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CASE NO.: Appeal (crl.)  481 of 2008

PETITIONER: Khilari

RESPONDENT: State of U.P. and Anr

DATE OF JUDGMENT: 13/03/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO  481 OF 2008 (Arising out of SLP (Crl.) No.960 of 2007)

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 no.2 during the pendency  of Criminal Appeal no.6724 of 2006.  Challenge before the  High Court was to the conviction recorded by learned Sessions  Judge, Bagpat, in Sessions Trial no.299 of 2000.  Respondent  no.2 was convicted for offences punishable under Section 302  and Section 506 of the Indian Penal Code, 1860 (in short ’IPC’)  and was sentenced to undergo imprisonment for life and one  year for the offences respectively.  He and his two sons were  also 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 no.2.  The High Court noted that the allegation  was that the incident took place on 9.3.2000 at about 8.30  p.m. and accused no.2 and his two sons assaulted Shiv  Kumar (hereinafter referred to as the ’deceased’) mercilessly  with iron rods and he succumbed to the injuries.         

3.      The only stand taken 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 deceased.    4.      The prosecution and the present appellant opposed the  prayer for grant of bail and PWs 1 and 2 and the informant  had seen the attacks and were eye witnesses to the occurrence  and PW 3 is an independent witness.  Their evidence has been  analysed in great detail by the trial Court who found that  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:

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"Looking to all facts and circumstances of the  case and particularly the antemortem injuries  and after consideration the submissions made  on behalf of the parties we find it appropriate  to release appellant on bail during pendency of  the appeal."          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 that it was 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 appellant no.2 accused  submitted that it is common knowledge that appeals in the  High Court take long time for disposal.  The 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 follows:

"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 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:

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"7.     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.

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:

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]."

11.     As the extracted portion and the High Court’s order goes  to show there was complete non-application of mind and non- consideration of the relevant aspects.   12.     The impugned order, therefore, is not sustainable and is  dismissed.  The bail granted to the respondent no.2 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.