Vs. State of Up & Anr  Insc 862 (24 August 2007)
Arijit Pasayat & Altamas Kabir
APPEAL NO. 1122 OF 2007 (Arising out of SLP (Crl.) No. 3949 of 2006) Dr. ARIJIT
Challenge in this appeal is to the order passed by a learned Single Judge of
the Allahabad High Court granting bail to respondent No.2-Dinesh Kumar. Bail
was granted primarily on the ground that the co-accused has been released on
the bail and at the most the case is one under Section 304 Part II of the
Indian Penal Code, 1860 (in short the 'IPC') and not Section 302 IPC.
Learned counsel for the appellant submitted that the accused-respondent No.2
was involved in daylight cold blooded murder of his elder brother (husband of
the appellant herein) by the licensed gun of his father in the presence of all
family members and the relatives. Appellant was married to the deceased Rajesh
Kumar in February, 1990 and they were blessed with three children. Some times
prior to the incident, there was tension in the family on the issue of
partition amongst deceased, his father and the two sons. On 16.5.2005 Rajjan Lal
Verma, father of the respondent No.2 talked to Ved Prakash i.e. the brother of
the appellant and told him about the extremely tense situation and told him to
immediately come to Pukhrayan. Ved Prakash and Prem Prakash, brothers of the
appellant reached Pukhrayan on 17.5.2005. The father and the two sons i.e.
respondent No.2 and the accused were sitting in a room inside the house and talks
for partition and distribution of property was going on. At about 3.30 p.m. the father became extremely excited and took out his
licensed revolver and became offensive towards the deceased.
respondent No.2 picked up the licensed gun which was lying in a corner of the
room, loaded the same and fired a shot at his elder brother-Rajesh Kumar, the
deceased who sustained grievous fire-arm injuries on his vital organs.
Rajesh Kumar was shifted to a nearby hospital. He was referred to Kanpur Hospital. Before reaching the said hospital, he breathed his last.
First Information Report (in short the 'FIR') was lodged against the deceased's
father and the respondent No.2 by Ved Prakash and Prem Prakash. Deceased's
father and respondent No.2 absconded for more than two months and ultimately
surrendered on 23.7.2005 before learned Chief Judicial Magistrate, Kanpur. Charge sheet has already been
filed on 2.8.2005 indicating commission of offence punishable under Section 302
IPC. The co-accused was granted bail by learned Sessions Judge on 6.8.2005.
Thereafter, Dinesh Kumar and other criminals tried to compel the appellant to
enter into a compromise. An FIR in this regard was lodged by the appellant with
the police authorities and a case has been registered for offences punishable
under Sections 147, 452, 323, 504, 506 and 307 IPC. Sessions Judge, Kanpur rejected the bail application of
the respondent No.2 on 7.9.2005. Case was committed to the Court of Sessions
and the matter is pending trial in Sessions Trial no.326 of 2005.
21.11.2005, respondent No.2 filed bail application.
High Court not only granted bail but recorded a finding that the case falls
within the ambit of Section 304 Part II IPC.
submitted that even after release on bail, the respondent No.2 and his father
want to get the case finished and for this they assaulted the appellant
physically. An FIR was lodged by Ved Prakash-brother of the appellant in this
context on 21.3.2006.
support of the appeal, Mr. K.T.S. Tulsi, learned Senior counsel submitted that
the order passed by the High Court is clearly unsustainable. FIR clearly
indicates the factual scenario and the continued tension in the family over
distribution of property. The High Court ought not to have equated the case of
father of the deceased with that of the respondent No.2 who had in a diabolical
manner killed an innocent person. There was no question of any sudden quarrel.
The High Court has come to an abrupt conclusion about sudden quarrel and the
absence of motive. It has also been held that there was only about a single
shot fired. All these aspects could not have been considered while considering
the bail application. Further the conduct of the respondent No.2 clearly shows
that he has misused the liberties by threatening the appellant and her
Learned Counsel for the State supported the stand of the appellant.
However, learned counsel for the respondent No.2 submitted that the High Court
has rightly granted bail to respondent No.2. It is not a case which is covered
by Section 302 IPC and the conclusions of the High Court are tentative and they
are not likely to have any effect on the trial.
parameters to be kept in view by Court while dealing with bail applications has
been highlighted by this Court in Gajanand Agarwal v. State of Orissa and Anr. (2007 (5) SCALE 639).
