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Saturday, October 3, 2015

At the outset we are obliged to clarify that it is not an appeal seeking cancellation of bail in the strictest sense. It actually calls in question the legal pregnability of the order passed by the High Court. The prayer for cancellation of bail is not sought on the foundation of any kind of supervening circumstances or breach of any condition imposed by the High Court. The basic assail is to the manner in which the High Court has exercised its jurisdiction under Section 439 CrPC while admitting the accused to bail. To clarify, if it has failed to take into consideration the relevant material factors, it would make the order absolutely perverse and totally indefensible. That is why there is a difference between cancellation of an order of bail and legal sustainability of an order granting bail. [See State of U.P. v. marmani Tripathi[1], Puran v. Rambilas[2], Narendra K. Amin v. State of Gujarat[3], and Prakash Kadam v. Ramprasad Vishwanah Gupta[4].] Before parting with the case, we may repeat with profit that it is not an appeal for cancellation of bail as the cancellation is not sought because of supervening circumstances. The annulment of the order passed by the High Court is sought as many relevant factors have not been taken into consideration which includes the criminal antecedents of the accused and that makes the order a deviant one. Therefore, the inevitable result is the lancination of the impugned order Resultantly, the appeal is allowed and the order passed by the High Court is set aside. If the respondent no.2 is at large, he shall be taken into custody forthwith; and if he is still in custody because of certain other cases, he shall not be admitted to bail in connection with the present case. We make it clear that we have not expressed any opinion with regard to other cases and simultaneously we also clearly state that our observations in this case are only meant for purpose of setting aside the order granting bail and would have no impact or effect during the trial.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1272 OF 2015
                        (@ SLP(Crl) No. 1596 OF 2015)


Neeru Yadav                                  ...  Appellant

                                Versus

State of U.P. and Anr.                 ...   Respondents



                               J U D G M E N T



Dipak Misra, J.


      The present appeal, by special leave, on a summary glance  may  appear
that a victim who might have an  axe  to  grind  against  the  accused,  the
respondent no.2 herein, and further to wreck his  vengeance  has  approached
this Court seeking cancellation of his bail, possibly  being  emboldened  by
the inaction of the State authorities who have  chosen  to  maintain  sphinx
like silence or decided to  assume  the  stagnated  posture  of  a  splendid
sculpture of Rome, and invigorated by the thought  that  he  can  singularly
carry the crusade, without any support, for he has a cause to  vindicate  by
valiantly exposing the legal infirmities in the order  passed  by  the  High
Court  admitting  the  2nd  respondent  to  bail  and  also  unconceal   the
lackadaisical attitude of the State, but on a keener  scrutiny  the  initial
impression melts  away  and  the  perversity  of  the  order  impugned  gets
unrolled.  Be it stated, at a  narrow  level  it  may  look  like  a  combat
between two individuals, but when analytical scrutiny is done and the  State
is compelled to wake up from its slumber, the unveiling of facts reveal  the
contestation between the accord and the discord,  the  scuffle  betwixt  the
sacrosanctity and  the  majesty  of  law  on  one  hand  and  the  maladroit
ingenious efforts to get the benefit by the abuse of process  of  the  Court
on the other.  The analysis  has  to  be  made,  that  being  an  imperative
command, between the honest nidification and the surreptitious edifice.

2.    Mr. Pradeep Kumar Yadav, learned counsel for the appellant,  with  all
the distress and the intellectual agony  at his command, has submitted  that
the High Court without appropriate analysis and  even  without  being  fully
apprised of the fact situation, solely on the basis of parity, as if  it  is
the only foundation or for that matter, the  comet  that  has  come  off  to
shine, has enlarged the respondent no.2  on  bail  totally  being  oblivious
that no accused, however influential he may be or clever he  thinks  to  be,
cannot be allowed to  nullify the sanctity and purity of  law  and  jettison
the age old values “truth in action” and “the firm and continuous desire  to
render to every one which is due”, the two fundamental pillars  of  justice.
 The plea, submits Mr. Yadav, apart from cleverness also  shows  an  attempt
of the nonchalant  mind  of  the  respondent  No  2  to  engage  in  fertile
imagination possibly  thinking  that  the  ground  of  parity  is  the  real
structure of palladium to bring the nemesis of the prosecution and  put  the
Court in a situation to choose between Scylla and Charybdis.  And,  at  this
juncture, we must state that both the appellant and the State (though  at  a
later stage) have become Argus-eyed and destroyed the  ingenious  foundation
so astutely built by the accused.

