlooked the fact that the respondent No. 2 is a Page 6 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 history-sheeter who is involved in several criminal cases; that the trial Court having held the respondent No. 2 as guilty for the offence under Section 302 read with 149 IPC, there was sufficient material on record for declining him the relief of bail. Lastly, learned counsel for the appellant/complainant handed over a copy of FIR No.517 of 2019 registered at P.S. Shahabad District Rampur against the respondent No. 2 and four others stating that he had extended a threat to one of the eye th witnesses in the case namely, Hari Singh [P.W. 3] on 24 November, 2019 when he was going with his wife to the local market and he was warned not to appear and depose against respondent No.2 in the abduction case of the deceased Narain Singh, that was pending trial. 11. Respondent No.1-State has filed a counter affidavit and an additional affidavit supporting the present appeals by way of special leave. Mr. Sanjay Kumar Tyagi, learned counsel for the State has pointed out that the impugned order is a cryptic one and unsustainable as the High Court has failed to consider the nature of the accusations levelled against the respondent No.2, the gravity of the crime and the severity of the punishment imposed upon him and the fact that there is reasonable apprehension to the life of the appellant and the other eye witnesses. Learned counsel alluded to a case registered against the respondent No.2 at P.S. Shahbad, District Rampur, under Sections 364 Page 7 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 and 506 IPC bearing FIR No. 450 of 2019 and stated that the bail application moved by him in the said case was rejected by the court of the learned Additional Sessions Judge, Badaun, taking note of the fact that he is a history-sheeter and involved in a number of criminal cases. Thereafter, respondent No. 2 had filed Bail Application No. 28461 of th 2011 before the High Court and vide order dated 26 April, 2012, he was enlarged on bail. Aggrieved by the aforesaid order, Ash Mohammed, the complainant in the said case, had filed Criminal Appeal No.1456 of 2012 th before this Court which was allowed vide order dated 20 September, 2012 and the bail granted to the respondent No. 2 was cancelled. 12. With the additional affidavit filed by the respondent No.1- State, in th terms of the order dated 16 March, 2022, dilating upon the criminal antecedents of the respondent No.2 described in the counter affidavit as a hardened criminal with 25 criminal cases of serious nature registered against him in different police stations of different districts in the State of Uttar Pradesh, a tabulated statement of 37 criminal cases registered against the said respondent in different districts across the State of Uttar Pradesh has been filed. Learned State counsel has thus urged that bail granted in favour of the respondent No.2 ought to be cancelled forthwith. Page 8 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 13. On the other hand, Ms. Revathy Raghavan, learned counsel appearing for the respondent No. 2 seeks to defend the impugned order stating that the same has been passed being mindful of his advanced age and the fact that he is suffering from several old age ailments. She submitted that there are no special supervening circumstances that would justify cancellation of the bail granted to the respondent No.2 who had fully cooperated during the trial. She further stated that from out of the list of 37 criminal cases registered against the respondent No.2, as furnished by the respondent No.1 – State, he has been acquittal in quite a few and some are still pending trial and that he has a good case on merits even in the pending appeal where he has been extended the benefit of bail by virtue of the impugned order. Therefore, the discretion exercised by the High Court in favour of the respondent No. 2 does not deserve any interference. 14. We have given our thoughtful consideration to the rival submissions of learned counsel for the appellant – complainant, respondent No.1 – State and the respondent No. 2 – accused and have carefully examined the record. 15. This Court is called upon to decide as to whether the High Court has rightly exercised the power conferred under Section 439 of the Page 9 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 Cr.P.C for granting bail in favour of the respondent No. 2 in the given facts of the case. 16. It cannot be gainsaid that the power to grant bail under Section 439 Cr.P.C. is wide ranging. Nonetheless, it has been consistently emphasized in several judicial verdicts that exercise of the said discretionary powers vested in the Court when considering grant of bail, ought to be in a judicious manner and not as a matter of course. In Ram 3 Govind Upadhyay v. Sudarshan Singh And Others , a Division Bench of this Court had laid down the following guiding principles while exercising the power to grant bail:- “3. Grant of bail though being a discretionary order – but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case…… The nature of the offence is one of the basic considerations for the grant of bail – more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter. 4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The consideration being: (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. 3 (2002) 3 SCC 598, Page 10 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 (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. (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.” 17. Holding as above, the Court went on to consider the guiding factors when called upon to assess the validity of an order passed by the High Court granting bail and has opined that ordinarily, this Court would refrain from interfering with an order passed by the High Court, either granting or rejecting the relief of bail to an accused. However, wherever it is noticed that such a discretion has been exercised by the High Court without proper application of mind or in contravention of the directions issued by this Court, such an order shall be susceptible to interference. 18. In a recent decision, authored by one of us (Dr. D.Y. Chandrachud, 4 J.) in Mahipal v. Rajesh Kumar alias Polia And Another , a case where the offence committed was under Section 302 of the IPC, trial was pending before the Sessions Court and the bail application filed by the 4 (2020) 2 SCC 118 Page 11 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 respondent was rejected by the learned Additional Sessions Judge but was subsequently allowed by the High Court, the following pertinent observations have been made :

