published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40837
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1545 OF 2013
(Arising out of S.L.P. (Crl.) No. 7678 of 2013)
Ranjit Singh … Appellant
Versus
State of M.P. and others …Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. This appeal, by special leave, is directed against the order
dated 16.8.2013 passed by the High Court of Madhya Pradesh,
Bench at Gwalior, in M.Cr.C. No. 3370 of 2013 whereby the
learned single Judge has cancelled the order of bail granted by
learned first Additional Sessions Judge, Guna vide order dated
6.2.2013 to the appellant.
3. The facts giving rise to the present appeal are that on
14.8.2012 an FIR bearing No. 376/2012 was registered at Police
Station, Kotwali, Guna, for offences punishable under Sections
307, 147, 148, 149, 120B read with Section 34 of the Indian
Penal Code (IPC) and Sections 25 and 27 of the Arms Act alleging
that the appellant along with one Abhishek Hada and two unknown
persons had come to the market place where an altercation ensued
between them and the informant and others. It was alleged in
the FIR that two of these four persons were carrying weapons and
they fired at the informant, respondent No. 3 herein, and one
Dilip Singh. After the injured succumbed to the injuries,
Section 302 IPC was added.
The appellant apprehending arrest
filed an application under Section 438 of the Code of Criminal
Procedure (CrPC) before the first Additional Sessions Judge,
Guna, who vide order dated 14.9.2012 rejected the same.
Being
unsuccessful in obtaining an anticipatory bail the appellant
filed M.Cr.C. No. 8023 of 2012 which was dismissed as withdrawn.
4. As the facts would further uncertain, after a gap of sometime
the appellant preferred the second application for grant of
anticipatory bail and the learned single Judge in M.Cr.C. No.
701 of 2013, by order dated 1.2.2013, took note of the fact that
the petitioner therein was an accused in crime No. 376/12
registered for commission of offences punishable under Sections
307, 302/34, 147, 148, 149, 120-B IPC and Sections 25 and 27 of
the Arms Act and the submissions canvassed on behalf of the
learned counsel for the accused and the learned counsel for the
prosecution and ultimately directed as follows: -
“Considering the nature of the allegation and the evidence
collected in the case-diary, the petition is disposed of with a
short direction that the petitioner shall surrender before the
Competent Court and shall apply for regular bail and the same
shall be considered upon furnishing necessary bail bond.”
5. After the said order came to be passed, the appellant
moved two
applications,
one under Section 44(2) and
the other under
Section 439 CrPC before the learned Sessions Judge, Guna, who
transferred the applications to the learned Additional Sessions
Judge for consideration.
The learned Additional Sessions Judge,
Guna, admitted the appellant to bail on imposition of certain
conditions. We shall refer to the said order in detail when we
deal with the legal propriety of the same and the cancellation
of the same by the High Court by the impugned order.
6. At this juncture, it is apposite to note that the wife of the
deceased filed S.L.P. (Crl.) No. 2055 of 2013 assailing the
order dated 1.2.2013 passed by the learned single Judge in
M.Cr.C. No. 701 of 2013.
This Court allowed the application for
permission to file the special leave and thereafter observed as
follows: -
“Although, we are of the view that this special leave petition
has no substance, since the order under challenge merely
directed the respondent-accused to surrender and pray for
regular bail.”
7. Be it noted, in the said order taking note of the grievance that
the wife and children of the deceased were threatened by the
accused this Court granted liberty to apply to the
Superintendent of Police, Guna, M.P. and also the Station House
Officer of Police Station Kotwali, Guna and a direction was
issued that if such application would be made, the said
authorities shall look into the matter with all seriousness and
take appropriate steps for the safety of the wife and the
children.
This Court also took note of the fact that an
application for modification of the order was pending before the
Division Bench of the High Court and, accordingly, observed that
the Division Bench may consider disposing of the said
application as expeditiously as possible.
8. The Division Bench, while dealing with the application for
modification, i.e., M.Cr.C. No. 971 of 2013, vide order dated
15.3.2013, reproduced the order passed in M.Cr.C. No. 701 of
2013 and ascribing certain reasons modified the order and set
aside the order dated 6.2.2013 granting regular bail by the
learned Additional Sessions Judge to the accused.
9. Grieved by the aforesaid order, the appellant preferred Special
Leave Petition (Crl.) No. 2826 of 2013. This Court on 4.4.2013,
while dealing with the legal substantiality of the said order,
opined thus: -
“Having heard learned counsel for the parties, we are of the
view that no useful SLP (Crl.) 2826/13 purpose will be served in
keeping this matter pending here in view of the fact that the
Code of Criminal Procedure does not provide for any review
against an order passed in criminal proceedings.
The proceedings before the Division Bench was entirely
misconceived. In the event the order of the learned Single
Judge of the High Court was misconstrued by the learned trial
court while granting bail to the petitioner, the remedy of the
complainant would be to challenge the same before the High
Court.
Accordingly, the Special Leave Petition is allowed, the order of
the Division Bench of the High Court impugned in the Special
Leave Petition is set aside. The complainant will be at liberty
to proceed against the order of the trial court, granting bail,
if so advised.”
10. It may be noted here that a grievance was made with regard to
grant of police protection and this Court taking note of its
earlier order dated 6.3.2013 made certain observations.
11. At this stage, we may sit in a time machine and take note of
certain proceedings and the orders passed therein as they have
been emphatically stressed upon by Mr. Anupam Lal Das, learned
counsel for the appellant.
