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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 883 OF 2021
(Arising from S.L.P.(Criminal) No.3739/2021)
Harjit Singh …Appellant
Versus
Inderpreet Singh @ Inder and another …Respondents
J U D G M E N T
M.R. SHAH, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 18.03.2021 passed by the High Court of Punjab &
Haryana at Chandigarh in CRM-M No. 11809 of 2021, by which the High
Court has released respondent no.1 herein – original accused on bail in
connection with FIR No. 245 dated 21.09.2020 at Police Station Sadar
Jalandhar, District Jalandhar under Sections 302, 120-B, 34, 201 IPC
and Section 25 of Arms Act, 1959, the original informant – son of the
deceased has preferred the present appeal.
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3. That the appellant herein – Harjit Singh son of late Mann Singh
lodged an FIR being FIR No. 245 at Police Station Sadar Jalandhar,
District Jalandhar on 21.09.2020 against the accused persons including
respondent no.1 herein for the offences under Sections 302, 120-B, 34,
201 IPC and Section 25 of Arms Act, 1959 alleging inter alia that on
21.09.2020 at about 5:45 p.m. when his father Mann Singh was present
near the gate of Gurudwara Sahib, a white colour Maruti Car stopped
near his father from which three persons alighted. The persons alighted
from the car were (1) Jaskaran Singh @ Jassa son of Bahadur Singh;
(2) Bahadur Singh son of Santokh Singh; and (3) Satvinder Singh son of
Karam Singh, residents of Jamsher Khas. It was alleged that Bahadur
Singh and Satvinder Singh caught hold of his father and Jaskaran Singh
@ Jassa, who was armed with a pistol, fired 4-5 shots at his father, who
died on account of said fire arm shots. It was specifically alleged that his
father has been murdered by the assailants in connivance with
Inderpreet Singh (respondent No.1 herein), who is undergoing sentence
on account of a case registered at the instance of the complainant party.
It was further alleged that the motive for the said occurrence is that FIR
No. 12 dated 30.01.2020 at Police Station Jalandhar under Sections
307, 326, 323, 324, 452, 506, 148 and 149 IPC and FIR No. 33 dated
14.2.2011 at Police Station Jalandhar under Sections 307, 308, 326,
325, 323,324,148, 149 and 427 IPC had been lodged against the
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accused and the complainant’s father had been pursuing the said cases
to get them convicted and on account of which his father had been
murdered.
3.1 That during the investigation, it was revealed that though
Inderpreet Singh (respondent No.1 herein) was not physically present at
the spot, but it has been revealed that the deceased was murdered at
the instance of the accused – Inderpreet Singh (respondent no.1 herein)
who hatched criminal conspiracy along with other co-accused to kill
Mann Singh – father of the complainant; that during the interrogation the
accused Inderpreet Singh (respondent no.1 herein) confessed that he
was in touch with co-accused through a mobile phone from jail which he
destroyed after the occurrence; that during the course of investigation it
was revealed that Inderpreet Singh (respondent no.1 herein) and coaccused Jaskaran Singh were convicted in FIR No. 67 dated
08.05.2016; that Inderpreet Singh (respondent no.1 herein) filed appeal
in the High Court against his conviction and sentence in FIR No. 67 of
2016 and by order dated 30.04.2019 the High Court suspended the
sentence of respondent no.1 herein – Inderpreet Singh, pending his
appeal; that the complainant herein filed an application under Section
439 (2) Cr.P.C. before the High Court for cancellation of bail of
Inderpreet Singh (respondent no.1 herein) and co-accused Jaskaran
Singh @ Jassa since they had been calling the complainant and the
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injured on their phones and threatening them and vide order dated
26.07.2019 the High Court was pleased to cancel the bail of Inderpreet
Singh (respondent no.1 herein) and co-accused Jaskaran Singh @
Jassa and directed the Chief Judicial Magistrate, Jalandhar to take them
into custody; that Inderpreet Singh (respondent No.1 herein) and coaccused Jaskaran Singh @ Jassa challenged the order passed by the
High Court cancelling their bail before this Court and this Court
dismissed the special leave petition vide order dated 11.09.2019; that
thereafter Inderpreet Singh (respondent No.1 herein) surrendered,
however co-accused Jaskaran Singh @ Jassa jumped the bail and is
absconding since then and he has been declared proclaimed offender.
