Deepak
Singchi Vs. State of Rajasthan and Anr [2007] Insc 797 (3 August 2007)
Dr.
Arijit Pasayat & D.K. Jain
CRIMINAL
APPEAL NO. 1002 OF 2007 (Arising out of SLP (Crl.) No.6630 of 2006) Dr. ARIJIT
PASAYAT, J.
1.
Leave granted.
2.
Challenge in this appeal is to the order passed by a learned Single Judge of
the Rajasthan High Court at Jaipur, granting bail to the respondent no.2. (hereinafter
called as the 'accused').
3.
Background facts in a nutshell are as follows:
On
18.9.2002, appellant lodged report about the killing of his brother by some
persons. It surfaced during investigation that the accused and co-accused Nasik
Singh had hired two contact killers- Rohitas and Dharmendra for killing the
deceased.
Application
for bail was filed by the appellant before the Additional Chief Judicial
Magistrate, Jaipur, who by order dated 6.6.2006 rejected the application.
Application for bail filed before the Additional Sessions Judge, Jaipur, was
rejected by order dated 12.7.2006. It was, inter alia, noted as follows:
'The
Court heard the arguments advanced by both the parties and has gone through the
legal provisions. It is correct that the incident is 4 years old and accused
has been investigated twice and the final report was given. In my opinion that
enquiry was also done treating him as one of the suspects. Late on the evidence
which were collected primarily show his involvement in the crime. Dispute
relating to the business of property between both the parties, having ill
feelings against the deceased because of the same, bringing the co- accused Nasib
Singh to the house of the deceased on the day of incident, the recognition of
this Nasib Singh by the wife of deceased during TIP, recognition of the accused
who shot the deceased by his wife and his brother-in-law and after their arrest
their recognition during TIP, bullets found on the place of incident which was
of co-accused's pistol, on the information given by the co- accused the
recovery of bullets and arms alongwith the car, the same colour of the car which
was reported 4 years back, the recovery of items at the instant of accused
persons, the recovery of the places where the conspiracy was hatched by the
accused persons, long conversation between accused and co-accused Nasib Singh
for hours during, before and after the date of the incident (Applicant/Accused
and co-accused did not tell about their conversation on the phone before and
after the incident in the enquiries), etc. have come up clearly by the
enquiries.
Thus
the facts and circumstances state that because of the enmity relating to
property business the accused planned to murder of the deceased with the
co-accused and entered into an illegal contract with the other accused Rohitaas
and Dharmendra to kill the deceased.
They
murdered the deceased and for this work only the accused took the co-accused Nasib
Singh to the deceased's house to make him familiar with the person supposed to
be killed by them. The accused and the co-accused had a long conversation
before and after the incident and this fact was not revealed by them in the
earlier enquiries which clearly show the involvement of accused in the
crime."
4. The
High Court was moved for grant of bail. Learned Single Judge by the impugned
order granted bail which is being questioned by the informant. It is submitted
that two courts on analyzing the material on record rejected the prayer for
bail. The High Court without indicating any reason has granted the bail. No
reason has been indicated as to why the bail was granted notwithstanding the
well-reasoned orders of learned Additional Chief Judicial Magistrate, Jaipur,
and Additional Sessions Judge, Jaipur.
5. In
response, learned counsel for the accused submitted that initially final report
was submitted but subsequently, a fresh look was taken after taking permission
from Court. The accused persons were in custody for more than seven months.
On
considering all relevant aspects learned Single Judge has accepted the prayer
for bail.
6. The
relevant portion of the High Court's order reads as follows:
"It
is not desirable to discuss the evidence available on record at this stage.
However, taking into consideration all the facts and circumstances of the case
and without expressing any opinion on the merits of the case I deem it just and
proper to release the accused applicant on bail under Section 439 Cr.P.C. 1
cite 2005(2) SCC 13 in support."
7. At
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:
"However,
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)".
(underlined
for emphasis)
8.
These aspects were recently highlighted in V.D. Chaudhary v. State of Uttar Pradesh and Anr. (2005 (7) SCALE 68).
9.
Even on a cursory perusal the High Court's order shows complete non-application
of mind. Though detailed examination of the evidence and elaborate
documentation of the merits of the case is to be avoided by the Court while
passing orders on bail applications, yet a court dealing with the bail
application should be satisfied as to whether there is a prima facie case, but
exhaustive exploration of the merits of the case is not necessary. The court
dealing with the application for bail is required to exercise its discretion in
a judicious manner and not as a matter of course.
10.
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:
1. The
nature of accusation and the severity of punishment in case of conviction and
the nature of supporting evidence;
2. Reasonable
apprehension of tampering of the witness or apprehension of threat to the
complainant;
3.
Prima facie satisfaction of the Court in support of the charge.
11.
Any order dehors of such reasons suffers from non- application of mind as was
noted by this Court, in Ram Govind Upadhyay v. Sudarshan Singh and Ors. [(2002)
3 SCC 598], Puran etc. v. Rambilas and Anr. etc. [(2001) 6 SCC 338)] and in Kalyan
Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr. [JT 2004 (3) SC
442].
12.
The above position was highlighted by this Court in Chaman Lal v. State of U.P. and Anr. (JT 2004 (6) SC 540), and in Kamaljit Singh
v. State of Punjab and Anr. (2005 (7) SCC 326), and Crl.
Appeal No 543 of 2007 (Arising out of SLP (Crl.) No.49 of 2007) Gajanand Agarwal
v. State of Orissa and Anr.)
13. In
view of the settled position in law, the inevitable conclusion is that the
impugned order of the High Court is indefensible and the same is set aside. The
matter is remitted to the High Court for fresh consideration of the bail
application.
14.
Needless to say the respondent No.2 shall forthwith surrender to custody
because of cancellation of his bail. The bail application can be considered
after only he surrenders to custody.
15.
The appeal is disposed of accordingly.
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