An application for cancellation of
bail was filed before the learned 1st Additional Sessions Judge,
Guna by Dinesh Raghuvanshi, the informant, who, on 2.4.2013,
withdrew the application as by that time the Division Bench had
already set aside the order granting bail. It is also necessary
to state that the Additional Public Prosecutor, Guna, had also
filed application for cancellation of bail on 11.2.2013. An
assertion has been made by learned counsel for the appellant
that the same has been withdrawn when the High Court was moved
for cancellation of the order granting bail.
We have referred
to these events, as the learned counsel has endeavoured hard to
impress upon us that there has been suppression of facts by the
informant as well as the State, but we have no scintilla of
doubt that the non-reference to the said facts or non-mentioning
of the same has, in fact, no impact on the merits of the
impugned order passed by the High Court.
12. Coming back to the chronology of narration, after disposal of
the Special Leave Petition (Crl.) 2826 of 2013, the informant
and the wife of the deceased filed an application under Section
439(2) CrPC for cancellation of bail order dated 6.2.2013 passed
by the learned 1st Additional Sessions Judge, Guna in Bail
Application No. 13 of 2013. The learned single Judge, by the
impugned order, narrated the factual matrix, referred to the
order passed by the High Court under Section 438 CrPC, took note
of the submissions advanced at the Bar and after referring to
certain authorities which deal with cancellation of bail, the
allegations made in the FIR, the proceedings before the High
Court and this Court, import of the order passed in M.Cr.C. No.
701 of 2013 and thereafter stated thus: -
“In the instant case, as pointed hereinabove, the learned First
ASJ has not taken pain to consider the aforesaid aspects. When
this Court has expressly given the direction that respondent No.
1 shall surrender before the Competent Court and shall apply for
regular bail and the same shall be considered, it was the
bounden duty of the learned First ASJ to consider
whether
respondent No. 1 is entitled for the benefit of bail or not. It
is unfortunate that despite the objection raised on behalf of
the petitioners that this Court has not granted the bail, the
learned First ASJ, Guna, did not think it fit to seek the
clarification from this Court. Instead of doing so, the learned
First ASJ has granted the benefit of bail to respondent No. 1.”
13. Thereafter, the learned single Judge referred to the criminal
antecedents of the accused and, ultimately, passed the
following order: -
“In view of the aforesaid analysis, considering that learned
First ASJ, Guna, while granting bail, misread the order of this
Court passed in M.Cr.C. No. 701/13 on 1.2.13, has ignored
relevant material and has not considered the well recognized
principles underlying the power to grant bail and further that
there is prima facie material that after releasing on bail,
respondent No. 1 gave threatening to the widow of the deceased
and her children and obstructed the course of justice, the
petition deserves to be allowed.
Hence, it is allowed and the
bail granted by learned First ASJ, Guna, vide order dated
6/2/2013 to respondent No. 1 is hereby cancelled. Bail Bonds of
respondent No. 1 are cancelled.
It is directed that respondent
No. 1 shall surrender before the learned First ASJ, Guna, and he
shall be taken into custody forthwith.”
14. We have heard Mr. Anupam Lal Das, learned counsel appearing for
the appellant, Mr. Surendra Singh, learned senior counsel
appearing for respondent Nos. 2 and 3, and the learned counsel
for the State.
15. First, we shall deal with the order passed by the High Court in
M.Cr.C. No. 701 of 2013. We have already reproduced the same.
The said order was the subject-matter of challenge in Special
Leave Petition (Crl.) No. 2055 of 2013 and this Court has
observed that the order under challenge was a mere direction to
the accused to surrender and pray for bail. Thus, this is the
interpretation placed by this Court on that order. It is apt to
mention here that prior to passing of the said order the learned
Additional Sessions Judge had allowed the application for grant
of regular bail. The Division Bench entertaining an application
under Section 482 CrPC had modified the order dated 1.2.2013
passed in M.Cr.C. No. 701 of 2013 and on that basis had
cancelled the order granting bail in favour of the accused. The
said order was assailed before this Court in Special Leave
Petition (Crl.) No. 2826 of 2013 and it was set aside holding
that the order was wholly misconceived as the Division Bench
could not have reviewed the earlier order under Section 482
CrPC. However, as stated hereinbefore, this Court clearly
stated that in the event the order of the learned single Judge
of the High Court is misconstrued by the learned trial Court
while granting bail to the accused, remedy of the complainant
would be to challenge the same before the High Court. There
cannot be any trace of doubt that the challenge to the grant of
bail order by the learned Additional Sessions Judge was kept
alive by this Court and, accordingly, application was filed
before the High Court which has been dealt with by the learned
single Judge by the impugned order.
16. The thrust of the matter is whether the learned trial Judge has
actually misconstrued the order and granted bail or has really
considered the necessary facets as required to be considered
while entertaining an application under Section 439 CrPC. We
have bestowed our anxious consideration and carefully
scrutinized the order dated 6.2.2013 passed by the learned
Additional Sessions Judge, Guna. It is manifest that the
learned trial Judge accepted the application for surrender and
thereafter referring to the order passed in M.Cr.C. No. 701 of
2013 has opined thus: -
“In the aforementioned case the Hon’ble High Court vide its
order dated 01.02.2013 passed the orders with the directions
that the applicant will surrender himself before the Competent
Court and he will submit his application for regular bail, and
the said concerned court will accept the said application after
furnishing of bail bonds. Therefore, the Hon’ble High Court has
issued the orders to the competent court in favour of the
applicant. In compliance of order dated 01.02.2013 passed by
the Hon’ble High Curt in MCRC Case No. 701/13 u/s 438 Cr.P.C.
surrendered before the Ld. Court, and because for trial of case
u/s 302 IPC the Ld. Court is the Competent Court, hence the
application of surrender of applicant may be accepted and the
bail application u/s 439 Cr.P.C. submitted by the applicant may
please be decided.”
