REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.         141         OF 2009 (Arising out of S.L.P. (Crl.) No.2589 of 2008

Khilari   ....Appellant

Versus

State of U.P. & Ors. ....Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1. Leave granted.

2. Challenge in this appeal is to the order passed by a Division Bench of

the Allahabad High Court allowing the prayer for bail made by respondent

nos.2  and  3  during  the  pendency of  Criminal  Appeal  No.6724  of  2006.

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Challenge before the High Court was to the conviction recorded by learned

Sessions Judge, Bagpat, in Sessions Trial No.299 of 2000.  Respondent nos.

2  and  3  were  convicted  for  offences  punishable  under  Section  302  and

Section 506 of the Indian Penal Code, 1860 (in short ‘IPC’) and each was

sentenced to undergo imprisonment for life and one year for the offences

respectively.  The accused persons were convicted allegedly for committing

murder of Shiv Kumar. Challenging the conviction appeal  has been filed

and simultaneously prayer for being released on bail during the pendency of

the appeal was filed. By the impugned order the Division Bench accepted

the prayer and granted bail to the respondent nos. 2 & 3.  The High Court

noted that  the  allegation  was that  the  incident  took place on 8.6.2000 at

about  8.30  p.m.  and  accused  persons  assaulted  Shiv  Kumar  (hereinafter

referred to as the ‘deceased’) mercilessly with iron rods and he succumbed

to the injuries.

3. The only stand taken before the High Court was that the ante mortem

injuries on the body of the deceased included three contusions, one abraded

contusion  and  four  lacerated  wounds  of  different  dimensions  on  various

parts of the body which could not have been caused by iron rods. It was

their  stand  that  some  unknown  assailants  caused  the  injuries  to  the

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deceased.   It  was  also  submitted  that  by order  dated  15.11.2006 the co-

accused has been released on bail.

4. The  prosecution  and  the  present  appellant  opposed  the  prayer  for

grant of bail.  It was their stand that PWs 1 and 2 and the informant had seen

the  attacks  and  were  eye-witnesses  to  the  occurrence  and  PW3  is  an

independent witness.  Their evidence has been analysed in great detail by

the  trial  Court  who  found  it  to  be  credible  and  cogent.   So  far  as  the

possibility of injuries is concerned, that aspect was also examined by the

trial Court.

5. After noticing the rival stands, the High Court by the impugned order

granted the bail with the following conclusions:

“Considering  fact  and  circumstances  of  the  case but  without  making  any  opinion  on  the  merit  of  the appeal at this stage, we are of the view that the accused- appellants Dharmendra and Manoj shall also be released on bail.”

6. Learned  counsel  for  the  informant  appellant  submitted  that  the

approach of the High Court is clearly erroneous. After the conviction has

been recorded by believing three eye witnesses and also discarding the stand

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that  some of the injuries  were not  possible  by iron rods,  the High Court

should not have by a cryptic order directed grant of bail. It was, therefore,

submitted that the impugned order is unsustainable.

7. Learned counsel for the State supported the stand of the informant.

8. Learned counsel  for  the respondent nos.2 and 3 accused submitted

that it is common knowledge that appeals in the High Court take a long time

for disposal.  A balance has to be struck between the right to speedy trial

and the need for the accused being in custody.  The High Court has taken

note of relevant factors and has granted bail.

9. The parameters to be adopted while dealing with the application for

bail by suspension of sentence during the pendency of the appeal has been

examined by this Court in several cases.  In  Kishori Lal v.  Rupa and Ors.

(2004 (7) SCC 638) it was noted as follow:

“4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and  suspension  of  sentence.  One  of  the  essential ingredients  of  Section  389  is  the  requirement  for  the appellate court to record reasons in writing for ordering suspension  of  execution  of  the  sentence  or  order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly

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indicates that there has to be careful consideration of the relevant  aspects  and  the  order  directing  suspension  of sentence  and  grant  of  bail  should  not  be  passed  as  a matter of routine.

5. The  appellate  court  is  duty-bound to  objectively assess the matter and to record reasons for the conclusion that  the  case  warrants  suspension  of  execution  of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier  period  when  the  accused-respondents  were  on bail.”

10. In Anwari Begum v. Sher Mohammad and Anr. (2005 (7) SCC 326) it

was, inter alia, observed as follows:

“7. Even on a cursory perusal the High Court’s order shows  complete  non-application  of  mind.  Though  a 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.

8. 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:

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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 with 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 & 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).”

11. As the extracted portion of the High Court’s order goes to show there

was complete non-application of mind and non-consideration of the relevant

aspects.  The order relating to grant of bail in respect of co-accused by order

dated 15.11.2006 was the subject matter of challenge in Pancham Chand &

Ors. v.  State of Himahal Pradesh & Ors. (2008 (3) SCALE 379) and the

order was set aside.

12. The impugned order,  therefore,  is  not  sustainable  and is  set  aside.

The bail granted to the respondent nos. 2 and 3 is cancelled.  The matter is

remitted to the High Court for fresh consideration in accordance with law.    

13. The appeal is allowed to the aforesaid extent.           

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......................................... .............J.

(Dr. ARIJIT PASAYAT)

……..………….............................J. (ASOK KUMAR GANGULY

New Delhi January 23, 2009

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