this juncture, it would be appropriate to take note of a decision of this Court
in Omar Usman Chamadia v. Abdul and Anr. (JT 2004 (2) SC 176). In para 10, it
was observed as follows:
before concluding, we must advert to another aspect of this case which has
caused some concern to us. In the recent past, we had several occasions to
notice that the High Courts by recording the concessions shown by the counsel
in the criminal proceedings refrain from assigning any reason even in orders by
which it reverses the orders of the lower courts. In our opinion, this is not
proper if such orders are appealable, be it on the ground of concession shown
by learned counsel appearing for the parties or on the ground that assigning of
elaborate reasons might prejudice the future trial before the lower courts. The
High Court should not, unless for very good reasons desist from indicating the
grounds on which their orders are based because when the matters are brought up
in appeal, the court of appeal has every reason to know the basis on which the
impugned order has been made. It may be that while concurring with the lower
court's order, it may not be necessary for the said appellate court to assign
reasons but that is not so while reversing such orders of the lower courts. It
may be convenient for the said court to pass orders without indicating the
grounds or basis but it certainly is not convenient for the court of appeal
while considering the correctness of such impugned orders. The reasons need not
be very detailed or elaborate, lest it may cause prejudice to the case of the
parties, but must be sufficiently indicative of the process of reasoning leading
to the passing of the impugned order. The need for delivering a reasoned order
is a requirement of law which has to be complied with in all appealable orders.
This Court in a somewhat similar situation has deprecated the practice of non-
speaking orders in the case of State of Punjab and Ors. v. Jagdev Singh Talwandi (AIR 1984 SC 444)".
The view was re-iterated in V.D. Chaudhury v. State of Uttar Pradesh and Anr. (2005 (7) SCALE 68)
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:
nature of accusation and the severity of punishment in case of conviction and
the nature of supporting evidence;
Reasonable apprehension of tampering of the witness or apprehension of threat
to the complainant;
Prima facie satisfaction of the Court in support of the charge.
Imran Ali v. Habibullah and Anr. (2007 (4) SCALE 610) it has been held as
is no doubt true that the High Court felt persuaded to grant bail to the
respondents in the pending appeal before it. The High Court however, went on to
record a very detailed reasoned order virtually holding that the prosecution
case has no merit. Such observations either for or against the prosecution,
made in orders disposing of bail applications may prejudicially affect the
interests of the parties because in case a trial is pending before the Sessions
Court, the trial Judge may consider itself bound by the observations made in
such an order. In any event, such observations are bound to influence its mind.
It is no doubt true that in appropriate cases particularly in serious matters,
the High Court may record reasons, but the High Court while recording reasons
must take care to safeguard against prejudicing the case of the parties. The
recording of reasons, wherever necessary, is only to indicate the
considerations that may have weighed with the Court in passing the order and
the Court must do so in a manner that may not prejudice the case of the
trend recently noticed, to virtually write a judgment while disposing of an
application for grant of bail must be discouraged."
The effect of the alleged subsequent threats have also been considered in State
of U.P. Through CBI v. Amarmani Tripathi
(2005(8) SCC 21). It was inter-alia observed as follows:- "The evidence
collected above discloses that there were repeated attempts by the accused Amarmani
to interfere, and side track the investigation and threaten the witnesses to
come out with a story that will deflect the suspicion from him and his wife to Anuj
Mishra or others. It is also not in dispute that Amarmani was on bail in a
kidnapping case, when he indulged in these activities in May, 2003. These
materials were placed by the prosecution before the High Court to establish a
reasonable apprehension of tampering. The learned Single Judge has, however,
completely ignored these materials relating to tampering with
evidence/witnesses. This necessitates interference with the order of the High
learned ASG next referred to the threats to witnesses held out by Amarmani
after his release on bail. Reliance is placed on the four complaints received
by the crucial prosecution witnesses. Nidhi Shukla, sister of the deceased by
letter dated 10.9.2004, and Shanti Kumari, mother of the deceased by an undated
letter, have made separate complaints to the CBI in regard to efforts made by Amarmani
to induce them to accept money through one NK Mishra to settle the matter and
that when they refused, he threatened them. Another witness Najib Khan (a
family friend of the deceased) has also sent a complaint dated 22.9.2004,
stating that on that day two persons knocked on his door, hurled abuses at him
and told him that the CBI officers were far away and once the cases were
closed, no one will protect him and he will be killed. Lastly, one Birjesh Pathak,
Member of Parliament has also sent a complaint dated 16.9.2004 to the CBI
alleging that an attempt on his life was made on 7.9.2004 which, according to
him, was at the instance of Amarmani. The said allegations are denied in the
counter-affidavit filed on behalf of Amarmani by his brother/Pairokar. It is
contended that these complaints must have been sent at the instance of the CBI
itself. In so far as Brijesh Pathak is concerned, it is also alleged that he is
a close confidant of Amarmani's political rival. However, in the view we have
taken, it is unnecessary to examine this aspect."
The High Court has not indicated as to what is the relevance of grant of bail
to co-accused ignoring that the respondent No.2 was the alleged assailant who
fired the gun and killed the deceased. Strangely the conclusions, that there
was no motive or there was a sudden quarrel appear to have been arrived at
without any discussion and/or without reference to any particular material. The
impugned order is unsustainable and is set aside. The matter is remitted to the
High Court to consider the bail application afresh keeping in view the
principles of law delineated above. Bail granted to respondent No.2 by the High
Court is cancelled. He shall forthwith surrender to custody and thereafter
only, his bail application can be considered.
Appeal is allowed to the aforesaid extent.