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CASE NO.: Appeal (crl.)  1002 of 2007

PETITIONER: Deepak Singchi

RESPONDENT: State of Rajasthan and Anr

DATE OF JUDGMENT: 03/08/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   1002          OF 2007 (Arising out of SLP (Crl.) No.6630 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 Rajasthan High Court at Jaipur,  granting bail to the respondent no.2. (hereinafter called as the  ’accused’).

3.      Background facts in a nutshell are as follows:  

       On 18.9.2002, appellant lodged report about the killing of  his brother by some persons.  It surfaced during investigation  that the accused and co-accused Nasik Singh had hired two  contact killers- Rohitas and Dharmendra for killing the  deceased.

Application for bail was filed by the appellant before the  Additional Chief Judicial Magistrate, Jaipur, who by order  dated 6.6.2006 rejected the application.  Application for bail  filed before the Additional Sessions Judge, Jaipur, was  rejected by order dated 12.7.2006.  It was, inter alia, noted as  follows:

       ’The Court heard the arguments  advanced by both the parties and has gone  through the legal provisions.  It is correct that  the incident is 4 years old and accused has  been investigated twice and the final report  was given. In my opinion that enquiry was also  done treating him as one of the suspects.  Late  on the evidence which were collected primarily  show his involvement in the crime.  Dispute  relating to the business of property between  both the parties, having ill feelings against the  deceased because of the same, bringing the co- accused Nasib Singh to the house of the  deceased on the day of incident, the  recognition of this Nasib Singh by the wife of  deceased during TIP, recognition of the  accused who shot the deceased by his wife and

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his brother-in-law and after their arrest their  recognition during TIP, bullets found on the  place of incident which was of co-accused’s  pistol, on the information given by the co- accused the recovery of bullets and arms  alongwith the car, the same colour of the car  which was reported 4 years back, the recovery  of items at the instant of accused persons, the  recovery of the places where the conspiracy  was hatched by the accused persons, long  conversation between accused and co-accused  Nasib Singh for hours during, before and after  the date of the incident (Applicant/Accused  and co-accused did not tell about their  conversation on the phone before and after the  incident in the enquiries), etc. have come up  clearly by the enquiries.

       Thus the facts and circumstances state  that because of the enmity relating to property  business the accused planned to murder of the  deceased with the co-accused and entered into  an illegal contract with the other accused  Rohitaas and Dharmendra to kill the deceased.  They murdered the deceased and for this work  only the accused took the co-accused Nasib  Singh to the deceased’s house to make him  familiar with the person supposed to be killed  by them.  The accused and the co-accused had  a long conversation before and after the  incident and this fact was not revealed by  them in the earlier enquiries which clearly  show the involvement of accused in the crime."                          4.      The High Court was moved for grant of bail. Learned  Single Judge by the impugned order granted bail which is  being questioned by the informant.  It is submitted that two  courts on analyzing the material on record rejected the prayer  for bail.  The High Court without indicating any reason has  granted the bail.  No reason has been indicated as to why the  bail was granted notwithstanding the well-reasoned orders of  learned Additional Chief Judicial Magistrate, Jaipur, and  Additional Sessions Judge, Jaipur.            5.      In response, learned counsel for the accused submitted  that initially final report was submitted but subsequently, a  fresh look was taken after taking permission from Court.  The  accused persons were in custody for more than seven months.   On considering all relevant aspects learned Single Judge has  accepted the prayer for bail.

6.      The relevant portion of the High Court’s order reads as  follows:

       "It is not desirable to discuss the evidence  available on record at this stage.  However,  taking into consideration all the facts and  circumstances of the case and without  expressing any opinion on the merits of the  case I deem it just and proper to release the  accused applicant on bail under Section 439  Cr.P.C. 1 cite 2005(2) SCC 13 in support."

7.      At this juncture, it would be appropriate to take note of a  decision of this Court in Omar Usman Chamadia v. Abdul and

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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 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)

8.      These aspects were recently highlighted in V.D.  Chaudhary v. State of Uttar Pradesh and Anr. (2005 (7) SCALE  68).      

9.      Even on a cursory perusal the High Court’s order shows  complete non-application of mind. Though detailed  examination of the evidence and elaborate documentation of  the merits of the case is to be avoided by the Court while  passing orders on bail applications, yet a court dealing with  the bail application should be satisfied as to whether there is a  prima facie case, but exhaustive exploration of the merits of  the case is not necessary.  The court dealing with the  application for bail is required to exercise its discretion in a  judicious manner and not as a matter of course.

10.     There is a need to indicate in the order, reasons for prima

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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.

11.     Any order dehors of such reasons suffers from non- application of mind as was noted by this Court, in Ram  Govind Upadhyay  v. Sudarshan Singh and Ors.  [(2002) 3  SCC 598], Puran etc. v. Rambilas and Anr. etc. [(2001) 6 SCC  338)] and in Kalyan Chandra Sarkar  v.  Rajesh Ranjan alias  Pappu Yadav & Anr. [JT 2004 (3) SC 442].

12.     The above position was highlighted by this Court in  Chaman Lal v. State of U.P. and Anr. (JT 2004 (6) SC 540),  and in Kamaljit Singh v. State of Punjab and Anr. (2005 (7)  SCC 326), and Crl. Appeal No 543 of 2007 (Arising out of SLP  (Crl.) No.49 of 2007) Gajanand Agarwal v. State of Orissa and  Anr.)          13.     In view of the settled position in law, the inevitable  conclusion is that the impugned order of the High Court is  indefensible and the same is set aside. The matter is remitted  to the High Court for fresh consideration of the bail  application.   

14.     Needless to say the respondent No.2 shall forthwith  surrender to custody because of cancellation of his bail. The  bail application can be considered after only he surrenders to  custody.           15.     The appeal is disposed of accordingly.