3.2 That during the investigation it was revealed that taking advantage
of the situation, Inderpreet Singh (respondent No.1 herein) while being
lodged in Central Jail, Kapurthala hatched conspiracy with co-accused
Jaskaran Singh @ Jassa, Bahadur Singh and Satvinder Singh to commit
the murder of the father of the complainant while being in touch with
them on mobile phones, mobile phone of his co-prisoner from jail,
namely, Rajvir Singh; that during the course of investigation it was
revealed that regular calls were made from mobile phone 8283904306 to
phone numbers of his co-accused to hatch the conspiracy; that during
the investigation it was also revealed that tower location of the said
mobile phone being used by respondent no.1 herein – Inderpreet Singh
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was near Central Jail, Kapurthala; according to the investigating agency
that during detailed investigation it came to the fore that one Harjinder
Singh was lodged in Kapurthala Jail in a NDPS case who was co-villager
of another prisoner namely Rajvir Singh lodged in the same jail and after
being released on bail, Harjinder Singh on demand gave sim card and
phone to Rajvir Singh inside the jail and this phone was being used by
respondent no.1 – Inderpreet Singh to hatch conspiracy with other coaccused; that thereafter on completion of the investigation the
investigating officer has filed the chargesheet against the accused
including respondent no.1 herein for the offences under Sections 302,
120-B, 34, 201 IPC and Section 25 of Arms Act, 1959 in the court; that
respondent no.1 herein – Inderpreet Singh thereafter filed an application
under Section 439 Cr.P.C. in the Court of Learned Sessions Judge,
Jalandhar; that by order dated 15.01.2021, the learned Sessions Judge,
Jalandhar dismissed the said application and refused to release
respondent no.1 herein on bail; that thereafter respondent no.1 –
Inderpreet Singh approached the High Court seeking grant of regular
bail by way of application being CRM-M No.11809/2021; that by the
impugned judgment and order the High Court has released respondent
no.1 herein – accused on bail by observing that it is not in dispute that
the accused had not fired or had participated directly in the occurrence
as he was in custody and that the factum of the accused using a mobile
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phone within the jail premises is a fact which would be debatable as the
possession of a mobile phone by him in jail premises would be required
to be established and that he has been behind bars since the last about
five months and was present in jail when the occurrence took place and
further detention of the accused in such circumstances would not be
justified.
3.3 Feeling aggrieved and dissatisfied with the impugned judgment
and order releasing respondent no.1 – Inderpreet Singh on bail in
connection with FIR No. 245 dated 21.09.2020 at Police Station Sadar
Jalandhar, District Jalandhar for the offences under Sections 302, 120-B,
34, 201 IPC and Section 25 of Arms Act, 1959, the original informant –
complainant and son of the deceased Mann Singh has preferred the
present appeal.
4. Shri Ish Puneet Singh, learned Advocate has appeared on behalf
of the appellant, Mrs. Jaspreet Gogia, learned Advocate has appeared
on behalf of the State of Punjab and Shri Sant Pal Singh Sidhu, learned
Advocate has appeared on behalf of the accused Inderpreet Singh –
respondent no.1 herein.
4.1 Learned Counsel appearing on behalf of the appellant – original
complainant has vehemently submitted that in the facts and
circumstances of the case the High Court has committed a grave error in
releasing respondent no.1 herein on bail.
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4.2 It is submitted that while releasing respondent no.1 on bail the
High Court has not at all considered the seriousness of the offence; the
specific allegation in the FIR that even while in jail he hatched the
conspiracy along with other co-accused and that he was the master
mind and the main conspirator.
4.3 It is submitted that the High Court has also not at all considered
the antecedents of the accused and motive behind commission of the
offence and threat perceptions to the complainant and his family
members.
4.4 It is submitted by the learned counsel appearing for the
complainant that earlier respondent no.1 has been convicted in three
other cases and while he was on bail granted by the High Court while
suspending the sentence, the accused – respondent no.1 herein had
committed one other offence and has tried to kill the complainant and his
family members. It is submitted that in fact the accused who has been
convicted in other cases had earlier been granted bail in other case and
on account of having misused the concession of bail, his bail was
cancelled. It is submitted that therefore there is a very likelihood that the
accused if granted bail would misuse the concession again.
4.5 It is submitted that the High Court has failed to take into
consideration the antecedents of respondent no.1 – accused, while
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granting him bail. It is submitted that he has been convicted in four other
FIRs.
4.6 It is submitted that the High Court has materially erred in not
considering the relevant material/evidence collected during the course of
investigation connected to respondent no.1 – accused and the High
Court has failed to notice that there is ample material collected during
the investigation establishing that from the jail respondent no.1 has
hatched conspiracy along with other co-accused.
4.7 It is submitted that the High Court has failed to consider that
respondent no.1 – accused is a habitual offender and therefore it would
not be proper to release him on bail.
