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CASE NO.: Appeal (crl.)  107-108 of 2005

PETITIONER: Panchanan Mishra                                                    

RESPONDENT: Digambar Mishra & Ors.                                      

DATE OF JUDGMENT: 17/01/2005

BENCH: Ashok Bhan & Dr. AR. Lakshmanan  

JUDGMENT: J U D G M E N T (arising out of Special Leave Petition (Crl.) Nos. 3315-3316/2004)     Dr. AR. Lakshmanan, J.

       Leave granted in both the Special Leave Petitions.       

Two Special Leave Petitions being Nos. 3315 and 3316 of 2004 were filed  against the impugned non-speaking orders passed by the High Court of Patna in  Criminal Appeal Nos. 50 of 2004 and 62 of 2004 granting the bail to accused Nos. 1 to  3 without considering the criminal history of the accused, the evidence available against  them, the threats to the life of the complainant/appellant and his family members and  likelihood to abscond from the criminal courts of justice and rendering the fair trial  impossible.  There are six accused in this case.  They are: 1. Mahendra Mishra (no bail granted); 2 & 3. Rajendra Mishra and Jitendra Mishra (bail granted); 4. Digambar Mishra (bail granted); 5 & 6. Nagendra Mishra & Gopal Mishra (absconding/not on trial).

All the above accused persons have been charged for being members of an  unlawful assembly and committing murder of Sunil Kumar Mishra and Chandra Shekhar  Mishra and attempt to commit murder of Manoj Kumar Mishra, Anil Kumar Mishra and  Panchanan Mishra.  The accused were armed with the guns and they surrounded the  brothers and the complainant/appellant.  Digambar Mishra fired from his licensed gun at  Sunil Kumar Mishra who fell down.  Mahendra Mishra fired at Chandra Shekhar Mishra  who also fell down.  Gopal Mishra fired three shots from his country made pistol on the  complainant/appellant and the complainant managed to run towards his house raising  an alarm.  The complainant brought the two injured sons on a thela to Sardar Hospital,  Munger but they died before any medical help could be given to them and they were  declared dead.  One of the deceased was an advocate, another was lecturer and one  was appointed auditor.

The motive of the murder was on account of the occurrence which took place  that the complainant/appellant had sold a land to Ramachandra Yadav and the accused  persons felt annoyed at it and tried to grab those lands on the strength of their muscle  power and there is also a litigation pending between the parties.  Anil Mishra was also  injured.   

The accused Digambar Mishra, Rajendra Mishra, Jitendra Mishra and Mahendra  Mishra were sent for trial and two accused, namely, Gopal Mishra andNagendra Mishra  were shown as absconded and did not turn up during the whole trial.  The proceedings  in respect of accused Nagendra Mishra and Gopal Mishra were separated vide order  dated 20.11.2002 and the case of the rest of the accused was committed to the court of  Sessions.

The prosecution examined four eye witnesses PW-1, PW-2, PW-4 and PW-5,  who is an independent witness and whose house is adjacent to the house of the  complainant.  During the trial, it was established that PW-1,2,4 and 5 are the natural  and probable witnesses and their testimony was amply corroborated with each other.   The identity of the accused persons during the cross examination was also established.  

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There is no dispute with reference to the place of occurrence, the time of occurrence  and the manner of occurrence.  The direct evidence of the eye witnesses was  corroborated by the medical evidence and the motive of the crime was also established.   The presence of the eye witnesses was also established at the time of occurrence.  It  was also proved that there was a Satya Narayan Puja at the house of the complainant  before the occurrence.   The trial Court, on the basis of the evidence available, came to the conclusion  that there is satisfactory evidence that Digambar Mishra instigated to commit the  murder and at that point of time the common intention was developed and in pursuance  of that common intention of the accused they fired at two deceased.  They had also  common intention to murder other persons available there and they fired on the  complainant PW-2 and PW-1.

The trial Court convicted and sentenced the accused Mahendra Mishra,  Rajendra Mishra and Jitendra Mishra for the offence under Sections 148, 302 read with  34, 307 read with 34 I.P.C. and Section 27 of the Arms Act.  The accused Digambar  Mishra was convicted and sentenced under Section 109 read with Section 302 and  under Section 307 I.P.C.  

The criminal appeals were filed by the accused before the High Court.  The High  Court ordered the release of Digambar Mishra on bail in Criminal Appeal No. 50 of 2004  vide order dated 23.01.2004 and the other two accused, namely, Rajendra Mishra and  Jitendra Mishra vide impugned order dated 30.01.2004 in Criminal Appeal No. 62 of  2004.  

The non-speaking order passed by the High Court in Criminal Appeal No. 50 of  2004 and 62 of 2004 reads thus:-

"In Criminal Appeal No.50 of 2004

Issue notice and call for the lower court records.

On the point of Ba-1, counsel submits that the appellant has been  convicted under Sections 302 and 307 with the aid of Section 109 of the  Penal Code.  The prayer for bail is opposed on behalf of the informant, who  has appeared on his own.