17. It is apt to note here that number of times the learned
Additional Sessions Judge has referred to the order passed by
the High Court and at one stage he has stated as follows: -
“… the applicant had submitted a bail application being No.
154/2012 u/s 438 Cr.P.C. before the Ld. Session Judge. The said
application was rejected on 14.09.2012 by the Ld. First
Additional Session Judge Shri R.P. Mankalia and being aggrieved
with the said order, the applicant filed a petition being
application No. M.C.R.C. No. 701/13 u/s 438 Cr.P.C. before the
Hon’ble High Court of Madhya Pradesh at Gwalior Bench. In this
matter, the Hon’ble High Court passed its judgment and order
dated 01.02.2013 with the directions that the applicant will
surrender himself before the competent court and the applicant
will submit his application for regular bail and the concerned
court will accept the application and bail bonds of the
applicant. Therefore the Hon’ble High Court has issued the
directions for the Competent Court in favour of the applicant.”
18. After so stating the learned trial Judge has referred to the
submissions, application for remand for further investigation
and, eventually, passed the following order: -
“It has been revealed after perusal of case and case diary of
the case that the bail application of the co-accused persons has
already been admitted by the Hon’ble High Court. Offence of the
applicant/ accused person is not different from the offence of
other co-accused persons. Applicant himself has presented
himself before the Ld. Session Judge, Guna and he also presented
himself before this Court. After hearing all the parties by the
Hon’ble High Court of Madhya Pradesh at Gwalior Bench titled
Ranjit Singh Versus State of Madhya Pradesh in M.C.R.C. No.
701/13, the Hon’ble High Court has passed the orders for
furnishing necessary bail bonds, hence, the application filed by
the applicant u/s 439 Cr.P.C. is justified and found proper,
therefore, the application of the applicant is accepted and he
may be enlarged on bail on furnishing two bail bonds of sureties
of Rs.75,000-75,000 each and personal bail bond of Rs.1,50,000/-
to the satisfaction of Chief Judicial Magistrate, Guna.”
19. We have reproduced the said order in extenso to appreciate
whether as a matter of fact the learned Additional Sessions
Judge has misconstrued the import of the order or decided the
application under Section 439 CrPC regard being had to the
considerations that are to be kept in mind while dealing with
such an application. As is evincible, there has been no
deliberation with regard to the requirements under Section 439
CrPC. The order read in entirety clearly reflects that the
learned Additional Sessions Judge had an erroneous perception
and fallacious understanding of the order passed by the High
Court and it is clear as day that the regular bail was granted
on the bedrock of the order passed by the High Court. He had
absolutely misconstrued the order. Thus, the order passed by
the learned Additional Sessions Judge is totally unjustified and
illegal.
20. It needs no special emphasis to state that there is distinction
between the parameters for grant of bail and cancellation of
bail. There is also a distinction between the concept of
setting aside an unjustified, illegal or perverse order and
cancellation of an order of bail on the ground that the accused
has misconducted himself or certain supervening circumstances
warrant such cancellation. If the order granting bail is a
perverse one or passed on irrelevant materials, it can be
annulled by the superior court. We have already referred to
various paragraphs of the order passed by the High Court. We
have already held that the learned trial Judge has misconstrued
the order passed by the High Court. However, we may hasten to
add that the learned single Judge has taken note of certain
supervening circumstances to cancel the bail, but we are of the
opinion that in the obtaining factual matrix the said exercise
was not necessary as the grant of bail was absolutely illegal
and unjustified as the court below had enlarged the accused on
bail on the strength of the order passed in M.Cr.C. No. 701 of
2013 remaining oblivious of the parameters for grant of bail
under Section 439 Cr.P.C. It is well settled in law that grant
of bail though involves exercise of discretionary power of the
court, yet the said exercise has to be made in a judicious
manner and not as a matter of course.
21. In Chaman Lal v. State of U.P.[1], this Court, while dealing
with an application for bail, has stated that certain factors
are to be borne in mind and they are: -
“…. (i) the nature of accusation and the severity of punishment
in case of conviction and the nature of supporting evidence,
(ii) reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant, and (iii) prima facie
satisfaction of the court in support of the charge.”
22. In Prasanta Kumar Sarkar v. Ashis Chatterjee[2], this Court,
while emphasizing on the exercise of discretionary power
generally has to be done in strict compliance with the basic
principles laid down in plethora of decisions of this Court, has
observed as follows: -
“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 be
believed 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, behavior, 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.”
23. The said principles have been reiterated in Ash Mohammad v. Shiv
Raj Singh alias Lalla Babu and another[3].
24. In this context, we may refer with profit to the recent
pronouncement in Central Bureau of Investigation v. V. Vijay Sai
Reddy[4] wherein the learned Judges have expressed thus: -
“28. While granting bail, the court has to keep in mind the
nature of accusation, the nature of evidence in support thereof,
the severity of the punishment which conviction will entail, the
character of the accused, circumstances which are peculiar to
the accused, reasonable possibility of securing the presence of
the accused at the trial, reasonable apprehension of the
witnesses being tampered with, the larger interests of the
public/ State and other similar considerations. It has also to
be kept in mind that for the purpose of granting bail, the
Legislature has used the words “reasonable grounds for
believing” instead of “the evidence” which means the Court
dealing with the grant of bail can only satisfy it as to whether
there is a genuine case against the accused and that the
prosecution will be able to produce prima facie evidence in
support of the charge. It is not expected, at this stage, to
have the evidence establishing the guilt of the accused beyond
reasonable doubt.”
