2004 JTR(SC) 880
2004 21 AIC 31 ; 2004 4 AICLR 34 ; 2004 AIR(Jhar)(R) 2548 ; 2004 AIR(SC) 4267 ; 2004 AIR(SCW) 4705 ; 2004 2 ALD(Cri)(SC) 599 ; 2004 AllLJ 3242 ; 2004 AllMR(Cri)(SC) 3167 ; 2004 4 BBCJ(SC) 239 ; 2004 3 CCR(SC) 135 ; 2004 4 CriCC 364 ; 2004 3 Crimes(SC) 225 ; 2004 CrLJ 4243 ; 2004 3 JCC 1309 ; 2004 4 JLJR(SC) 52 ; 2004 6 JT 540 ; 2004 2 OLR 463 ; 2004 4 PLJR(SC) 130 ; 2004 3 RCR(Cri) 984 ; 2004 3 RLW(Raj) 477 ; 2004 7 Scale 13 ; 2004 7 SCC 525 ; 2004 SCC(Cri) 1974 ; 2004 SCR 584 ; 2004 2 WLC 587 ; 2004 KHC 1518 ; 2004 2 KLT(Online) 1233 ; 2004 6 Supreme 186
2004(6) Supreme 186
SUPREME COURT OF INDIA
(From Allahabad High Court)
Arijit Pasayat & C.K. Thakker, JJ.
Chaman Lal -Appellant
versus
State of U.P. and Anr. -Respondents
Criminal Appeal No. 896 of 2004
(Arising out of SLP (Crl.) No. 4016/2003)
Decided on 16-8-2004
Counsel for the Parties :
For the Appellant : Amarendra Sharan, Sr. Advocate, R.K. Kapur, B.R. Kapur, M.K. Verma and Sudarsh Menon, Advocates.
For the State : Sahdev Singh and Jatinder Kumar Bhatia, Advocates.
For the Respondent No.2 : W.A. Nomani, Advocate.
IMPORTANT POINT
There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where accused was charged of having committed a serious offence.
Act Referred :CRIMINAL PROCEDURE CODE : S.439(2)
(A) The provisions of the Code of Criminal Procedure, 1973, specifically Section 439(2), govern the exercise of jurisdiction to grant bail by higher courts while also framing the parameters within which such discretion must be exercised. Read in conjunction with the classification of offences as bailable or non-bailable under Section 2(a), the statutory framework mandates a structured and reasoned approach when an accused challenges an order or seeks interim liberty. In the present context, these provisions are directly invoked to scrutinize the validity of the interim relief granted and to ensure that the judicial discretion is not exercised arbitrarily.
(B) Key legal principles include that the grant of bail is an exception to the rule of detention and must be justified by the existence of a prima facie case. The court is required to consider the nature and severity of the accusation, the strength of the supporting evidence, the possibility of tampering with witnesses or intimidating complainants, and must record reasons for its decision. An order that fails to apply its mind to these factors is unsustainable and suffers from apparent perversity.
Facts of the case:
The deceased was engaged in money lending and had advanced a loan to one of the accused. The deceased was subsequently called to a factory by the accused, where he was shot and killed by the accused respondent and others. Following an FIR lodged by a non-eyewitness and the eventual charging of the accused under Sections 302 and 120-B of the Indian Penal Code, the accused moved for bail. The learned Sessions Judge granted bail, a decision that was subsequently challenged before the High Court.
Findings of Court:
The High Court issued a cryptic order granting bail without examining the facts or indicating any reasons for its decision. The Court observed that the order was wholly devoid of any analysis or application of mind regarding the seriousness of the offences and the relevant statutory considerations. Such an approach undermines the judicial process and fails to meet the minimal standards required for an interim liberty order.
Issues:
Whether an appellate court can interfere with an unreasoned order of the High Court granting bail in a serious case. Whether the High Court properly exercised its discretion under Section 439(2) of the Code by considering the relevant factors and recording satisfactory reasons for granting bail.
Ratio Decidendi:
The discretion to grant bail at the appellate level is not absolute and must be exercised judiciously. An order granting interim liberty must indicate reasons based on the prima facie appreciation of the case, particularly where the accused is charged with grave offences. A non-reasoned order is inherently defective and liable to be set aside.
Result:
The appeal is allowed. The impugned order of the High Court is set aside, the bail bonds are cancelled, and the accused is directed to surrender to custody immediately.
(A) The provisions of the Code of Criminal Procedure, 1973, specifically Section 439(2), govern the exercise of jurisdiction to grant bail by higher courts while also framing the parameters within which such discretion must be exercised. Read in conjunction with the classification of offences as bailable or non-bailable under Section 2(a), the statutory framework mandates a structured and reasoned approach when an accused challenges an order or seeks interim liberty. In the present context, these provisions are directly invoked to scrutinize the validity of the interim relief granted and to ensure that the judicial discretion is not exercised arbitrarily.
(B) Key legal principles include that the grant of bail is an exception to the rule of detention and must be justified by the existence of a prima facie case. The court is required to consider the nature and severity of the accusation, the strength of the supporting evidence, the possibility of tampering with witnesses or intimidating complainants, and must record reasons for its decision. An order that fails to apply its mind to these factors is unsustainable and suffers from apparent perversity.
