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CASE NO.: Appeal (crl.)  1122 of 2007

PETITIONER: Sudha Verma

RESPONDENT: State of UP & Anr

DATE OF JUDGMENT: 24/08/2007

BENCH: Dr. ARIJIT PASAYAT & ALTAMAS KABIR

JUDGMENT: J U D G M E N T  

CRIMINAL APPEAL NO.   1122         OF 2007 (Arising out of SLP (Crl.) No. 3949 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.  

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Allahabad High Court granting bail  to respondent No.2-Dinesh Kumar. Bail was granted primarily  on the ground that the co-accused has been released on the  bail and at the most the case is one under Section 304 Part II  of the Indian Penal Code, 1860 (in short  the ’IPC’) and not  Section 302 IPC.

3.      Learned counsel for the appellant submitted that the  accused-respondent No.2 was involved in daylight cold  blooded murder of his elder brother (husband of the appellant  herein) by the licensed gun of his father in the presence of all  family members and the relatives.  Appellant was married to  the deceased Rajesh Kumar in February, 1990 and they were  blessed with three children. Some times prior to the incident,  there was tension in the family on the issue of partition  amongst deceased, his father and the two sons.  On 16.5.2005  Rajjan Lal Verma, father of the respondent No.2 talked to Ved  Prakash i.e. the brother of the appellant and told him about  the extremely tense situation and told him to immediately  come to Pukhrayan.  Ved Prakash and Prem Prakash, brothers  of the appellant reached Pukhrayan on  17.5.2005.  The father  and the two sons i.e. respondent No.2 and the accused were  sitting in a room inside the house and talks for partition and  distribution of property was going on.  At about 3.30 p.m. the  father became extremely excited and took out his licensed  revolver and became offensive towards the deceased.  Immediately, respondent No.2 picked up the licensed gun  which was lying in a corner of the room, loaded the same and  fired a shot at his elder brother-Rajesh Kumar,  the deceased  who sustained grievous fire-arm injuries on his vital organs.    Injured Rajesh Kumar was shifted to a nearby hospital. He  was referred to Kanpur Hospital. Before reaching the said  hospital, he breathed his last.  

4.       The First Information Report (in short the ’FIR’) was

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lodged against the deceased’s father and the respondent No.2  by Ved Prakash and Prem Prakash. Deceased’s father and  respondent No.2 absconded for more than two months and  ultimately surrendered on 23.7.2005 before learned Chief  Judicial Magistrate, Kanpur. Charge sheet has already been  filed on 2.8.2005 indicating commission of offence punishable  under Section 302 IPC. The co-accused was granted bail by  learned Sessions Judge on 6.8.2005. Thereafter, Dinesh  Kumar and other criminals tried to compel the appellant to  enter into a compromise.  An FIR in this regard was lodged by  the appellant with the police authorities and a case has been  registered for offences punishable under Sections 147, 452,  323, 504, 506 and 307 IPC.  Sessions Judge, Kanpur rejected  the bail application of the respondent No.2 on 7.9.2005.  Case  was committed to the Court of Sessions and the matter is  pending trial in Sessions Trial no.326 of 2005.  

5.       On 21.11.2005, respondent No.2 filed bail application.   The High Court not only granted bail but recorded a finding  that the case falls within the ambit of Section 304 Part II IPC.   It is submitted that even after release on bail, the respondent  No.2 and his father want to get the case finished and for this  they assaulted the appellant physically.  An FIR was lodged by  Ved Prakash-brother of the appellant in this context on  21.3.2006.

6.      In support of the appeal, Mr. K.T.S. Tulsi, learned Senior  counsel submitted that the order passed by the High Court is  clearly unsustainable. FIR clearly indicates the factual  scenario and the continued tension in the family over  distribution of property. The High Court ought not to have  equated the case of father of the deceased with that of the  respondent No.2 who had in a diabolical manner killed an  innocent person. There was no question of any sudden  quarrel. The High Court has come to an abrupt conclusion  about sudden quarrel and the absence of motive.  It has also  been held that there was only about a single shot fired.  All  these aspects could not have been considered while  considering the bail application. Further the conduct of the  respondent No.2 clearly shows that he has misused the  liberties by threatening the appellant and her brothers.