25. We repeat at the cost of repetition that the aforesaid aspects
have not been kept in view by the learned Additional Sessions
Judge and, therefore, we are obliged in law to set aside the
order passed by him and we so do. In view of the extinction of
the order granting bail, the appellant shall surrender forthwith
to custody failing which he shall be taken to custody as per
law. Liberty is granted to the appellant to move an application
for grant of regular bail. Needless to say, on such application
being moved, the same shall be considered on its own merits
regard being had to the parameters which have been laid down in
aforestated authorities.
26. We may hasten to add that because of our above direction the
judgment of the High Court is required to be modified as the
learned single Judge has cancelled the bail by taking certain
other aspects into consideration. We may clearly state that it
would have been appropriate on the part of the High Court to set
aside the order of granting bail by the learned Additional
Sessions Judge and permit the accused to surrender to custody
and move an application for regular bail. Accordingly, the
order passed by the High Court is modified to that extent. It
needs to be stated that when an application for regular bail is
moved, the learned trial Judge shall be free to deal with the
matter as per law without being influenced by the factum that
there had been an order of cancellation of bail. We have said
so as we have set aside the order admitting the appellant to
bail as it is illegal and unjustified being solely based on the
observation made by the High Court in its order passed in
M.Cr.C. No. 701 of 2013. We may further add that proper
opportunity shall be afforded to the Public Prosecutor to put
forth his stand and stance at the time of consideration of the
application preferred by the accused for grant of bail.
27. After saying so we would have proceeded to record our formal
conclusion. But, something more is required to be stated. We
are absolutely conscious that this Court on earlier occasion in
Special Leave Petition (Crl.) No. 2055 of 2013 had clearly
stated that the order under challenge merely directed the
respondent-accused to surrender and pray for regular bail. The
said clarification was made by this Court. Prior to that, the
learned trial Judge misconstruing the order had enlarged the
accused on bail.
28. This Court in Rashmi Rekha Thatoi and another v. State of Orissa
and others[5] has dealt with an order of the High Court whereby
the learned single Judge, while not granting anticipatory bail
to some accused persons, had directed that in case the accused
persons surrender and move an application for regular bail, they
shall be released on bail on such terms and conditions as may be
deemed fit and proper. After referring to the language employed
in Section 438 CrPC, the Constitution Bench decision in Gurbaksh
Singh, Sibbia v. State of Punjab[6], and the law laid down in
Savitri Agarwal v. State of Maharashtra[7], Adri Dharan Das v.
State of West Bengalr[8], State of Maharashtra v. Mohd.
Rashid[9] and Union of India v. Padam Narain Aggarwal[10], this
Court has ruled thus: -
“33. We have referred to the aforesaid pronouncements to
highlight how the Constitution Bench in Gurbaksh Singh Sibbia
had analysed and explained the intrinsic underlying concepts
under Section 438 of the Code, the nature of orders to be passed
while conferring the said privilege, the conditions that are
imposable and the discretions to be used by the courts.
On a
reading of the said authoritative pronouncement and the
principles that have been culled out in Savitry Agarwal there is
remotely no indication that the Court of Session or the High
Court can pass an order that on surrendering of the accused
before the Magistrate he shall be released on bail on such terms
and conditions as the learned Magistrate may deem fit and proper
or the superior court would impose conditions for grant of bail
on such surrender.
When the High Court in categorical terms has
expressed the view that it is not inclined to grant anticipatory
bail to the petitioner-accused it could not have issued such a
direction which would tantamount to conferment of benefit by
which the accused would be in a position to avoid arrest.
It is
in clear violation of the language employed in the statutory
provision and in flagrant violation of the dictum laid down in
Gurbaksh Singh Sibbia and the principles culled out in Savitri
Agarwal.”
In the said case it has also been observed thus: -
“… it is to be borne in mind that a court of law has to act
within the statutory command and not deviate from it. It is a
well-settled proposition of law what cannot be done directly,
cannot be done indirectly. While exercising a statutory power a
court is bound to act within the four corners thereof. The
statutory exercise of power stands on a different footing than
exercise of power of judicial review. This has been so stated
in Bay Berry Apartments (P) Ltd. v. Shobha[11] and U.P. State
Brassware Corpn. Ltd. v. Uday Narain Pandey[12].”
29. In the case at hand, though such an order was not passed by the
learned single Judge, yet the order passed by him was potent
enough to create enormous confusion.
And it has so happened.
It is the duty of the superior courts to follow the command of
the statutory provisions and be guided by the precedents and
issue directions which are permissible in law.
We are of the
convinced opinion that the observations made by the learned
single Judge while dealing with second application under Section
438 CrPC was not at all warranted under any circumstance as it
was neither in consonance with the language employed in Section
438 CrPC nor in accord with the established principles of law
relating to grant of anticipatory bail.
We may reiterate that
the said order has been interpreted by this Court as an order
only issuing a direction to the accused to surrender, but as we
find, it has really created colossal dilemma in the mind of the
learned Additional Sessions Judge.
We are pained to say that
passing of these kind of orders has become quite frequent and
the sagacious saying, “A stitch in time saves nine” may be an
apposite reminder now. We painfully part with the case by
saying so.
30. The appeal is disposed of in terms of the modification in the
order passed by the learned single Judge in M.Cr.C. No. 701 of
2013 and the observations made hereinabove.
……………………….J.
[Anil R. Dave]
……………………….J.
[Dipak Misra]
New Delhi;
September 27, 2013.