3.    Keeping in  view  the  aforesaid  submissions,  we  shall  proceed  to
adumbrate the requisite factual score.  One Salek Chand  s/o.  Satpal  Singh
lodged an FIR at P.S. Kavinagar, Ghaziabad on 25.02.2013  about  11.45  a.m.
against certain persons  relating  to  the  murder  of  his  elder  brother,
Yashvir Yadav.  On the basis of the lodging of the  FIR,  the  criminal  law
was set in motion and eventually chargesheet  was  filed  which  formed  the
subject matter of Case Crime No. 237 of 2013  for  the  offences  punishable
under Sections 147, 148, 149, 302, 307, 394, 411, 454, 506, 120B  read  with
Section 34 IPC.  After the application for bail was rejected by the  learned
trial Judge, the accused person, respondent no.2, moved the  High  Court  in
Criminal Misc. Bail Application No. 25466 of 2014.  It was contended  before
the High Court that an omnibus role had been ascribed to him and  the  other
accused persons that they had indulged in general firing  as  a  consequence
of which one person had died, for he had received three gun  shot  injuries.
It was also contended that  there  was  no  credible  evidence  against  the
accused persons.  The real plank of submission before the High Court, as  is
perceptible, was that prayer for bail  in  respect  of  11  accused  persons
including  Mitthan  Yadav  had  already  been  allowed,  and  there  was  no
justification to deny him the said benefit as he was similarly placed.

4.    The prayer for bail was resisted by the Public Prosecutor  contending,
inter alia, that there was  indiscriminate  firing  by  the  accused  person
causing fatal injuries.  The High Court, after  hearing  both  the  parties,
has passed following order:-

“In view of above facts, considering the nature of allegation,  severity  of
punishment and period  of  detention,  without  expressing  any  opinion  on
merit, it is a fit case for bail.

Let the applicant Budhpal @ Buddhu be enlarged on bail on his  furnishing  a
personal bond with two heavy  sureties  each  in  the  like  amount  to  the
satisfaction of court concerned in case crime no. 237 of 2013 under  Section
147,148,149,302,307,394,411,454,506, 120B, 34  I.P.C.  Police  Station  Kavi
Nagar, District Ghaziabad with the following conditions:

(i)   The applicant will not tamper with the evidence during the trial.

(ii)  The applicant will not pressurize/intimidate the prosecution witness.

(iii)  The applicant will appear before the trial court on the  date  fixed,
unless personal presence is exempted.

In case of breach of any of the above conditions, the court below  shall  be
at liberty to cancel the bail.”



      The said order is the subject matter of assail in the  present  appeal
by special leave.

5.    At the outset we are obliged to clarify  that  it  is  not  an  appeal
seeking cancellation of bail in the strictest sense.  It actually  calls  in
question the legal pregnability of the order passed by the High Court.   The
prayer for cancellation of bail is not sought on the foundation of any  kind
of supervening circumstances or breach of any condition imposed by the  High
Court.  The basic assail is to the  manner  in  which  the  High  Court  has
exercised its jurisdiction  under  Section  439  CrPC  while  admitting  the
accused to bail.  To clarify, if it has failed to  take  into  consideration
the relevant material factors, it would make the order  absolutely  perverse
and totally indefensible.   That  is  why  there  is  a  difference  between
cancellation of an order of  bail  and  legal  sustainability  of  an  order
granting bail.   [See  State  of  U.P.  v.  marmani  Tripathi[1],  Puran  v.
Rambilas[2], Narendra K. Amin v. State of Gujarat[3], and Prakash  Kadam  v.
Ramprasad Vishwanah Gupta[4].]

