* Authors
[2024] 5 S.C.R. 36 : 2024 INSC 343
Shivani Tyagi
v.
State of U.P. & Anr.
(Criminal Appeal Nos.1957-1961 of 2024)
05 April 2024
[C. T. Ravikumar* and Rajesh Bindal,* JJ.]
Issue for Consideration
Matter pertains to suspension of sentence of life imprisonment of
the convicted persons, and their consequential enlargement on
bail, in an acid attack case.
Headnotes
Code of Criminal Procedure, 1973 – s. 389 – Suspension of
sentence pending appeal, and releasing on bail – Acid attack on
victim at the hands of the accused persons – Victim suffered
30-40 percent burn injuries resulting in total disfigurement of
her face – Conviction of the accused persons u/ss. 307/149
and 326A/149 IPC and sentenced to life imprisonment – High
Court suspended the sentence and enlarged them on bail –
Interference:
Held: (per C. T. Ravikumar, J) Mere factum of sufferance of
incarceration for a particular period and likelihood of delay in
disposal of cases, in a case where life imprisonment is imposed,
cannot be a reason for invocation of power u/s. 389 without
referring to the relevant factors – Each case has to be examined
on its own merits and based on the given parameters – Acid
attack may completely strip off the victim of her basic human
right to live a decent human life owing to permanent disfiguration
– Impugned judgment reflects only non-application of mind and
non-consideration of the relevant factors required for invocation
of power u/s. 389 despite the fact that the case involved an acid
attack on a young woman resulting into permanent disfiguration
– High Court took into account the offer made on behalf of the
convicts that they would give a payment of Rs. 25 lakhs, and that
the evidence that the victim had incurred an amount of Rs. 21
[2024] 5 S.C.R. 37
Shivani Tyagi v. State of U.P. & Anr.
lakhs for her treatment besides the period of incarceration and also
the delay likely to occur in the consideration of appeal – Serious
nature of the offence involved was not taken into account besides
the other relevant parameters for the exercise of power u/s. 389
– Thus, the impugned judgment cannot be sustained and is set
aside, and the bail granted to the accused is cancelled [Paras
9-12] – Held: (per Rajesh Bindal,J) (Supplementing) One of the
principles of sentencing, being proportionality, if the appropriate
punishment is not awarded or if, after conviction for a heinous
crime, the court directs the suspension of the sentence without
valid reasons, the very purpose for which the criminal justice
system exists would fail – High Court directed the suspension
of the sentence of the accused on payment of ₹ 25 lakhs to the
victim – Amount was not accepted by the victim and the convicts
could not be released from the jail – Also despite spending ₹ 21
lakhs on the treatment, victim still has not been cured – Infirmity
of the court is evident from the fact that the High Court went on
to modify the earlier order and noted that a Demand Draft having
been handed over to the Chief Judicial Magistrate, the accused
be released on bail subject to Surety Bonds – Order passed in
the Correction Application does not suggest that there was any
consideration of the parameters laid down for grant of bail or
suspension of sentence, instead, the High Court noticed and
directed that the convicts have offered to pay compensation to
the victim for grant of suspension of sentence, which when she
refused to accept, was directed to be deposited in the court – It
was in a way kind of “Blood Money” offered by the convicts to
the victim for which there is no acceptability in the criminal justice
system [Paras 6, 7, 13]
Case Law Cited
In the judgment of C.T. Ravikumar, J.
Bhagwan Rama Shinde Gosai & Ors. v. State of
Gujarat [1999] 3 SCR 545 : (1999) 4 SCC 421;
Kishori Lal v. Rupa & Ors. [2004] Supp. 4 SCR 628 :
(2004) 7 SCC 638; Anwari Begum v. Sher Mohammad
& Anr. [2005] Supp. 3 SCR 287 : (2005) 7 SCC
326; Khilari v. State of Uttar Pradesh & Ors. [2009]
38 [2024] 5 S.C.R.
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1 SCR 543 : (2009) 4 SCC 23; State of Haryana v.
Hasmat [2004] Supp. 3 SCR 132 : (2004) 6 SCC
175 – referred to.
In the judgment of Rajesh Bindal, J.
