IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1456 OF 2012
(Arising out of S.L.P. (Criminal) No. 4083 of 2012)
Ash Mohammad ... Appellants
Versus
Shiv Raj Singh @ Lalla Babu & Anr. ... Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The present appeal by special leave has been preferred assailing the
legal defensibility of the order dated 26.04.2012 passed in Criminal
Application No. 28461 of 2011 by the High Court of Judicature at Allahabad
and praying for quashment of the same, and further to cancel the grant of
bail to the accused-respondent (hereinafter referred to as ‘the accused’)
in respect of offences punishable under Sections 365/506 of the Indian
Penal Code (for short ‘the IPC’).
3. The facts material for adjudication of this appeal are that an FIR
was lodged by the present appellant on 29.05.2011 alleging that while he
was going to his in-laws’ place in village Samadia, P.S. Patwai along with
Bihari Lal near canal of Milk Road from Patwai which leads to Samdia Khurd,
two persons came on a motorcycle and after inquiring about the identity of
Bihari Lal told him that they had been asked by Lalla Babu @ Shiv Raj Singh
to compel him to accompany them. As there was resistance, they threatened
to kill him and eventually made Bihari Lal sit in between them on the Hero
Honda motorcycle and fled towards Patwai. The incident was witnessed by
Munish and Rajbir. In quite promptitude the appellant went to the Patwai
Police Station, District Rampur and lodged the FIR as a consequence of
which crime No. 770 of 2011 was registered for offences punishable under
Section 364 and 506 of the IPC. On the basis of the FIR the criminal law
was set in motion and the accused was arrested and taken into custody.
4. The accused Shiv Raj Singh @ Lalla Babu preferred bail Application
No. 1268 of 2011 which came to be dealt by the learned Additional Sessions
Judge, Rampur who taking note of the allegations in the FIR and the stand
put forth in oppugnation by the prosecution as well as by the victim
observed as follows:-
“I have perused the case diary. While confirming his abduction,
victim Bihari Lal has stated under Section 164 Cr.P.C. that the
abductors took him to the accused. Applicant-accused and his
accomplices kept him confined in a room for about 8 days and
they also used to assault him and threaten for life. As per the
victim, he escaped from their captivity after about 8 days of
abduction under the pretext of nature’s call/time. Munish and
Rajbir reported as eye-witnesses in the First Information Report
stated before the Investigating Officer that the abductors had
stated at the time of abduction that the applicant-accused Lalla
Babu has send them to mend you.”
5. Thereafter, taking note of the fact that the accused is a history-
sheeter and involved in number of cases rejected the application for bail.
6. Being unsuccessful to secure bail from the court of Session, the
accused preferred a Bail Application No. 28461 of 2011 before the High
Court under Section 439 of the Code. The High Court though took note of
the statement made under Section 164 CrPC that name of Shiv Raj Singh @
Lalla Babu had figured as allegations were made against him to that effect
that victim Bihari Lal was taken by the kidnappers to him, yet observed
that he only sat there and offended Bihari Lal. The High Court only
mentioned the fact that the accused has a criminal history and is involved
in number of cases but considering the factum that he has been in custody
since 30.09.2011 directed his enlargement on bail on certain conditions,
namely, the accused shall report at the police station concerned on the
first day of each English Calendar month, shall not commit any offence
similar to the offence which he is accused of, and shall not directly or
indirectly make any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing such facts
to the court or to any police officer.
7. Questioning the justifiability of the impugned order Ms. Abha R.
Sharma, learned counsel for the petitioner has contended that the High
Court has absolutely misdirected itself by not appositely considering the
statement recorded under Section 164 of the Code of Criminal Procedure, the
gravity of the offences and criminal antecedents of the accused and further
the affidavit filed by the prosecution bringing number of factors as a
consequence of which an illegal order enlarging the appellant on bail has
come into existence. The learned counsel submitted that the non-
consideration of the material facts vitiates the order of the High Court
and annulment of the same is the judicial warrant.