-----------------------
[1] (2004) 7 SCC 525
[2] (2010) 14 SCC 496
[3] (2012) 9 SCC 446
[4] 2013 (7) SCALE 15
[5] (2012) 5 SCC 690
[6] (1980) 2 SCC 565
[7] (2009) 8 SCC 325
[8] (2005) 4 SCC 303
[9] (2005) 7 SCC 56
[10] (2008) 13 SCC 305
[11] (2006) 13 SCC 737
[12] (2006) 1 SCC 479
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1545 OF 2013
(Arising out of S.L.P. (Crl.) No. 7678 of 2013)
Ranjit Singh … Appellant
Versus
State of M.P. and others …Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. This appeal, by special leave, is directed against the order
dated 16.8.2013 passed by the High Court of Madhya Pradesh,
Bench at Gwalior, in M.Cr.C. No. 3370 of 2013 whereby the
learned single Judge has cancelled the order of bail granted by
learned first Additional Sessions Judge, Guna vide order dated
6.2.2013 to the appellant.
3. The facts giving rise to the present appeal are that on
14.8.2012 an FIR bearing No. 376/2012 was registered at Police
Station, Kotwali, Guna, for offences punishable under Sections
307, 147, 148, 149, 120B read with Section 34 of the Indian
Penal Code (IPC) and Sections 25 and 27 of the Arms Act alleging
that the appellant along with one Abhishek Hada and two unknown
persons had come to the market place where an altercation ensued
between them and the informant and others. It was alleged in
the FIR that two of these four persons were carrying weapons and
they fired at the informant, respondent No. 3 herein, and one
Dilip Singh. After the injured succumbed to the injuries,
Section 302 IPC was added.
The appellant apprehending arrest
filed an application under Section 438 of the Code of Criminal
Procedure (CrPC) before the first Additional Sessions Judge,
Guna, who vide order dated 14.9.2012 rejected the same.
Being
unsuccessful in obtaining an anticipatory bail the appellant
filed M.Cr.C. No. 8023 of 2012 which was dismissed as withdrawn.
4. As the facts would further uncertain, after a gap of sometime
the appellant preferred the second application for grant of
anticipatory bail and the learned single Judge in M.Cr.C. No.
701 of 2013, by order dated 1.2.2013, took note of the fact that
the petitioner therein was an accused in crime No. 376/12
registered for commission of offences punishable under Sections
307, 302/34, 147, 148, 149, 120-B IPC and Sections 25 and 27 of
the Arms Act and the submissions canvassed on behalf of the
learned counsel for the accused and the learned counsel for the
prosecution and ultimately directed as follows: -
“Considering the nature of the allegation and the evidence
collected in the case-diary, the petition is disposed of with a
short direction that the petitioner shall surrender before the
Competent Court and shall apply for regular bail and the same
shall be considered upon furnishing necessary bail bond.”
5. After the said order came to be passed, the appellant
moved two
applications,
one under Section 44(2) and
the other under
Section 439 CrPC before the learned Sessions Judge, Guna, who
transferred the applications to the learned Additional Sessions
Judge for consideration.
The learned Additional Sessions Judge,
Guna, admitted the appellant to bail on imposition of certain
conditions. We shall refer to the said order in detail when we
deal with the legal propriety of the same and the cancellation
of the same by the High Court by the impugned order.
6. At this juncture, it is apposite to note that the wife of the
deceased filed S.L.P. (Crl.) No. 2055 of 2013 assailing the
order dated 1.2.2013 passed by the learned single Judge in
M.Cr.C. No. 701 of 2013.
This Court allowed the application for
permission to file the special leave and thereafter observed as
follows: -
“Although, we are of the view that this special leave petition
has no substance, since the order under challenge merely
directed the respondent-accused to surrender and pray for
regular bail.”
7. Be it noted, in the said order taking note of the grievance that
the wife and children of the deceased were threatened by the
accused this Court granted liberty to apply to the
Superintendent of Police, Guna, M.P. and also the Station House
Officer of Police Station Kotwali, Guna and a direction was
issued that if such application would be made, the said
authorities shall look into the matter with all seriousness and
take appropriate steps for the safety of the wife and the
children.
This Court also took note of the fact that an
application for modification of the order was pending before the
Division Bench of the High Court and, accordingly, observed that
the Division Bench may consider disposing of the said
application as expeditiously as possible.
8. The Division Bench, while dealing with the application for
modification, i.e., M.Cr.C. No. 971 of 2013, vide order dated
15.3.2013, reproduced the order passed in M.Cr.C. No. 701 of
2013 and ascribing certain reasons modified the order and set
aside the order dated 6.2.2013 granting regular bail by the
learned Additional Sessions Judge to the accused.
9. Grieved by the aforesaid order, the appellant preferred Special
Leave Petition (Crl.) No. 2826 of 2013. This Court on 4.4.2013,
while dealing with the legal substantiality of the said order,
opined thus: -
“Having heard learned counsel for the parties, we are of the
view that no useful SLP (Crl.) 2826/13 purpose will be served in
keeping this matter pending here in view of the fact that the
Code of Criminal Procedure does not provide for any review
against an order passed in criminal proceedings.
The proceedings before the Division Bench was entirely
misconceived. In the event the order of the learned Single
Judge of the High Court was misconstrued by the learned trial
court while granting bail to the petitioner, the remedy of the
complainant would be to challenge the same before the High
Court.
Accordingly, the Special Leave Petition is allowed, the order of
the Division Bench of the High Court impugned in the Special
Leave Petition is set aside. The complainant will be at liberty
to proceed against the order of the trial court, granting bail,
if so advised.”
10. It may be noted here that a grievance was made with regard to
grant of police protection and this Court taking note of its
earlier order dated 6.3.2013 made certain observations.
11. At this stage, we may sit in a time machine and take note of
certain proceedings and the orders passed therein as they have
been emphatically stressed upon by Mr. Anupam Lal Das, learned
counsel for the appellant.
An application for cancellation of
bail was filed before the learned 1st Additional Sessions Judge,
Guna by Dinesh Raghuvanshi, the informant, who, on 2.4.2013,
withdrew the application as by that time the Division Bench had
already set aside the order granting bail. It is also necessary
to state that the Additional Public Prosecutor, Guna, had also
filed application for cancellation of bail on 11.2.2013. An
assertion has been made by learned counsel for the appellant
that the same has been withdrawn when the High Court was moved
for cancellation of the order granting bail.