Parivartan Kendra v. Union of India and Others [2015]
12 SCR 607 : (2016) 3 SCC 571 : 2015 INSC 893;
Suresh Chandra Jana v. State of West Bengal and
Others [2017] 13 SCR 1 : (2017) 16 SCC 466 : 2017
INSC 1296; State of Himachal Pradesh and Another
v. Vijay Kumar alias Pappu and Another (2019) 5
SCC 373 : 2019 INSC 377; Deepak Yadav v. State of
Uttar Pradesh and Another [2022] 4 SCR 1 : (2022)
8 SCC 559 : 2022 INSC 610; Gian Singh v. State of
Punjab and Another [2012] 8 SCR 753 : (2012) 10
SCC 303 : 2012 INSC 419; The State of Jharkhand
v. Md. Sufiyan SLP (Crl) No. 1960 of 2022 decided
on 16.01.2024; Sahab Alam alias Guddu v. State of
Jharkhand and another (2022) SCC Online SC 1874
– referred to.
List of Acts
Code of Criminal Procedure, 1973; Penal Code, 1860.
List of Keywords
Acid attack case; Suspension of sentence; Life imprisonment;
Enlargement on bail; Disfigurement of face; Sufferance of
incarceration; Delay; Public interest and social security; Permanent
disfiguration of young woman; Principles of sentencing; Criminal
law; Proportionality; Criminal justice system; Compensation; Blood
Money.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 1957-
1961 of 2024
From the Judgment and Order dated 12.12.2023 of the High Court
of Judicature at Allahabad in CRLA Nos.2467, 996, 801, 1155 and
467 of 2021
[2024] 5 S.C.R. 39
Shivani Tyagi v. State of U.P. & Anr.
Appearances for Parties
Niranjan Sahu, Adv. for the Appellant.
Vinay Navare, Sr. Adv., Rajat Singh, Divyanshu Sahay, Sarthak
Chandra, Akhand Pratap Singh Chauhan, Anil Verma, Tungesh,
Nagendra Kasana, Rajesh Rathod, Ms. Palak Munjal, Aditya Sharma,
Arun Kumar Arunachal, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Order
C. T. Ravikumar, J.
Leave granted.
1. In these quintuplet appeals the victim of an acid attack assails the
suspension of sentence of life imprisonment of the convicted persons,
the private respondents and their consequential enlargement on bail.
2. Heard learned counsel appearing for the self-same appellantvictim in the captioned appeal, learned counsel appearing for the
common first respondent-State of Uttar Pradesh and learned counsel
appearing for the private respondents.
3. Section 389 of the Code of Criminal Procedure (for short the “Cr.
PC”) deals with the suspension of execution of sentence pending the
appeal against conviction and release of appellant(s) on bail. The
said provision mandates for recording of reasons in writing leading
to the conclusion that the convicts are entitled to get suspension of
sentence and consequential release on bail. The said requirement
thus indicates the legislative intention that the appellate Court invoking
the power under Section 389, Cr. PC, should assess the matter
objectively and that such assessment should reflect in the order.
4. We will briefly refer to some of the relevant decisions dealing with
Section 389, Cr. PC. In the case of short-term imprisonment for
conviction of an offence, suspension of sentence is the normal rule
and its rejection is the exception. (See the decision in Bhagwan
Rama Shinde Gosai & Ors. v. State of Gujarat1
). However, we
1 [1999] 3 SCR 545 : (1999) 4 SCC 421
40 [2024] 5 S.C.R.
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are of the considered view that the position should be vice-versa
in the case of conviction for serious offences when invocation of
power under Section 389 is invited. This Court, in the decision in
Kishori Lal v. Rupa & Ors.2
, held in paragraphs 4 and 5 thus:-
“4. Section 389 of the Code deals with suspension of
execution of sentence pending the appeal and release
of the appellant on bail. There is a distinction between
bail and suspension of sentence. One of the essential
ingredients of Section 389 is the requirement for the
appellate Court to record reasons in writing for ordering
suspension of execution of the sentence or order appealed
against. If he is in confinement, the said Court can
direct that he be released on bail or on his own bond.
The requirement of recording reasons in writing clearly
indicates that there has to be careful consideration of
the relevant aspects and the order directing suspension
of sentence and grant of bail should not be passed as
a matter of routine.
5. The appellate Court is duty-bound to objectively assess
the matter and to record reasons for the conclusion that
the case warrants suspension of execution of sentence
and grant of bail. In the instant case, the only factor which
seems to have weighed with the High Court for directing
suspension of sentence and grant of bail is the absence
of allegation of misuse of liberty during the earlier period
when the accused-respondents were on bail.”
