REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.               OF 2008 (Arising out of SLP (Crl.) No.5255 of 2007)

Bhuvaneshwar Yadav  ..Appellant

Versus State of Bihar and Ors. ..Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a Division Bench of

the  Patna  High  Court  granting  bail  to  Respondents  2  and  3  who  were

convicted  for  offence  punishable  under  Section  302  of  the  Indian  Penal

Code, 1860 (in short the ‘IPC’)  and under Section 27 of the Arms Act, 1959

(in short  the ‘Arms Act’).  Two other  persons  namely,  Nirmal Singh and

Shiv Janam Singh were also convicted in terms of Section 302 read with

Section 34 IPC.  Four other  accused persons were acquitted by the Trial

Court. Respondents 2 and 3 filed Criminal Appeal No. 90 of 2004 before

the Patna High Court in which the present appellant, the informant has also

appeared. Though prayers for bail were earlier made during the pendency of

the appeal, they were rejected on 23.3.2004 and 24.8.2006. However, liberty

was granted in the latter case to renew the prayer for bail after six months.

It was again made on 14.3.2007 which has been allowed by the impugned

order.  

3. According to  the appellant,  the impugned order  of  the  High Court

shows a total non application of mind. No reason has been indicated as to

why the prayer for bail was accepted after same was rejected on two earlier

occasions, when there was no change in circumstances.

4. Learned counsel for the respondent-State supported the stand of the

appellant.  

5. There is no appearance on behalf of Respondents 2 and 3 in spite of

service of notice.  

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6. 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  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

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case  of  State of  Punjab  and  Ors.  v.  Jagdev  Singh Talwandi  (AIR 1984 SC 444)”.

7. These aspects were recently highlighted in  V.D. Chaudhary v.  State

of Uttar Pradesh and Anr. (2005 (7) SCALE 68).      

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:

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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. The  position  is  not  different  when  the  application  is  made  during

pendency of an appeal after conviction has been recorded.  The satisfaction

about guilt of the accused has been arrived at while recording conviction.  

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12. The above position was highlighted by this Court in  Chaman Lal v.

Sate of U.P. and Anr. (JT 2004 (6) SC 540) and  Anwari  Begum v.  Sher

Mohd. (2005 (7) SCC 326)

13. The order impugned in the present appeal reads as follows:

“Heard  learned  counsel  for  the  appellants,  State and the informant.  

It appears that by order dated 24.8.2006 the prayer for  bail  of  the  appellants  was  rejected  with  liberty  to renew after six months.

In view of above, let appellants, Lallu Singh and Dhanu Singh be released on bail during the pendency of the appeal on furnishing bail  bond of Rs.10,000/- each with  two  sureties  of  the  like  amount  each  to  the satisfaction of the trial Court i.e. Ist Additional Sessions Judge, Ara, Bhojpur in S.Tr. No. 32 of 2001.”

14. The High Court noticed that earlier the bail was rejected, but liberty

was granted to renew the prayer after six months.  That does not in any way

show that there was entitlement for getting the bail. The impugned order of

the High Court  shows total  non application  of mind and is  therefore  set

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aside. The appeal is allowed. The bail application shall be reconsidered on

merits and shall be disposed of by a reasoned order. If the respondents have

been released on bail, they shall surrender to custody forthwith.  

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, November 28, 2008            

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