4.8 It is submitted that one of the grounds on which the High Court has
released respondent no.1 on bail is that he has been behind bars since
last 4-5 months. It is submitted that looking to the seriousness of the
offence and his antecedents and he being the habitual offender, merely
because he was behind bars since last about 4-5 months cannot be a
ground to release him on bail in a serious offence of committing the
murder and destroying the evidence.
4.9 Making the above submissions, it is prayed to allow the present
appeal and quash and set aside the impugned judgment and order
passed by the High Court releasing respondent no.1 - accused on bail.
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5. Mrs. Jaspreet Gogia, learned Advocate appearing on behalf of the
State of Punjab has supported the appellant. She has relied upon a
detailed counter affidavit filed on behalf of the State. It is submitted that
respondent no.1 – accused is a habitual offender and is after the life of
the complainant/appellant herein and his family members. It is
submitted that he repeatedly committed offence of attempt to murder of
the complainant herein thrice and was convicted in all the three FIRs and
is undergoing sentence in those cases.
5.1 It is submitted that every time he was granted bail in the said FIRs,
he came out of the jail, committed another offence and then again went
to jail. It is submitted that by order dated 26.07.2019 when the
bail/suspension of sentence of respondent no.1 and co-accused
Jaskaran Singh @ Jassa was cancelled by the High Court, respondent
no.1 surrendered back to the jail but co-accused Jaskaran Singh @
Jassa jumped the bail and is absconding since then; he has been
declared proclaimed offender. It is submitted that taking advantage of
the situation, respondent no.1 while being lodged in Central Jail,
Kapurthala hatched conspiracy with other co-accused Jaskaran Singh,
Bahadur Singh and Satvinder Singh to commit murder of the father of
the appellant herein.
5.2 It is submitted that during the course of the detailed investigation, it
was revealed that mobile phone was used by the accused and others
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while in jail. Thereafter, further enquiry was conducted by the jail
authorities and the SSP, Kapurthala and it was found during the said
enquiry that the mobile in question was being used by prisoner Rajvir
Singh and the accused – respondent no.1 herein to make calls outside
the jail and accordingly FIR No. 209 dated 1.8.2021 is registered under
Section 52-A Prisons Act, 1894 at P.S. Kotwali, Kapurthala.
5.3 It is submitted that after completion of investigation in case FIR No.
245 dated 21.09.2020 all the accused persons including respondent
no.1 herein have been chargesheeted for the offences under Sections
302, 120-B, 34, 201 IPC and Section 25 of Arms Act, 1959 before the
learned Additional Sessions Judge, Jalandhar and the learned Sessions
Court is to frame the charges. It is submitted that there is ample
evidence against the accused Inderpreet Singh – respondent no.1
herein.
6. The present appeal is vehemently opposed by Shri Sant Pal Singh
Sidhu, learned counsel appearing on behalf of respondent no.1 –
accused. It is submitted that in the facts and circumstances of the case,
no error has been committed by the High Court in releasing the accused
on bail.
6.1 It is submitted that it is not in dispute that when the incident in
question took place, respondent no.1 herein was in jail and nothing is on
record to show that respondent no.1 had participated directly in the
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occurrence. It is submitted that as rightly observed by the High Court
the factum of the accused Inderpreet Singh using a mobile phone within
the jail premises is a fact which would be debatable as the possession of
a mobile phone by the accused in jail premises would be required to be
established. It is submitted that therefore and when the investigation
was completed and the chargesheet was already filed, no further
custodial investigation was required and therefore the accused –
Inderpreet Singh has been rightly released on bail by the High Court.
6.2 It is further submitted that after grant of bail to respondent no.1
herein in the present case, he has never misused the concession of bail.
It is submitted that as per the settled law, different parameters are there
for grant of bail and to cancel the bail. It is submitted that once the bail
is granted by the Court of law, the same can be cancelled on account of
misuse of bail. It is submitted that as in the present case after
respondent no.1 herein – accused Inderpreet Singh was released on bail
he has not misused the concession of bail granted to him and therefore
this is not a fit case to cancel the bail. Therefore, it is prayed to dismiss
the present appeal.
7. We have heard the learned counsel for the respective parties at
length.
Before considering the rival submissions on behalf of the
respective parties, few decisions of this Court on how to exercise the
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discretionary power for grant of bail and the duty of the appellate court,
particularly when bail was refused by the court(s) below and the
principles and considerations for granting or refusing the bail are
required to be referred to and considered.