5. In the decision in Anwari Begum v. Sher Mohammad & Anr.
3
this
Court in paragraphs 7 and 8 held thus:-
“7. Even on a cursory perusal the High Court’s order shows
complete non-application of mind. Though a 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
2 [2004] Supp. 4 SCR 628 : (2004) 7 SCC 638
3 [2005] Supp. 3 SCR 287 : (2005) 7 SCC 326
[2024] 5 S.C.R. 41
Shivani Tyagi v. State of U.P. & Anr.
dealing with the bail application should be satisfied as
to whether there is a prima facie case, but exhaustive
exploration of the merits of the case is not necessary.
The Court dealing with the application for bail is required
to exercise its discretion in a judicious manner and not
as a matter of course.
8. There is a need to indicate in the order reasons for prima
facie concluding why bail was being granted, particularly
where an accused was charged of having committed a
serious offence. It is necessary for the Courts dealing with
application for bail to consider among other circumstances,
the following factors also before granting bail, they are:
1. The nature of accusation and the severity of
punishment in case of conviction and the nature
of supporting evidence;
2. Reasonable apprehension of tampering with
the witness or apprehension of threat to the
complainant;
3. Prima facie satisfaction of the Court in support
of the charge.
Any order dehors of such reasons suffers from nonapplication of mind as was noted by this Court in Ram
Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC
598, Puran v. Rambilas (2001) 6 SCC 338 and in Kalyan
Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528.”
6. After referring to the aforesaid paragraphs in the decisions in
Kishori Las’s case (supra) and Anwari Begum’s case (supra),
this Court in the decision in Khilari v. State of Uttar Pradesh
& Ors.
4 interfered with an order suspending the sentence and
granting bail for non-application of mind and non-consideration of
the relevant aspects.
7. Applying the principles and parameters for invocation of the
power under Section 389. Cr. PC, revealed from the decisions,
4 [2009] 1 SCR 543 : (2009) 4 SCC 23
42 [2024] 5 S.C.R.
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as above, we will have to consider the sustainability of the
challenge against the impugned orders by the appellant victim. In
that regard a succinct narration of the facts involved in the case,
strictly confining to the requirement for consideration of these
appeals, is required. The private respondents in the appeals, five
in numbers, were convicted finding guilty of offences, including
under Sections 307/149 and 326A/149, IPC. The appellant-victim
was then aged about 31 years and, in the incident, she suffered
attack with sulfuric acid and her body was burnt 30 to 40 percent.
PW-6, Dr. Uttam Jain with Ext.A5, would reveal that she suffered
deep burn on the face, chest and both hands and injuries on her
were grievous in nature.
8. We may hasten to add that regarding the merits of the appeals
by the party respondents against their conviction, we shall not be
understood to have held or made any observation as it is a matter
to be considered on its own merits in the pending appeals.
9. We have already referred to the mandate under Section 389 Cr.PC
that the order passed invoking the said provision should reflect the
reason for coming to the conclusion that the convicts are entitled
to get suspended their sentence and consequential release on
bail. In the decision in State of Haryana v. Hasmat5
, this Court
held that in an appeal against conviction involving serious offence
like murder punishable under Section 302, IPC the prayer for
suspension of sentence and grant of bail should be considered with
reference to the relevant factors mentioned thereunder, though not
exhaustively. On its perusal, we are of the opinion that factors like
nature of the offence held to have committed, the manner of their
commission, the gravity of the offence, and also the desirability of
releasing the convict on bail are to be considered objectively and
such consideration should reflect in the consequential order passed
under Section 389, Cr.PC. It is also relevant to state that the mere
factum of sufferance of incarceration for a particular period, in a
case where life imprisonment is imposed, cannot be a reason for
invocation of power under Section 389 Cr.PC without referring
to the relevant factors. We say so because there cannot be any
5 [2004] Supp. 3 SCR 132 : (2004) 6 SCC 175
[2024] 5 S.C.R. 43
Shivani Tyagi v. State of U.P. & Anr.
