Masroor Vs. State of
U.P. & ANR. [2009] INSC 826 (27 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. __838__ OF 2009
ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 3572 OF 2008 Masroor ...
Appellant Versus State of U.P. & Anr. ... Respondents
D.K. JAIN, J.
1.
Leave
granted.
2.
Challenge
in this appeal by the complainant is to the order dated 10th March, 2008 passed
by a Single Judge of the High Court of Judicature at Allahabad in Criminal
Miscellaneous Bail Application No. 4167 of 2008, granting bail to the second
respondent, Chhunnu @ Chhidda. The said respondent was one of the persons named
in FIR No.181 of 2007, registered at Police Station Asmouli, District Moradabad
against 22 persons. The FIR was initially registered for offences under 2
Sections 147, 148, 149 and 307 of the Indian Penal Code ("IPC" for
short), but subsequently, on the death of two injured persons, Section 302, IPC
was also added. The first respondent is the State of U.P.
3.
Briefly
stated, the background facts giving rise to the present appeal are as follows:
On 18th September,
2007, at about 5.25 p.m., an FIR was lodged by the appellant with the said
police station for an incident which took place at about 3.30 p.m. at village
Asmouli. The case was registered as Crime Case No. 347 of 2007. It was reported
that at about 3.30 p.m., on that day the appellant had gone to the shop of one
Anzar s/o Mehboob where one Basiruddin @ Lala also came to buy some fruits. On
Anzar's (shopkeeper) refusal to sell goods to him on credit, Basiruddin started
beating him, on which the appellant intervened. Being annoyed, Basiruddin left
the place. But, after a short while he came back, accompanied by 21 other
persons, including the second respondent. All of them were armed with guns and
country made firearms. Due to fear, the appellant rushed to the house of his
brother Qayyum. All the said 22 persons attacked the house of Qayyum. On
hearing noise, the 3 residents of the house and many other residents of the
village, collected at the spot. The said accused started firing
indiscriminately, injuring 9 persons. Some of them sustained multiple injuries.
All the injured persons were removed to the District hospital for examination.
As per the medical reports, the injured persons sustained gunshot injuries
which were grievous in nature. Two persons, namely, Anzar Hussain s/o Mazhar
Hussain and Rizwan @ Bhoora s/o Matloob Hussain, later succumbed to their
injuries. While Rizwan died on 19th September, 2007, Anzar Hussain died on 30th
September, 2007.
4.
On
the very same day viz. 18th September, 2007, another FIR (No.182 of 2007),
pertaining to the same incident, was lodged at about 6.40 p.m. by the said
Basiruddin @ Lala against 25 persons, inter alia, alleging that when he went to
the shop of Anzar s/o Mehboob to buy some vegetables, he told Anzar that his
vegetables were very expensive, on which Anzar and one Shahroz, who was
standing there, started abusing him. When Basiruddin protested, they started
beating him with legs and fists. Basiruddin then came back home but after some
time, many people, including Shahroz, 4 Anzar (since deceased) and Qayyum,
came to his house and started firing with an intention to kill him.
5.
The
persons named in the first FIR were arrested on different dates. Upon recording
the statements of some eye- witnesses, including the injured witnesses,
charge-sheet was filed against all the 22 accused persons named in Crime Case
No.347/2007, including the second respondent, on 19th November, 2007.
6.
The
second respondent moved an application before Additional Sessions Judge/Fast
Track Court, Moradabad for grant of bail. Keeping in view the fact that two
persons had died and few others had sustained multiple injuries, by an order
dated 18th January, 2008, the Addl. Sessions Judge rejected the bail application.
On 20th February, 2008, charges were framed against all the accused for
offences under Sections 148, 307 read with Section 149 IPC and Section 302 read
with 149, IPC.
7.
Aggrieved
by the order passed by the trial Court rejecting his bail application, the
second respondent preferred the aforementioned bail application before the High
Court. As 5 noted above, by the impugned order, the High Court allowed the
application and granted bail to the second respondent.
The operative part of
the impugned order reads as follows:
"Considering the
facts, circumstances of this case, submissions made by learned counsel for the
applicant, learned A.G.A., learned counsel for the complainant and without
expressing any opinion on the merits of the case, the applicant is entitled to
be released on bail with the below mentioned conditions.
Let the applicant
Chhunna @ Chhidda involved in Crime Case No. 347 of 2007 under Sections 147,
148, 149, 307 & 302, IPC, P.S. Asmoli, District Moradabad be released on
bail on his furnishing a personal bond and two heavy sureties each in the like
amount to the satisfaction of the Court concerned.
7 The applicant shall
report to the court of learned C.J.M. concerned in the first week of each month
to show his good conduct and behaviour.
7 He shall not tamper
with the evidence.
In case of default of
any of the above mentioned conditions, the bail granted to the applicant shall
be deemed cancelled and he shall be taken into custody forthwith."
8.
Being
aggrieved by the order enlarging the second respondent on bail, the complainant
is before us in this appeal.
9.
Learned
counsel appearing for the appellant strenuously urged that the High Court has
not only failed to take into consideration the circumstances under which a
heinous crime, resulting in loss of two lives and grievous injuries to a number
of persons was committed, it also failed to record any reason as to why the
bail was being granted to the said respondent. It was argued that the order
suffers from the vice of non-application of mind and, therefore, deserves to be
set aside. In support of the proposition that any order de hors the reasons for
grant of bail suffers from non-application of mind, learned counsel placed
reliance on the decisions of this Rajesh Ranjan @ Pappu Yadav & Anr.4. It
was also pointed out that relying on the order impugned in this appeal, all
other accused have also been released on bail.