We have referred
to these events, as the learned counsel has endeavoured hard to
impress upon us that there has been suppression of facts by the
informant as well as the State, but we have no scintilla of
doubt that the non-reference to the said facts or non-mentioning
of the same has, in fact, no impact on the merits of the
impugned order passed by the High Court.
12. Coming back to the chronology of narration, after disposal of
the Special Leave Petition (Crl.) 2826 of 2013, the informant
and the wife of the deceased filed an application under Section
439(2) CrPC for cancellation of bail order dated 6.2.2013 passed
by the learned 1st Additional Sessions Judge, Guna in Bail
Application No. 13 of 2013. The learned single Judge, by the
impugned order, narrated the factual matrix, referred to the
order passed by the High Court under Section 438 CrPC, took note
of the submissions advanced at the Bar and after referring to
certain authorities which deal with cancellation of bail, the
allegations made in the FIR, the proceedings before the High
Court and this Court, import of the order passed in M.Cr.C. No.
701 of 2013 and thereafter stated thus: -
“In the instant case, as pointed hereinabove, the learned First
ASJ has not taken pain to consider the aforesaid aspects. When
this Court has expressly given the direction that respondent No.
1 shall surrender before the Competent Court and shall apply for
regular bail and the same shall be considered, it was the
bounden duty of the learned First ASJ to consider
whether
respondent No. 1 is entitled for the benefit of bail or not. It
is unfortunate that despite the objection raised on behalf of
the petitioners that this Court has not granted the bail, the
learned First ASJ, Guna, did not think it fit to seek the
clarification from this Court. Instead of doing so, the learned
First ASJ has granted the benefit of bail to respondent No. 1.”
13. Thereafter, the learned single Judge referred to the criminal
antecedents of the accused and, ultimately, passed the
following order: -
“In view of the aforesaid analysis, considering that learned
First ASJ, Guna, while granting bail, misread the order of this
Court passed in M.Cr.C. No. 701/13 on 1.2.13, has ignored
relevant material and has not considered the well recognized
principles underlying the power to grant bail and further that
there is prima facie material that after releasing on bail,
respondent No. 1 gave threatening to the widow of the deceased
and her children and obstructed the course of justice, the
petition deserves to be allowed.
Hence, it is allowed and the
bail granted by learned First ASJ, Guna, vide order dated
6/2/2013 to respondent No. 1 is hereby cancelled. Bail Bonds of
respondent No. 1 are cancelled.
It is directed that respondent
No. 1 shall surrender before the learned First ASJ, Guna, and he
shall be taken into custody forthwith.”
14. We have heard Mr. Anupam Lal Das, learned counsel appearing for
the appellant, Mr. Surendra Singh, learned senior counsel
appearing for respondent Nos. 2 and 3, and the learned counsel
for the State.
15. First, we shall deal with the order passed by the High Court in
M.Cr.C. No. 701 of 2013. We have already reproduced the same.
The said order was the subject-matter of challenge in Special
Leave Petition (Crl.) No. 2055 of 2013 and this Court has
observed that the order under challenge was a mere direction to
the accused to surrender and pray for bail. Thus, this is the
interpretation placed by this Court on that order. It is apt to
mention here that prior to passing of the said order the learned
Additional Sessions Judge had allowed the application for grant
of regular bail. The Division Bench entertaining an application
under Section 482 CrPC had modified the order dated 1.2.2013
passed in M.Cr.C. No. 701 of 2013 and on that basis had
cancelled the order granting bail in favour of the accused. The
said order was assailed before this Court in Special Leave
Petition (Crl.) No. 2826 of 2013 and it was set aside holding
that the order was wholly misconceived as the Division Bench
could not have reviewed the earlier order under Section 482
CrPC. However, as stated hereinbefore, this Court clearly
stated that in the event the order of the learned single Judge
of the High Court is misconstrued by the learned trial Court
while granting bail to the accused, remedy of the complainant
would be to challenge the same before the High Court. There
cannot be any trace of doubt that the challenge to the grant of
bail order by the learned Additional Sessions Judge was kept
alive by this Court and, accordingly, application was filed
before the High Court which has been dealt with by the learned
single Judge by the impugned order.
16. The thrust of the matter is whether the learned trial Judge has
actually misconstrued the order and granted bail or has really
considered the necessary facets as required to be considered
while entertaining an application under Section 439 CrPC. We
have bestowed our anxious consideration and carefully
scrutinized the order dated 6.2.2013 passed by the learned
Additional Sessions Judge, Guna. It is manifest that the
learned trial Judge accepted the application for surrender and
thereafter referring to the order passed in M.Cr.C. No. 701 of
2013 has opined thus: -
“In the aforementioned case the Hon’ble High Court vide its
order dated 01.02.2013 passed the orders with the directions
that the applicant will surrender himself before the Competent
Court and he will submit his application for regular bail, and
the said concerned court will accept the said application after
furnishing of bail bonds. Therefore, the Hon’ble High Court has
issued the orders to the competent court in favour of the
applicant. In compliance of order dated 01.02.2013 passed by
the Hon’ble High Curt in MCRC Case No. 701/13 u/s 438 Cr.P.C.
surrendered before the Ld. Court, and because for trial of case
u/s 302 IPC the Ld. Court is the Competent Court, hence the
application of surrender of applicant may be accepted and the
bail application u/s 439 Cr.P.C. submitted by the applicant may
please be decided.”