8. Per contra, Mr. Irshad Ahmed, learned counsel appearing for the
accused contended that the prosecution case is a fabricated, false and
malicious one and it has been foisted because of political vendetta. It
is urged by him that there is discrepancy between statements recorded under
Section 161 Cr.P.C and 164 Cr.P.C and, therefore, the order passed by the
High Court cannot be found fault with. It is his further submission that
though the accused has been released on bail, yet he has conducted himself
and in the absence of any supervening circumstances it would be undesirable
to cancel the order granting bail as the sanctity of liberty should be
treated with paramount importance. It is also argued that the High Court
was absolutely conscious of the cases pending against accused but because
of election disputes and constant animosity of the administration which was
stand of the accused they were not dwelled upon in detail and an order
admitting the accused to bail was passed on imposing stringent conditions.
That apart, it is put forth that in the absence of any failure on his part
to respect the conditions his liberty should not be put to any jeopardy at
the instance of an interested party who is bent upon to harass him.
9. The centripodal issue that emerges for consideration is whether the
order passed by the High Court is legitimately acceptable and legally
sustainable within the ambit and sweep of the principles laid down by this
Court for grant of regular bail under Section 439 of the Code.
10. In Ram Govind Upadhyay v. Sudarshan Singh and Others[1], it has been
opined that the grant of bail though involves exercise of discretionary
power of the Court, such exercise of discretion has to be made in a
judicious manner and not as a matter of course. Heinous nature of the
crime warrants more caution and there is greater chance of rejection of
bail, though, however dependent on the factual matrix of the matter. In
the said case the learned Judges referred to the decision in Prahlad Singh
Bhati v. NCT, Delhi and Another[2] and stated as follows:-
“(a) While granting bail the court has to keep in mind not
only the nature of the accusations, but the severity of the
punishment, if the accusation entails a conviction and the
nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered
with or the apprehension of there being a threat for the
complainant should also weigh with the court in the matter of
grant of bail.
(c) While it is not expected to have the entire evidence
establishing the guilt of the accused beyond reasonable doubt
but there ought always to be a prima facie satisfaction of the
court in support of the charge.
(d) Frivolity in prosecution should always be considered and it
is only the element of genuineness that shall have to be
considered in the matter of grant of bail, and in the event of
there being some doubt as to the genuineness of the prosecution,
in the normal course of events, the accused is entitled to an
order of bail. ”
11. In Chaman Lal v. State of U. P. and Another[3] this Court while
dealing with an application for bail has stated that certain factors are to
be considered for grant of bail, 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.
12. In Masroor v. State of Uttar Pradesh and another[4], while giving
emphasis for ascribing reasons for granting of bail, however, brief it may
be, a two-Judge Bench observed that there is no denying the fact that the
liberty of an individual is precious and is to be zealously protected by
the courts. Nonetheless, such a protection cannot be absolute in every
situation. The valuable right of liberty of an individual and the interest
of the society in general has to be balanced. Liberty of a person accused
of an offence would depend upon the exigencies of the case.
13. In Prasanta Kumar Sarkar v. Ashis Chatterjee and another[5] it has
been observed that normally this Court does not interfere with an order
passed by the High Court granting or rejecting the bail of the accused,
however, it is equally incumbent upon the High Court to exercise its
discretion judiciously, cautiously and strictly in compliance with the
basic principles laid down in a plethora of decisions of this Court on the
point. Among other circumstances the factors which are to be borne in mind
while considering an application for bail are whether there is any prima
facie or reasonable ground to believe that the accused had committed the
offence; nature and gravity of the accusation; severity of the punishment
in the event of conviction; danger of the accused absconding or fleeing, if
released on bail; character, behavior, means, position and standing of the
accused; likelihood of the offence being repeated; reasonable apprehension
of the witnesses being influenced; and danger, of course, of justice being
thwarted by grant of bail.
14. In State of U.P. through CBI v. Amarmani Tripathi[6] it has been
ruled that in an appeal against grant of bail all aspects that were
relevant under Section 439 read with Section 437 continue to be relevant.
