[2009] 6 S.C.R. 1030

MASROOR

..... -

STATE OF U.P. & ANR. (Criminal Appeal No. 838 of 2009)

APRIL 27, 2009

[D.K. JAIN AND R.M. LODHA, JJ.]

Code of Criminal Procedure, 1973 - s. 439 - Bail - Prosecution of accused u/ss. 147, 148, 149, 302 and 307 /PC c - Bail granted by High Coult - On appeal, held: Bail granted ignoring basic principles for grant of bail - In view of nature of offence and in the background in which it was committed, bail should not have been granted Bail - Grant of - Criteria for - Discussed.

D Respondent No. 2-accused alongwith 21 accused, ...

,...

was prosecuted u/s. 147, 148, 149, 302 and 307 IPC. Bail application of the respondent-accused was rejected by Sessions Judge. However, bail was granted by High

E Court. Hence, the present appeal by the complainant seeking cancellation of bail.

Allowing the appeal, the Court

HELD: 1.1. Normally this Court does not interfere

"I ~

F with the order of the High Court relating to grant or rejection of bail but in the instant case, the High Court has completely ignored the basic principles which are to be kept in view while dealing with an application filed u/ s. 439 Cr.P.C. for grant of bail and has thus, committed a

G manifest error in the matter of grant of bail to the second respondent, warranting interference by this Court. [Para

,..

11) [1037-B-D] -.

1.2. Having regard to the nature of the offences, the

H 1030

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MASROOR v. STATE OF U.P. & ANR. 1031 .

. second respondent has been charged with, the

A . background in which these were committed and the stage of the trial, the High Court was not justified in granting bail to the respondent and set him free~ [Para 14] [1038- F]

1.3. High Court has not indicated any reason B

whatsoever for grant of bail. There is no consideration of any of the factors, like nature of the offence; the evidence collected by the prosecution and forming part of the chargesheet and the circumstances under which the offences were committed, all relevant for deciding the C question whether the bail should be granted or not.

Failure in not indicating any reason for grant of bail particularly when charges against the second respondent are serious, makes his order indefensible. At the stage of granting bail, a detailed examination of D evidence and elaborate documentation of the merits of the case is not to be undertaken but that does not mean that while granting bail some reasons for prima facie concluding why bail was granted are not to be indicated, which is the case here. [Para 15] [1039-E-H] E

Puran etc. etc. v. Rambi/as and Anr. etc. etc. 2001 (6) SCC 338; Suresh Kumar Somabhai Rana v. Ashok Kumar Harakfal Mitta/ and Ors. JT 2002 (2) SC 431; Ram Govind Upadhyay v. Sudarshan Singh and Ors. 2002 (3) SCC 598; F Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. 2004 (7) sec 528, relied on.

2. It is trite to state. that the Court granting bail has to exercise its discretion in.a judicious manner with care and caution and not as a matter of course. Though at the G ""'+ stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided but there is a need to indicate in such order, reasons for prima facie concluding why bail was being H

A granted particularly 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 factors viz. (a) The B nature of accusation and the te' 1erity of punishment in case of conviction and the r.ature 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 c support of the charge. [Para 12] [1037-D-F]

Ram Govind Upadhyay v. Sudarshan Singh 2002 (3) SCC 598; Puran v. Rambilas 2001 (6) SCC 338; Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. 2004 (7) sec 528, relied on.

3. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty E of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. [Para 13) [1038-B-C]

Shahzad Hasan Khan v. /shtiaq Hasan Khan 1987 (2) F sec 684, relied on.

Case Law Reference:

2001 (6) sec 338 relied on

JT 2002 (2) SC 431 relied on

2002 (3) sec 598 relied on

2004 (7) sec 528 relied on

1987 (2) sec 684 relied on

Paras 9 and 12

Para 9

Paras 9 and 12

Para 9

Para 13

MASROOR v. STATE OF U.P. & ANR. 1033

; CRIMINAL APPELLATE JURISDICTION: Criminal Appeal A ... """\

No. 838 of 2009.

From the Judgment & Order dated 10.03.2008 of the High Court of Judicature at Allahabad in Criminal Miscellaneous Bail Application No. 4167 of 2008.

Manoj Goel, Gopal Verma, Wajat Sahfig and Brij Bhushan for the Appellant. ....

S.K. Agarwal, Ratnakar Dash, Rauf Rahim, Y. Bansal, Kamlendra Mishra and Rajeev Dubey for the Respondent. c

The Judgment of the Court was delivered by

D.K. JAIN, J. 1. Leave granted.