7.1 In the case of Gudikanti Narasimhulu v. Public Prosecutor, High
Court of A.P., (1978) 1 SCC 240, this Court has observed and held that
deprivation of freedom by refusal of bail is not for punitive purposes but
for the bifocal interests of justice. The nature of the charge is a vital
factor and the nature of the evidence is also pertinent. The severity of
the punishment to which the accused may be liable if convicted also
bears upon the issue. Another relevant factor is whether the course of
justice would be thwarted by him who seeks the benignant jurisdiction of
the Court to be freed for the time being. The Court has also to consider
the likelihood of the applicant interfering with the witnesses for the
prosecution or otherwise polluting the process of justice. It is further
observed that it is rational to enquire into the antecedents of the man
who is applying for bail to find out whether he has a bad record,
particularly a record which suggests that he is likely to commit serious
offences while on bail.
7.2 In the case of Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC
446, this Court in paragraphs 17 to 19 observed and held as under:
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“17. We are absolutely conscious that liberty of a person should not be
lightly dealt with, for deprivation of liberty of a person has immense impact
on the mind of a person. Incarceration creates a concavity in the
personality of an individual. Sometimes it causes a sense of vacuum.
Needless to emphasise, the sacrosanctity of liberty is paramount in a
civilised society. However, in a democratic body polity which is wedded to
the rule of law an individual is expected to grow within the social
restrictions sanctioned by law. The individual liberty is restricted by larger
social interest and its deprivation must have due sanction of law. In an
orderly society an individual is expected to live with dignity having respect
for law and also giving due respect to others' rights. It is a well-accepted
principle that the concept of liberty is not in the realm of absolutism but is a
restricted one. The cry of the collective for justice, its desire for peace and
harmony and its necessity for security cannot be allowed to be trivialised.
The life of an individual living in a society governed by the rule of law has
to be regulated and such regulations which are the source in law subserve
the social balance and function as a significant instrument for protection of
human rights and security of the collective. It is because fundamentally
laws are made for their obedience so that every member of the society
lives peacefully in a society to achieve his individual as well as social
interest. That is why Edmond Burke while discussing about liberty opined,
“it is regulated freedom”.
18. It is also to be kept in mind that individual liberty cannot be
accentuated to such an extent or elevated to such a high pedestal which
would bring in anarchy or disorder in the society. The prospect of greater
justice requires that law and order should prevail in a civilised milieu. True
it is, there can be no arithmetical formula for fixing the parameters in
precise exactitude but the adjudication should express not only application
of mind but also exercise of jurisdiction on accepted and established
norms. Law and order in a society protect the established precepts and
see to it that contagious crimes do not become epidemic. In an organised
society the concept of liberty basically requires citizens to be responsible
and not to disturb the tranquillity and safety which every well-meaning
person desires. Not for nothing J. Oerter stated:
“Personal liberty is the right to act without interference within the limits
of the law.”
19. Thus analysed, it is clear that though liberty is a greatly cherished
value in the life of an individual, it is a controlled and restricted one and no
element in the society can act in a manner by consequence of which the
life or liberty of others is jeopardised, for the rational collective does not
countenance an anti-social or anti-collective act.”
7.3 In the case of State of Maharashtra v. Sitaram Popat Vetal, (2004)
7 SCC 521, it is observed and held by this Court that while granting of
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bail, the following factors among other circumstances are required to be
considered by the Court:
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; and
3. Prima facie satisfaction of the court in support of the
charge.
It is further observed that any order dehors such reasons suffers
from non-application of mind.
7.4 In the case of Mahipal v. Rajesh Kumar (2020) 2 SCC 118, where
the High Court released the accused on bail in a case for the offence
under Section 302 of the IPC and other offences recording the only
contention put forth by the counsel for the accused and further
recording that “taking into account the facts and circumstances of the
case and without expressing the opinion on merits of case, this Court
deems fit just and proper to enlarge/release the accused on bail”, while
setting aside the order passed by the High Court granting bail, one of us
(Dr. Justice D.Y. Chandrachud) observed in paragraphs 11 and 12 as
under:
“11. Essentially, this Court is required to analyse whether there was a valid
exercise of the power conferred by Section 439 CrPC to grant bail. The
power to grant bail under Section 439 is of a wide amplitude. But it is well
settled that though the grant of bail involves the exercise of the
discretionary power of the court, it has to be exercised in a judicious
manner and not as a matter of course. In Ram Govind Upadhyay v.
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Sudarshan Singh (2002) 3 SCC 598, Umesh Banerjee, J. speaking for a
two-Judge Bench of this Court, laid down the factors that must guide the
exercise of the power to grant bail in the following terms:
“3. Grant of bail though being a discretionary order — but, however,
calls for exercise of such a discretion in a judicious manner and not as a
matter of course. Order for bail bereft of any cogent reason cannot be
sustained. Needless to record, however, that the grant of bail is
dependent upon the contextual facts of the matter being dealt with by
the court and facts, however, do always vary from case to case. … The
nature of the offence is one of the basic considerations for the grant of
bail — more heinous is the crime, the greater is the chance of rejection
of the bail, though, however, dependent on the factual matrix of the
matter.