6.    Having cleared that maze, we may clarify, though  seriously  urged  by
Mr. P. George Giri that there is no warrant  for  cancellation  of  bail  as
there has been no  supervening  circumstances,  yet  the  said  enthusiastic
submission leaves us unimpressed, as that is not  the  real  thrust  of  the
matter.

7.    The mystery does not end there.  Mr. P. George Giri,  learned  counsel
for the respondent on 14.9.2015,  in  course  of  hearing,  on  instructions
advanced an eminently innocuous, but innovative plea with  the  potentiality
to create immense confusion that  the  description  of  respondent  no.2  is
absolutely erroneous, and, in fact, he is not the accused in any case.   Mr.
Pradeep Kumar Yadav very fairly stated that there has been  a  typographical
error in describing the name of the respondent no.2,  for  his  name  should
have been Budhpal @ Buddhu s/o. Sh. Ram and not  Santpal  Yadav.   Mr.  R.K.
Dash, learned senior counsel appearing for the State apprised  us  that  the
address is correct as stated in the FIR and the chargesheet and the same  is
also reflected in the application for grant of bail.   Taking  note  of  the
said situation, we permitted the cause title to be corrected.  However,  the
issue having been raised regarding the identity of the respondent  no.2,  to
clear our conscience, we asked the State to show us the  documents  that  he
is the person who  is  accused  of  the  offence.   On  the  next  occasion,
documents were shown and we were satisfied, and  we  allowed  the  ambitious
submission to burn into ashes, or to put it differently,  evaporate  in  the
thin air.

8.     It is interesting to note that learned counsel for the appellant  and
the learned counsel for the State submitted  that  the  respondent  no.2  is
still in jail despite the order of bail as he is involved in so many  cases.
 We will take up the said issue at a later stage.  It is  submitted  by  Mr.
Yadav, learned  counsel  for  the  appellant  that  despite  the  factum  of
criminal history pointed out before the  High  Court,  it  has  given  it  a
glorious ignore which the law does not countenance.  The  solitary  and  the
singular grievance which is propounded with solidity  that  the  High  Court
should have dwelt upon the same and  thereafter  decided  the  matter.   Mr.
Dash,  learned  senior  counsel  (though  the  State  has  not   moved   any
application for setting aside the order of bail granted by  the  High  Court
for the reasons which are unfathomable)  unhesitatingly  accepted  the  said
submission.  In the additional affidavit,  an  independent  chart  has  been
filed by the State and we find that apart from the present case,  there  are
seven cases pending against the respondent no.2.   The  chart  of  the  said
cases is reproduced below:-

“1.   FIR No. 664/02 u/s 302 IPC, PS Kavinagar, Ghaziabad.

2.    FIR No. 558/04 u/s. 392, 411 IPC, PS Kotwali, Dist. Bulandshahar.

3.    FIR No. 14/05 u/s. 398, 401, 307 IPC PS Noida, Gautam Budh Nagar.

4.    FIR No. 15/05 u/s. 25, 27 Arms Act, PS Sector 49, Noida,  Gautam  Budh
Nagar

5.    FIR No. 1614/08 u/s. 364, 302, 201 IPC, PS Sihani Gate, Ghaziabad

6.    FIR No. 98/05 u/s. 2/3  Gangster Act,  PS  Sector  49,  Noida,  Gautam
Budh Nagar

7.    FIR No. 451/12 u/s. 60 PS Sector 49 Noida, Gautam Budh Nagar”



9.    On a perusal of the  aforesaid  list,  it  is  quite  vivid  that  the
respondent no.2 is a history-sheeter and is involved  in  heinous  offences.
Having stated the facts and noting the nature of involvement of the  accused
in the crimes in question, there can be no scintilla of doubt to name him  a
“history-sheeter”.   The  question,  therefore,  arises  whether  in   these
circumstances, should the High Court  have  enlarged  him  on  bail  on  the
foundation of parity.