2. Challenge in this appeal by the complainant is to the D

~ order dated 10th March, 2008 passed by a Single Judge of / -;.

the High Court of Judicature at Allahabad in Criminal Miscellaneous Bail Application No. 4167 of 2008, granting bail to the second respondent, Chhunnu @ Chhidda. The said respondent was one of the persons named in FIR No.181 of E 2007, registered at Police Station Asmouli, District Moradabad against 22 persons. The FIR was initially registered for offences under Sections 147, 148, 149 and 307 of the Indian Penal Code

,. I' ("IPC" for short), but subsequently, on the death of two injured persons, Section 302, IPC was also added. The first F respondent is the State of U.P.

3. Briefly stated, the background facts giving rise to the present appeal are as follows:

On 18th September, 2007, at about 5.25 p.m., an FIR was G . ""' lodged by the appellant with the said police station for an + incident which took place at about 3.30 p.m. at village Asmouli.

The case was registered as Crime Case No. 347 of 2007. It was reported that at about 3.30 p.m., on that day the appellant had gone to the shop of one Anzar s/o Mehboob where one H

A Basiruddin @ Lala also came to buy some fruits. On Anzar's

(shopkeeper) refusal to sell goods to him on credit, Basiruddin

,...~

started beating him, on which the appellant intervened. Being annoyed, Basiruddin left the place. But, after a short while he came back, accompanied by 21 other persons, including the B second respondent. All of them were armed with guns and country made firearms. Due to fear, the appellant rushed to the house of his brother Qayyum. All the said 22 persons attacked the house of Qayyum. On hearing noise, the residents of the house and many other residents of the village, collected at the c spot. The said accused started firing indiscriminately, injuring 9 persons. Some of them sustained multiple injuries. All the injured persons were removed to the District hospital for examination. As per the medical reports, the injured persons sustained gunshot injuries which were grievous in nature. Two

D persons, namely, Anzar Hussain s/o Mazhar Hussain and Rizwan @ Bhoora s/o Matloob Hussain, later succumbed to - their injuries. While Rizwan died on 19th September, 2007, ' Anzar Hussain died on 30th September, 2007.

4. On the very same day viz. 18th September, 2007, E another FIR (No.182 of 2007), pertaining to the same incident, .was lodged at about 6.40 p.m. by the said Basiruddin@ Lala

against 25 persons, inter alia, alleging that when he went to the shop of Anzar s/o Mehboob to buy some vegetables, he told Anzar that his vegetables were very expensive, on which Anzar

'I ..

F and one Shahroz, who was standing there, started abusing him.

When Basiruddin protested, they started beating him with legs and fists. Basiruddin then came back home but after some time, many people, including Shahroz, Anzar (since deceased) and Qayyum, came to his house and started firing with an intention G to kill him.

5. The persons named in the first FIR were arrested on + different dates. Upon recording the statements of some eye- --- witnesses, including the injured witnesses, charge-sheet was

H filed against all the 22 accused persons named in Crime Case

A • He shall not tamper with the evidence . >-...

In case of default of any of the above mentioned conditions, the bail granted to the applicant shall be deemed cancelled and he shall be taken into custody forthwith."

8. Being aggrieved by the order enlarging the second respondent on bail, the complainant is before us in this appeal.

9. Learned counsel appearing for the appellant strenuously urged that the High Court has not only failed to take into c consideration the circumstances under which a heinous crime,

resulting in loss of two lives and grievous injuries to a number of persons was committed, it also failed to record any reason as to why the bail was being granted to the said respondent. It was argued that the order suffers from the vice of non-

D application of mind and, therefore, deserves to be set aside.

In s'upport of the proposition that any order de hors the teasons ....- for grant of bail suffers from non-application of mind, learned ...

counsel placed reliance on the decisions of this Court in Puran etc. etc. v. Rambilas & Anr. etc. etc. 1 , Suresh Kumar

E Somabhai Rana v. Ashok Kumar Haraklal Mittal & Ors. 2, Ram Govind Upadhyay v. Sudarshan Singh & Ors. 3 and Kalyan Chandra Sarkar v. Rajesh Ranjan@ Pappu Yadav & Anr.4• It was also pointed out that relying on the order impugned in this appeal, all other accused have also been released on bail.

"' ..

10. Learned counsel appearing for the second respondent, supported the order passed by the High Court. It was contended that the reasons for grant of bail are implicit in the preceding paragraphs of the impugned order, wherein the contentions of both the sides have been recorded by the High Court. Learned G counsel also submitted that there being cross versions of the

-+ 1.

(2001) 6 sec 338.

JT 2002 (2) SC 431.

(2002) 3 sec 598.

H 4. (2004 > 7 sec 528.

MASROOR v. STATE OF U.P. & ANR. [D.K. JAIN, J.] 1037

incident, as projected in the Fl Rs lodged by both the sides, the A High Court was justified in granting bail to the said respondent.