4. Apart from the above, certain other which may be attributed to be
relevant considerations may also be noticed at this juncture, though
however, the same are only illustrative and not exhaustive, neither there
can be any. The considerations being:
(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.”
12. The determination of whether a case is fit for the grant of bail involves
the balancing of numerous factors, among which the nature of the offence,
the severity of the punishment and a prima facie view of the involvement
of the accused are important. No straitjacket formula exists for courts to
assess an application for the grant or rejection of bail. At the stage of
assessing whether a case is fit for the grant of bail, the court is not
required to enter into a detailed analysis of the evidence on record to
establish beyond reasonable doubt the commission of the crime by the
accused. That is a matter for trial. However, the Court is required to
examine whether there is a prima facie or reasonable ground to believe
that the accused had committed the offence and on a balance of the
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considerations involved, the continued custody of the accused subserves
the purpose of the criminal justice system. Where bail has been granted
by a lower court, an appellate court must be slow to interfere and ought to
be guided by the principles set out for the exercise of the power to set
aside bail.
7.5 That thereafter this Court considered the principles that guide
while assessing the correctness of an order passed by the High Court
granting bail. This Court specifically observed and held that normally this
Court does not interfere with an order passed by the High Court granting
or rejecting the bail to the accused. However, where the discretion of the
High Court to grant bail has been exercised without the due application
of mind or in contravention of the directions of this Court, such an order
granting bail is liable to be set aside. This Court further observed that the
power of the appellate court in assessing the correctness of an order
granting bail stand on a different footing from an assessment of an
application for cancellation of bail. It is further observed that the
correctness of an order granting bail is tested on the anvil of whether
there was a proper or arbitrary exercise of the discretion in the grant of
bail. It is further observed that the test is whether the order granting bail
is perverse, illegal or unjustified. Thereafter this Court considered the
difference and distinction between an application for cancellation of bail
and an appeal before this Court challenging the order passed by the
appellate court granting bail in paras 13, 14, 16 and 17 as under:
“13. The principles that guide this Court in assessing the correctness of
an order [Ashish Chatterjee v. State of W.B., CRM No. 272 of 2010, order
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dated 11-1-2010 (Cal)] passed by the High Court granting bail were
succinctly laid down by this Court in Prasanta Kumar Sarkar v. Ashis
Chatterjee (2010) 14 SCC 496. In that case, the accused was facing trial
for an offence punishable under Section 302 of the Penal Code. Several
bail applications filed by the accused were dismissed by the Additional
Chief Judicial Magistrate. The High Court in turn allowed the bail
application filed by the accused. Setting aside the order [Ashish Chatterjee
v. State of W.B., CRM No. 272 of 2010, order dated 11-1-2010 (Cal)] of the
High Court, D.K. Jain, J., speaking for a two-Judge Bench of this Court,
held:
“9. … It is trite that this Court does not, normally, interfere with an order
[Ashish Chatterjee v. State of W.B., CRM No. 272 of 2010, order dated
11-1-2010 (Cal)] passed by the High Court granting or rejecting bail to
the accused. However, it is equally incumbent upon the High Court to
exercise its discretion judiciously, cautiously and strictly in compliance
with the basic principles laid down in a plethora of decisions of this
Court on the point. It is well settled that, among other circumstances,
the factors 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.
10. It is manifest that if the High Court does not advert to these relevant
considerations and mechanically grants bail, the said order would suffer
from the vice of nonapplication of mind, rendering it to be illegal.”
14. The provision for an accused to be released on bail touches upon the
liberty of an individual. It is for this reason that this Court does not
ordinarily interfere with an order of the High Court granting bail. However,
where the discretion of the High Court to grant bail has been exercised
without the due application of mind or in contravention of the directions of
this Court, such an order granting bail is liable to be set aside. The Court is
required to factor, amongst other things, a prima facie view that the
accused had committed the offence, the nature and gravity of the offence
and the likelihood of the accused obstructing the proceedings of the trial in
any manner or evading the course of justice. The provision for being
released on bail draws an appropriate balance between public interest in
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the administration of justice and the protection of individual liberty pending
adjudication of the case. However, the grant of bail is to be secured within
the bounds of the law and in compliance with the conditions laid down by
this Court. It is for this reason that a court must balance numerous factors
that guide the exercise of the discretionary power to grant bail on a caseby-case basis. Inherent in this determination is whether, on an analysis of
the record, it appears that there is a prima facie or reasonable cause to
believe that the accused had committed the crime. It is not relevant at this
stage for the court to examine in detail the evidence on record to come to
a conclusive finding.