17. It is apt to note here that number of times the learned
Additional Sessions Judge has referred to the order passed by
the High Court and at one stage he has stated as follows: -
“… the applicant had submitted a bail application being No.
154/2012 u/s 438 Cr.P.C. before the Ld. Session Judge. The said
application was rejected on 14.09.2012 by the Ld. First
Additional Session Judge Shri R.P. Mankalia and being aggrieved
with the said order, the applicant filed a petition being
application No. M.C.R.C. No. 701/13 u/s 438 Cr.P.C. before the
Hon’ble High Court of Madhya Pradesh at Gwalior Bench. In this
matter, the Hon’ble High Court passed its judgment and order
dated 01.02.2013 with the directions that the applicant will
surrender himself before the competent court and the applicant
will submit his application for regular bail and the concerned
court will accept the application and bail bonds of the
applicant. Therefore the Hon’ble High Court has issued the
directions for the Competent Court in favour of the applicant.”
18. After so stating the learned trial Judge has referred to the
submissions, application for remand for further investigation
and, eventually, passed the following order: -
“It has been revealed after perusal of case and case diary of
the case that the bail application of the co-accused persons has
already been admitted by the Hon’ble High Court. Offence of the
applicant/ accused person is not different from the offence of
other co-accused persons. Applicant himself has presented
himself before the Ld. Session Judge, Guna and he also presented
himself before this Court. After hearing all the parties by the
Hon’ble High Court of Madhya Pradesh at Gwalior Bench titled
Ranjit Singh Versus State of Madhya Pradesh in M.C.R.C. No.
701/13, the Hon’ble High Court has passed the orders for
furnishing necessary bail bonds, hence, the application filed by
the applicant u/s 439 Cr.P.C. is justified and found proper,
therefore, the application of the applicant is accepted and he
may be enlarged on bail on furnishing two bail bonds of sureties
of Rs.75,000-75,000 each and personal bail bond of Rs.1,50,000/-
to the satisfaction of Chief Judicial Magistrate, Guna.”
19. We have reproduced the said order in extenso to appreciate
whether as a matter of fact the learned Additional Sessions
Judge has misconstrued the import of the order or decided the
application under Section 439 CrPC regard being had to the
considerations that are to be kept in mind while dealing with
such an application. As is evincible, there has been no
deliberation with regard to the requirements under Section 439
CrPC. The order read in entirety clearly reflects that the
learned Additional Sessions Judge had an erroneous perception
and fallacious understanding of the order passed by the High
Court and it is clear as day that the regular bail was granted
on the bedrock of the order passed by the High Court. He had
absolutely misconstrued the order. Thus, the order passed by
the learned Additional Sessions Judge is totally unjustified and
illegal.
20. It needs no special emphasis to state that there is distinction
between the parameters for grant of bail and cancellation of
bail. There is also a distinction between the concept of
setting aside an unjustified, illegal or perverse order and
cancellation of an order of bail on the ground that the accused
has misconducted himself or certain supervening circumstances
warrant such cancellation. If the order granting bail is a
perverse one or passed on irrelevant materials, it can be
annulled by the superior court. We have already referred to
various paragraphs of the order passed by the High Court. We
have already held that the learned trial Judge has misconstrued
the order passed by the High Court. However, we may hasten to
add that the learned single Judge has taken note of certain
supervening circumstances to cancel the bail, but we are of the
opinion that in the obtaining factual matrix the said exercise
was not necessary as the grant of bail was absolutely illegal
and unjustified as the court below had enlarged the accused on
bail on the strength of the order passed in M.Cr.C. No. 701 of
2013 remaining oblivious of the parameters for grant of bail
under Section 439 Cr.P.C. It is well settled in law that grant
of bail though involves exercise of discretionary power of the
court, yet the said exercise has to be made in a judicious
manner and not as a matter of course.
21. In Chaman Lal v. State of U.P.[1], this Court, while dealing
with an application for bail, has stated that certain factors
are to be borne in mind and they are: -
“…. (i) the nature of accusation and the severity of punishment
in case of conviction and the nature of supporting evidence,
(ii) reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant, and (iii) prima facie
satisfaction of the court in support of the charge.”
22. In Prasanta Kumar Sarkar v. Ashis Chatterjee[2], this Court,
while emphasizing on the exercise of discretionary power
generally has to be done in strict compliance with the basic
principles laid down in plethora of decisions of this Court, has
observed as follows: -
“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 be
believed 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, behavior, 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.”
23. The said principles have been reiterated in Ash Mohammad v. Shiv
Raj Singh alias Lalla Babu and another[3].
24. In this context, we may refer with profit to the recent
pronouncement in Central Bureau of Investigation v. V. Vijay Sai
Reddy[4] wherein the learned Judges have expressed thus: -
“28. While granting bail, the court has to keep in mind the
nature of accusation, the nature of evidence in support thereof,
the severity of the punishment which conviction will entail, the
character of the accused, circumstances which are peculiar to
the accused, reasonable possibility of securing the presence of
the accused at the trial, reasonable apprehension of the
witnesses being tampered with, the larger interests of the
public/ State and other similar considerations. It has also to
be kept in mind that for the purpose of granting bail, the
Legislature has used the words “reasonable grounds for
believing” instead of “the evidence” which means the Court
dealing with the grant of bail can only satisfy it as to whether
there is a genuine case against the accused and that the
prosecution will be able to produce prima facie evidence in
support of the charge. It is not expected, at this stage, to
have the evidence establishing the guilt of the accused beyond
reasonable doubt.”