It was urged that the present appeal not being one for cancellation of bail on any of the grounds contemplated in

Section 439 (2) of the Code of Criminal Procedure (for short "the Code"), there is no other reason warranting interference B by this Court. -.4.

11. Normally this Court does not interfere with the order of the High Court relating to grant or rejection of bail but in the instant case, having carefully gone through the impugned order, c we are constrained to observe that the High Court has completely ignored the basic principles which are to be kept in view while dealing with an application. filed under Section 439 of the Code for grant of bail and has thus, committed a manifest . ..., error in the matter of grant of bail to the second respondent, D warranting interference by this Court.

12. It is trite to state that the Court granting bail has to exercise its discretion in a judicious manner with care and caution and not as a matter of course. Though at the stage of granting bail an elaborate examination of evidence and detailed E reasons touching the merit of the case, which may prejudice the accused, should be avoided but there is a need to indicate

. ... )< in such order reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such F 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: ....

G ...

(a) The nature of accusation and the severity of punishment j., 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 Singh5, Puran v. Rambilas6 and Kalyan Chandra Sarkar

v. Rajesh Ranjan@ Pappu Yadav & Anr.7)

13. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the Courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of prsonal liberty of the individual concerned. In this context, the following observations of this Court in Shahzad Hasan Khan

v. lshtiaq Hasan Khan8 , are quite apposite:

"Liberty is to be secured through process of law, which is administered keeping in mind the interest of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that ' parties do not lose faith in the institution and indulge in private retribution."

14. Therefore, the question for consideration is whether having regard to the nature of the offences the second respondent has been charged with; the background in which these were committed and the stage of the trial, the High Court was justified in granting bail to the said respondent and set him free?

15. As noted earlier, according to both the FIRs, the

(2002) 3 sec 598.

(2001) 6 sec 338.

(2004) 1 sec 528_ H a.

(1987) 2 sec 684.

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MASROOR v. STATE OF U.P. & ANR. [D.K. JAIN, J.] 1039

genesis of the incident is some heated argument between A accused Basiruddin and Anzar (shopkeeper). Perhaps on refusal by Anzar to sell his goods to Basiruddin on credit, he took it as a personal affront and the altercation ensued. Though the stand of Basiruddin in the FIR lodged by him is that after the incident, he had gone back to his house but the fact remains B that after the investigation, which included recording of statements of many persons, a chargesheet for serious offences has been filed against 22 persons, including the second respondent, for committing the murder of two persons and causing multiple injuries to 8 persons. The background of c the incident, the nature of the assembly, the nature of the arms carried by the accused and the manner in which the offences were committed, prima facie, reflect the character and the conduct of the accused for whom perhaps refusal by the

-.. shopkeeper to sell goods on credit was a challenge to their authority and the power they wielded in the area. Be that as it may, the significant feature of the case is that the learned Judge,

except for recording the submissions of counsel for both the parties, has not indicated any reason whatsoever for grant of bail. This is manifest from the aforeextracted order that there E is no consideration of any of the factors, like nature of the offence; the evidence collected by the prosecution and forming

~ _.- )I part of the chargesheet and the circumstances under which the offences were committed, all relevant for deciding the question whether the bail should be granted or not. In our opinion, failure

F on the part of the learned judge in not indicating any reason for grant of bail particularly when charges against the second respondent are serious, makes his order indefensible. As observed by this Court in Puran's case (supra), giving reasons

~ is different from discussing merits or demerits. At the stage of

~ granting bail, a detailed examination of evidence and elaborate G documentation of the merits of the case is not to be undertaken but that does not mean that while granting bail some reasons for prima facie concluding why bail was granted are not to be indicated, which is the case here.

>--' A

16. For the foregoing reasons, the appeal is allowed and the impugned order granting bail to the second respondent is set aside. The bail bond and surety furnished by the said respondent in terms of the High Court's order stand cancelled and it is directed that he shall be taken into custody forthwith.

17. Before closing, we may also note some disturbing features of the case, which not only show the lack of will on the part of prosecution to get the guilty punished as early as possible, it also prima facie, shows some unholy nexus c between the prosecuting agency and the accused. In the first instance, the prosecution did not question the order passed by the High Court granting bail to the second respondent and other accused and after the framing of charges as far back as on 20th February, 2008 not a single witness has been examined

D by the prosecution so far. We say no more.

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18. It goes without saying that any observations touching the merits of the case against the second respondent are purely fdr the purpose of deciding the question of grant of bail and shall not be construed as an expression of final opinion in the E main matter.

19. We may also clarify that if in future any application for grant of bail is filed by the second respondent, it shall be

'( - considered on its own merits, uninfluenced by this order.

F K.K.T.

Appeal allowed.