10.   In Ram Govind Upadhyay v. Sudarshan  Singh[5],  it  has  been  clearly
laid down that the grant of bail though involves exercise  of  discretionary
power of the Court, such  exercise  of  discretion  has  to  be  made  in  a
judicious manner and not as a matter of course.     The  heinous  nature  of
crimes warrants more caution as there is a greater chance  of  rejection  of
bail though, however, dependent on the factual matrix of  the  matter.    In
the said case,  reference  was  made  to  Prahlad  Singh  Bhati  v.  NCT  of
Delhi[6],  and  thereafter  the  court  proceeded  to  state  the  following
principles:-

“(a) While granting bail the court has to keep in mind not only  the  nature
of the accusations, but the severity of the punishment,  if  the  accusation
entails  a  conviction  and  the  nature  of  evidence  in  support  of  the
accusations.

(b) Reasonable apprehensions of the witnesses being  tampered  with  or  the
apprehension of there being a threat for the complainant should  also  weigh
with the court in the matter of grant of bail.

(c) While it is not expected to have the entire  evidence  establishing  the
guilt of the accused beyond reasonable doubt but there ought always to be  a
prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only  the
element of genuineness that shall have to be considered  in  the  matter  of
grant of bail, and in the  event  of  there  being  some  doubt  as  to  the
genuineness of the prosecution, in the normal course of events, the  accused
is entitled to an order of bail.”



11.   It is a well settled principle of  law  that  while  dealing  with  an
application for grant of bail, it is the duty of  the  Court  to  take  into
consideration certain factors and they basically are, (i)    the  nature  of
accusation and the severity of punishment in cases  of  conviction  and  the
nature of supporting evidence, (ii)    reasonable apprehension of  tampering
with the witnesses for apprehension of threat to the complainant, and  (iii)
Prima facie satisfaction of the court in support of the charge. [See  Chaman
Lal v. State of U.P.[7])

12.   In Prasanta Kumar Sarkar v. Ashis Chatterjee[8],  while  dealing  with
the court’s role to interfere with the power of  the  High  Court  to  grant
bail to the accused, the Court observed that it is to be seen that the  High
Court has exercised this discretion judiciously, cautiously and strictly  in
compliance with the basic principles laid down in  catena  of  judgments  on
that point.  The Court proceeded to enumerate the factors:-

“9. … among other circumstances, the factors [which  are]  to  be  borne  in
mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground  to  believe  that
the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.”



13.   We will be failing in our duty if we do not take note of  the  concept
of liberty and its curtailment by law.  It is an  established  fact  that  a
crime though committed against an individual,  in  all  cases  it  does  not
retain an individual character.  It, on occasions and in  certain  offences,
accentuates  and  causes  harm  to  the  society.  The  victim  may  be   an
individual, but in the ultimate eventuate, it is the society  which  is  the
victim.  A crime, as is understood, creates a dent  in  the  law  and  order
situation.  In a  civilised  society,  a  crime  disturbs  orderliness.   It
affects the peaceful life of the  society.   An  individual  can  enjoy  his
liberty which is definitely of paramount value but he cannot be a  law  unto
himself.  He cannot cause harm to others.  He cannot be a  nuisance  to  the
collective.  He cannot be a terror to the society; and that  is  why  Edmund
Burke, the great English thinker, almost two centuries  and  a  decade  back
eloquently spoke thus:-

“Men  are  qualified  for  civil  liberty,  in  exact  proportion  to  their
disposition to put moral chains upon their own appetites; in  proportion  as
their love to justice is  above  their  rapacity;  in  proportion  as  their
soundness  and  sobriety  of  understanding  is  above  their   vanity   and
presumption; in proportion as they  are  more  disposed  to  listen  to  the
counsel of the wise and good, in  preference  to  the  flattery  of  knaves.
Society cannot exist unless a controlling power upon will  and  appetite  be
placed somewhere and the less of it there is within, the more there must  be
without. It is ordained in the eternal constitution of things  that  men  of
intemperate minds cannot be free. Their passions forge their fetters[9].



