Bhuvaneshwar Yadav Vs.
State of Bihar & Ors.  INSC 2034 (28 November 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising
out of SLP (Crl.) No.5255 of 2007) Bhuvaneshwar Yadav ..Appellant Versus State
of Bihar and Ors. ..Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the order passed by a Division Bench of the Patna High
Court granting bail to Respondents 2 and 3 who were convicted for offence punishable
under Section 302 of the Indian Penal Code, 1860 (in short the `IPC') and under
Section 27 of the Arms Act, 1959 (in short the `Arms Act'). Two other persons
namely, Nirmal Singh and Shiv Janam Singh were also convicted in terms of
Section 302 read with Section 34 IPC. Four other accused persons were acquitted
by the Trial Court. Respondents 2 and 3 filed Criminal Appeal No. 90 of 2004
before the Patna High Court in which the present appellant, the informant has
also appeared. Though prayers for bail were earlier made during the pendency of
the appeal, they were rejected on 23.3.2004 and 24.8.2006. However, liberty was
granted in the latter case to renew the prayer for bail after six months.
It was again made on
14.3.2007 which has been allowed by the impugned order.
to the appellant, the impugned order of the High Court shows a total non
application of mind. No reason has been indicated as to why the prayer for bail
was accepted after same was rejected on two earlier occasions, when there was
no change in circumstances.
counsel for the respondent-State supported the stand of the appellant.
is no appearance on behalf of Respondents 2 and 3 in spite of service of
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:
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 3 case of State of Punjab and Ors. v. Jagdev Singh Talwandi (AIR 1984
aspects were recently highlighted in V.D. Chaudhary v. State of Uttar Pradesh
and Anr. (2005 (7) SCALE 68).
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.
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;
apprehension of tampering of the witness or apprehension of threat to the
3. Prima facie
satisfaction of the Court in support of the charge.
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].
position is not different when the application is made during pendency of an
appeal after conviction has been recorded. The satisfaction about guilt of the
accused has been arrived at while recording conviction.
above position was highlighted by this Court in Chaman Lal v.Sate of U.P. and
Anr. (JT 2004 (6) SC 540) and Anwari Begum v. Sher Mohd. (2005 (7) SCC 326) 13.
The order impugned in the present appeal reads as follows:
counsel for the appellants, State and the informant.
It appears that by
order dated 24.8.2006 the prayer for bail of the appellants was rejected with
liberty to renew after six months.
view of above, let appellants, Lallu Singh and Dhanu Singh be released on bail
during the pendency of the appeal on furnishing bail bond of Rs.10,000/- each
with two sureties of the like amount each to the satisfaction of the trial
Court i.e. Ist Additional Sessions Judge, Ara, Bhojpur in S.Tr. No. 32 of 2001."
High Court noticed that earlier the bail was rejected, but liberty was granted
to renew the prayer after six months. That does not in any way show that there
was entitlement for getting the bail. The impugned order of the High Court
shows total non application of mind and is therefore set aside. The appeal is
allowed. The bail application shall be reconsidered on merits and shall be
disposed of by a reasoned order. If the respondents have been released on bail,
they shall surrender to custody forthwith.
(Dr. ARIJIT PASAYAT)
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