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CASE NO.: Appeal (crl.)  1115 of 2005

PETITIONER: V.D. Chaudhary                                           

RESPONDENT: State of U.P. and Anr.                           

DATE OF JUDGMENT: 01/09/2005

BENCH: ARIJIT PASAYAT & ARUN KUMAR

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 141/2004)

ARIJIT PASAYAT, J.

       Leave granted.

       Informant calls in question legality of the order  passed by a learned Single Judge of the Allahabad High Court  granting bail to respondent No.2 (hereinafter referred to as  the ’accused’).  

       Background facts sans unnecessary details are as  follows:

       On 5.2.2000 complainant lodged the First Information  Report. It was stated therein that when he and his son were  attending a marriage party, the respondent-accused started  firing shots from his gun. When he was asked not to do so,  he did not stop and continued the firing. The appellant’s  son Saurabh received injuries due to the shots fired by the  accused and he died due to the injuries. Initially, the  police registered a case alleging commission of offences  punishable under Sections 304-A and 338 of the Indian Penal  Code, 1860 (in short the ’IPC’). After investigation charge  sheet was filed under Sections 304 and 338 IPC. Cognizance  was taken and process was issued. Accused filed an  application for being released on bail. By the impugned  order bail has been granted.

       According to the appellant, the accused was absconding  for about 2 years. His prayer for bail was initially  rejected. Non-bailable warrant and process under Sections 82  and 83 of the Code of Criminal Procedure, 1973 (in short the  ’Code’) were issued. Subsequently he was arrested. It was  submitted for the accused that he was already on bail for  offence punishable under Sections 304-A and 338 IPC. On a  reading of FIR and other documents offence under Section 304  could appear against the accused but "surreptitiously" the  same has been converted into offence under Section 304 IPC.  With the following observations the High Court granted bail  by the impugned order:

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       "It is said that even if allegations  made in the FIR and other papers are accepted  to be true on its face value, offence under  Section 304A and 338 IPC would appear against  the accused applicant in Case Crime  NO.2072/2002 State v. Dev Kumar, P.S. Sadar  Bazar District Saharanpur. But  surreptitiously it was converted into the  offence under Section 304 IPC. It was said  that the applicant was already on bail for  the offences under Section 304A and 338 IPC.  Looking to the facts and circumstances of the  case, learned Magistrate is directed also to  accept fresh bail bonds for the added offence  under Section 304 IPC in the Case  No.2702/2002.

       Application is disposed of  accordingly."            

       Complainant has filed this appeal questioning the  correctness of the order passed.  According to him, the High  Court should not have accepted plea of accused that police  surreptitiously changed the nature of the offence. It is  clearly contrary to facts. In fact, on completion of  investigation it has been noted that the applicable offence  is Section 304 IPC and not 304-A. There was no surreptitious  act involved and, therefore, grant of bail is proper.  High  Court has not even indicated any reason for grant of bail.   It is pointed out that taking advantage of the fact that the  accused is on bail, there is an effort to prolong the trial  and hardly any progress has been made though nearly 5 years  have elapsed.  

       In response, learned counsel for the respondent No.2- accused submitted that after considering the relevant  factors bail has been granted.  

       We find that that the High Court has not indicated any  reason for grant of bail.  As the facts go to show the  charge sheet was filed alleging the commission of offence  under Section 304 IPC. Merely because at some earlier point  of time the investigation proceeded on the line as if  offence punishable under Section 304-A is committed yet  there is no embargo on the police filing charge-sheet  indicating appropriate offence.  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

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shown by the 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  courts’ 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 & Ors. v. Jagdev Singh Talwandi,  (AIR 1984 SC 444)."

It was submitted by learned counsel for the accused that  there is no allegation of misuse of liberty after grant of  bail. Though the respondent No.2-accused’s stand is that the  trial is at the verge of conclusion according to the  appellant, on some ground or the other the matter has been  adjourned. As the quoted impugned order go to show the High  Court had not considered the application in its proper  perspective. It is submitted by learned counsel for  respondent No.2-accused that examination of all the  witnesses is over and only the investigation officer (in  short the ’IO’) is to be examined. It is submitted that  unnecessarily adjournments shall not be sought for and in  any event the respondent No.2-accused shall fully cooperate  for early completion of the trial.

       Though this is a fit case for cancellation of bail in  view of the infirmities pointed out above considering the  fact that prosecution evidence is practically closed, we  dispose of the appeal in the following terms:   (i)     The trial Court would try to complete the trial by  end of December, 2005. (ii)    The respondent No.2-accused shall fully co-operate  for completion of trial. He shall not seek  unnecessary adjournments. If the Court feels that he  is taking advantage of the bail granted which is  being continued for nearly five years, it shall  direct cancellation of bail.  (iii)In case the trial is not completed within the  stipulated time and respondent no.2 is found to be  responsible for delay and/or tampering with  evidence, the trial Court shall direct cancellation

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of bail.

       The appeal is accordingly disposed of.