“REPORTABLE”

IN THE SUPREME COURT OF INDIA CRIMINAL  APPELLATE  JURISDICTION

CRIMINAL APPEAL NO. 2087/2008 Arising out of SLP(Crl.) No. 5126 OF 2007

Brij Nandan Jaiswal                          ….Petitioner

Versus

Munna @ Munna Jaiswal & Anr.       …. Respondents

ORDER

1. Leave granted.

2. The  order  granting  bail  to  the  accused  Munna  @  Munna

Jaiswal  passed  by  the  High  Court  is  in  challenge  here.   The

respondent  –  accused  Munna  is   facing  a  prosecution  for  the

offences under Sections 302, 504 & 506 I.P.C. in Crime Case No.

152  of  2006  of  Police  Station   Chakia.   It  is  alleged  that  on

15.12.2006 at about 4.45 p.m., a report came to be lodged regarding

the incident that took place at 2.00 p.m. on the same day wherein it

was  alleged  by  complainant  Brij  Nandan  Jaiswal  that  his  son

alongwith Bechan and Balmukund went to cut  woods in the forest

and while they were coming back from the forest  on bicycles,  Brij

Nandan and Bal Mukund were leading while complainant’s son Jai

Shankar was following them.  When they all reached Jabelia Mode,

Jai Shankar shouted very loudly.  At that time, the complainant and

his companions saw that Jai Shankar was being inflicted blows with

lathis,  danda and iron  rods   by Lalji  and his  son Kallu  @ Vinod,

Munnu @ Munna and one other unknown person.  On seeing the

complainant party, all  the four ran away towards forest  threatening

the complainant and his companions.  While Jai Shankar was being

taken for treatment,  he died at about 3.00 p.m.  The three accused

persons were taken into custody between 03.01.2007 to 05.01.2007.

Investigation proceeded during which the lathi  was  discovered.  It

was found that the accused had assaulted the complainant’s family

twice and even those cases were pending and charge sheets were

filed in those cases.  Apart from that, the accused Munna was also

involved in a gambling case.  The post-mortem report showed that

the deceased had sustained several injuries and that Jai  Shankar

had died due to  hemorrhage  and resultant shock.

3. A  bail  application  was  filed  before  the  Sessions  Judge  who

rejected the same.  It was urged before the Sessions Judge that the

seven injuries were found on the hands and feet of the deceased and

as such it could not be said that this offence could be brought under

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Section 302 I.P.C.  It was also urged that the alleged 4th person in the

complainant’s party was not located.  The Sessions Judge took the

view that the accused had criminal history.  The Sessions Judge also

found that it was broad day light  murder and since the witnesses had

seen the murder been committed on account of the old enmity, the

accused was not entitled to bail.

4. The High Court,  however,  in a very short  order came to the

conclusion that the accused was entitled to be released on bail.  The

High Court  seems to  have noted  the  arguments  on behalf  of  the

accused respondent that there was no motive or intention to commit

the alleged offence and that there were three others also who had

caused  injuries  by  iron  rods,  lathi  and  danda  and  the  deceased

received the injury on the non-vital part of the body.

5. The High Court, thus released the respondent on bail.  Feeling

aggrieved, the complainant had  filed this Special Leave Petition.

6. It  is  argued  by  the  learned  counsel  appearing  for  the

complainant  that  the  accused  had  criminal  history  and  that  there

were criminal  cases pending against  him.  It  is  pointed  out  by the

learned counsel that even earlier since there was an apprehension of

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attack, the son of the petitioner Karnala Prasad had already moved

an application on 17.03.2006 for providing protection to petitioner’s

family from the accused persons.   However,  no action was taken.

Learned counsel further contends that on 28.05.2006, the accused

had assaulted deceased with   intention to commit murder and crime

case no. MCR 75/06 was registered.   It is further pointed out that on

03.06.2006, the wife of the deceased Jai Shankar had also moved an

application  for  protection  to   her  husband  and  his  family  as  the

accused had given threat to kill him.  It is further pointed out that on

17.07.2006,  the  accused  no.  1  was  bound  by   Sub  Divisional

Magistrate under Sections 107 and 116 Cr.P.C. for not committing

breach of peace.  It is also pointed out that again on 31.07.2006, the

accused  inflicted  injuries  by  lathi  and  knife  on  the  chest  of  the

deceased  for  which  Crime  No.  MCR  No.  108/06  was  registered

against him in which chargesheet was also filed for offences under

Sections 323 and 504 I.P.C.   The learned counsel points out that

while granting bail, the bitter enmity was not taken into consideration

by the High Court  and the High Court  mechanically  proceeded to

grant the bail to the accused.   On the other hand, it was urged by

the  defence  counsel  that  while  it  was true  that  there  was  enmity

between the two families, it  could not be  forgotten that they were

relatives of each other and due to enmity, the allegations were made

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and criminal cases were inflicted.  It is further urged that even after

the  bail  was  granted,  there  was  no  incident  and  therefore  the

apprehension on the part of the complainant was ill founded.   It was

also pointed out that  the prosecutions faced by the accused were of

insignificant crimes and there was no allegation against the accused.

Learned   counsel  also  urged  that  there  was  no  justification  for

canceling the bail once granted.

7. It is now a settled law that complainant can always question the

order granting bail if the said order is not validly passed.  It is not as if

once a bail is granted by any court, the only way is to get it cancelled

on account of its misuse.  The bail  order can be tested on merits

also.  In our opinion, therefore, the complainant could  question the

merits of the order granting bail.  However, we find from the order

that no reasons were given by the learned Judge while granting the

bail and it seems to have been granted almost mechanically without

considering the pros and cons of the matter.   While granting bail,

particularly in serious cases like murder some reasons justifying the

grant are necessary.

8. Therefore, without expressing anything on the merits of the bail

application, we would chose to set aside the order granting bail and

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direct the High Court to decide the application again.  The accused

shall immediately surrender within one week from today.  If he does

not  surrender,  a non-bailable warrant shall  be issued against  him.

After his surrender,  the bail  application shall  be considered by the

High Court again.   

9. We,  therefore,  allow this  appeal  to  the  limited  extent  as  we

have indicated.  The bail application shall be disposed of within two

weeks of the surrender of the accused or as the case may be of his

arrest.

………………………………..J. (Tarun Chatterjee)

………………………………..J. (V.S. Sirpurkar)

New Delhi;

December 19, 2008.

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Digital  Performa

Case  No.  : Cr. Appeal No. ………/2008 SLP(Crl.) No. 5126 of 2007

Date of Decision : 19.12.2008

Cause Title :  Brij Nandan Jaiswal Versus

Munna @ Munna Jaiswal

Coram :   Hon’ble Mr. Justice Tarun Chatterjee     Hon’ble Mr. Justice V.S. Sirpurkar      

C.A.V. On : 18.12.2008

Order delivered by :  Hon’ble Mr. Justice V.S. Sirpurkar

Nature of Order  :  Reportable

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