16. The considerations that guide the power of an appellate court in
assessing the correctness of an order granting bail stand on a different
footing from an assessment of an application for the cancellation of bail.
The correctness of an order granting bail is tested on the anvil of whether
there was an improper or arbitrary exercise of the discretion in the grant of
bail. The test is whether the order granting bail is perverse, illegal or
unjustified. On the other hand, an application for cancellation of bail is
generally examined on the anvil of the existence of supervening
circumstances or violations of the conditions of bail by a person to whom
bail has been granted. In Neeru Yadav v. State of U.P.(2014) 16 SCC 508,
the accused was granted bail by the High Court [Mitthan Yadav v. State of
U.P.[ 2014 SCC OnLine All 16031]. In an appeal against the order [Mitthan
Yadav v. State of U.P., 2014 SCC OnLine All 16031] of the High Court, a
two-Judge Bench of this Court surveyed the precedent on the principles
that guide the grant of bail. Dipak Misra, J. held:
“12. … It is well settled in law that cancellation of bail after it is granted
because the accused has misconducted himself or of some
supervening circumstances warranting such cancellation have occurred
is in a different compartment altogether than an order granting bail
which is unjustified, illegal and perverse. If in a case, the relevant
factors which should have been taken into consideration while dealing
with the application for bail have not been taken note of, or bail is
founded on irrelevant considerations, indisputably the superior court
can set aside the order of such a grant of bail. Such a case belongs to a
different category and is in a separate realm. While dealing with a case
of second nature, the Court does not dwell upon the violation of
conditions by the accused or the supervening circumstances that have
happened subsequently. It, on the contrary, delves into the justifiability
and the soundness of the order passed by the Court.”
17. Where a court considering an application for bail fails to consider
relevant factors, an appellate court may justifiably set aside the order
granting bail. An appellate court is thus required to consider whether the
order granting bail suffers from a non-application of mind or is not borne
out from a prima facie view of the evidence on record. It is thus necessary
for this Court to assess whether, on the basis of the evidentiary record,
there existed a prima facie or reasonable ground to believe that the
accused had committed the crime, also taking into account the
seriousness of the crime and the severity of the punishment. The order
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[Rajesh Kumar v. State of Rajasthan, 2019 SCC OnLine Raj 5197] of the
High Court in the present case, insofar as it is relevant reads:
“2. Counsel for the petitioner submits that the petitioner has been
falsely implicated in this matter. Counsel further submits that, the
deceased was driving his motorcycle, which got slipped on a sharp
turn, due to which he received injuries on various parts of body
including ante-mortem head injuries on account of which he died.
Counsel further submits that the challan has already been presented
in the court and conclusion of trial may take long time.
3. The learned Public Prosecutor and counsel for the complainant
have opposed the bail application.
4. Considering the contentions put forth by the counsel for the
petitioner and taking into account the facts and circumstances of the
case and without expressing opinion on the merits of the case, this
Court deems it just and proper to enlarge the petitioner on bail.”
Thereafter this Court set aside the order passed by the High Court
releasing the accused on bail.”
Thereafter, this Court set aside the order passed by the High Court
releasing the accused on bail.
8. At this stage, a recent decision of this Court in the case of
Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana (koli) 2021 (6)
SCALE 41 is also required to be referred to. In the said decision, this
Court considered in great detail the considerations which govern the
grant of bail, after referring to the decisions of this Court in the case of
Ram Govind Upadhyay (Supra); Prasanta Kumar Sarkar (Supra);
Chaman Lal vs. State of U.P. (2004) 7 SCC 525; and the decision of this
Court in Sonu vs. Sonu Yadav 2021 SCC Online SC 286. After
considering the law laid down by this Court on grant of bail, in the
20
aforesaid decisions, in paragraphs 20, 21, 36 & 37 it is observed and
held as under:
“20. The first aspect of the case which stares in the face is the singular
absence in the judgment of the High Court to the nature and gravity of the
crime. The incident which took place on 9 May 2020 resulted in five
homicidal deaths. The nature of the offence is a circumstance which has
an important bearing on the grant of bail. The orders of the High Court are
conspicuous in the absence of any awareness or elaboration of the
serious nature of the offence. The perversity lies in the failure of the High
Court to consider an important circumstance which has a bearing on
whether bail should be granted. In the two-judge Bench decision of this
Court in Ram Govind Upadhyay v. Sudharshan Singh, the nature of the
crime was recorded as “one of the basic considerations” which has a
bearing on the grant or denial of bail. The considerations which govern the
grant of bail were elucidated in the judgment of this Court without
attaching an exhaustive nature or character to them. This emerges from
the following extract:
“4. Apart from the above, certain other which may be attributed to be
relevant considerations may also be noticed at this juncture, though
however, the same are only illustrative and not exhaustive, neither there
can be any. The considerations being:
(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.”