14.   E. Barrett Prettyman, a retired Chief Judge of  US  Court  of  Appeals
had to state thus:-

 “In an ordered society of mankind there is no such  thing  as  unrestricted
liberty, either of nations or of individuals. Liberty itself is the  product
of restraints; it is inherently a composite  of  restraints;  it  dies  when
restraints are withdrawn. Freedom, I say, is not an absence  of  restraints;
it is a composite of restraints. There is no liberty  without  order.  There
is no order without systematised restraint.  Restraints  are  the  substance
without which liberty does not exist. They are the essence of  liberty.  The
great problem of the democratic process is not to strip  men  of  restraints
merely because they are restraints. The great problem is to design a  system
of  restraints  which  will  nurture  the  maximum  development   of   man’s
capabilities, not in a  massive  globe  of  faceless  animations  but  as  a
perfect realisation, of each separate human mind,  soul  and  body;  not  in
mute, motionless meditation but in flashing, thrashing activity.[10]”



15.   This being the position of law, it is clear as cloudless sky that  the
High Court has totally ignored the  criminal  antecedents  of  the  accused.
What has weighed with the High Court is the doctrine of parity.  A  history-
sheeter  involved  in  the  nature  of  crimes  which  we  have   reproduced
hereinabove, are not minor offences so that he is  not  to  be  retained  in
custody, but the crimes are  of  heinous  nature  and  such  crimes,  by  no
stretch of imagination, can be regarded as jejune.  Such cases do  create  a
thunder and lightening having the effect potentiality of torrential rain  in
an analytical mind.  The  law  expects  the  judiciary  to  be  alert  while
admitting these kind of accused persons to be at large and,  therefore,  the
emphasis is on exercise of discretion judiciously and  not  in  a  whimsical
manner.

16.   In this regard, we may profitably reproduce a  few  significant  lines
from Benjamin Disraeli:-

“I repeat……… that all power is a  trust-that  we  are  accountable  for  its
exercise- that, from the people and for the people,  all  springs,  and  all
must exist.”



17.   That apart, it has to be remembered that  justice  in  its  conceptual
eventuality and connotative expanse engulfs the magnanimity of the sun,  the
sternness of mountain,  the  complexity  of  creation,  the  simplicity  and
humility of a saint and the austerity of a Spartan, but  it  always  remains
wedded to rule of law  absolutely  unshaken,  unterrified,  unperturbed  and
loyal.

18.   Before parting with the case, we may repeat with  profit  that  it  is
not an appeal for cancellation of bail as the  cancellation  is  not  sought
because of supervening circumstances.  The annulment of the order passed  by
the High Court is sought as many relevant factors have not been  taken  into
consideration which includes the criminal antecedents  of  the  accused  and
that makes the order a deviant one.  Therefore,  the  inevitable  result  is
the lancination of the impugned order

19.   Resultantly, the appeal is allowed and the order passed  by  the  High
Court is set aside.  If the respondent no.2 is at large, he shall  be  taken
into custody forthwith; and if he is still in  custody  because  of  certain
other cases, he shall not  be  admitted  to  bail  in  connection  with  the
present case.  We make it clear that we have not expressed any opinion  with
regard to other cases and simultaneously we  also  clearly  state  that  our
observations in this case are only meant for purpose of  setting  aside  the
order granting bail and would have no impact or effect during the trial.



                                             .............................J.
                                                               [Dipak Misra]



                                             ..........................., J.
                                                          [Prafulla C. Pant]
New Delhi
September 29, 2015
-----------------------
[1]     (2005) 8 SCC 21
[2]     (2001) 6 SCC 338
[3]     (2008) 13 SCC 584
[4]     (2011) 6 SCC 189
[5]     (2002) 3 SCC 598
[6]     (2001) 4 SCC 280
[7]     (2004) 7 SCC 525
[8]     (2010) 14 SCC 496
[9]     Alfred Howard, The Beauties of Burke (T. Davison, London) 109
[10]    Speech at Law Day Observances (Pentagon, 1962) as quoted in Case
and Comment, Mar-Apr 1963

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