Kumari
Suman Pandey Vs. State of Uttar Pradesh and Anr [2007] Insc 136 (14 February 2007)
Dr. ARIJIT PASAYAT & S.H. KAPADIA
(Arising out of SLP (Crl.) No. 5851 of 2006) Dr. ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the order passed by a learned Single Judge of
the Allahabad High Court, Lucknow Bench granting bail to the respondent
No.2-Jitendra Pratap Singh (hereinafter referred to as the 'Accused').
A brief reference to the factual aspect would be necessary. On 14.5.2003
First Information Report (in short the 'FIR') was lodged by the appellant
alleging murder of her younger brother-Ravish Kumar Pandey (hereinafter
referred to as the 'Deceased'). At the relevant point of time the deceased was
pursuing his studies in Era Medical College. In the FIR name of respondent No.2
was indicated to be the sole accused.
One of the eye witnesses was stated to be one Priyanka Tiwari.
She appeared before the concerned Magistrate and her statement was recorded
in terms of Section 164 of the Code of Criminal Procedure, 1973 (in short the
'Code'). In the statement she specifically stated that murder of the deceased
was committed by respondent No.2 in her presence. Charge sheet was filed on
19.11.2004. Cognizance was taken by the concerned Magistrate. Thereafter, the
investigation was transferred to C.B.C.I.D. The order of the State Government
was challenged by the appellant by filing a writ petition No.5874(M/B) of 2004
before the High Court. By order dated 13.1.2005 the writ petition was allowed
and the order transferring investigation to CBCID was quashed by the High
Court. Application for bail was filed by respondent No.2 before the High Court
which was numbered as Criminal Misc. Case No.869 (B) of 2005. The said bail
application was rejected by order dated 15.3.2005 with the observation that if
any fresh bail application is filed, the same shall be considered after the
statements of the appellant and aforesaid Priyanka Tiwari are recorded by the
trial court in the trial proceedings. On 20.6.2005 appellant's evidence was
recorded and she categorically stated that in her presence murder was
committed. On 25.8.2005 Priyanka Tiwari who was claimed to an eye-witness was
also examined and her evidence was recorded by the trial court. The
cross-examination was concluded on 5.9.2005. In January, 2006 the respondent
No.
2 filed the second bail application before the High Court which was numbered
as Criminal Misc. Case No. 6282 (B) of 2005.
The said bail application was rejected reiterating the earlier view that the
application for bail can be considered after the evidence of Priyanka Tiwari as
recorded or if she failed to appear for the purpose of recording her evidence.
A certificate was issued by the Ministry of Health, Ukrain that the summer
vacation of Priyanka Tiwari was between 3.7.2006 and 31.8.2006. This
certificate was filed before the trial court. In May, 2006 respondent No.2
filed the third bail application which was number as Criminal Misc. Case No.2233(B)
of 2006. The High Court by its impugned order dated 22.5.2006 has granted the
bail.
According to the appellant after commencement of summer vacation when Priyanka
Tiwari came to India she knew about the court's proceeding and appeared on
28.7.2006. But on the said date the respondent No. 2 was not represented.
Therefore, the court issued Non-Bailable Warrant (in short 'NBW') and the
matter was adjourned to 10.8.2006.
On 10.8.2006 when the matter was taken up, learned counsel appearing for
respondent No.2 submitted before the Court that respondent No.2 had been
arrested in some other case and his absence may be exempted. The trial Court
rejected the application and adjourned the matter to 21.8.2006.
On 21.8.2006 the respondent No.2 again was not present. The court had on the
earlier occasion directed the learned counsel appearing for respondent No.2 to
indicate the details of the case where he was purportedly arrested but those
details were not filed and the matter was further adjourned to 21.9.2006. On
21.9.2006 also respondent No.2 did not appear.
In view of the aforesaid scenario it is stated by learned counsel for the
appellant that the grant of bail was unwarranted and in any event the
respondent no.2 has misused the liberty of bail. Although notices on respondent
No.1-State and respondent No.2-accused had been served but none has appeared to
represent them when the matter was taken up.
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)".
The view was reiterated in V.D. Chaudhary v. State of Uttar Pradesh and Anr.
(2005 (7) SCALE 68).
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.
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:
-
The 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.
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), Kalyan
Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr. (JT 2004 (3) SC
442). Chaman Lal v. State of U.P. and Anr. (JT 2004 (6) SC 540), Kamaljit Singh
v. State of Punjab and Anr. (2005) 7 SCC 326), Gajanand Agarwal v. State of Orissa
& Ors. (JT 2006 (12) SC 55) and Anwari Begum v. Sher Mohammad and Another
(2005) 7 SCC 326).
The High Court noted that the first application was rejected as the
witnesses was apprehending danger to their lives and the trial was going to
commence and therefore, it was not proper to release the applicant on bail.
Second application was moved when there was no significant progress and Priyanka
Tiwari was not examined. The High Court noted that in spite of adjournments Priyanka
Tiwari did not appear.
According to the High Court the fact that Priyanka Tiwari was not appearing
though her dates of appearance have been fixed entitled the appellant to be
released on bail. The reasoning of the High Court is totally fallacious. It is
evident from the material on record that the trial court was informed of the
fact that Priyanka Tiwari was pursuing her studies abroad and would be
available to appear as witness during summer vacation. The fact that the trial
court adjourned the matter for a few dates notwithstanding this intimation
cannot be a factor to release the respondent No.2 who chose not to appear and
made a prayer for exemption on the ground that he was in custody in some other
case. The details of theses cases were not furnished to the Court though ample
opportunity was granted. The appellant is, therefore, justified in her
grievances that there has been misuse of the liberty and that the appellant has
unnecessarily prolonged the trial. The evidence of Priyanka Tiwari was of vital
importance to the case, but she had to go back to pursue her studies.
Therefore, her evidence was not recorded. This is a factor which has been lost
sight of.
High Court instead has unnecessarily emphasized on the number of
adjournments which, as noted above, has no relevance. The order of bail passed
by the High Court is not sustainable and is accordingly set aside.
The appeal is allowed.
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