In the facts and circumstances, during pendency of this appeal, the  appellant(Digambar Mishra) shall be released on bail on furnishing bond of  Rs.10,000/- (ten thousand) with two sureties of the like amount each to the  satisfaction of the trial Court  i.e., 3rd Addl. Sessions Judge, Munger in  Sessions Trial No. 730 of 2002.

The realization of fine shall also remain stayed till disposal of the  appeal.

In Criminal Appeal No.62  of 2004

Issue notice and call for the records.   

On the point of bail, counsel submits that the appellants are not  assailants of the deceased.  The prayer is opposed on behalf of the  informant who has appeared on his own, and submits that from the  evidence of PW-1 it will appear that these appellants had assaulted him.   

In the facts and circumstances, during pendency of this appeal  appellants namely Rajendra Mishra and Jitendra Mishra are ordered to be  released on bail on their furnishing bail bonds of Rs.10,000/- with two  sureties of the like amount each to the satisfaction of the trial Court i.e. 3rd  Addl. Sessions Judge, Munger in Sessions Trial No. 730/2002."    

A reading of the above non-speaking order would only show the total non- application of mind by the Court to the gravity of the crime, the apprehension of  tampering with the evidence and threats to the life of the complainant and other

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witnesses given by the accused.  The High Court passed the impugned order in a  mechanical fashion without proper application of mind and without going into the merits  and evidence on record against the accused persons.  The High Court failed to see and  appreciate that the respondents herein who are the main accused Nos. 1 to 3 are the  master minds behind the crime committed.  The High Court has not considered the  material evidence available on record against the accused which prima facie establish  the criminal liability of the respondents.  The High Court also failed to see that the  learned Sessions Judge, after taking into consideration, the seriousness and the gravity  of the crime convicted the accused for the crime.  This apart, three other vital factors  have also been not taken note of by the High Court.  They are the evidence of PW-1,2,4  and 5 who are the eye witnesses and whose testimony was amply corroborated with  each other.  Secondly, the identity of the accused persons during the cross examination  was also established.  Thirdly, the direct evidence of the eye witnesses was  corroborated by the medical evidence and the motive of the crime was also established.   The trial Court has held that there is satisfactory evidence that Digambar Mishra  instigated to commit the murder and at that point of time and in pursuance of that  common intention of the accused they fired at the two accused.  The High Court also  has not taken into account the several complaints and information reports before the  trial and to the Police Authorities stating that the accused have killed his two sons out of   six, the three accused were arrested and remanded to jail and other accused are  absconding and evading their arrest and that one of the accused Digambar Mishra who  is on bail has confirmed the group of criminals and comes to the house of the appellant  and gives threatening to the eye witnesses of the said order in order to pressurize them  not to pursue the criminal case against them and that whenever these accused persons  visit the house of the appellant, they are always armed with their guns.  

The learned counsel for the respondent submitted that respondent No.1 had  already undergone 12 months of sentence, respondent Nos. 1 and 2 in Special Leave  Petition No. 3316 of 2004 had already undergone 22 months of sentence approximately  each and that the respondents have a meritorious case in criminal appeal and  accordingly, the High Court while admitting the appeal have released the respondents  on bail subject to certain conditions.  It is further submitted that subsequent to the grant   of bail order, there is no instance on record that the respondents have misused their  release on bail and, therefore, there is no question of the respondents either trying to  interfere with the course of justice or the attempt to tamper with the evidence or  witnesses or to threaten or indulge in similar activities which would hamper the smooth  investigation of trial.  He would further submit that annexure P2, an information petition  No. 872 (J) of 2004 under Section 39 of the Cr.P.C. made by the appellant to the court  of CJM, Munger cannot be pressed into service and be made a ground for cancellation  of bail granted by the High Court.

We have given our careful consideration on the rival submissions made by the  counsel appearing on either side.  The object underlying the cancellation of bail is to  protect the fair trial and secure justice being done to the society by preventing the  accused who is set at liberty by the bail order from tampering with the evidence in  heinous crime and if there is delay in such a case the underlying object of cancellation  of bail practically loses all its purpose and significance to the greatest prejudice and the   interest of the prosecution.  It hardly requires to be stated that once a person released  on bail in serious criminal cases where the punishment is quite stringent and deterrent  the accused in order to get away from the clutches of the same indulge in various  activities like tampering with the prosecution witnesses threatening the family members  of the deceased victim and also create problems of law and order situation.  

