Anil Kumar Tulsiyani Vs. State of U.P. & Anr  Insc 282 (5 May 2006)
out of S.L.P. (Crl.) No.4957 of 2005) H.K.SEMA,J
challenge in this appeal is to the order dated 7.9.2005 passed by the High Court
of judicature at Allahabad in Criminal Misc. Bail Application No.11884 of 2005
granting bail to the second respondent-accused.
at this stage, dispose of one of the arguments of Mr. Vijay Hansaria, learned
senior counsel, for the second respondent-accused that the petition itself is
not maintainable, as the same is not filed by an aggrieved party.
contention does not survive as by our order dated 30.9.2005 permission to file
Special Leave Petition has already been granted.
senior counsel on both sides have advanced arguments touching the merits of the
case. We, however, refrain ourselves from making any observation on the merits
of the case at this stage lest it may prejudice the case of the accused, as the
trial is yet to commence. Suffice it is to say the High Court was not justified
in admitting bail to the respondent.
offence under which the respondent was charged is Section 302 read with 201 IPC
in which the husband was the main accused and the wife was the co- accused.
application was rejected by the High Court on 3.6.2005 after a threadbare
discussion. The High Court arrived at a finding that the incident had taken
place inside the house of the accused, that too in her bedroom itself and that
the accused being an advocate would be no mitigating ground to release her on
respondent-husband's application was also rejected by the Sessions Judge, Allahabad by an order dated 10.6.2005 after
taking into consideration the submission of both sides and various facts and
circumstances of the case.
High Court, in our view, seems to have weighed with the tenuous circumstances
such as there being no report of ballistic expert to show the alleged
fingerprints found on the recovered revolver to be of his own, there being no
previous criminal history of the accused who is a practicing advocate of the
High Court. The High Court has not at all considered the gravity and the nature
of the offence in which the deceased stated to be a close friend of the
respondent-accused has been shot at in his house, that too inside his bedroom.
Prima facie, the prosecution story has disclosed that a heavy burden is laid on
the accused to explain the circumstances.
learned senior counsel for the respondent, strenuously contended that the
respondent is on bail since 7.9.2005 that he has never misused the liberty
granted to him that there is no allegation of prosecution witnesses being
tampered with and there is no apprehension of the respondent absconding or
thwarting justice. According to him, there is no ground made out for
cancellation of bail.
also contended that the principles applicable to cancellation of bail should be
applied when considering an appeal under Article 136 of the Constitution
against an order granting bail. We are unable to countenance with this
submission of learned counsel for the respondent. What we are considering is
the correctness of the manner in which the respondent has been admitted to bail
by the High Court. We are not considering any application for cancellation of
it is well-settled principle of law that one of the considerations in granting
bail in non-bailable offences is the gravity and the nature of the offence. The
High Court has not at all addressed to this issue while granting bail to the
court in State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC
21, in which one of us (Raveendran, J.) was a member has considered various
decisions of this Court and observed that the circumstances to be considered in
an application for bail are
whether there is
any prima facie or reasonable ground to believe that the accused had committed
gravity of the charge;
severity of the
punishment in the event of conviction;
danger of the
accused absconding or fleeing, if released on bail;
means, position and standing of the accused;
the offence being repeated;
apprehension of the witnesses being tampered with; and
course, of justice being thwarted by grant of bail.
present case, admittedly, the respondent is an advocate. Being an advocate he
is in a commanding position and standing in the society. Keeping in view his
position in the background, a reasonable apprehension of the witnesses being
tampered with or won over, coerced, threatened or intimidated by using his
influence and position cannot be ruled out.
fact, going through the entire order of the High Court granting bail, we do not
find any mitigating circumstances, which warranted the High Court in granting
bail in a non-bailable grave offence under Section 302/201 IPC.
the reasons aforestated this appeal deserves to be allowed. The order of the
High Court dated 7.9.2005 granting bail to the respondent is hereby quashed and
set- aside. The respondent is on bail. His bail bond and surety stands
cancelled. He is directed to be taken back into custody forthwith. Appeal is