xxx

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5 19. In Prasanta Kumar Sarkar v. Ashis Chatterjee And Another , where the accused was facing trial for an offence punishable under Section 302 of the IPC and though his persistent bail applications were rejected by the trial Court, the High Court had granted him bail, which order was set aside by a Division Bench of this Court, the following guidelines were enunciated for assessing the correctness of an order passed by the High Court while granting bail:

5 (2010) 14 SCC 496 Page 13 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 20. The aforesaid principles have been underscored in several decisions rendered by this Court including Kalyan Chandra Sarkar v. 6 Rajesh Ranjan alias Pappu Yadav and Another , Narendra K. Amin 7 (Dr.) v. State of Gujarat and Another , Dipak Shubhashchandra 8 Mehta v. Central Bureau of Investigation and Another , Abdul Basit alias Raju and Others v. Mohd. Abdul Kadir Chaudhary and 9 10 Another , Neeru Yadav v. State of Uttar Pradesh and Another , Anil 11 Kumar Yadav v. State (NCT of Delhi) and Another , Mahipal v. 12 Rajesh Kumar alias Polia and Another , and as recently as in Jagjeet 13 Singh and Others v. Ashish Mishra alias Monu and Another , Ms. Y. 14 v. State of Rajasthan and Another and Ms. P. v. State of Madhya 15 Pradesh and Another . 21. At the cost of repetition, it may be highlighted that the considerations that weigh with the Appellate Court when called upon to examine the correctness of an order granting bail is not on the same footing when it comes to examining an application moved for cancellation 6 (2004) 7 SCC 528 7 (2008) 13 SCC 584 8 (2012) 4 SCC 134 9 (2014) 10 SCC 754 10 ( 2014) 16 SCC 508 (2018) 12 SCC 129 11 12 (2020) 2 SCC 118 13 (2022) SCC online SC 453 14 2022 SCC OnLine SC 458 15 Criminal Appeal No.740 of 2022 (arising out of SLP (Crl.) No. 3564 of 2022) decided on 05.05.2022. Page 14 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 of bail. The yardstick for testing the correctness of an order granting bail is whether the court below has exercised its discretion in an improper or arbitrary manner thereby vitiating the said order. When it comes to assessing an application seeking cancellation of bail, the Appellate Court looks out for, amongst others, supervening circumstances or any violation of the conditions of bail imposed on the person who has been accorded such a relief. In this context, we may profitably cite the decision of a Division Bench of this Court in Prakash Kadam and 16 Others v. Ramprasad Vishwanath Gupta and Another , where it was held thus :

22. The aforesaid principles guiding the grant of bail have been 17 restated in Neeru Yadav v. State of Uttar Pradesh And Another , in the following words: 16 (2011) 6 SCC 189 17 (2014) 16 SCC 508 Page 15 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019

23. In a recent decision of a three Judge Bench of this Court in Imran 18 v. Mohammed Bhava and Another it has been held as follows:

18 2022 SCC Online SC 496 Page 16 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019

24. Coming back to the case in hand, a glance at the impugned order passed by the High Court is to state the least, cryptic and non-speaking, Page 17 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 amply demonstrating non-application of mind. The High Court appears to have shut its eyes to the common submissions made by learned counsel for the appellant/complainant and the counsel for the State that the respondent No.2 is a hardened criminal with several cases registered against him. Enclosed with the additional affidavit filed by the respondent No. 1- State, is a list of cases registered against the respondent No. 2 which reveals that he has faced / is still facing trial in the following thirty-seven cases registered against him under the IPC, The Arms Act, 1959, The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, The U.P. Control of Goondas Act, 1970, The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, etc., where the offences are grave in nature:-

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continuing to face trial in the remaining cases.