21. This Court further laid down the standard for overturning an order
granting bail in the following terms:
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“3. Grant of bail though being a discretionary order -- but, however, calls
for exercise of such a discretion in a judicious manner and not as a
matter of course. Order for bail bereft of any cogent reason cannot be
sustained.”
xxx xxx xxx
36. Grant of bail under Section 439 of the CrPC is a matter involving the
exercise of judicial discretion. Judicial discretion in granting or refusing bail
- as in the case of any other discretion which is vested in a court as a
judicial institution - is not unstructured. The duty to record reasons is a
significant safeguard which ensures that the discretion which is entrusted
to the court is exercised in a judicious manner. The recording of reasons in
a judicial order ensures that the thought process underlying the order is
subject to scrutiny and that it meets objective standards of reason and
justice. This Court in Chaman Lal v. State of U.P (2004) 7 SCC 525 in a
similar vein has held that an order of a High Court which does not contain
reasons for prima facie concluding that a bail should be granted is liable to
be set aside for nonapplication of mind. This Court observed:
“8. 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.
9. 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…”
37. We are also constrained to record our disapproval of the manner in
which the application for bail of Vishan (A-6) was disposed of. The High
Court sought to support its decision to grant bail by stating that it had
perused the material on record and was granting bail “without discussing
the evidence in detail” taking into consideration:
(1) The facts of the case;
(2) The nature of allegations;
(3) Gravity of offences; and
(4) Role attributed to the accused.”
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9. Applying the law laid down by this Court in the aforesaid decisions
on grant of bail to the facts of the case on hand, the impugned order
passed by the High Court releasing the accused on bail is not
sustainable for the following reasons:
(i) that respondent no.1 – accused Inderpreet Singh along with other
co-accused has been chargesheeted for the offences under sections
302, 120-B, 34, 201 IPC and Section 25 of Arms Act, 1959 for having
killed the father of the complainant – appellant herein;
(ii) that while in custody in jail, respondent no.1 – accused Inderpreet
Singh hatched the conspiracy with the other co-accused;
(iii) that during the course of the investigation, the investigating officer
collected relevant material on hatching the conspiracy from jail along with
other co-accused; and
(iv) that respondent no.1 – accused Inderpreet Singh was in constant
touch on mobile with the other co-accused.
10. The High Court has failed to appreciate and consider the nature of
the accusation and the severity of the punishment in case of conviction
and the nature of supporting evidence. The High Court has also failed to
appreciate the facts of the case; the nature of allegations; gravity of
offence and the role attributed to the accused. As per the allegations, the
accused Inderpreet Singh, respondent no.1 herein is the main
conspirator who hatched the conspiracy along with other co-accused and
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that too from the jail. The High Court has also failed to notice the serious
allegation of hatching conspiracy from the jail. The High Court ought to
have considered that if respondent no.1 – accused Inderpreet Singh can
hatch the conspiracy from jail, what he will not do if he is released on
bail. As such, in the present case, the High Court has failed to notice
that earlier respondent no.1 - accused has been involved in four cases
and has been convicted and even while on bail during the pendency of
the appeal against the conviction, again he indulged into similar activities
and committed the offence. The details of the antecedents of respondent
no.1 – accused are as under:
Sl. No. FIR Proceedings
1. FIR No.12 dated
20.01.2010 u/s 307,
323, 324, 326, 452,
148, 149 IPC – P.S.
Sadar, Jalandhar
Convicted vide Judgment dated
13.03.2018 and ordered to undergo 10
years RI vide order of Sentence dated
15.03.2018
CRA – S – 1897 – SB – 2018 pending
before the Hon’ble Punjab and Haryana
High Court.
Sentence suspended vide order dated
29.01.2019
2. FIR No.203 dated
25.08.2010 u/s 341,
506, 34 IPC – P.S.
Sadar, Jalandhar
Convicted vide judgment dated 08.09.2017
and was sentenced to the period already
undergone
3. FIR No.33 dated
14.02.2011 u/s 307,
323, 325, 427, 148,
149 IPC – P.S.
Sadar, Jalandhar
Convicted and ordered to undergo 7 years
RI vide Judgment and order of Sentence
dated 25.09.2014
CRA-S-4855-SB-2014 pending before the
Hon’ble Punjab and Haryana High Court.