doubt with respect to the position that disposal of appeals against
conviction, (especially in cases where life imprisonment is imposed
for serious offences), within a short span of time may not be possible
in view of the number of pending cases. In such circumstances if it
is said that disregarding the other relevant factors and parameters
for the exercise of power under Section 389, Cr. PC, likelihood of
delay and incarceration for a particular period can be taken as a
ground for suspension of sentence and to enlarge a convict on
bail, then, in almost every such case, favourable invocation of
said power would become inevitable. That certainly cannot be the
legislative intention as can be seen from the phraseology in Section
389 Cr.PC. Such an interpretation would also go against public
interest and social security. In such cases giving preference over
appeals where sentence is suspended, in the matter of hearing
or adopting such other methods making an early hearing possible
could be resorted. We shall not be understood to have held that
irrespective of inordinate delay in consideration of appeal and long
incarceration undergone the power under the said provision cannot
be invoked. In short, we are of the view that each case has to be
examined on its own merits and based on the parameters, to find
out whether the sentence imposed on the appellant(s) concerned
should be suspended during the pendency of the appeal and the
appellant(s) should be released on bail.
10. Having observed and held as above, we are deeply peeved on
perusing the impugned judgment, for the same reflects only nonapplication of mind and non-consideration of the relevant factors
despite the fact that the case involved an acid attack on a young
woman resulting into permanent disfiguration. In the case on hand,
a scanning of the impugned order would reveal that what mainly
weighed with the Court is the offer made on behalf of the convicts
that they would give a payment of Rs. 25 lakhs through demand
drafts, taking into account the evidence that the victim had incurred
an amount of Rs. 21 lakhs for her treatment. Paragraph 10 of the
impugned order would reveal that taking note of the said offer
besides the period of incarceration and also the delay likely to occur
in the consideration of appeal, sentence imposed was suspended
and the private respondents were enlarged on bail. Paragraph 10
of the order would reveal this position and it reads thus:-
44 [2024] 5 S.C.R.
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“10. After hearing counsel for the parties and considering
the voluntarily offer made by the appellants, which is
without prejudice to the right of defence as well as right
of the prosecution to be decided at the time of final
adjudication and having no bearing on the merit of the
case, over and above, the amount of compensation being
paid by the District Legal Services Authority, Meerut, the
appellants have offered to pay an amount of Rs. 25 lacs
to the victim for her medical treatment and also in view
of the long custody as well as the antecedents of the
appellants and also considering the fact that the appeals
pertain to the year 2021 and are not likely to be listed for
final argument in near future, we deem it appropriate to
grant suspension of sentence of the appellants.”
11. We have no hesitation to hold that the impugned order is infected
with non-application of mind and non-consideration of the relevant
factors required for invocation of power under Section 389 in the light
of the settled position of law. An acid attack may completely strip
off the victim of her basic human right to live a decent human life
owing to permanent disfiguration. We have no hesitation to hold that
in appeals involving such serious offence(s), serious consideration
of all parameters should be made. Even a cursory glance of the
impugned order would reveal the consideration thereunder was
made ineptly. The serious nature of the offence involved was not
taken into account besides the other relevant parameters for the
exercise of power under Section 389, Cr. PC.
12. In such circumstances, the impugned judgment cannot be sustained.
The upshot of the discussion is that the order suspending the
sentence of the private respondents and enlarging them on bail,
invite interference. Consequently, the impugned order is set aside
and consequently the bail granted to the private respondent in all
these appeals stands cancelled. Consequently, the appellants shall
surrender before the trial Court for the purpose of their committal to
judicial custody. This shall be done within a period of four days. In
case of their failure to surrender as ordered, the private respondents
who are convicts shall be re-arrested and committed to custody.
13. The Appeals are allowed as above.
[2024] 5 S.C.R. 45
Shivani Tyagi v. State of U.P. & Anr.
Order
Rajesh Bindal, J.
1. I have gone through the detailed reasons recorded by brother C.T.
Ravikumar, J. Elaborate discussion has been made on the aspect of
suspension of sentence in heinous crimes as it is a case where the
High Court had directed suspension of sentence of the respondents
in an acid attack case, which will haunt the victim throughout her
life. The disfigurement of the face of the victim, as is evident from
the photographs placed on record, could not even be seen.
2. It is a case in which after hearing the arguments raised by the
appellant and going through the paper book our conscience was
shocked. By a short order we granted the leave in the matters and
allowed the appeals, for the reasons to follow. The respondents were
directed to surrender before the Trial Court on or before 09.04.2024.
The same is extracted below:
“Leave granted.
Appeals are allowed. Reasons to follow.
The respondents-life convicts shall surrender on or before
9.4.2024 before the concerned Trial Court. In case of their
failure to surrender, they shall be taken into custody and
produced before the Trial Court.”