15. In Puran v. Rambilas and another[7] it has been noted that the
concept of setting aside an unjustified, illegal or perverse order is
totally different from the cancelling an order of bail on the ground that
the accused had misconducted himself or because of some supervening
circumstances warranting such cancellation.
16. In Dr. Narendra K. Amin v. State of Gujarat and another[8], a three-
Judge Bench has observed that when irrelevant materials have been taken
into consideration the same makes the order granting bail vulnerable. If
the order is perverse, the same can be set at naught by the superior court.
17. In Prakash Kadam and others v. Ramprasad Vishwanath Gupta and
another[9], while making a distinction between cancellation of bail and
consideration for grant of bail, this Court opined thus: -
“18. In considering whether to cancel the bail the court has
also to consider the gravity and nature of the offence, prima
facie case against the accused, the position and standing of the
accused, etc. If there are very serious allegations against the
accused his bail may be cancelled even if he has not misused the
bail granted to him. Moreover, the above principle applies when
the same court which granted bail is approached for cancelling
the bail. It will not apply when the order granting bail is
appealed against before an appellate/Revisional Court.
19. In our opinion, there is no absolute rule that once bail
is granted to the accused then it can only be cancelled if there
is likelihood of misuse of the bail. That factor, though no
doubt important, is not the only factor. There are several
other factors also which may be seen while deciding to cancel
the bail.”
18. We have referred to the above authorities solely for the purpose of
reiterating two conceptual principles, namely, factors that are to be taken
into consideration while exercising power of admitting an accused to bail
when offences are of serious nature, and the distinction between
cancellation of bail because of supervening circumstances and exercise of
jurisdiction in nullifying an order granting bail in an appeal when the
bail order is assailed on the ground that the same is perverse or based on
irrelevant considerations or founded on non-consideration of the factors
which are relevant.
19. We are absolutely conscious that liberty of a person should not be
lightly dealt with, for deprivation of liberty of a person has immense
impact on the mind of a person. Incarceration creates a concavity in the
personality of an individual. Sometimes it causes a sense of vacuum.
Needless to emphasize, the sacrosanctity of liberty is paramount in a
civilized society. However, in a democratic body polity which is wedded to
Rule of Law an individual is expected to grow within the social
restrictions sanctioned by law. The individual liberty is restricted by
larger social interest and its deprivation must have due sanction of law.
In an orderly society an individual is expected to live with dignity having
respect for law and also giving due respect to others’ rights. It is a
well accepted principle that the concept of liberty is not in the realm of
absolutism but is a restricted one. The cry of the collective for justice,
its desire for peace and harmony and its necessity for security cannot be
allowed to be trivialized. The life of an individual living in a society
governed by Rule of Law has to be regulated and such regulations which are
the source in law subserve the social balance and function as a significant
instrument for protection of human rights and security of the collective.
It is because fundamentally laws are made for their obedience so that every
member of the society lives peacefully in a society to achieve his
individual as well as social interest. That is why Edmond Burke while
discussing about liberty opined, “it is regulated freedom”.
20. It is also to be kept in mind that individual liberty cannot be
accentuated to such an extent or elevated to such a high pedestal which
would bring in anarchy or disorder in the society. The prospect of greater
justice requires that law and order should prevail in a civilized milieu.
True it is, there can be no arithmetical formula for fixing the parameters
in precise exactitude but the adjudication should express not only
application of mind but also exercise of jurisdiction on accepted and
established norms. Law and order in a society protect the established
precepts and see to it that contagious crimes do not become epidemic. In
an organized society the concept of liberty basically requires citizens to
be responsible and not to disturb the tranquility and safety which every
well-meaning person desires. Not for nothing J. Oerter stated:
“Personal liberty is the right to act without interference
within the limits of the law.”
21. Thus analyzed, it is clear that though liberty is a greatly cherished
value in the life of an individual, it is a controlled and restricted one
and no element in the society can act in a manner by consequence of which
the life or liberty of others is jeopardized, for the rational collective
does not countenance an anti-social or anti-collective act.
