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CASE NO.: Appeal (crl.)  529 of 2006

PETITIONER: Anil Kumar Tulsiyani

RESPONDENT: State of U.P. & Anr.

DATE OF JUDGMENT: 05/05/2006

BENCH: H.K.SEMA & R.V.RAVEENDRAN

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Crl.) No.4957 of 2005)

H.K.SEMA,J

               Leave granted.

               The challenge in this appeal is to the order dated  7.9.2005 passed by the High Court of judicature at Allahabad  in Criminal Misc. Bail Application No.11884 of 2005 granting  bail to the second respondent-accused.                  We may at this stage, dispose of one of the  arguments of Mr. Vijay Hansaria, learned senior counsel, for  the second respondent-accused that the petition itself is not  maintainable, as the same is not filed by an aggrieved party.   This contention does not survive as by our order dated  30.9.2005 permission to file Special Leave Petition has already  been granted.                  Learned senior counsel on both sides have  advanced arguments touching the merits of the case.  We,  however, refrain ourselves from making any observation on the  merits of the case at this stage lest it may prejudice the case of  the accused, as the trial is yet to commence. Suffice it is to say  the High Court was not justified in admitting bail to the  respondent.                 The offence under which the respondent was  charged is Section 302 read with 201 IPC in which the  husband was the main accused and the wife was the co- accused.                 Co-accused’s application was rejected by the High  Court on 3.6.2005 after a threadbare discussion.  The High  Court arrived at a finding that the incident had taken place  inside the house of the accused, that too in her bedroom itself  and that the accused being an advocate would be no  mitigating ground to release her on bail.  

               The respondent-husband’s application was also  rejected by the Sessions Judge, Allahabad by an order dated  10.6.2005 after taking into consideration the submission of  both sides and various facts and circumstances of the case.                 The High Court, in our view, seems to have weighed  with the tenuous circumstances such as  there being no report  of ballistic expert to show the alleged fingerprints found on the  recovered revolver to be of his own, there being no previous  criminal history of the accused who is a practicing advocate of  the High Court.  The High Court has not at all considered the  gravity and the nature of the offence in which the deceased

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stated to be a close friend of the respondent-accused has been  shot at in his house, that too inside his bedroom.  Prima facie,  the prosecution story has disclosed that a heavy burden is laid  on the accused to explain the circumstances.                   Mr. Hansaria, learned senior counsel for the  respondent, strenuously contended that the respondent is on  bail since 7.9.2005 that he has never misused the liberty  granted to him that there is no allegation of prosecution  witnesses being tampered with and there is no apprehension  of the respondent absconding or thwarting justice.  According  to him, there is no ground made out for cancellation of bail.   He also contended that the principles applicable to  cancellation of bail should be applied when considering an  appeal under Article 136 of the Constitution against an order  granting bail.  We are unable to countenance with this  submission of learned counsel for the respondent.  What we  are considering is the correctness of the manner in which the  respondent has been admitted to bail by the High Court.  We  are not considering any application for cancellation of bail.                  By now it is well-settled principle of law that one of  the considerations in granting bail in non-bailable offences is  the gravity and the nature of the offence.  The High Court has  not at all addressed to this issue while granting bail to the  respondent.                 This court in State of U.P.   vs.  Amarmani  Tripathi, (2005) 8 SCC 21, in which one of us (Raveendran, J.)  was a member has considered various decisions of this Court  and observed that the circumstances to be considered in an  application for bail are (i) whether there is any prima facie or  reasonable ground to believe that the accused had committed  the offence; (ii) nature and gravity of the charge; (iii) severity of  the punishment in the event of conviction; (iv) danger of the  accused absconding or fleeing, if released on bail; (v)  character, behaviour, means, position and standing of the  accused; (vi) likelihood of the offence being repeated; (vii)  reasonable apprehension of the witnesses being tampered  with; and (viii) danger, of course, of justice being thwarted by  grant of bail.                  In the present case, admittedly, the respondent is  an advocate. Being an advocate he is in a commanding  position and standing in the society.  Keeping in view his  position in the background, a reasonable apprehension of the  witnesses being tampered with or won over, coerced,  threatened or intimidated by using his influence and position  cannot be ruled out.                  In fact, going through the entire order of the High  Court granting bail, we do not find any mitigating  circumstances, which warranted the High Court in granting  bail in a non-bailable grave offence under Section 302/201  IPC.                   For the reasons aforestated this appeal deserves to  be allowed.  The order of the High Court dated 7.9.2005  granting bail to the respondent is hereby quashed and set- aside.  The respondent is on bail.  His bail bond and surety  stands cancelled.  He is directed to be taken back into custody  forthwith.  Appeal is allowed.