Yadav Vs. Mitra Sen Yadav & Anr  Insc 483 (20 November 2002)
Lahoti & Brijesh Kumar.
APPEAL NO. 1210 OF 2002 [Arising out of S.L.P.(Crl.) No. 1266 of 2002] R.C. Lahoti,
granted in both the SLPs.
Yadav, the respondent No. 1, is accused in Crime No. 238/01 under Sections 419,
420, 467, 468, 471, 409 IPC of P.S. Tarun, District Faizabad. He was arrested
and lodged in District Jail, Faizabad. He moved an application for being
released on bail. The prayer for bail was vehemently opposed. By order dated
12.10.2001, the learned Sessions Judge directed the application for bail to be
rejected. The order is a detailed one setting out the facts and circumstances
of the case, the previous history, and antecedents of the accused-applicant.
The order also takes note of an apprehension expressed on behalf of the State
that the release of the respondent No.1 on bail may adversely influence the
investigation and witnesses may be adversely influenced or intimidated.
aggrieved by the rejection of bail at the hands of the Sessions Court, the
respondent No. 1 moved the High Court under Section 439 of Cr.P.C. By order
dated 08.11.2001, the High Court has allowed the prayer of the respondent No. 1
to be enlarged on bail.
order is a brief one and the only reason assigned for releasing the respondent
No.1 on bail is "It is a fit case for bail".
complainant and the State of UP have filed
these two appeals by special leave feeling aggrieved by the order of the High Court
directing the release of respondent No. 1 on bail.
have heard the learned counsel for the complainant/appellant, the learned
counsel for the State of UP, as also the learned counsel for
the accused respondent No.1. Having heard, we are of the opinion that the
impugned order enlarging the accused on bail cannot be sustained and has to be
set aside in the facts and circumstances of the case.
undisputed facts may be noticed. Out of the several offences alleged to have
been committed by the respondent No. 1, those under Section 409 and 467 IPC are
punishable with imprisonment for life or imprisonment for 10 years and fine. In
Sessions Trial No. 141/66 by judgment dated 06.12.1966, the respondent No. 1
was held guilty of having committed an offence punishable under Section 302 IPC
and sentenced to imprisonment for life, which conviction was maintained by the
High Court, as also by this Court. However, in the year 1998, the respondent
No. 1 was released consequent upon remission having been granted to him. The
counter affidavit filed on behalf of the State of UP on the affidavit of Station Officer, P.S. Tarun, Faizabad,
sets out a list of 19 crimes registered against the respondent No. 1 wherein he
is involved and some of them are quite serious, punishable with long terms of
learned counsel for the appellant has submitted by inviting attention of the
Court to the provisions of Section 437 Cr.P.C. that a person accused of or
suspected of the commission of any non-bailable offence shall not be released
on bail if he had been previously convicted of an offence punishable with
death, imprisonment for life or imprisonment for 7 years or more, unless
special reasons for enlarging the accused on bail are available and recorded in
counsel for the respondent No. 1 submitted that the power of Sessions Court and
High Court to enlarge the accused on bail under Section 439 Cr.P.C. are very
wide and are not fettered by the provisions of Section 437 Cr.P.C.. Be that as
it may, it cannot be denied that previous conviction of an accused for a
heinous offence punishable with imprisonment for life, his involvement in other
crimes and the quantum of punishment for the offences in which the applicant is
seeking bail are all relevant factors to which the Court should consciously
advert while taking a decision in the matter of enlargement on bail. A prayer
for bail having been rejected by the Sessions Court although the High Court
while exercising its jurisdiction under Section 439 Cr.P.C. is not acting as a
court of appeal or court of revision over the order of the Sessions Court,
nevertheless, the High Court should keep in mind, while hearing the application
for bail, the factum of the prayer having been rejected by the Sessions Court
and the reasons therefor expressly set out in the order of the Sessions Court.
The order of the High Court, howsoever brief it may be, should make it appear
that the High Court while forming opinion on prayer for bail was conscious of
the reasons for rejection of prayer for bail as assigned by the Sessions Court.
perusal of the impugned order of the High Court does not show the above said
requirement having been satisfied. The High Court has not said a word as to why
the reasons assigned by the Sessions Court for rejecting the prayer for bail
need to be ignored or are not relevant or why the High Court was inclined to
exercise its power favourably to the accused applicant in spite of the
availability of grounds to the contrary set out in the order of the Sessions
of the order of rejection passed by the Sessions Court, the High Court may
grant bail to an accused person, yet it would be sound exercise of
discretionary jurisdiction of High Court if the order of the High Court
reflects that the High Court had in mind the reasons assigned by the Sessions
Court for refusing bail. The impugned order of the High Court suffers from this
impugned order of the High Court granting bail to the accused respondent No. 1
cannot be sustained and is set aside. The respondent No. 1 shall forthwith
surrender to custody. However, we clarify that the right of the accused
respondent No. 1 to apply and seek bail afresh is not taken away, which prayer
if made shall be dealt with and disposed of on its own merits consistently with
the observations made hereinabove.
appeals are allowed.