22. Having said about the sanctity of liberty and the restrictions
imposed by law and the necessity of collective security, we may proceed to
state as to what is the connotative concept of bail. In Halsbury’s Laws of
England[10] it has been stated thus: -
“The effect of granting bail is not to set the defendant
(accused) at liberty but to release him from the custody of law
and to entrust him to the custody of his sureties who are bound
to produce him to appear at his trial at a specified time and
place. The sureties may seize their principal at any time and
may discharge themselves by handing him over to the custody of
law and he will then be imprisoned.”
23. In Sunil Fulchand Shah v. Union of India and others[11] Dr. A.S.
Anand, learned Chief Justice, in his concurring opinion, observed: -
“Bail is well understood in criminal jurisprudence and Chapter
XXXIII of the Code of Criminal Procedure contains elaborate
provisions relating to grant of bail. Bail is granted to a
person who has been arrested in a non-bailable offence or has
been convicted of an offence after trial. The effect of
granting bail is to release the accused from internment though
the court would still retain constructive control over him
through the sureties. In case the accused is released on his
own bond such constructive control could still be exercised
through the conditions of the bond secured from him. The
literal meaning of the word “bail” is surety.”
24. As grant of bail as a legal phenomenon arises when a crime is
committed it is profitable to refer to certain authorities as to how this
Court has understood the concept of crime in the context of society. In
P.S.R. Sadhanantham v. Arunachalam and another[12], R.S. Pathak, J. (as his
Lordship then was), speaking for himself and A.D. Kaushal, J, referred to
Mogul Steamship Co. v. McGregor Gow & Co. (1989) 23 QBD 598, 606 and the
definition given by Blackstone and opined thus: -
“A crime, therefore, is an act deemed by law to be harmful to
society in general, even though its immediate victim is an
individual.”
25. In Mrs. Harpreet Kaur Harvinder Singh Bedi v. State of Maharashtra
and another[13] a two-Judge Bench, though in a different context, has
observed: -
“Crime is a revolt against the whole society and an attack on
the civilization of the day. Order is the basic need of any
organized civilized society and any attempt to disturb that
order affects the society and the community.”
26. In T.K. Gopal alias Gopi v. State of Karnataka[14] it has been held
that crime can be defined as an act that subjects the doer to legal
punishment. It may also be defined as commission of an act specifically
forbidden by law; it may be an offence against morality or social order.
27. Keeping in mind the aforesaid aspects, namely, the factors which are
to be borne in mind while dealing with an application preferred under
Section 439 of the Code of Criminal Procedure in respect of serious
offences, the distinction between a perverse or illegal order and
cancellation of order granting bail, the individual liberty and social
security, the concept of bail, the definition of crime and the duty of the
court, we may proceed to deal as to how in the case at hand the bail
application has been dealt with by the High Court.
28. On a perusal of the order passed by the High Court it will be
difficult to say that the High Court has passed a totally cryptic or
unreasoned order. The spinal question is whether it has ignored the
relevant factors which were brought to its notice at the time of extending
the benefit of enlargement of bail to the accused. The prosecution by way
of an affidavit had brought to the notice of the High Court about the cases
pending against the accused. The High Court recorded the submission of the
complainant that the accused was involved in 52 cases. On a perusal of the
counter-affidavit filed before the High Court it is perceptible that it was
categorically stated that the accused was a history-sheeter; that he was
the pivotal force in getting the kidnapping done; that the victim Bihari
Lal was in captivity for eight days; and that he escaped under the pretext
that he was going to attend the call of nature. The High Court has only
made a passing reference to the same and took note of period of custody of
seven months and held, “considering the facts and circumstances of the case
but without expressing any opinion on the merits of the case, the applicant
is entitled to be released on bail”.
29. It is worthy to note that the fact relating to involvement of the
accused in various crimes was brought to the notice of the High Court by
virtue of an affidavit filed by the competent authority of the prosecution.