2.1 I fully subscribe to the views expressed, but wish to add some
more reasons.
3. The main ground on which the High Court ordered suspension
of sentence of the respondents, who have been awarded life
imprisonment is that the counsel for the accused submitted that in
the evidence it had come on record that about ₹ 21 lakhs (Rupees
Twenty-One Lakhs only) have been spent on her treatment as she
suffered disfigurement of her face. It was further argued that the Trial
Court in its judgment of conviction had directed that the victim be
granted adequate compensation for her treatment under the Victim
Compensation Scheme. Then, it was collectively argued by the
learned counsel for the accused that without prejudice to their right
of defence the accused collectively and voluntarily offered to pay a
sum of ₹ 25 lakhs (Rupees Twenty Five Lakhs only) which may be
given to the victim for her medical treatment. It was objected to by
46 [2024] 5 S.C.R.
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the learned counsel for the State. Taking note of the offer made by
the counsel for the private respondents, who are the convicts, the
High Court accepted the offer made by them and directed that, over
and above, the amount of compensation paid by the District Legal
Services Authority to the victim, the private respondents have offered
to pay a sum of ₹ 25 lakhs (Rupees Twenty-Five Lakhs only) for her
treatment. The sentence awarded to them was suspended. It was
further noticed that the hearing of appeal is likely to take some time.
Relevant paragraph 10 of the impugned order is extracted below:
“10. After hearing counsel for the parties and considering
the voluntarily offer made by the appellants, which is without
prejudice to the right of defence as well as right of the
prosecution to be decided at the time of final adjudication
and having no bearing on the merit of the case, over and
above, the amount of compensation being paid by the
District Legal Services Authority, Meerut, the appellants
have offered to pay an amount of ₹ 25 lakhs to the victim
for her medical treatment and also in view of the long
custody as well as the antecedents of the appellants and
also considering the fact that the appeals pertain to the
year 2021 and are not likely to be listed for final argument
in near future, we deem it appropriate to grant suspension
of sentence of the appellants.”
4. As the victim may also be in shock and not interested in receiving the
amount as offered by the private respondents, the respondents moved
a Correction Application1
before the High Court. On the aforesaid
application, the High Court, while noticing that offer made by the private
respondents was not acceptable to the victim, directed the respondents
to deposit the amount with the Chief Judicial Magistrate, Meerut. The
relevant part of the order dated 21.02.2024 is reproduced hereinunder:
“Correction in the order dated 12.12.2023, is sought to the
extent that the applicants have already handed over the
demand drafts in the Court of Chief Judicial Magistrate,
Meerut, as the victim has not come forward to accept
the drafts, the appellants, who are granted bail, are still
languishing in judicial custody.
1 Criminal Misc. Correction Application No. 12 of 2024
[2024] 5 S.C.R. 47
Shivani Tyagi v. State of U.P. & Anr.
It is further submitted that appellants have performed their
part of liability by depositing the demand draft before the
CJM, Meerut, thus they may be released on bail.
In paragraph No. 11 of the order dated 12.12.2023, we
modify to the extent that the appellants may be released
on bail, even prior to handing over the demand drafts to
the victims as ordered earlier.
Notice of the application has been sent by registered post
to Sri P.K. Rai, learned counsel for the respondent No. 2
by Sri P.K. Mishra, learned counsel for the appellants on
04.01.2024, but none appeared on behalf of respondent
No. 2. Learned AGA has no objection to the prayer made
by counsel for the appellants.
The bail order dated 12.12.2023 was passed in other
connected Criminal Appeal No. 996 of 2021, Criminal
Appeal No. 801 of 201, Criminal Appeal No. 1155 of 2021
and Criminal Appeal No. 467 of 2021.
Considering the facts and circumstances of the case, it
is undisputed that the demand drafts have been handed
over to the CJM, Meerut, the appellants be released on
bail subject to furnishing of surety bond.
The appellants will tender an undertaking before the Court
that in case the victim appears subsequently and applies
for release of money and in the meantime if the validity of
the drafts have lapsed, they will revalidate the draft and
hand over the same to the Court of CJM, Meerut.
With the aforesaid observations, the order dated 12.12.2023
is modified accordingly.”
