Mishra Vs. Digambar Mishra & Ors  Insc 38 (17 January 2005)
Bhan & Dr. Ar. Lakshmanan
out of Special Leave Petition (Crl.) Nos. 3315-3316/2004) Dr. AR. Lakshmanan,
granted in both the Special Leave Petitions.
Special Leave Petitions being Nos. 3315 and 3316 of 2004 were filed against the
impugned non-speaking orders passed by the High Court of Patna in Criminal
Appeal Nos. 50 of 2004 and 62 of 2004 granting the bail to accused Nos. 1 to 3
without considering the criminal history of the accused, the evidence available
against them, the threats to the life of the complainant/appellant and his
family members and likelihood to abscond from the criminal courts of justice
and rendering the fair trial impossible. There are six accused in this case.
Mishra (no bail granted);
& 3. Rajendra Mishra and Jitendra Mishra (bail granted);
Mishra (bail granted);
& 6. Nagendra Mishra & Gopal Mishra (absconding/not on trial).
the above accused persons have been charged for being members of an unlawful
assembly and committing murder of Sunil Kumar Mishra and Chandra Shekhar Mishra
and attempt to commit murder of Manoj Kumar Mishra, Anil Kumar Mishra and Panchanan
Mishra. The accused were armed with the guns and they surrounded the brothers
and the complainant/appellant. Digambar Mishra fired from his licensed gun at
Sunil Kumar Mishra who fell down. Mahendra Mishra fired at Chandra Shekhar Mishra
who also fell down. Gopal Mishra fired three shots from his country made pistol
on the complainant/appellant and the complainant managed to run towards his
house raising an alarm. The complainant brought the two injured sons on a thela
to Sardar Hospital, Munger but they died before any medical help could be
given to them and they were declared dead. One of the deceased was an advocate,
another was lecturer and one was appointed auditor.
motive of the murder was on account of the occurrence which took place that the
complainant/appellant had sold a land to Ramachandra Yadav and the accused
persons felt annoyed at it and tried to grab those lands on the strength of
their muscle power and there is also a litigation pending between the parties.
Anil Mishra was also injured.
accused Digambar Mishra, Rajendra Mishra, Jitendra Mishra and Mahendra Mishra
were sent for trial and two accused, namely, Gopal Mishra andNagendra Mishra
were shown as absconded and did not turn up during the whole trial. The
proceedings in respect of accused Nagendra Mishra and Gopal Mishra were
separated vide order dated 20.11.2002 and the case of the rest of the accused
was committed to the court of Sessions.
prosecution examined four eye witnesses PW-1, PW-2, PW-4 and PW-5, who is an
independent witness and whose house is adjacent to the house of the
complainant. During the trial, it was established that PW-1,2,4 and 5 are the
natural and probable witnesses and their testimony was amply corroborated with
identity of the accused persons during the cross examination was also
is no dispute with reference to the place of occurrence, the time of occurrence
and the manner of occurrence. The direct evidence of the eye witnesses was
corroborated by the medical evidence and the motive of the crime was also
presence of the eye witnesses was also established at the time of occurrence.
It was also proved that there was a Satya Narayan Puja at the house of the
complainant before the occurrence.
trial Court, on the basis of the evidence available, came to the conclusion
that there is satisfactory evidence that Digambar Mishra instigated to commit
the murder and at that point of time the common intention was developed and in
pursuance of that common intention of the accused they fired at two deceased.
They had also common intention to murder other persons available there and they
fired on the complainant PW-2 and PW-1.
trial Court convicted and sentenced the accused Mahendra Mishra, Rajendra Mishra
and Jitendra Mishra for the offence under Sections 148, 302 read with 34, 307
read with 34 I.P.C. and Section 27 of the Arms Act. The accused Digambar Mishra
was convicted and sentenced under Section 109 read with Section 302 and under
Section 307 I.P.C.
criminal appeals were filed by the accused before the High Court. The High
Court ordered the release of Digambar Mishra on bail in Criminal Appeal No. 50
of 2004 vide order dated 23.01.2004 and the other two accused, namely, Rajendra
Mishra and Jitendra Mishra vide impugned order dated 30.01.2004 in Criminal
Appeal No. 62 of 2004.
non-speaking order passed by the High Court in Criminal Appeal No. 50 of 2004
and 62 of 2004 reads thus:- "In Criminal Appeal No.50 of 2004 Issue notice
and call for the lower court records.
point of Ba-1, counsel submits that the appellant has been convicted under
Sections 302 and 307 with the aid of Section 109 of the Penal Code. The prayer
for bail is opposed on behalf of the informant, who has appeared on his own.
facts and circumstances, during pendency of this appeal, the appellant(Digambar
Mishra) shall be released on bail on furnishing bond of Rs.10,000/- (ten
thousand) with two sureties of the like amount each to the satisfaction of the
trial Court i.e., 3rd Addl. Sessions Judge, Munger in Sessions Trial No. 730 of
realization of fine shall also remain stayed till disposal of the appeal.