25. We repeat at the cost of repetition that the aforesaid aspects
have not been kept in view by the learned Additional Sessions
Judge and, therefore, we are obliged in law to set aside the
order passed by him and we so do. In view of the extinction of
the order granting bail, the appellant shall surrender forthwith
to custody failing which he shall be taken to custody as per
law. Liberty is granted to the appellant to move an application
for grant of regular bail. Needless to say, on such application
being moved, the same shall be considered on its own merits
regard being had to the parameters which have been laid down in
aforestated authorities.
26. We may hasten to add that because of our above direction the
judgment of the High Court is required to be modified as the
learned single Judge has cancelled the bail by taking certain
other aspects into consideration. We may clearly state that it
would have been appropriate on the part of the High Court to set
aside the order of granting bail by the learned Additional
Sessions Judge and permit the accused to surrender to custody
and move an application for regular bail. Accordingly, the
order passed by the High Court is modified to that extent. It
needs to be stated that when an application for regular bail is
moved, the learned trial Judge shall be free to deal with the
matter as per law without being influenced by the factum that
there had been an order of cancellation of bail. We have said
so as we have set aside the order admitting the appellant to
bail as it is illegal and unjustified being solely based on the
observation made by the High Court in its order passed in
M.Cr.C. No. 701 of 2013. We may further add that proper
opportunity shall be afforded to the Public Prosecutor to put
forth his stand and stance at the time of consideration of the
application preferred by the accused for grant of bail.
27. After saying so we would have proceeded to record our formal
conclusion. But, something more is required to be stated. We
are absolutely conscious that this Court on earlier occasion in
Special Leave Petition (Crl.) No. 2055 of 2013 had clearly
stated that the order under challenge merely directed the
respondent-accused to surrender and pray for regular bail. The
said clarification was made by this Court. Prior to that, the
learned trial Judge misconstruing the order had enlarged the
accused on bail.
28. This Court in Rashmi Rekha Thatoi and another v. State of Orissa
and others[5] has dealt with an order of the High Court whereby
the learned single Judge, while not granting anticipatory bail
to some accused persons, had directed that in case the accused
persons surrender and move an application for regular bail, they
shall be released on bail on such terms and conditions as may be
deemed fit and proper. After referring to the language employed
in Section 438 CrPC, the Constitution Bench decision in Gurbaksh
Singh, Sibbia v. State of Punjab[6], and the law laid down in
Savitri Agarwal v. State of Maharashtra[7], Adri Dharan Das v.
State of West Bengalr[8], State of Maharashtra v. Mohd.
Rashid[9] and Union of India v. Padam Narain Aggarwal[10], this
Court has ruled thus: -
“33. We have referred to the aforesaid pronouncements to
highlight how the Constitution Bench in Gurbaksh Singh Sibbia
had analysed and explained the intrinsic underlying concepts
under Section 438 of the Code, the nature of orders to be passed
while conferring the said privilege, the conditions that are
imposable and the discretions to be used by the courts.
On a
reading of the said authoritative pronouncement and the
principles that have been culled out in Savitry Agarwal there is
remotely no indication that the Court of Session or the High
Court can pass an order that on surrendering of the accused
before the Magistrate he shall be released on bail on such terms
and conditions as the learned Magistrate may deem fit and proper
or the superior court would impose conditions for grant of bail
on such surrender.
When the High Court in categorical terms has
expressed the view that it is not inclined to grant anticipatory
bail to the petitioner-accused it could not have issued such a
direction which would tantamount to conferment of benefit by
which the accused would be in a position to avoid arrest.
It is
in clear violation of the language employed in the statutory
provision and in flagrant violation of the dictum laid down in
Gurbaksh Singh Sibbia and the principles culled out in Savitri
Agarwal.”
In the said case it has also been observed thus: -
“… it is to be borne in mind that a court of law has to act
within the statutory command and not deviate from it. It is a
well-settled proposition of law what cannot be done directly,
cannot be done indirectly. While exercising a statutory power a
court is bound to act within the four corners thereof. The
statutory exercise of power stands on a different footing than
exercise of power of judicial review. This has been so stated
in Bay Berry Apartments (P) Ltd. v. Shobha[11] and U.P. State
Brassware Corpn. Ltd. v. Uday Narain Pandey[12].”
29. In the case at hand, though such an order was not passed by the
learned single Judge, yet the order passed by him was potent
enough to create enormous confusion.
And it has so happened.
It is the duty of the superior courts to follow the command of
the statutory provisions and be guided by the precedents and
issue directions which are permissible in law.
We are of the
convinced opinion that the observations made by the learned
single Judge while dealing with second application under Section
438 CrPC was not at all warranted under any circumstance as it
was neither in consonance with the language employed in Section
438 CrPC nor in accord with the established principles of law
relating to grant of anticipatory bail.
We may reiterate that
the said order has been interpreted by this Court as an order
only issuing a direction to the accused to surrender, but as we
find, it has really created colossal dilemma in the mind of the
learned Additional Sessions Judge.
We are pained to say that
passing of these kind of orders has become quite frequent and
the sagacious saying, “A stitch in time saves nine” may be an
apposite reminder now. We painfully part with the case by
saying so.
30. The appeal is disposed of in terms of the modification in the
order passed by the learned single Judge in M.Cr.C. No. 701 of
2013 and the observations made hereinabove.
……………………….J.
[Anil R. Dave]
……………………….J.
[Dipak Misra]
New Delhi;
September 27, 2013.
-----------------------
[1] (2004) 7 SCC 525
[2] (2010) 14 SCC 496
[3] (2012) 9 SCC 446
[4] 2013 (7) SCALE 15
[5] (2012) 5 SCC 690
[6] (1980) 2 SCC 565
[7] (2009) 8 SCC 325
[8] (2005) 4 SCC 303
[9] (2005) 7 SCC 56
[10] (2008) 13 SCC 305
[11] (2006) 13 SCC 737
[12] (2006) 1 SCC 479
