REPORTABLE

,   IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                  OF 2008   (Arising out of SLP (Crl.) 2861 of 2007)

Lokesh Singh           ….Appellant  

Versus

State of U.P. & Anr. ….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  learned  Single

Judge of the Allahabad High Court, Lucknow Bench granting bail  to the

respondent No.2 who is an accused in Case Crime No.178 of 2006, Police

Station-Ashiyana,  District  Lucknow.  The  accused  persons  faced  trial  for

alleged commission of offences punishable under Sections 302 and 120 B of

the Indian Penal Code, 1860 (in short the ‘IPC’).

3. As per the prosecution version Virendra Singh lodged information

at the police station that on 21.9.2006 at about 10 A.M. when his younger

brother  Chandra  Pal  Singh  (hereinafter  referred  to  as  the  ‘deceased’),

Manager of Lucknow Public School had arrived on the gate of the college,

some unknown persons had shot  him by making indiscriminating firing

and then he was taken to the hospital.  The doctors declared that he had

been brought dead.  During investigation it was found that the respondent

No.2  and  another  person  named  S.B.  Singh  had  entered  into  criminal

conspiracy to  commit murder  of  the deceased and said  S.B. Singh had

arranged two shooters Ranvir Singh and Anant Kumar Verma who caused

the death of the deceased. In order to show the complicity of respondent

No.2  reference  was  made  to  the  statement  of  one  Munna  Katiyar  who

claimed to have overheard the conversations of respondent No.2 and S.B.

Singh before the incident relating to the plan to murder of the deceased.

This was disclosed to the investigating officer on 9.12.2006.  The police

acted upon the information and transpired that the amount fixed for doing

the killing  (in  common parlance  known as  ‘supari  amount’)  was  Rs.10

lakhs and a sum of Rs.5,87,000/- was paid  to S.B. Singh through demand

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draft  under  a  camouflage  as  if  the  payment  was  being  made  towards

consideration of purchase of construction materials as S. B. Singh happens

to be the proprietor of the concern dealing with the sale and purchase of

construction  materials.  It  was  pointed  out  by  the  prosecution  that  the

phone records clearly indicated a link between the respondent No.2 and

the killers. It was also pointed out that the document which was produced

to show that the payment was made for purchase of construction materials

was fake. Prayer for bail was rejected by order dated 7.2.2007 by learned

Sessions Judge, (in charge) Lucknow.  An application was filed before the

High  Court.  By  the  impugned  order  High  Court  granted  bail  to  the

respondent No.2.

4. Learned counsel for the appellant submitted that the High Court had

practically  written  a  judgment  of  acquittal  by  not  only  referring  to  the

incriminating materials but also conclude about their unreliability.  This, it

is submitted, is not the correct way of dealing with an application for bail.

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

appellant.

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6. Learned counsel for the respondent No. 2 on the other hand submitted

that the conclusions of the trial court to deny bail were factually wrong and

legally  unsustainable.   The  High  Court  has  dealt  with  the  stands  of  the

accused respondent No.2 and found that the prosecution version is totally

vulnerable and had no legs to stand.  That being so it is submitted the order

does not suffer from any infirmity.   

7. The conclusions of the High Court read as follows:

“Having heard learned counsel for the respective parties as also the Additional Government Advocate, it is amply evident  that  F.I.R.  with  respect  to  the  present  incident was lodged against unknown persons on 21.09.2006 and in  the  statements  recorded  during  the  course  of investigation,  i.e.  statement  of the  son of  the deceased recorded  on  05.12.2006  and  statement  Munna  Katiyar recorded  on  09.12.2006  it  was  disclosed  that  the applicant  had conspired and abated with  respect  to the commission  of  the  instant  crime  by  hiring  assassins named above. It is much surprising that if the son of the deceased  and  aforesaid  Munna  Katiyar  were  knowing that the applicant and deceased Chandra Pal Singh were on inimical terms, why these two persons kept mum and at the very first opportunity did not disclose this fact to the  investigating  agency  and  only  in  their  statements recorded  under  Section  161  Cr.P.C.  which  admittedly were recorded after about tow and a half month from the date of the incident,  they disclosed the involvement of the applicant in the present crime.  As such, this court at this  juncture  is  of  the  opinion  that  at  the  most  the applicant can be said to be an accused under Section 120 B IPC read with Section 302 IPC for which an accused can  be  sentenced  to  life  imprisonment,  but  the prosecution  story  as  revealed  till  now,  the  manner  in

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which  the  involvement  of  the  applicant  in  the commission  of  the  crime  has  come into  light  and  the evidence  collected  by  the  investigating  officer  puts  a dent in the prosecution case.  Besides it, involvement of the applicant  in the commission of the crime has been disclosed at a very later stage of the investigation.

However, without commenting furthermore, I am of the opinion that the applicant applicant is entitled to be enlarged on bail.”

8. While dealing with an application for bail, 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.

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9. Any order de hors 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].

10. 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.   

11. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr.

(2004 (7) SCC 528) In para 11 it was noted as follows:

“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter or course. Though at the stage of granting bail  a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding  why  bail  was  being  granted  particularly

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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 following factors also before granting bail; they are:

(a) The  nature  of  accusation  and  the  severity  of punishment 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 Singh (2002 (3) SC 598) and  Puran  v. Rambilas (2001 (6) SCC 338).”

12. It was also noted in the said case that the conditions laid down under

Section 437 (1)(i) are sine qua non for granting bail even under Section 439

of the Code.  

13. In  Puran v.  Rambilas and Anr. (2001 (6) SCC 338) it was noted as

follows:

“11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal  or perverse order  is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or  because  of  some  new  facts  requiring  such

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cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.). In that case the Court observed as under: (SCC p. 124, para 16)

“If, however, a Court of Session had admitted an accused person to bail, the State has two options. It  may  move  the  Sessions  Judge  if  certain  new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that  court.  The  State  may  as  well  approach  the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that  have cropped up except  those already existing, it is futile for the State to move the  Sessions  Judge  again  and  it  is  competent  in law to move the High Court for cancellation of the bail.  This  position  follows  from the  subordinate position of the Court of Session vis-à-vis the High Court.”

14. Above being the position, we are of the view that the High Court was

not justified in granting bail to respondent No.2.  The order granting bail is

set aside.  The respondent No.2 who was released on bail shall surrender to

custody forthwith.  We make it clear that we have not expressed any opinion

on merits of the case.   

15. Appeal is allowed.

             …………......................J.

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(Dr. ARIJIT PASAYAT)

         ……….........................J.

        (C.K. THAKKER) New Delhi, October 21, 2008

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