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CASE NO.: Appeal (crl.)  972 of 2006

PETITIONER: Gajanand Agarwal

RESPONDENT: State of Orissa & Ors

DATE OF JUDGMENT: 18/09/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 3745 of 2006) [With Criminal Appeal No 973 of 2006 (Arising out of SLP (Crl.) No.3746 of 2006]

ARIJIT PASAYAT, J.

       Leave granted.

                Challenge in these appeals is to the order of the learned  Single Judge of the Orissa High Court granting bail to the  respondent no.2 in each case. In criminal Appeal relating to  SLP (Criminal) 3745 of 2006 respondent no.2 is Bimal Kumar  Khetan whereas in the criminal appeal relating to SLP  (Criminal) 3746 of 2006, the respondent no.2 is Sunil Kumar  Khetan.  The primary stand of the appellant is that the bail  was granted without application of mind, as no reason was  indicated as to why respondent no.2 (hereinafter referred to as  the ’accused’) was entitled to bail.  It is pointed out that earlier  several petitions were rejected by leaned Additional Sessions  Judge and the High Court.  

It is unnecessary to elaborately state the factual position  as stated by the appellant.   

       Bimal was married to the daughter of the appellant i.e.  Manisha (hereinafter referred to as ’deceased’). The marriage  between the deceased and the said accused took place on  9.5.2005. Within five months of marriage, the deceased was  found dead on 1.10.2005. The appellant lodged FIR at the  Jharsuguda police station and on the basis case was  registered and investigation was undertaken. The offences  indicated were under Sections 498A, 304B read with Section  34 of the Indian Penal Code, 1860 (in short the ’IPC’) and  Section 4 of the Dowry Prohibition Act, (in short ’the Act’)   Respondent no.2-Bimal  was arrested on 3.10.2005. Rest of  the accused persons were found to be absconding and police  having failed to arrest them in spite of issuance of non- bailable warrants of arrest made an application in terms of  Sections 82 and 83 of the Code of Criminal Procedure, 1973  (in short ’Cr.P.C.’) was filed.  On 16.12.2005 father-in-law of  the deceased Kailash Khetan and mother-in-law Kanta Khetan  filed application in terms of Section 438 Cr.P.C. before the  High Court which was rejected.  Process under Section 82 of  the Cr.P.C. was issued by the learned ADJM on 19.12.2005.   On 16.1.2006 respondent no.2 Bimal filed application for bail

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which was rejected on the ground that investigation was still  in progress.  Liberty was granted to the accused to move the  Sessions Judge for bail after completion of investigation and  submission of final form.  On 24.1.2006 application in terms  of Section 438 was filed by Sunil Kumar (respondent no.2 in  the connected appeals) and Sujata Khetan.  The same were  rejected by order dated 24.1.2006.  An application under  Section 438 Cr.P.C. was filed by Kailash and Kanta.  The same  was again rejected by the High Court.  On 27.1.2006 the Trial  Court issued orders in terms of Section 83 Cr.P.C. to attach  the moveable properties of the accused.  On 30.1.2006 the  investigating officer submitted the charge-sheet/final report  before the learned SDJM indicating that a prima facie case has  been made against the respondent No.2-Bimal Kumar  Kailashnath (father-in-law), Kanta Devi (mother-in-law), Sunil  (brother-in-law) the respondent no.2 in the connected appeal  under Sections 498A, 304B, 302, 406 read with Section 34  IPC and Section 4 of the D.P. Act. The prosecution made a  further prayer to permit investigation in terms of Section  173(8) Cr.P.C. since some of the accused persons were still  absconding and were not arrested. After surrendering, Kanta  Khetan and Sujata Devi filed application for bail.  The same  was rejected by learned SDJM.  Learned Sessions Judge also  rejected the bail application. The applications filed by  Kailashnath and Sunil were also subsequently rejected.  On  13.2.2006, respondent no.2 Bimal filed fresh bail application  before the Sessions Court, which was rejected.  The learned  Additional Sessions Judge took note of factual position which  according to him were relevant for the purpose of rejecting the  bail application. It was noted that strong case under Section  302/304B IPC was made out. Sujata Devi filed bail petition  before the High Court after rejection of bail application by the  Sessions Judge.  The High Court by order dated 6.3.2006  granted bail to her.   

Interestingly, it was noted that the order was not to be  treated as a precedent so far as other accused persons are  concerned.  The correctness of such a direction shall be dealt  with later.  It is to be noted that on 22.3.2006 Kanta Devi  moved the High Court for bail.  The High Court granted the  bail imposing condition similar to those which were stipulated  in case of Sujata Devi.  Accused Sunil Kumar moved the High  Court for regular bail. By order dated 7.4.2006 the prayer was  rejected but liberty was granted to renew his prayer for bail  after the case was committed to the Court of Sessions.  On  21.4.2006 the High Court granted bail to Kailashnath on the  ground that he was aged and was sick.  Here again, the High  Court passed an order to the effect that same was not to be  treated as a precedent so far as other accused persons are  concerned. On 3.5.2006 accused Sunil Kumar moved the  Sessions Court for bail on the ground that his father requires  further treatment at Apollo Hospital and there was no male  member to accompany him.  The learned Sessions Judge  rejected the prayer of bail by order dated 3.5.2006 suspecting  genuineness of the documents filed.  It was noted that report  was dated 30.6.2006 i.e. date put on the advisory report, while  the application was made earlier.  Because of this suspicious  document, the application for bail was rejected.