As per the Inspector-in-charge of the concerned police station the
following cases were pending against the accused:
|S. |Crime No. |Sections |Police |District |
|No. | | |Station | |
|1. |270/86 |25 Arms Act |Shahabad |Rampur |
|2. |271/86 |395/397/307/332/ |Shahabad |Rampur |
| | |337/225/427 | | |
|3. |137/88 |3(1) Gangster Act |Shahabad |Rampur |
|4. |209/92 |147/148/149/302 |Shahabad |Rampur |
|5. |189/95 |323/342/35/504/ 506 |Shahabad |Rampur |
|6. |184/96 |3/4 U.P. Gunda Act |Shahabad |Rampur |
|7. |185/96 |147/148/149/307/ 225 |Shahabad |Rampur |
|8. |485/98 |323/504/506/3(1) 10 |Shahabad |Rampur |
| | |S.C./S.T. Act | | |
|9. |493/98 |420/506/467/468/ 47 |Shahabad |Rampur |
|10. |281/99 |3/4 U.P. Gunda Act |Shahabad |Rampur |
|11. |626/05 |347/504/506 |Shahabad |Rampur |
|12. |628A/05 |452/352/504/506 |Shahabad |Rampur |
|13. |363/06 |3(1) Prevention of |Shahabad |Rampur |
| | |damage to Public | | |
| | |Property Act, 1984 | | |
|14. |2171/08 |147/143/283/341 and 6 |Shahabad |Rampur |
| | |United Province | | |
| | |Special Power Act, | | |
| | |1936 and Section 7 of | | |
| | |Criminal Law Amendment| | |
| | |Act. | | |
|15. |670/09 |3(1) Gangster Act |Shahabad |Rampur |
|16. |1207/09 |448/380 |Shahabad |Rampur |
|17. |939/10 |323/324/307/302 |Shahabad |Rampur |
|18. |507/11 |147/506 |Shahabad |Rampur |
|19. |537/11 |147/148/149/307 |Shahabad |Rampur |
|20. |538/11 |147/148/149/307/ |Shahabad |Rampur |
| | |353/354 and Section 7 | | |
| | |of Criminal Law | | |
| | |Amendment Act | | |
|21. |313/91 |447/323/504/506 & 3(1)|Shahabad |Rampur |
| | |10 S.C./S.T. Act | | |
|22. |391/92 |348/379/504/506 & 3(4)|Shahabad |Rampur |
| | |10 S.C./S.T. Act | | |
|23. |99/09 |147/148/307/323/ |Milk |Rampur |
| | |504/506 & 3(2) 10 | | |
| | |S.C./S.T. Act | | |
|24. |2007/08 |147/504/506/307/ 427 &|Milk |Rampur |
| | |3(1) 10 S.C./ S.T. Act| | |
|25. |770/11 |364/506 |Patwai |Rampur |
|26. |575/93 |302/392/412 IPC |Islam Nagar |Badayun |
|27. |441/94 |25 Arms Act |Civil Line |Moradabad |
|28. |17/01 |364 IPC (The court |Faizganj |Badayun |
| | |issued non-bailable |Behta | |
| | |warrants but | | |
| | |absconding) | | |
|29. |269/02 |420 IPC |Kasganj |Eta |
|30. |270/02 |25 Arms Act |Kasganj |Eta |
In this Court also the same list has been filed. Thus, there is no doubt
that the accused is a history-sheeter.
30. Coming to the nature of crime it is perceivable that two persons came
on a motorcycle and kidnapped Bihari Lal and kept him in confinement for
eight days. The role of the accused is clearly stated. It is apt to note
that a history-sheeter has a recorded past. The High Court, in toto, has
ignored the criminal antecedents of the accused. What has weighed with the
High Court is that the accused had spent seven months in custody. That may
be one of the factors but that cannot be the whole and the sole factor in
every case. It depends upon the nature of the offence, the manner in which
it is committed and its impact on the society. We may hasten to add that
when we state that the accused is a history-sheeter we may not be
understood to have said that a history-sheeter is never entitled to bail.
But, it is a significant factor to be taken note of regard being had to the
nature of crime in respect of which he has been booked. In the case at
hand, as the prosecution case unfolds, the accused did not want anyone to
speak against his activities. He had sent two persons to kidnap Bihari
Lal, who remained in confinement for eight days. The victim was tortured.
