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CASE NO.: Appeal (crl.)  1269 of 2004

PETITIONER: Sompal Singh

RESPONDENT: Sunil Rathi & Anr.

DATE OF JUDGMENT: 03/11/2004

BENCH: CJI R.C. Lahoti & G. P. Mathur

JUDGMENT: J U D G M E N T

(Arising out of Special Leave Petition (Crl.) No.2921 of 2004)

G. P. MATHUR, J.

1.      Leave granted. 2.      This appeal, by special leave, has been preferred by the complainant,  Sompal Singh  (first informant) against the judgment and order dated  27.5.2004 of Allahabad High Court by which Sunil Rathi (respondent no.1)  has been granted bail in a case under Section 147/148/149/302/307/404/504  and 506 IPC.    

3.      Sunil Rathi had been initially granted bail by the High Court on  30.5.2003.   This order was challenged by the complainant Sompal Singh by  filing Special Leave Petition (Crl.) No.2551 of 2003.   The appeal was  disposed of by this Court on 6.1.2004 and the relevant portion of the order is  being reproduced below : "Having heard the learned counsel for the parties, we are  satisfied that the disposal of the prayer for bail cannot be  termed satisfactory.   At least three flaws are apparent : (i) The  fact that the accused is named in the F.I.R., (ii) the fact that the  accused had several other accusations to his credit; and (iii) the  fact that the co-accused was denied bail, have not received  consideration at the hands of the High Court."  

       The order dated 30.5.2003 was accordingly set aside and the bail  application filed by respondent no.1 was directed to be  considered afresh by  the High Court after affording the complainant and the State an opportunity  of hearing.

Thereafter, the bail application was again heard by the same learned  Judge and the accused was granted bail by the order dated 27.5.2004 which  is the subject matter of challenge in the present appeal.    

4.      According to the case of the prosecution, the incident took place at  about 7.00 a.m. on 21.6.2001 when Sunil Rathi (respondent no.1), his  brother Arvind, Vikram, Virender @ Kalu, Shyambir, and Pramendra along  with 3-4 other persons came and resorted to firing by pistols and stenguns  upon Mahak Singh and Mohkam Singh while they were sitting on the  chabutara of the baithak of Mohkam Singh.   Mahak Singh and Mohkam  Singh received several gun shot injuries and died on the spot.   Vedu and  Vipin Kumar son of Mahendra Harijan were also injured.   An FIR of the  incident was lodged by Sompal Singh, brother of deceased Mahak Singh  shortly thereafter at 8.00 a.m. at Police Station Doghat, which is 5 kms.  away from the place of occurrence. The autopsy on the body of Mahak

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Singh was performed at 5.15 p.m. on the same day and the doctor found  eight gun shot injuries on his person including five entry wounds and five  exit wounds on the chest.   The autopsy on the body of Mohkam Singh was  performed at 6.15 p.m. and gun shot injuries were found on his body.   The  two injured, namely, Vedu and Vipin Kumar were medically examined at  9.30 a.m. at Primary Health Centre, Baraut and they were found to have  sustained gun shot injuries.   

5.      According to the case of the prosecution, Sunil Rathi, respondent no.1  had a strong motive to commit the crime on account of some election dispute  and earlier criminal cases.   The incident was witnessed by Sompal Singh,  Vikram (brother of deceased Mohkam Singh) and some others.  The FIR  was promptly lodged naming respondent no.1 and assigning a specific role  to him of shooting by a fire arm.   The prosecution version of the incident  finds complete corroboration from medical evidence.  The bodies of the two  victims were found on the Chabutra and blood was also found there.  The  bail application of co-accused Virender @ Kalu had already been rejected by  another learned Judge of the High Court.  The respondent no.1 was involved  in several criminal cases.  In such circumstances, we do not find any  justification at all for grant of bail to him.   

6.      After the earlier order granting bail had been set aside by this Court, a  fresh bail application was filed in the High Court on 27.2.2004, which came  up for hearing on 1.3.2004 before another learned Judge who had been  assigned the jurisdiction.   For reasons which are not clear from record, an  order was passed by him to list the bail application before the same learned  Judge who had granted bail on the earlier occasion.  This order may have  been proper had it been a second bail application in view of Chapter V Rule  13 of the Allahabad High Court Rules.   But this being not a second bail  application, the jurisdiction to hear the bail application lay with the learned  judge assigned with the jurisdiction by the Chief Justice and he could not  have passed an order directing the matter to be listed before a particular  judge.  7.      Coming to the merits of the case, in our opinion, the learned Judge did  not decide the bail application on considerations which are relevant.  The  learned Judge noted the three grounds on which the earlier order granting  bail to the accused had been set aside by this Court and then said as follows :

       "These are the three factors, which this Court is required  to give its consideration before affirming or disowning the  previous order passed by it in favour of the accused-applicant  on 30.5.2004."