Sentence suspended vide order dated
22.04.2015
Application for cancellation of bail preferred
on account of threats issued to the
complainant and other members and on
account of registration of FIR No.67 dated
08.05.2016.
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Bail/suspension of sentence granted vide
order dated 22.04.2015 is cancelled vide
order dated 26.07.2019
SLP against order dated 26.07.2019
cancelling the bail/suspension of sentence
is dismissed vide order dated 11.09.2019.
Despite the cancellation of bail respondent
no.1/accused and co-accused Jaskaran
Singh @ Jassa did not surrender.
Respondent No.1/accused was finally
arrested, after issuance of repeated arrest
warrants, on 18.07.2020.
Fresh application for suspension of
sentence was dismissed by the Hon’ble
High Court vide order dated 01.09.2020
considering the antecedents of respondent
no.1/accused and concealment of facts.
4. FIR No.67 dated
08.05.2016 u/s 323,
324, 326, 307, 341,
506, 148, 149 IPC –
P.S. Sadar,
Jalandhar
Convicted and ordered to undergo 3 years
RI vide Judgment and order of Sentence
dated 30.03.2019
It is also required to be noted that earlier while respondent no.1
was released on bail by the High Court suspending the sentence in FIR
No. 67 of 2016 by order dated 30.04.2019, again he committed the
offence while on bail and his bail came to be cancelled by the High Court
against which a special leave petition was preferred before this Court
which came to be dismissed. It is to be noted that though the High Court
cancelled the bail on 26.07.2019 and directed the Chief Judicial
Magistrate, Jalandhar to take the accused into custody, despite issuance
of arrest warrants against respondent no.1 herein and the co-accused
Jaskaran Singh @ Jassa, they could not be arrested and respondent
no.1 herein was finally arrested on 18.07.2020, and even the co-accused
25
Jaskaran Singh @ Jassa is still absconding. From the aforesaid, it can
be seen that respondent no.1 herein is a habitual offender. On number
of occasions, he has tried to kill the complainant/appellant herein and his
family. He has repeatedly committed offence of attempting to murder the
appellant herein/complainant thrice and has been convicted in all the
three FIRs.
11. From the material on record, it is clear that as and when he is
granted bail, he came out of the jail, committed another offence and
again went to jail. Even the High Court cancelled the bail in another
case vide order dated 26.07.2019 specifically observing that while on bail
during the pendency of the appeal, they were involved in other cases of
heinous crime. From the material on record, it appears that there is a
high possibility of threat and danger to the life and safety of the appellant
herein/complainant and his family members, as is evident from the
criminal history of respondent no.1, detailed above.
12. The aforesaid relevant considerations are not at all considered by
the High Court in its true perspective. Grant of bail to respondent no.1
herein does not appear to be in order. The antecedents of respondent
no.1 herein; the threat perception to the appellant and his family
members are also not considered by the High Court. We are of the
opinion that the High Court has erred in granting bail to respondent no.1
herein without taking into consideration the overall facts, otherwise
26
having a bearing on exercise of its discretion on the issue. The order
passed by the High Court fails to notice material facts and shows nonapplication of mind to the seriousness of the crime and circumstances,
which ought to have been taken into consideration.
13. Considering the overall facts and circumstances of the case and
the circumstances noted hereinabove and applying the law laid down by
this Court in the aforesaid decisions on grant of bail, we are of the firm
opinion that in the facts and circumstances of the case, the High Court
has committed a grave error in releasing respondent no.1 – accused
Inderpreet Singh on bail and therefore the impugned judgment and
order passed by the High Court is unsustainable and the same deserves
to be quashed and set aside and is accordingly quashed and set aside.
Consequently, the bail granted by the High Court to respondent no.1
herein – Inderpreet Singh in connection with FIR No. 245 dated
21.09.2020 at Police Station Sadar Jalandhar, District Jalandhar for the
offences under Sections 302, 120-B, 34, 201 IPC and Section 25 of Arms
Act, 1959 is hereby cancelled. Respondent no.1 herein – Inderpreet
Singh is directed to surrender forthwith, failing which the learned trial
Court is directed to take respondent no.1 – Inderpreet Singh into custody
by issuing arrest warrants against him. Needless to say, that the
observations made herein are only for the purpose of deciding the issue
of granting bail to respondent no.1 herein and will have no bearing on the
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trial of the case and the learned trial Court shall decide the case on its
own merits, in accordance with law.
14. The appeal is accordingly allowed to the aforesaid extent.
…………………………………….J.
[Dr. Dhananjaya Y. Chandrachud]
New Delhi; …………………………………….J.
August 24, 2021. [M.R. Shah]
