REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. __838__ OF 2009 ARISING OUT OF

SPECIAL LEAVE PETITION (CRL.) NO. 3572 OF 2008

Masroor … Appellant

Versus

State of U.P. & Anr. … Respondents

J U D G M E N T

D.K. JAIN, J.

Leave granted.

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

(“IPC”  for  short),  but  subsequently,  on  the  death  of  two  

injured persons, Section 302, IPC was also added.  The first  

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  

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 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 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  

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residents  of  the house and many other  residents of  the village,  

collected  at  the  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 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, 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  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,  

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Anzar (since deceased) and Qayyum, came to his house and  

started firing with an intention 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  

filed  against  all  the  22  accused  persons  named  in  Crime  

Case No.347/2007, including the second respondent, on 19th  

November, 2007.  

6. The  second  respondent  moved  an  application  before  

Additional Sessions Judge/Fast Track Court, Moradabad for  

grant of bail.  Keeping in view the fact that two persons had  

died and few others had sustained multiple injuries, by an  

order dated 18th January,  2008,  the Addl.  Sessions Judge  

rejected the bail application. On 20th February, 2008, charges  

were  framed  against  all  the  accused  for  offences  under  

Sections 148, 307 read with Section 149 IPC and Section  

302 read with 149, IPC.

7. Aggrieved by the order passed by the trial Court rejecting his  

bail  application,  the  second  respondent  preferred  the  

aforementioned  bail  application  before  the  High  Court.  As  

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noted above, by the impugned order, the High Court allowed  

the application and granted bail  to the second respondent.  

The operative part of the impugned order reads as follows:

“Considering  the  facts,  circumstances  of  this  case,  submissions made by learned counsel for the applicant,  learned A.G.A., learned counsel for the complainant and  without  expressing  any  opinion  on  the  merits  of  the  case, the applicant is entitled to be released on bail with  the below mentioned conditions.

Let the applicant Chhunna @ Chhidda involved in Crime  Case No. 347 of 2007 under Sections 147, 148, 149,  307  &  302,  IPC,  P.S.  Asmoli,  District  Moradabad  be  released on bail on his furnishing a personal bond and  two  heavy  sureties  each  in  the  like  amount  to  the  satisfaction of the Court concerned.

• The  applicant  shall  report  to  the  court  of  learned  C.J.M. concerned in the first week of each month to  show his good conduct and behaviour.

• 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.

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9. Learned  counsel  appearing  for  the  appellant  strenuously  

urged that  the High Court  has not  only  failed to  take into  

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-application of mind and, therefore, deserves to be set  

aside. In support of the proposition that any order de hors the  

reasons for grant of bail suffers from non-application of mind,  

learned  counsel  placed  reliance  on  the  decisions  of  this  

Court  in  Puran etc.  etc.  Vs. Rambilas & Anr.  etc.  etc.1,  

Suresh  Kumar  Somabhai  Rana  Vs. Ashok  Kumar  

Haraklal  Mittal  &  Ors.2, Ram  Govind  Upadhyay  Vs.  

Sudarshan Singh & Ors.3 and Kalyan Chandra Sarkar Vs.  

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.

1 (2001) 6 SCC 338 2 JT 2002 (2) SC 431 3 (2002) 3 SCC 598 4 (2004) 7 SCC 528

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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 counsel also submitted that there being  

cross  versions  of  the  incident,  as  projected  in  the  FIRs  

lodged  by  both  the  sides,  the  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 by this Court.

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, 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  

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manifest  error  in the matter  of  grant  of  bail  to the second  

respondent, 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  

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 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.

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(c)  Prima facie satisfaction of the Court in support of the  

charge.  (See: Ram Govind Upadhyay Vs. Sudarshan  Singh5,  Puran  Vs.  Rambilas6 and  Kalyan  Chandra  Sarkar Vs. 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  personal  liberty  of  the  individual  

concerned. In this context, the following observations of this  

Court in  Shahzad Hasan Khan Vs. Ishtiaq 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.”

5 (2002) 3 SCC 598 6 (2001) 6 SCC 338 7 (2004) 7 SCC 528 8 (1987) 2 SCC 684

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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 genesis of  

the  incident  is  some  heated  argument  between  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  

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 the incident, the nature of the assembly, the  

nature of the arms carried by the accused and the manner in  

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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 afore-

extracted order that 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 question whether the bail should be  

granted  or  not.   In  our  opinion,  failure  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  

documentation  of  the  merits  of  the  case  is  not  to  be  

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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.

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  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  

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  

for the purpose of deciding the question of grant of bail and  

shall not be construed as an expression of final opinion in the  

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.

………………………………….…J.           ( D.K. JAIN )  

…………………………………….J.          ( R.M. LODHA )

 NEW DELHI, APRIL 27, 2009.

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