Criminal Appeal No.62 of 2004 Issue notice and call for the records.
point of bail, counsel submits that the appellants are not assailants of the
deceased. The prayer is opposed on behalf of the informant who has appeared on
his own, and submits that from the evidence of PW-1 it will appear that these
appellants had assaulted him.
facts and circumstances, during pendency of this appeal appellants namely Rajendra
Mishra and Jitendra Mishra are ordered to be released on bail on their
furnishing bail bonds of Rs.10,000/- with two sureties of the like amount each
to the satisfaction of the trial Court i.e. 3rd Addl. Sessions Judge, Munger in
Sessions Trial No. 730/2002."
reading of the above non-speaking order would only show the total non-
application of mind by the Court to the gravity of the crime, the apprehension
of tampering with the evidence and threats to the life of the complainant and
other witnesses given by the accused. The High Court passed the impugned order
in a mechanical fashion without proper application of mind and without going
into the merits and evidence on record against the accused persons. The High
Court failed to see and appreciate that the respondents herein who are the main
accused Nos. 1 to 3 are the master minds behind the crime committed. The High
Court has not considered the material evidence available on record against the
accused which prima facie establish the criminal liability of the respondents.
The High Court also failed to see that the learned Sessions Judge, after taking
into consideration, the seriousness and the gravity of the crime convicted the
accused for the crime. This apart, three other vital factors have also been not
taken note of by the High Court. They are the evidence of PW-1,2,4 and 5 who
are the eye witnesses and whose testimony was amply corroborated with each
other. Secondly, the identity of the accused persons during the cross
examination was also established. Thirdly, the direct evidence of the eye
witnesses was corroborated by the medical evidence and the motive of the crime
was also established.
trial Court has held that there is satisfactory evidence that Digambar Mishra
instigated to commit the murder and at that point of time and in pursuance of
that common intention of the accused they fired at the two accused. The High
Court also has not taken into account the several complaints and information reports
before the trial and to the Police Authorities stating that the accused have
killed his two sons out of six, the three accused were arrested and remanded to
jail and other accused are absconding and evading their arrest and that one of
the accused Digambar Mishra who is on bail has confirmed the group of criminals
and comes to the house of the appellant and gives threatening to the eye
witnesses of the said order in order to pressurize them not to pursue the
criminal case against them and that whenever these accused persons visit the
house of the appellant, they are always armed with their guns.
learned counsel for the respondent submitted that respondent No.1 had already
undergone 12 months of sentence, respondent Nos. 1 and 2 in Special Leave Petition
No. 3316 of 2004 had already undergone 22 months of sentence approximately each
and that the respondents have a meritorious case in criminal appeal and
accordingly, the High Court while admitting the appeal have released the
respondents on bail subject to certain conditions. It is further submitted that
subsequent to the grant of bail order, there is no instance on record that the
respondents have misused their release on bail and, therefore, there is no
question of the respondents either trying to interfere with the course of
justice or the attempt to tamper with the evidence or witnesses or to threaten
or indulge in similar activities which would hamper the smooth investigation of
trial. He would further submit that annexure P2, an information petition No.
872 (J) of 2004 under Section 39 of the Cr.P.C. made by the appellant to the
court of CJM, Munger cannot be pressed into service and be made a ground for
cancellation of bail granted by the High Court.
have given our careful consideration on the rival submissions made by the
counsel appearing on either side. The object underlying the cancellation of
bail is to protect the fair trial and secure justice being done to the society
by preventing the accused who is set at liberty by the bail order from
tampering with the evidence in heinous crime and if there is delay in such a
case the underlying object of cancellation of bail practically loses all its
purpose and significance to the greatest prejudice and the interest of the
prosecution. It hardly requires to be stated that once a person released on
bail in serious criminal cases where the punishment is quite stringent and
deterrent the accused in order to get away from the clutches of the same
indulge in various activities like tampering with the prosecution witnesses
threatening the family members of the deceased victim and also create problems
of law and order situation.
