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CASE NO.: Appeal (crl.)  204 of 2007

PETITIONER: Kumari Suman Pandey

RESPONDENT: State of Uttar Pradesh and Anr

DATE OF JUDGMENT: 14/02/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 5851 of 2006)

Dr. ARIJIT PASAYAT, J.

       Leave granted.

       Challenge in this appeal is to the order passed by a  learned Single Judge of the Allahabad High Court, Lucknow  Bench granting bail to the respondent No.2-Jitendra Pratap  Singh (hereinafter referred to as the ’Accused’).   

A brief reference to the factual aspect would be  necessary. On 14.5.2003 First Information Report (in short the  ’FIR’) was lodged by the appellant alleging murder of her  younger brother-Ravish Kumar Pandey (hereinafter referred to  as the ’Deceased’).  At the relevant point of time the deceased  was pursuing his studies in Era Medical College. In the FIR  name of respondent No.2 was indicated to be the sole accused.   One of the eye witnesses was stated to be one Priyanka Tiwari.  She appeared before the concerned Magistrate and her  statement was recorded in terms of Section 164 of the Code of  Criminal Procedure, 1973 (in short the ’Code’). In the  statement she specifically stated that murder of the deceased  was committed by respondent No.2 in her presence. Charge  sheet was filed on 19.11.2004. Cognizance was taken by the  concerned Magistrate. Thereafter, the investigation was  transferred to C.B.C.I.D.  The order of the State Government  was challenged by the appellant by filing a writ petition  No.5874(M/B) of 2004 before the High Court. By order dated  13.1.2005 the writ petition was allowed and the order  transferring investigation to CBCID was quashed by the High  Court.  Application for bail was filed by respondent No.2 before  the High Court which was numbered as Criminal Misc. Case  No.869 (B) of 2005. The said bail application was rejected by  order dated 15.3.2005 with the observation that if any fresh  bail application is filed, the same shall be considered after the  statements of the appellant and aforesaid Priyanka Tiwari are  recorded by the trial court in the trial proceedings. On  20.6.2005 appellant’s evidence was recorded and she  categorically stated that in her presence murder was  committed. On 25.8.2005 Priyanka Tiwari who was claimed to  an eye-witness was also examined and her evidence was  recorded by the trial court. The cross-examination was  concluded on 5.9.2005.  In January, 2006 the respondent No.  2 filed the second bail application before the High Court which

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was numbered as Criminal Misc. Case No. 6282 (B) of 2005.   The said bail application was rejected reiterating the earlier  view that the application for bail can be considered after the  evidence of Priyanka Tiwari as recorded or if she failed to  appear for the purpose of recording her evidence. A certificate  was issued by the Ministry of Health, Ukrain that the summer  vacation of Priyanka Tiwari was between 3.7.2006 and  31.8.2006.  This certificate was filed before the trial court.  In  May, 2006 respondent No.2 filed the third bail application  which was number as Criminal Misc. Case No.2233(B) of  2006.  The High Court by its impugned order dated 22.5.2006  has granted the bail.

According to the appellant after commencement of  summer vacation when Priyanka Tiwari came to India she  knew about the court’s proceeding and appeared on  28.7.2006.  But on the said date the respondent No. 2 was not  represented. Therefore, the court issued Non-Bailable Warrant  (in short ’NBW’) and the matter was adjourned to 10.8.2006.

On 10.8.2006 when the matter was taken up, learned  counsel appearing for respondent No.2 submitted before the  Court that respondent No.2 had been arrested in some other  case and his absence may be exempted.  The trial Court  rejected the application and adjourned the matter to  21.8.2006.  

On 21.8.2006 the respondent No.2 again was not  present.  The court had on the earlier occasion directed the  learned counsel appearing for respondent No.2 to indicate the  details of the case where he was purportedly arrested but  those details were not filed and the matter was further  adjourned to 21.9.2006. On 21.9.2006 also respondent No.2  did not appear.

 In view of the aforesaid scenario it is stated by learned  counsel for the appellant that the grant of bail was  unwarranted and in any event the respondent no.2 has  misused the liberty of bail. Although notices on respondent  No.1-State and respondent No.2-accused had been served but  none has appeared to represent them when the matter was  taken up.

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

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

       The view was reiterated 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),  Kalyan Chandra Sarkar  v.  Rajesh Ranjan alias Pappu Yadav  & Anr. (JT 2004 (3) SC 442). Chaman Lal v. State of U.P. and  Anr. (JT 2004 (6) SC 540), Kamaljit Singh v. State of Punjab  and Anr. (2005) 7 SCC 326), Gajanand Agarwal v. State of

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Orissa & Ors. (JT 2006 (12) SC 55) and Anwari Begum v. Sher  Mohammad and Another (2005) 7 SCC 326).

The High Court noted that the first application was  rejected as the witnesses was apprehending danger to their  lives and the trial was going to commence and therefore, it was  not proper to release the applicant on bail.  Second application  was moved when there was no significant progress and  Priyanka Tiwari was not examined.  The High Court noted that  in spite of adjournments Priyanka Tiwari did not appear.   According to the High Court the fact that Priyanka Tiwari was  not appearing though her dates of appearance have been fixed  entitled the appellant to be released on bail.  The reasoning of  the High Court is totally fallacious. It is evident from the  material on record that the trial court was informed of the fact  that Priyanka Tiwari was pursuing her studies abroad and  would be available to appear as witness during summer  vacation.  The fact that the trial court adjourned the matter for  a few dates notwithstanding this intimation cannot be a factor  to release the respondent No.2 who chose not to appear and  made a prayer for exemption on the ground that he was in  custody in some other case.  The details of theses cases were  not furnished to the Court though ample opportunity was  granted.  The appellant is, therefore, justified in her grievances  that there has been misuse of the liberty and that the  appellant has unnecessarily prolonged the trial.  The evidence  of Priyanka Tiwari was of vital importance to the case, but she  had to go back to pursue her studies. Therefore, her evidence  was not recorded. This is a factor which has been lost sight of.  High Court instead has unnecessarily emphasized on the  number of adjournments which, as noted above, has no  relevance.  The order of bail passed by the High Court is not  sustainable and is accordingly set aside.  

The appeal is allowed.