A reading of the impugned order shows that instead of considering the  matter de novo in the light of the observations made by this Court, the whole  effort of the learned Judge has been to give justification for the order earlier  passed by him on 30.5.2003 by which bail was granted to the accused.  At  various places, the learned Judge has referred to his earlier order and has  tried to justify the same.  A long passage from the earlier order has been  reproduced and at a later stage it is said - "though that fact is not mentioned  but a perusal of my order dated 30.5.2003 in its totality leads to the  conclusion that I had applied myself quite consciously to the facts available  on record and thereafter the accused was enlarged on bail by me by the said  order."   8.      This Court while setting aside the bail granted to the accused at earlier  occasion had specifically said that the fact that accused had several other  accusations to his credit had not received consideration at the hands of the  High Court.  In the bail application which was filed afresh in the High Court  wherein the impugned order has been passed on 27.5.2004, the applicant had  himself given details of seven criminal cases in which is he involved.   Some  of them are quite serious, namely, (i)  Crime No.89 and 91 of 2001 under  Section 307/420/468 IPC of P.S. Kankhal, Haridwar; (ii) Crime No.135 of  2001 under Section 2/3 U.P. Gangsters and Anti-social Activities  (Prevention) Act, P.S. Kankhal, Haridwar; (iii) Crime No.63 of 2001 under

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Section 2/3 U.P. Gangsters and Anti-social Activities (Prevention) Act, P.S.  Lal Kurti, Meerut; (iv) Crime No.238 of 2001 under Section 302/120 IPC,  P.S. Lal Kurti, Meerut; (v) Crime No.125 of 2001 under Section  147/138/307 IPC, P.S., Charthawel, Muzaffarnagar; and (vi) Crime No.40 of  2000 under Section 302/307/96, P.S. Okhla, Delhi.   Instead of giving due  consideration to the aforesaid fact, namely, on account of involvement of the  accused in several other criminal cases whether a discretion of granting bail  should be exercised in his favour, the learned Judge merely said that when  the bail application was heard by him at the earlier stage, the fact regarding  involvement of the accused in other cases was not brought to his notice and  again brushed aside the said point by stating as  under :

"No counsel for the complainant appeared in my Court to  oppose the said bail application at that stage.   Therefore,  I had heard only learned A.G.A.   It cannot be said with  certainty that any fact with regard to the criminal  antecedents were brought by learned A.G.A. in my  notice, so it might have slipped attention."  

9.      While granting bail, the High Court has given great emphasis to some  minor discrepancies alleged to have occurred during the course of  investigation of the case.   It is well settled that every infirmity in  investigation does not lead to an inference that the case of the prosecution is  false or the accused is entitled to acquittal.   (See Ambika Prasad v. State  2000 (2) SCC 646 and Ram Bihari Yadav v. State of Bihar 1998 (4) SCC  517).    Though the High Court was hearing a bail application it has gone to  the extent of recording a finding that the informant Sompal Singh and  Vikram were not present at the time of the occurrence, only on the ground  that they had not received injuries in the incident and the two injured  witnesses, namely, Vedu and Vipin Kumar son of Mahendra Harijan had not  specifically mentioned about their presence in their statement under Section  161 Cr.P.C.   The statements under Section 161 Cr.P.C. of these two injured  persons are very brief one.  They merely stated about their receiving injuries  by fire arm at about 7.00 a.m. on 21.6.2001 but neither named any accused  nor any witness.   It is obvious that both these persons did not want to get  themselves involved in the dispute in any manner and, therefore, avoided to  name any one.   The statement of eye-witnesses Sompal Singh and Vikram  had been recorded in the trial long back and even the statement of the  accused under Section 313 Cr.P.C. had also been recorded on 27.2.2004.    The trial could not be concluded as the charge was amended and the   prosecution witnesses were summoned again to enable the accused to cross- examine them in the light of the amended charge.   The bail application was  heard by the High Court much later on 27.5.2004.   Instead of deciding the  bail application on the basis of the evidence which was then available on  record, the High Court chose to rely upon the statements of Vedu and Vipin  Kumar as recorded under Section 161 Cr.P.C. for holding that the two eye  witnesses namely, informant Sompal Singh and Vikram were not present.    The prosecution did not examine Vedu and Vipin Kumar as witnesses in the  trial, and, therefore, their statements under Section 161 Cr.P.C. could not be  used at all at that stage.   