Singh and Others vs. State (Delhi Administration), AIR 1978 SC 179, this Court
has observed that while granting of bail the Court has to consider the nature
and gravity of the circumstances in which the offence is committed, the
position and status of the accused with reference to the victim and witnesses,
the likelihood of the accused fleeing from justice, of repeating the offence,
of jeopardizing his own life being faced with a grim prospect of the possible
conviction in the case, of tampering with witness, the history of the case as
well as of its investigation and other relevant grounds. It was further
observed by this Court that the Sessions Judge did not take into proper account
the grave apprehension of the prosecution that there was a likelihood of the
accused persons tampering with the prosecution witnesses. In the peculiar
nature of the case revealed from the allegations and the position of the
accused in relation to the eye witnesses it was incumbent upon the sessions
Judge to give proper weight to the serious apprehension of the proper case with
regard to the tampering with the eye witnesses, which was urged before him in
resisting the application for bail.
State through the Delhi Administration vs. Sanjay Gandhi AIR 1978 SC 961, this
Court observed as under:
providing by the test of balance of probabilities that the accused has abused
his liberty or that there is a reasonable apprehension that he will interfere
with the course of justice is all that is necessary in order to succeed in an
application for cancellation of bail." In Dolat Ram and Others vs. State
of Haryana (1995) 1 SCC 349, it was observed
by this Court as under:
cogent and overwhelming circumstances are necessary for an order directing the
cancellation of the bail, already granted. Generally speaking, the grounds for
cancellation of bail, broadly (illustrative and not exhaustive) are:
interference or attempt to interfere with the due course of administration of
justice or evasion or attempt to evade the due course of justice or abuse of
the concession granted to the accused in any manner.
satisfaction of the Court, on the basis of material placed on the record of the
possibility of the accused absconding is yet another reason justifying the
cancellation of bail. However, 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 the trial. These
principles, it appears, were lost sight of by the High Court when it decided to
cancel the bail, already granted. The High Court it appears to us overlooked
the distinction of the factors relevant for rejecting bail in a non-bailable
case in the first instance and the cancellation of bail already granted."
Learned counsel for the respondent cited two decisions being Dolat Ram and
Others (supra) and Mehboob Dawood Shaikh vs. State of Maharashtra (2004) 2 SCC
362 and submitted that bail once granted should not be cancelled in a
mechanical manner without considering any supervening circumstances have
rendered it no longer conducive to a fair trial to allow the accused to retain
this freedom by enjoying the concession of bail during the trial. He would also
further submit the cancellation of bail is a harsh order because it takes away
the liberty of the individual granted and is not likely to be resorted to and
that this Court in exercise of its jurisdiction under Article 136(1) of the
Constitution of India does not ordinarily interfere with the grant of
cancellation of bail. The argument advanced by learned counsel for the
respondent is without substance and devoid of merit and against the consistent
view taken by this Court in the judgment reported in Gurcharan Singh and Others
(supra) and Sanjay Gandhi (supra). In the instant case, the accused Digambar Mishra
had been found and held guilty under Section 109 read with Sections 302 and 307
I.P.C and he was sentenced to undergo RI for life for the offence under Section
109 read with Sections 302 and 307 I.P.C. Likewise, the accused Rajendra Mishra,
Jitendra Mishra and Mahendra Mishra have been found guilty under Sections 148,
302 read with Section 34, 307 read with Section 34 I.P.C. and Section 27 of the
Arms Act and all of them were convicted and sentenced to undergo RI for life
for the offence punishable under Section 302/34 I.P.C. and also sentenced to
undergo various other sentences and also to pay the fine to the widows of the
into the gravity of the crime, apprehension of tampering with the evidence and
threats to the life of the Complainant and other witnesses given by the
accused, we are of the opinion that the High Court did not take into proper
account the grave apprehension of the prosecution that there was a likelihood
of the accused persons tampering with the prosecution witnesses. In the
peculiar nature of the case revealed from the allegations and the position of
the accused in relation to the eye witnesses it was incumbent upon the High
Court to give proper weight to the serious apprehension of the complainant which
was urged before him in resisting the application for bail. The High Court, in
our opinion, had failed to properly appreciate the entire position. Therefore,
this Court will be justified under Article 136 of the Constitution of India in
interfering with the discretion exercised by the High Court in granting the
bail of the accused persons. The High Court has not bestowed its attention on
these above factors apart from others. There cannot be an inexorable formula in
the matter of granting bail. The facts and circumstances of each case will
govern the exercise of judicial discretion in granting or canceling bail. The
case on hand is one such which would justify our interference under Article 136
of the Constitution with a discretion exercised by the High Court in granting
bail of the respondents in this case.
appeals are allowed and the order passed by the High Court in granting bail in
Criminal Appeal Nos. 50 of 2004 and 62 of 2004 stands set aside and cancelled
and the Police Authorities are at liberty to re-arrest the accused and proceed
further in accordance with law. Any observation made by us in this order in
canceling the bail will not prejudice the High Court in considering the appeal
filed by the accused on its own merits and dispose of the same in accordance