7.      Learned Counsel for the State supported the stand of the  appellant.   

8.      However, learned counsel for the respondent No.2  submitted that the High Court has rightly granted bail to  respondent No.2. It is not a case which is covered by Section  302 IPC and the conclusions of the High Court are tentative  and they are not likely to have any effect on the trial.

9.      The parameters to be kept in view by Court while dealing  with bail applications has been highlighted by this Court in  Gajanand Agarwal v. State of Orissa and Anr. (2007 (5) SCALE  639).

10.     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

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

11.     The view was re-iterated in V.D. Chaudhury v. State of  Uttar Pradesh and Anr. (2005 (7) SCALE 68)

12.     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.

13.     In Imran Ali v. Habibullah and Anr. (2007 (4) SCALE 610)  it has been held as follows:

       "It is no doubt true that the High Court  felt persuaded to grant bail to the respondents  in the pending appeal before it. The High Court

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however, went on to record a very detailed  reasoned order virtually holding that the  prosecution case has no merit. Such  observations either for or against the  prosecution, made in orders disposing of bail  applications may prejudicially affect the  interests of the parties because in case a trial  is pending before the Sessions Court, the trial  Judge may consider itself bound by the  observations made in such an order. In any  event, such observations are bound to  influence its mind. It is no doubt true that in  appropriate cases particularly in serious  matters, the High Court may record reasons,  but the High Court while recording reasons  must take care to safeguard against  prejudicing the case of the parties. The  recording of reasons, wherever necessary, is  only to indicate the considerations that may  have weighed with the Court in passing the  order and the Court must do so in a manner  that may not prejudice the case of the parties.   The trend recently noticed, to virtually write a  judgment while disposing of an application for  grant of bail must be discouraged."   14.     The effect of the alleged subsequent threats have also  been considered in State of U.P. Through CBI v. Amarmani  Tripathi (2005(8) SCC 21). It was inter-alia observed as  follows:- "The evidence collected above discloses that  there were repeated attempts by the accused  Amarmani to interfere, and side track the  investigation and threaten the witnesses to  come out with a story that will deflect the  suspicion from him and his wife to Anuj  Mishra or others. It is also not in dispute that  Amarmani was on bail in a kidnapping case,  when he indulged in these activities in May,  2003. These materials were placed by the  prosecution before the High Court to establish  a reasonable apprehension of tampering. The  learned Single Judge has, however, completely  ignored these materials relating to tampering  with evidence/witnesses. This necessitates  interference with the order of the High Court. Shri Subramanium, learned ASG next  referred to the threats to witnesses held out by  Amarmani after his release on bail. Reliance is  placed on the four complaints received by the  crucial prosecution witnesses. Nidhi Shukla,  sister of the deceased by letter dated  10.9.2004, and Shanti Kumari, mother of the  deceased by an undated letter, have made  separate complaints to the CBI in regard to  efforts made by Amarmani to induce them to  accept money through one NK Mishra to settle  the matter and that when they refused, he  threatened them. Another witness Najib Khan  (a family friend of the deceased) has also sent a  complaint dated 22.9.2004, stating that on  that day two persons knocked on his door,  hurled abuses at him and told him that the  CBI officers were far away and once the cases  were closed, no one will protect him and he

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will be killed. Lastly, one Birjesh Pathak,  Member of Parliament has also sent a  complaint dated 16.9.2004 to the CBI alleging  that an attempt on his life was made on  7.9.2004 which, according to him, was at the  instance of Amarmani. The said allegations are  denied in the counter-affidavit filed on behalf  of Amarmani by his brother/Pairokar. It is  contended that these complaints must have  been sent at the instance of the CBI itself. In  so far as Brijesh Pathak is concerned, it is also  alleged that he is a close confidant of  Amarmani’s political rival. However, in the view  we have taken, it is unnecessary to examine  this aspect."

15.     The High Court has not indicated as to what is the  relevance of grant of bail to co-accused ignoring that the  respondent No.2 was the alleged assailant who fired the gun  and killed the deceased.  Strangely the conclusions, that there  was no motive or there was a sudden quarrel appear to have  been arrived at without any discussion and/or without  reference to any particular material. The impugned order is    unsustainable and is set aside.  The matter is remitted to the  High Court to consider the bail application afresh keeping in  view the principles of law delineated above. Bail granted to  respondent No.2 by the High Court is cancelled. He shall  forthwith surrender to custody and thereafter only, his bail  application can be considered.    

16.      Appeal is allowed to the aforesaid extent.