Facts of the case:
The deceased was engaged in money lending and had advanced a loan to one of the accused. The deceased was subsequently called to a factory by the accused, where he was shot and killed by the accused respondent and others. Following an FIR lodged by a non-eyewitness and the eventual charging of the accused under Sections 302 and 120-B of the Indian Penal Code, the accused moved for bail. The learned Sessions Judge granted bail, a decision that was subsequently challenged before the High Court.
Findings of Court:
The High Court issued a cryptic order granting bail without examining the facts or indicating any reasons for its decision. The Court observed that the order was wholly devoid of any analysis or application of mind regarding the seriousness of the offences and the relevant statutory considerations. Such an approach undermines the judicial process and fails to meet the minimal standards required for an interim liberty order.
Issues:
Whether an appellate court can interfere with an unreasoned order of the High Court granting bail in a serious case. Whether the High Court properly exercised its discretion under Section 439(2) of the Code by considering the relevant factors and recording satisfactory reasons for granting bail.
Ratio Decidendi:
The discretion to grant bail at the appellate level is not absolute and must be exercised judiciously. An order granting interim liberty must indicate reasons based on the prima facie appreciation of the case, particularly where the accused is charged with grave offences. A non-reasoned order is inherently defective and liable to be set aside.
Result:
The appeal is allowed. The impugned order of the High Court is set aside, the bail bonds are cancelled, and the accused is directed to surrender to custody immediately.
JUDGMENT
Arijit Pasayat, J.-Leave granted.
2. Grant of bail to respondent No.2 (hereinafter referred to as accused ) has been challenged in this appeal.
3. Background facts as projected by the appellant essentially are as follows:-
One Prem Kumar (hereinafter referred to as the deceased ) was engaged in the business of money lending. He had advanced a loan of Rs. 2 lakhs to one of the accused persons named Naeem. On 11.3.2003, the deceased was called to the factory of one Kamil, where the accused Naeem was working as a contractor, by telephone call which was purportedly made by the accused Naeem. When the deceased went to that place, he was shot at by respondent No.2, accused - Meer Hasan and one other accused named Wasim. Accused-respondent No.2 shot the fatal shot. On the basis of statements made by three persons namely Nawab, Tulshi Ram and Harish Kakkar the respondent No.2 was taken to custody. The first information report was lodged by a person who was not an eye witness. In the first information report, it was indicated that unknown assailants killed the deceased. After arrest the accused Meer Hasan filed application for bail before the learned Sessions Judge, Saharanpur, which was rejected. On being moved by the accused Meer Hasan-respondent No.2, by the impugned judgment, a learned Single Judge has granted bail to him.
4. According to the appellant, without even discussing the facts which weighed with learned Sessions Judge, the High Court by a cryptic order has granted bail. The only stand taken by the accused, during hearing of the bail application was that he was not named in the FIR and subsequently his name has been disclosed in the statements, recorded under Section 161 of the Code of Criminal Procedure, 1973, (in short the Code ) after three days. The accused was charged for commission of offence punishable under Sections 302/120B of the Indian Penal Code, 1860 (in short the IPC ). It is submitted that the grant of bail will obstruct the course of justice and this is not a case where grant of bail was justified.
5. In response learned counsel for the respondent No.2-accused submitted that bail has been granted taking into consideration relevant aspects and the order is operative since 5.8.2003 without any allegation of any abuse of the liberty granted by the order of bail. That being so it is submitted that no interference is called for.
6. There is no definition of the word Bail in the Code, although offences are classified as Bailable and Non-Bailable . Section 2(a) defines Bailable Offence to mean an offence which is known as bailable in the first schedule or which is made bailable by any other law for the time being in force and "Non-Bailable Offence" means any other offence.
7. Impugned order of the High Court reads as follows;
"Applicant s counsel submits that applicant is not named in the F.I.R. and subsequently his name has been disclosed in the statement recorded under Section 161 Cr.P.C. after 3 days.
Considering the facts and circumstances of the case and without expressing any opinion in the merits of the case applicant is admitted to bail.
Let the applicant Meer Hasan @ Faddar involved in case Crime No. 90/2003 under Sections 302/120-B I.P.C. P.S. Mandi District Saharanpur be released on bail on his executing a personal bond and on furnishing two sureties each in the like amount to the satisfaction of court concerned."
8. 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.
9. 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.
10. 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].
11. 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.
12. Above being the position, the cryptic non-reasoned order of the High Court, is clearly indefensible.
13. The impugned order of the High Court is set aside. The bail bonds of the respondent No.2 - accused are cancelled and he is directed to surrender to custody forthwith and in case he does not do so it shall be the duty of the respondent No.1 - State to take him to custody immediately. We make it clear that we have not expressed any opinion on the merits of the case. Learned counsel for the respondent No.2 submitted that after charge-sheet is placed and/or charge is framed, the accused shall move for bail afresh. If it is so done, it goes without saying the same shall be considered on its own merit in accordance with law, about which we express no opinion.
Appeal is accordingly allowed.
Appeal allowed.
****************
00052
00053