2011 registered against the respondent No.2 for offences under Sections 364 and 506 IPC, the bail application moved by him was rejected by the learned Additional Sessions Judge, Rampur. When the respondent No.2 moved a similar application before the High Court under Section 439 of

Aggrieved by the said order, the complainant therein, Ash Mohammed preferred an appeal before this Court registered as Criminal Appeal No.1456 of 2012. After taking into consideration the involvement of the respondent No.2 in several crimes, duly extracted in para 27 of the

the order granting bail to the respondent No.2, and had set aside the 19 (2012) 9 SCC 446 Page 20 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 impugned order. Speaking for the Bench, Justice Dipak Misra (as the then Hon’ble Chief Justice was) held as under:

27. It is also noteworthy that in the past decade, six cases more have been registered against the respondent No.2, as would be apparent from a comparison of the list forming a part of the order in the case of Ash

relevant to note that the list that has been furnished to this Court by the respondent No.1-State, does not mention eleven cases that had been mentioned in the list of cases pending against the respondent No.2 and

Sr. Nos. 4, 12, 17 and 23 to 30. If the said cases are added to the current list of thirty-seven criminal cases registered against the Page 21 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 respondent No.2, the number of criminal cases registered against the him would swell to fifty.

observe that the High Court has failed to factor in the relevant material before passing an order enlarging the respondent No.2 on bail. Not just that, the High Court has seriously erred in not offering any reason, good, bad or indifferent, for exercising its discretion in favour of the said respondent. There is no reference made to any particular element that has persuaded the High Court to pass the impugned order granting bail to the respondent No.2. Mechanically recording the submissions made by the learned counsel for the accused and the complainant and noting the protest of the learned counsel for the State and thereafter proceeding to release the respondent No.2 on bail by pre-fixing the

hardly reflect application of judicial mind by the Court. As an Appellate Court, we are completely at seas to discern the factors that have weighed with the High Court to enlarge the respondent No.2 on bail.

unreasoned order, this Court held that: - “ 8. …Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the 20 (2001) 6 SCC 338 Page 22 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 merits of the case ha not to be undertaken. What the Additional Sessions Judge ad done in the order dated 11-9- 2000 was to discuss the merits and demerits of the evidence. That was what was deprecated. That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated.”

stressed the necessity of recording reasons for granting bail in offences that are non-bailable in nature in the following words: -

21 (2004) 7 SCC 528 Page 23 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019

32. In the instant case, looking at the gravity of the offence committed by the respondent No. 2 under Section 302 of the IPC for which he has been convicted by the trial Court and awarded a sentence of life imprisonment and noting that the period of custody undergone by him is only for nine months and further, having regard to his criminal antecedents, we have no hesitation in quashing and setting aside the th impugned order dated 19 September, 2018 passed by the High Court. The bail bonds of the respondent No.2 are cancelled and he is directed to surrender forthwith. The appeal is disposed of in the above terms. 33. Before parting with the case, it is clarified that the present judgment shall not be treated as an expression on the merits of the th appeal preferred by the respondent No.2 against the judgment dated 6 January, 2018 passed by the Sessions Court, which is pending consideration before the High Court. It is also clarified that this order shall also not preclude the respondent No.2 from applying afresh for bail at a later stage, if any, new circumstances are brought to light. Page 24 of 25 CRIMINAL APPEAL NO. OF 2022 @ SLP(CRL.) NO. 5102 OF 2019 34. A copy of this judgment shall be forwarded to the High Court and the concerned Police Station for perusal and compliance. ….….................................. .J. [DR. D. Y. CHANDRACHUD] ……................................... J. [HIMA KOHLI] New Delhi, May 13, 2022 Page 25 of 25