5. Detailed discussions have been made in the opinion expressed by
my brother C.T. Ravikumar, J. with reference to the suspension of
sentence in case of heinous offences. I would like to touch upon
the issue of offer of money to the victim for suspension of sentence
in a heinous crime of acid attack, where the victim suffered burn
injuries to the extent of 30 to 40% resulting in total disfigurement
of her face. As is evident from the record, despite spending ₹ 21
lakhs (Rupees Twenty-One Lakhs only) on the treatment, she still
has not been cured.
48 [2024] 5 S.C.R.
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6. One of the principles of sentencing in criminal law is proportionality.
If the appropriate punishment is not awarded or if, after conviction
for a heinous crime, the court directs the suspension of the sentence
without valid reasons, the very purpose for which the criminal justice
system exists will fail.
7. After passing of the order dated 12.12.2023 vide which the High Court
directed the suspension of the sentence of the private respondents
on payment of ₹ 25 lakhs (Rupees Twenty-Five Lakhs only) to the
victim, the amount was not accepted by the victim and the convicts
could not be released from the jail. An application for correction2
of
the impugned order was filed by the private respondents. The infirmity
of the court is evident from the fact that despite this development,
the High Court went on to modify the earlier order dated 12.12.2023
and noted that a Demand Draft having been handed over to the
Chief Judicial Magistrate, Meerut the private respondents be
released on bail subject to Surety Bonds. It was recorded that, in
case subsequently the victim appears in court for release of amount
and the validity of the Demand Draft lapses, the private respondents
shall get the same revalidated.
8. From the facts it can safely be noticed that there is no question of
acceptance of money by the victim as she has challenged the order
of suspension of sentence of the private respondents.
9. This court had been taking the offence of acid attacks, which are on
increase, seriously. It is even to the extent of regulating the sale of
the acid with stringent action so that the same is not easily available
to the people with perverse mind. Observations made by this court in
paragraph 13 of Parivartan Kendra vs Union of India and Others3
being appropriate is extracted below:
“13. We have come across many instances of acid attacks
across the country. These attacks have been rampant
for the simple reason that there has been no proper
implementation of the regulations or control for the supply
and distribution of acid. There have been many cases
where the victims of acid attack are made to sit at home
2 Criminal Misc. Correction Application No. 12 of 2024
3 [2015] 12 SCR 607 : (2016) 3 SCC 571: 2015 INSC 893
[2024] 5 S.C.R. 49
Shivani Tyagi v. State of U.P. & Anr.
owing to their difficulty to work. These instances unveil that
the State has failed to check the distribution of acid falling
into the wrong hands even after giving many directions by
this Court in this regard. Henceforth, stringent action be
taken against those erring persons supplying acid without
proper authorisation and also the authorities concerned
be made responsible for failure to keep a check on the
distribution of the acid.”
10. In Suresh Chandra Jana vs State of West Bengal and Others4
,
while rejecting the acquittal of an accused as ordered by the High
Court in an acid attack case, this Court observed that the acid
attack has transformed itself to a gender-based violence, which
causes immense psychological trauma resulting in hurdle in overall
development of the victim. Paragraph 30 thereof is extracted below:
“30. At the outset, certain aspects on the acid attack
need to be observed. Usually vitriolage or acid attack has
transformed itself as a gender based violence. Acid attacks
not only cause damage to the physical appearance of its
victims but also cause immense psychological trauma
thereby becoming a hurdle in their overall development.
Although we have acknowledged the seriousness of the
acid attack when we amended our laws in 2013 [ The
Criminal Law (Amendment) Act, 2013 (13 of 2013).] , yet
the number of acid attacks are on the rise. Moreover,
this Court has been passing various orders to restrict the
availability of corrosive substance in the market which is an
effort to nip this social evil in the bud. [Parivartan Kendra
v. Union of India, (2016) 3 SCC 571 : (2016) 2 SCC (Cri)
143] It must be recognised that having stringent laws and
enforcement agencies may not be sufficient unless deeprooted gender bias is removed from the society.”
11. In another case reported as State of Himachal Pradesh and Another
vs Vijay Kumar alias Pappu and Another5
regarding acid attack on
a young girl of 19 years, in which this Court observed in paragraph
13 thereof, that the victim had suffered 16% burn injuries and that
4 [2017] 13 SCR 1 : (2017) 16 SCC 466 : 2017 INSC 1296
5 (2019) 5 SCC 373 : 2019 INSC 377
50 [2024] 5 S.C.R.