10.     We are constrained to notice a very disturbing feature in the order of  the High Court.   The learned Judge referred to a Constitution Bench  decision of this Court rendered in Bihar Legal Support Society v. Chief  Justice of India AIR 1987 SC 38 and quoted in extenso  paragraph 3 of the  reports.  In this case the Bihar Legal Support Society, claiming that its main  aim and objective was to provide legal support to the poor and  disadvantaged section of the community, filed a writ petition under Article  32 of the Constitution, after bail had been granted by this Court to two  industrialists in night, and, the prayer made was that the same anxiety which  was shown by this Court in taking up the bail application of the two  industrialists, must permeate the attitude and inclination of the Court in all  matters where questions relating to liberty of citizens, high or low, arises,  and that the bail applications of small men must receive the same importance

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as the bail application of big industrialists.   In the judgment it was pointed  out that while hearing special leave petitions no distinction is made between  ’small men’ and ’big industrialists’ and the question whether special leave  petitions against refusal of bail or anticipatory bail should be listed or not is  a question within the administrative jurisdiction of the Chief Justice.     During the course of discussion, reference was made to an order dated  30.10.1985 in Special Leave Petition (Crl.) No.2938 of 1985, wherein it was  held that this Court should not "interfere with the orders granting or refusing  bail or anticipatory bail" and that "these are matters in which the High Court  should normally become the final authority."  It was observed that  the  Supreme Court should not ordinarily, save in exceptional cases, interfere  with orders granting or refusing bail or anticipatory bail, because these are  matters in which the High Court should normally be the final arbiter.    

11.     The aforesaid case had absolutely no relevance for the decision of the  bail application, which was being considered by the High Court.  The reason  why the learned Judge referred to and reproduced para 3 of the reports  would be clear from what he said in the impugned order, which reads as  under : "The order granting bail or refusing to grant bail are  interlocutory orders, the new Code of Criminal Procedure has  clearly provided for no revision against any such orders.   When  an order granting bail passed by a Sessions Judge is not  revisable in the High Court, likewise the matter when it goes to  the apex Court should also be dealt with in the light of the  guidelines professed by  its above said decision."  (emphasis supplied)           What in effect the leaned Judge has said is that when an appeal is filed  against an order of the High Court granting bail to an accused, it should be  decided by the Supreme Court in accordance with the observations made in  the case of Bihar Legal Support Society (supra), meaning thereby that this  Court should not have interfered with his earlier order dated 30.5.2003  granting bail to respondent no.1.

12.     In a recent decision rendered in Tirupati Balaji Developers Pvt. Ltd. v.  State of Bihar 2004 (5) SCC 1, it was pointed out that under the  Constitutional Scheme as framed for the Judiciary, the Supreme Court and  the High Court, both are Courts of Record and the High Court is not a court  subordinate to the Supreme Court, but there are a few provisions which give  an edge and assign a superior place in hierarchy to the Supreme Court over  the High Court and insofar as the appellate jurisdiction is concerned, in all  civil and criminal matters, the Supreme Court is the highest and the ultimate  Court of appeal.   This position is highlighted in para 9 of the reports which  reads as under :         

"9.     In a unified hierarchical judicial system which  India has accepted under its Constitution, vertically the  Supreme Court is placed over the High Courts.   The very  fact that the Constitution confers an appellate power on  the Supreme Court over the High Court, certain  consequences naturally flow and follow.   Appeal implies  in its natural and ordinary meaning the removal of a  cause from any inferior court or tribunal to a superior one  for the purpose of testing the soundness of decision and  proceedings of the inferior court or tribunal.   The  superior forum shall have jurisdiction to reverse, confirm,  annul or modify the decree or order of the forum  appealed against and in the event of a remand the lower  forum shall have to re-hear the matter and comply with  such directions as may accompany the order of remand.    The appellate jurisdiction inherently carries with it a  power to issue corrective directions binding on the forum  below and failure on the part of latter to carry out such  directions or show disrespect to or to question the

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propriety of such directions would \026 it is obvious \026 be  destructive of the hierarchical system in administration of  justice.   The seekers of justice and the society would  lose faith in both."

13.     In the hierarchical judicial system, it is not for any Court to tell a  superior Court as to how a matter should be decided when an appeal is taken  against its decision to that superior Court.   Such a course would be  subversive of judicial discipline on the bedrock of which the judicial system  is founded and finality is attached and orders are obeyed.   We do not  consider it proper to say anything further and would like the matter to rest  there.    

14.     For the reasons discussed above, the appeal is allowed and the order  dated 27.5.2004 granting bail to Sunil Rathi (respondent no.1) is set aside.  If  he has already been released he shall be taken into custody forthwith.