Kidnapping, as an offence, is on the increase throughout the country.
Sometimes it is dealt with formidable skill and sometimes with terror and
sometimes with threat or brute force. The crime relating to kidnapping has
taken many a contour. True it is, sometimes allegations are made that a
guardian has kidnapped a child or a boy in love has kidnapped a girl. They
do stand on a different footing. But kidnapping for ransom or for revenge
or to spread terror or to establish authority are in a different realm
altogether. In the present case the victim had been kidnapped under
threat, confined and abused. The sole reason for kidnapping is because the
victim had shown some courage to speak against the accused. This may be
the purpose for sustaining of authority in the area by the accused and his
criminal antecedents, speak eloquently in that regard. In his plea for
bail the accused had stated that such offences had been registered because
of political motivations but the range of offence and their alleged years
of occurrence do not lend prima facie acceptance to the same. Thus, in the
present case his criminal antecedents could not have been totally ignored.
31. Be it noted, a stage has come that in certain States abduction and
kidnapping have been regarded as heroism. A particular crime changes its
colour with efflux of time. The concept of crime in the contextual sense
of kidnapping has really undergone a sea change and has really shattered
the spine of the orderly society. It is almost nauseating to read almost
every day about the criminal activities relating to kidnapping and
particularly by people who call themselves experts in the said nature of
crime.
32. We may usefully state that when the citizens are scared to lead a
peaceful life and this kind of offences usher in an impediment in
establishment of orderly society, the duty of the court becomes more
pronounced and the burden is heavy. There should have been proper analysis
of the criminal antecedents. Needless to say, imposition of conditions is
subsequent to the order admitting an accused to bail. The question should
be posed whether the accused deserves to be enlarged on bail or not and
only thereafter issue of imposing conditions would arise. We do not deny
for a moment that period of custody is a relevant factor but simultaneously
the totality of circumstances and the criminal antecedents are also to be
weighed. They are to be weighed in the scale of collective cry and desire.
The societal concern has to be kept in view in juxtaposition of individual
liberty. Regard being had to the said parameter we are inclined to think
that the social concern in the case at hand deserves to be given priority
over lifting the restriction of liberty of the accused.
33. In the present context the period of custody of seven months, in our
considered opinion, melts into insignificance. We repeat at the cost of
repetition that granting of bail is a matter of discretion for the High
Court and this Court is slow to interfere with such orders. But regard
being had to the antecedents of the accused which is also a factor to be
taken into consideration as per the pronouncements of this Court and the
nature of the crime committed and the confinement of the victim for eight
days, we are disposed to interfere with the order impugned.
34. We may note with profit that it is not an appeal for cancellation of
bail as cancellation is not sought because of supervening circumstances.
The present one is basically an appeal challenging grant of bail where the
High Court has failed to take into consideration the relevant material
factors which make the order perverse.
35. Consequently, the order passed by the High Court is set aside and the
bail bonds of the accused are cancelled. The accused is directed to
surrender to custody forthwith failing which it shall be the duty of the
investigating agency to take him to custody immediately. We may hasten to
clarify that anything that has been stated here are only to be read and
understood for the purpose of annulment of the order of grant of bail and
they would have no bearing whatsoever on trial.
36. The appeal is, accordingly, allowed.
……………………….J.
[K. S. Radhakrishnan]
……………………….J.
[Dipak Misra]
New Delhi;
September 20, 2012.
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[1] (2002) 3 SCC 598
[2] (2001) 4 SCC 280
[3] (2004) 7 SCC 525
[4] (2009) 14 SCC 286
[5] (2010) 14 SCC 496
[6] (2005) 8 SCC 21
[7] (2001) 6 SCC 338
[8] 2008 (6) SCALE 415
[9] (2011) 6 SCC 189
[10] Halsbury’s Laws of England, 4th Edn., Vol. 11, para 166
[11] (2000) 3 SCC 409
[12] AIR 1980 SC 856
[13] AIR 1992 SC 979
[14] AIR 2000 SC 1669
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