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such a victim cannot be compensated by grant of any compensation.
Paragraph 13 is thereof extracted below:
“13. Indeed, it cannot be ruled out that in the present
case the victim had suffered an uncivilised and heartless
crime committed by the respondents and there is no
room for leniency which can be conceived. A crime of
this nature does not deserve any kind of clemency. This
Court cannot be oblivious of the situation that the victim
must have suffered an emotional distress which cannot
be compensated either by sentencing the accused or by
grant of any compensation.”
12. The circumstances under which a bail granted by the court below
can be cancelled, having been summarised by this Court in Deepak
Yadav vs State of Uttar Pradesh and Another6
. Relevant paragraphs
31 to 35 are extracted below:
“C. Cancellation of bail
31. This Court has reiterated in several instances that bail
once granted, should not be cancelled in a mechanical
manner without considering whether any supervening
circumstances have rendered it no longer conducive to
a fair trial to allow the accused to retain his freedom by
enjoying the concession of bail during trial. Having said
that, in case of cancellation of bail, very cogent and
overwhelming circumstances are necessary for an order
directing cancellation of bail (which was already granted).
32. A two-Judge Bench of this Court in Dolat Ram v.
State of Haryana [Dolat Ram v. State of Haryana, (1995)
1 SCC 349 : 1995 SCC (Cri) 237] laid down the grounds
for cancellation of bail which are:
(i) interference or attempt to interfere with the due
course of administration of justice;
(ii) evasion or attempt to evade the due course of
justice;
6 [2022] 4 SCR 1 : (2022) 8 SCC 559 : 2022 INSC 610
[2024] 5 S.C.R. 51
Shivani Tyagi v. State of U.P. & Anr.
(iii) abuse of the concession granted to the accused
in any manner;
(iv) possibility of the accused absconding;
(v) likelihood of/actual misuse of bail;
(vi) likelihood of the accused tampering with the
evidence or threatening witnesses.
33. It is no doubt true that cancellation of bail cannot be
limited to the occurrence of supervening circumstances.
This Court certainly has the inherent powers and discretion
to cancel the bail of an accused even in the absence of
supervening circumstances. Following are the illustrative
circumstances where the bail can be cancelled:
33.1. Where the court granting bail takes into account
irrelevant material of substantial nature and not trivial
nature while ignoring relevant material on record.
33.2. Where the court granting bail overlooks the influential
position of the accused in comparison to the victim of
abuse or the witnesses especially when there is prima
facie misuse of position and power over the victim.
33.3. Where the past criminal record and conduct of the
accused is completely ignored while granting bail.
33.4. Where bail has been granted on untenable grounds.
33.5. Where serious discrepancies are found in the order
granting bail thereby causing prejudice to justice.
33.6. Where the grant of bail was not appropriate in the
first place given the very serious nature of the charges
against the accused which disentitles him for bail and thus
cannot be justified.
33.7. When the order granting bail is apparently whimsical,
capricious and perverse in the facts of the given case.
34. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State
of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527] ,
the accused was granted bail by the High Court. In an
appeal against the order [Mitthan Yadav v. State of U.P.,
52 [2024] 5 S.C.R.
Digital Supreme Court Reports
2014 SCC OnLine All 16031] of the High Court, a twoJudge Bench of this Court examined the precedents on
the principles that guide grant of bail and observed as
under : (SCC p. 513, para 12)
“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 it 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.”
35. This Court in Mahipal [Mahipal v. Rajesh Kumar, (2020)
2 SCC 118 : (2020) 1 SCC (Cri) 558] held that : (SCC p.
126, para 17)
“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.”
[2024] 5 S.C.R. 53
Shivani Tyagi v. State of U.P. & Anr.
13. The impugned order passed by the High Court is perused. Specifically
the order dated 21.02.2024 passed in the Correction Application.
The order does not suggest that there was any consideration of the
parameters laid down by this court for grant of bail or suspension
of sentence. Instead, the High Court had noticed and directed that
the convicts have offered to pay compensation to the victim for grant
of suspension of sentence, which when she refused to accept, was
directed to be deposited in the court. It was in a way kind of “Blood
Money” offered by the convicts to the victim for which there is no
acceptability in our criminal justice system.