On 10.5.2006 another application for bail was moved by  respondent no.2 Bimal Kumar after case was committed to the  Court of Sessions. Learned Additional Sessions Judge rejected  the prayer in view of the fact that no changed circumstances  have been shown.  On 18.5.2006 accused Sunil moved the  High Court for bail.  The order granting bail to him is the

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subject-matter of challenge in one of the appeals.

The date for framing of charge was fixed to 6.6.2006.  Accused Bimal filed bail application before the High Court.  By  order dated 22.6.2006 bail has been granted.  The orders  passed in the cases of Bimal and Sunil read as follows:

               Bimal’s case

"Heard learned counsel for the petitioner  and learned counsel for the State.

Mr. Dhal, learned counsel for the  petitioner submits that the cause of death  was not known and the other accused  persons have been released on bail, so the  present petitioner also be released on bail.

Mr. Naik, learned counsel for the  informant, at the other hand, strongly  repudiates the submissions made by Mr. Dhal  and submit that though cause of the death  was not known and causing suspicion, but  some blood stained clothes were found.

Considering the submissions made and  perusing the materials available and in the  peculiar facts and circumstances of the case,  I direct that the petitioner, who is in custody  for ten months, be released on bail on  executing a bond of Rs.50,000/- (Rupees Fifty  thousand) with two local sureties each for the  like amount to the satisfaction of the learned  Addl. Sessions Judge, Jharsuguda in S.T.  case No.24/2006.  With further conditions  that he shall not threaten or coerce the  witnesses, shall not indulge in any criminal  activity, shall appear in court on each date to  which the case stands posted for trial and  shall cooperate with the investigation.   Deviation of any of the conditions shall entail  cancellation of bail.

The PLAPL is disposed of."

               (Underlined for emphasis) Sunil’s case

"Perused the case diary and other  materials available on record.  The petitioner  is the brother-in-law. He is in custody for  quite some time. In the peculiar facts and  circumstances of the case I direct that the  petitioner who is in custody be released on  bail on his executing bond for Rs.25,000/-  (Rupees Twenty five thousand) with two local  sureties, each for the like amount to the  satisfaction of the Court below, with further  conditions that he shall not indulge in any  criminal activity, shall appear before the  Court on each date to which the case will be  posted for trial.  Violation of any of the above  conditions will entail cancellation of bail.

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This order shall however not be treated  as precedent so far as husband is concerned."     

               (Underlined for emphasis)

Learned counsel for the appellant submitted that no  reason has been indicated by the High Court for granting bail  except stating that " in the peculiar facts and circumstances of  the case" the bail was being grated because the accused is in  custody for ten months".  Similar is the case of Sunil Kumar.

It is urged that as to what the peculiar facts and  circumstances of the case are, the High Court did not indicate  even it did not refer to the various orders passed earlier by the  learned Additional Sessions Jude and by the High Court on  the earlier occasions. Even factually the High Court is not  correct in stating that the accused was in custody for ten  months. In fact, he was arrested on 3.10.2005 and the date of  order is 22.6.2006.

Learned counsel for respondent no.2 submitted that  though the High Court order’s prima facie does not disclose  reasons, the various materials were placed in support of the  prayer for bail which were not considered.  According to him  High Court was justified in granting bail.  The Hon’ble Judge  had earlier dealt with the matter and was, therefore,  conversant with the materials on record.  That probably is the  reason for holding that peculiar circumstances existed.      

This Court had occasion to deal with similar casual  disposal of the bail application.   

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 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

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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)".

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

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.

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.

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].

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). In the case of Sunil the order is still more queer. Bail was  granted to him as he was the brother-in-law and has been in  custody for quite some time.   

The least that the High Court could have done is to refer  to the earlier orders and, in fact, as to how the scenario had

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changed to warrant a departure from the earlier view  expressed.  That apparently has not been done.  In case of  Sunil, learned Additional Sessions Judge, had observed as to  how the non-genuine documents were pressed into service  while applying for bail.  That aspect has not been even noted  by the High Court.      

Nothing more is needed at this stage to set aside the  impugned order of the High Court.   

What is more baffling is that in the impugned orders  there is no mention about the States’ stand.  Was it a silent  spectator before the High Court?  Similar callousness was  deprecated by this Court in Salim Khan v. Sanjai Singh and  Anr. (2002 (9) SCC 670). While allowing these appeals we direct reconsideration of  the applications for bail by the High Court in accordance with  law keeping in view the principles set out above.   Before parting the appeals we would take note of the  direction by the High Court that its order is not to be treated  as a precedent. In fairly well settled that orders of bail are not  necessarily orders of any precedent value.  Apart from that the  correcting of orders stating that they shall not be treated as a  precedent has been dealt by this Court.   

In State of Punjab and Anr. v. Rajesh Syal  [2002 (8) SCC  158] it was observed as follows:    

"Before concluding, we would like to  observe, with respect, that by directing that  the order which was passed in V.K. Sharma  case [(2000) 9 SCC 449] should not be treated  as a precedent implies that the said order is  otherwise not in accordance with law and  therefore should not be regarded as a  precedent.  This Court has ample jurisdiction  to pass orders under Article 142(1) of the  Constitution which may be necessary for  doing complete justice in any case or matter.   But even in exercising this power, it is more  than doubtful that an order can be passed  contrary to law.  In V.K. Sharma case this  Court did not purport to exercise any  jurisdiction under Article 142.  The decision  to direct the applicant to file applications to  be moved for consolidation of the cases  pending in different courts for different  offences to be tried in a single court was not  in accordance with law, and the said decision  in V.K. Sharma and that of P.K. Sharma (WP  (Crl.) Nos. 72-75 of 2000, dated 5.5.2000 (SC)  are overruled."       The appeals are accordingly allowed.