In Gurcharan Singh and Others vs. State (Delhi Administration), AIR 1978  SC 179, this Court has observed that while granting of bail the Court has to consider  the nature and gravity of the circumstances in which the offence is committed, the  position and status of the accused with reference to the victim and witnesses, the  likelihood of the accused fleeing from justice, of repeating the offence, of jeopardizing  his own life being faced with a grim prospect of the possible conviction in the case, of  tampering with witness, the history of the case as well as of its investigation and other  relevant grounds.  It was further observed by this Court that the Sessions Judge did not  take into proper account the grave apprehension of the prosecution that there was a

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likelihood of the accused persons tampering with the prosecution witnesses.  In the  peculiar nature of the case revealed from the allegations and the position of the  accused in relation to the eye witnesses it was incumbent upon the sessions Judge to  give proper weight to the serious apprehension of the proper case with regard to the  tampering with the eye witnesses, which was urged before him in resisting the  application for bail.   

In The State through the Delhi Administration vs. Sanjay Gandhi AIR 1978  SC 961, this Court observed as under: ".. providing by the test of balance of probabilities that the accused has  abused his liberty or that there is a reasonable apprehension that he will  interfere with the course of justice is all that is necessary in order to succeed  in an application for cancellation of bail."

In Dolat Ram and Others vs. State of Haryana (1995) 1 SCC 349, it was  observed by this Court as under: "Very cogent and overwhelming circumstances are necessary for an order  directing the cancellation of the bail, already granted.  Generally speaking,  the grounds for cancellation of bail, broadly (illustrative and not exhaustive)  are: interference or attempt to interfere with the due course of  administration of justice or evasion or attempt to evade the due course of  justice or abuse of the concession granted to the accused in any manner.   The satisfaction of the Court, on the basis of material placed on the record  of the possibility of the accused absconding is yet another reason justifying  the cancellation of bail.  However, bail once granted should not be  cancelled in a mechanical manner without considering whether any  supervening circumstances have rendered it no longer conducive to a fair  trial to allow the accused to retain his freedom by enjoying the concession  of bail during the trial.  These principles, it appears, were lost sight of by  the High Court when it decided to cancel the bail, already granted.  The  High Court it appears to us overlooked the distinction of the factors  relevant for rejecting bail in a non-bailable case in the first instance and the  cancellation of bail already granted."     

Learned counsel for the respondent cited two decisions being Dolat Ram and  Others (supra) and Mehboob Dawood Shaikh vs. State of Maharashtra (2004) 2  SCC 362 and submitted that bail once granted should not be cancelled in a mechanical  manner without considering any supervening circumstances have rendered it no longer  conducive to a fair trial to allow the accused to retain this freedom by enjoying the  concession of bail during the trial.  He would also further submit the cancellation of bail  is a harsh order because it takes away the liberty of the individual granted and is not  likely to be resorted to and that this Court in exercise of its jurisdiction under Article  136(1) of the Constitution of India does not ordinarily interfere with the grant of  cancellation of bail.  The argument advanced by learned counsel for the respondent is  without substance and devoid of merit and against the consistent view taken by this  Court in the judgment reported in Gurcharan Singh and Others (supra) and Sanjay  Gandhi (supra). In the instant case, the accused Digambar Mishra had been found and  held guilty under Section 109 read with Sections 302 and 307 I.P.C and he was  sentenced to undergo RI for life for the offence under Section 109 read with Sections  302 and 307 I.P.C.  Likewise, the accused Rajendra Mishra, Jitendra Mishra and  Mahendra Mishra have been found guilty under Sections 148, 302 read with Section 34,  307 read with Section 34 I.P.C. and Section 27 of the Arms Act and all of them were  convicted and sentenced to undergo RI for life for the offence punishable under Section  302/34 I.P.C. and also sentenced to undergo various other sentences and also to pay  the fine to the widows of the deceased.  

Looking into the gravity of the crime, apprehension of tampering with the  evidence and threats to the life of the Complainant and other witnesses given by the  accused, we are of the opinion that the High Court did not take into proper account the  grave apprehension of the prosecution that there was a likelihood of the accused  persons tampering with the prosecution witnesses.  In the peculiar nature of the case  revealed from the allegations and the position of the accused in relation to the eye  witnesses it was incumbent upon the High Court to give proper weight to the serious  apprehension of the complainant which was urged before him in resisting the

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application for bail.  The High Court, in our opinion, had failed to properly appreciate the   entire position.  Therefore, this Court will be justified under Article 136 of the  Constitution of India in interfering with the discretion exercised by the High Court in  granting the bail of the accused persons.  The High Court has not bestowed its attention  on these above factors apart from others.  There cannot be an inexorable formula in the  matter of granting bail.  The facts and circumstances of each case will govern the  exercise of judicial discretion in granting or canceling bail.  The case on hand is one  such which would justify our interference under Article 136 of the Constitution with a  discretion exercised by the High Court in granting bail of the respondents in this case.   The appeals are allowed and the order passed by the High Court in granting bail in  Criminal Appeal Nos. 50 of 2004 and 62 of 2004 stands set aside and cancelled and  the Police Authorities are at liberty to re-arrest the accused and proceed further in  accordance with law.  Any observation made by us in this order in canceling the bail will  not prejudice the High Court in considering the appeal filed by the accused on its own  merits and dispose of the same in accordance with law.