Indian Penal Code, 1860 – Sections 147, 148, 149, 302, 307, 394, 411, 454, 506, 120B and 34 – Code of Criminal Procedure, 1973 – Section 439 – Bail Application – Principles to be kept in mind while granting bail.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
[DIPAK MISRA] AND [UDAY UMESH LALIT] JJ.
DECEMBER 16, 2014
CRIMINAL APPEAL NO.2587 OF 2014
(Arising out of S.L.P. (Crl.) No. 8469 of 2014)
Neeru Yadav … Appellant
State of U.P and another …Respondents
J U D G M E N T
Dipak Misra, J.
2. The present appeal, by special leave, calls in question the legal substantiality and defensibility of the order dated 22.09.2014 passed by the High Court of judicature at Allahabad in Criminal Misc. Bail Application No. 31078 of 2014 whereby the learned Judge, in exercise of power under
Section 439 of Code of Criminal Procedure, 1973 (Cr.PC)
had admitted the 2nd respondent to bail in Crime No. 237 of 2013 instituted for offences punishable under
Sections 147, 148, 149, 302, 307, 394, 411, 454, 506, 120B and 34 of the Indian Penal Code (IPC).
3. As the impugned order would reveal, it was contended on behalf of the 2nd respondent that similarly placed co-accused, Ashok, had already been enlarged on bail by the High Court by order dated 23.9.2013 in Criminal Misc. Bail Application No. 21876 of 2013 and role of the accused-respondent No.2 was identical to that of Ashok Kumar and he should be released on bail. Thus the foundation of the prayer for grant of bail was on the bedrock of parity. The said prayer for grant of bail was opposed with vehemence by the learned A.G.A. contending, inter alia, that the accused had criminal antecedents and the role attributed to him was different. The same was controverted by the accused asserting that the said aspect had been explained in the affidavit attached to the bail application.
4. As the factual narration would further undrape, the learned Single Judge keeping in view the aforesaid aspects passed the following order:-
“Considering the submission made by the learned counsel for the applicant as well as learned A.G.A., this Court is of the view that the applicant has 2 made out a case for grant of bail on the ground of party. In view of the above, let the applicant, Mitthan Yadav be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned in Case Crime No. 237 of 2013, under sections 147, 148, 149, 302, 307, 394, 411, 454, 506, 120B and 34 I.P.C., P.S. Kavinagar, district-Ghaziabad with the following conditions:-
(a) The applicant shall attend the court according to the conditions of the bond executed by him.
(b) The applicant 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 or tamper with the evidence.”
5. Being aggrieved by the aforesaid order, the wife of the deceased has preferred this appeal for setting aside the order.
6. At this juncture, it is apt to note that 2nd respondent had moved an application for bail before the learned Additional District & Sessions Judge, Ghaziabad who took note of the factual matrix, which is as follows:-
“As per the prosecution story complainant Sakek Chand has lodged the report at PS Kavi Nagar that accused Mitthan, Manoj, lala Kapil and Budhu @ Budhpal were keeping enmity with the brother of the complainant Salekh Chand on their consuming wine in front of the house of complainant and due to this fear brother the complainant had keep a 3 private gunner. On 25.2.13 at about 11.00 a.m. complainant and his brother Yashvir, Munir and Deepak were sitting in the house and suddenly above all accused carrying weapon in their hands entered into the house of the complainant and began hectic firing. Brother of the complainant received several bullet injuries. Complainant ran raising noise and also caught him and cause grievous injuries on his head, due to which he fell down. Hearing the voice of firing gunner also came and his rifle was snatched him them and also gave beatings to him and injured him. When people of the village gathered accused fled away giving threatening. People of the village admitted brother of the complainant in hospital where doctor declared him dead.”
Learned Additional District & Sessions Judge, after taking note of the aforesaid allegations, declined to grant bail. Being unsuccessful to secure bail from the Court of Session, the 2nd respondent approached the High Court and as has been stated hereinbefore, the High Court has admitted him to bail.
7. Questioning the legal acceptability of the impugned order, it is contended by Mr. Malkan, learned counsel for the appellant that the High Court has failed to appreciate the role ascribed to Ashok Kumar and to the 2nd respondent who had fired on the deceased; and further the High Court has absolutely remained oblivious to the criminal antecedents of the said accused. That apart, it is contended by him that the trial has commenced and at that stage it was absolutely improper on the part of the High Court to enlarge the accused on bail brushing aside the fact that the man with criminal antecedents has the potentiality to intimidate the rest of the witnesses. In essence, the submission is that the gravity of the offence, the manner in which it has been committed and the criminal antecedents of the accused – the 2nd respondent, have been totally ignored by the High Court and bail has been granted on non-consideration of the material facts, which makes the order vulnerable.
8. Mr. Ratnakar Dash, learned senior counsel appearing for the State of Uttar Pradesh, supporting the stand of the appellant submitted that though the State has not assailed the legal acceptability of the impugned order, yet the fact remains that when the real victim has approached this Court and on a perusal of the facts which have been asserted, it is quite manifest that the 2nd respondent is a history-sheeter and the order passed by the High Court should be nullified.
9. Mr. Praveen Chaturvedi, learned counsel appearing for the respondent no.2, resisting the aforesaid stand and stance put forth by the learned counsel for the appellant as well as the learned senior counsel for the State has canvassed that the High Court has appositely applied the principle of parity and, therefore, the order passed by it cannot be faulted. It is urged by him that when the trial has commenced and many witnesses have been examined, there was no justification not to release the 2nd respondent on bail on such terms and conditions which have been determined by the High Court. It is put forth by him that the number of cases which were instituted against the 2nd respondent are not that grave and in some cases he has been acquitted, but unfortunately, emphasis has been laid on the same by the appellant and also learned senior counsel for the State. It is further contended that in the absence of any failure to abide by the terms and conditions imposed by the High Court while granting the accused the benefit of bail, this Court should not interfere as that would seriously jeopardize the liberty of the respondent no.2.
10. The pivotal issue that emanates for consideration is whether the impugned order passed by the High Court deserves legitimate acceptation and put in the compartment of a legal, sustainable order so that this Court should not interfere with the same in exercise of jurisdiction under Article 136 of the Constitution of India. In this context, a fruitful reference be made to the pronouncement in