14. This Court in Gian Singh vs State of Punjab and Another7
while
dealing with an issue regarding quashing of criminal proceedings on
the ground of settlement between the offender and victim, observed
that even if settlement or payment of compensation is pleaded in a
heinous crime, still the same should not be quashed as the crimes
are acts which have harmful effect on the public and in general the
well-being of the society. It is not safe to leave the crime-doer on
the plea of settlement with victim. Relevant paragraph 58 thereof is
extracted below:
“58. Where the High Court quashes a criminal proceeding
having regard to the fact that the dispute between the
offender and the victim has been settled although the
offences are not compoundable, it does so as in its opinion,
continuation of criminal proceedings will be an exercise in
futility and justice in the case demands that the dispute
between the parties is put to an end and peace is restored;
securing the ends of justice being the ultimate guiding
factor. No doubt, crimes are acts which have harmful effect
on the public and consist in wrongdoing that seriously
endangers and threatens the well-being of the society and
it is not safe to leave the crime-doer only because he and
the victim have settled the dispute amicably or that the
victim has been paid compensation, yet certain crimes
have been made compoundable in law, with or without
the permission of the court. In respect of serious offences
like murder, rape, dacoity, etc., or other offences of mental
7 [2012] 8 SCR 753 : (2012) 10 SCC 303 : 2012 INSC 419
54 [2024] 5 S.C.R.
Digital Supreme Court Reports
depravity under IPC or offences of moral turpitude under
special statutes, like the Prevention of Corruption Act or the
offences committed by public servants while working in that
capacity, the settlement between the offender and the victim
can have no legal sanction at all. However, certain offences
which overwhelmingly and predominantly bear civil flavour
having arisen out of civil, mercantile, commercial, financial,
partnership or such like transactions or the offences arising
out of matrimony, particularly relating to dowry, etc. or the
family dispute, where the wrong is basically to the victim
and the offender and the victim have settled all disputes
between them amicably, irrespective of the fact that such
offences have not been made compoundable, the High
Court may within the framework of its inherent power, quash
the criminal proceeding or criminal complaint or FIR if it
is satisfied that on the face of such settlement, there is
hardly any likelihood of the offender being convicted and
by not quashing the criminal proceedings, justice shall
be casualty and ends of justice shall be defeated. The
above list is illustrative and not exhaustive. Each case will
depend on its own facts and no hard-and-fast category
can be prescribed.”
15. In the State of Jharkhand vs. Md. Sufiyan8
, the Jharkhand High
Court directed the accused to deposit certain amount in court, as
ad interim compensation to be paid to the victim as a condition for
grant of anticipatory bail. It was a case for various crimes committed
under IPC, POCSO Act and I.T. Act. The aforesaid direction of
the High Court was deprecated by this Court. It was opined that
the willingness of the accused to pay compensation to the victim
cannot be a reason for grant of anticipatory bail. Para 6, thereof is
extracted below:
“6. The factors on which anticipatory bail could be granted
are very well crystallized in a catena of judgments of this
Court. Leave aside the discussion of such factors, not
even a whisper as to on what grounds anticipatory bail
was being allowed were considered by the High Court.
8 SLP (Crl) No. 1960 of 2022 decided on 16.01.2024
[2024] 5 S.C.R. 55
Shivani Tyagi v. State of U.P. & Anr.
Merely because the accused is willing to pay some amount
as an interim compensation cannot be a ground for grant
of anticipatory bail.”
16. Similar view was expressed by this Court in Sahab Alam alias Guddu
vs. State of Jharkhand and another9
. Paras 2 and 8 thereof are
extracted below:
“2. We have a batch of petitions before us, arising from
different nature of offences from dowry to Section 420 IPC
to Section 376, IPC and POCSO Act. The common aspect
in all these cases is that one particular learned Judge of
the High Court has granted bail on condition on deposit
of substantive sums of money without consideration of the
requirements of bail dependent on the nature of offences. It
is trite to say that bail cannot per se be granted if a person
can afford to deposit the money or his capacity to pay.
That is what seems to have happened. Since there is no
proper consideration, it is also difficult for us to analyse
what weighed with the learned Judge while granting bail
and it is certainly not the jurisdiction of this Court to be
first or a second court of bail.
8. We also clarify that in view of our judgment in Dharmesh
v. State of Gujarat (2021) 7 SCC 198 there is no question
of victim compensation, as there cannot be such a criteria
at the stage of grant of bail.”
Headnotes prepared by: Nidhi Jain Result of the case:
Appeals allowed.
9 2022 SCC Online SC 1874