1 (2001) 6 SCC 338 2
JT 2002 (2) SC 431 3 (2002) 3 SCC 598 4 (2004) 7 SCC 528
10.
Learned
counsel appearing for the second respondent, supported the order passed by the
High Court. It was contended that the reasons for grant of bail are implicit in
the preceding paragraphs of the impugned order, wherein the contentions of both
the sides have been recorded by the High Court. Learned counsel also submitted
that there being cross versions of the incident, as projected in the FIRs
lodged by both the sides, the High Court was justified in granting bail to the
said respondent. It was urged that the present appeal not being one for
cancellation of bail on any of the grounds contemplated in Section 439 (2) of
the Code of Criminal Procedure (for short "the Code"), there is no
other reason warranting interference by this Court.
11.
Normally
this Court does not interfere with the order of the High Court relating to
grant or rejection of bail but in the instant case, having carefully gone
through the impugned order, we are constrained to observe that the High Court
has completely ignored the basic principles which are to be kept in view while
dealing with an application filed under Section 439 of the Code for grant of
bail and has thus, committed a 8 manifest error in the matter of grant of bail
to the second respondent, warranting interference by this Court.
12.
It
is trite to state that the Court granting bail has to exercise its discretion
in a judicious manner with care and caution and not as a matter of course.
Though at the stage of granting bail an elaborate examination of evidence and
detailed reasons touching the merit of the case, which may prejudice the
accused, should be avoided but there is a need to indicate in such order
reasons for prima facie concluding why bail was being granted particularly
where the accused is charged of having committed a serious offence. Any order
devoid of such reasons would suffer from non-application of mind. It is also
necessary for the Court granting bail to consider among other circumstances,
the following factors also before granting bail; they are:
(a) The nature of
accusation and the severity of punishment in case of conviction and the nature
of supporting evidence.
(b) Reasonable
apprehension of tampering with the witness or apprehension of threat to the
complainant.
(c) Prima facie
satisfaction of the Court in support of the
13.
There
is no denying the fact that the liberty of an individual is precious and is to
be zealously protected by the Courts.
Nonetheless, such a
protection cannot be absolute in every situation. The valuable right of liberty
of an individual and the interest of the society in general has to be balanced.
Liberty of a person
accused of an offence would depend upon the exigencies of the case. It is
possible that in a given situation, the collective interest of the community
may outweigh the right of personal liberty of the individual concerned. In this
context, the following observations of this are quite apposite:
"Liberty is to
be secured through process of law, which is administered keeping in mind the
interest of the accused, the near and dear of the victim who lost his life and
who feel helpless and believe that there is no justice in the world as also the
collective interest of the community so that parties do not lose faith in the
institution and indulge in private retribution."
(2002) 3 SCC 598 6
(2001) 6 SCC 338 7 (2004) 7 SCC 528 8 (1987) 2 SCC 684
14.
Therefore,
the question for consideration is whether having regard to the nature of the
offences the second respondent has been charged with; the background in which
these were committed and the stage of the trial, the High Court was justified
in granting bail to the said respondent and set him free?
15.
As
noted earlier, according to both the FIRs, the genesis of the incident is some
heated argument between accused Basiruddin and Anzar (shopkeeper). Perhaps on
refusal by Anzar to sell his goods to Basiruddin on credit, he took it as a
personal affront and the altercation ensued. Though the stand of Basiruddin in
the FIR lodged by him is that after the incident, he had gone back to his house
but the fact remains that after the investigation, which included recording of
statements of many persons, a chargesheet for serious offences has been filed
against 22 persons, including the second respondent, for committing the murder
of two persons and causing multiple injuries to 8 persons. The background of
the incident, the nature of the assembly, the nature of the arms carried by the
accused and the manner in 1 1 which the offences were committed, prima facie,
reflect the character and the conduct of the accused for whom perhaps refusal
by the shopkeeper to sell goods on credit was a challenge to their authority
and the power they wielded in the area. Be that as it may, the significant
feature of the case is that the learned Judge, except for recording the
submissions of counsel for both the parties, has not indicated any reason
whatsoever for grant of bail. This is manifest from the afore- extracted order
that there is no consideration of any of the factors, like nature of the
offence; the evidence collected by the prosecution and forming part of the
charge sheet and the circumstances under which the offences were committed, all
relevant for deciding the question whether the bail should be granted or not.
In our opinion, failure on the part of the learned judge in not indicating any
reason for grant of bail particularly when charges against the second
respondent are serious, makes his order indefensible. As observed by this Court
in Puran's case (supra), giving reasons is different from discussing merits or
demerits. At the stage of granting bail, a detailed examination of evidence and
elaborate documentation of the merits of the case is not to be 1 2 undertaken
but that does not mean that while granting bail some reasons for prima facie
concluding why bail was granted are not to be indicated, which is the case
here.
16.
For
the foregoing reasons, the appeal is allowed and the impugned order granting
bail to the second respondent is set aside. The bail bond and surety furnished
by the said respondent in terms of the High Court's order stand cancelled and
it is directed that he shall be taken into custody forthwith.
17.
Before
closing, we may also note some disturbing features of the case, which not only
show the lack of will on the part of prosecution to get the guilty punished as
early as possible, it also prima facie, shows some unholy nexus between the
prosecuting agency and the accused. In the first instance, the prosecution did
not question the order passed by the High Court granting bail to the second
respondent and other accused and after the framing of charges as far back as on
20th February, 2008 not a single witness has been examined by the prosecution
so far. We say no more.
18.
It
goes without saying that any observations touching the merits of the case
against the second respondent are purely for the purpose of deciding the
question of grant of bail and shall not be construed as an expression of final
opinion in the main matter.
19.
We
may also clarify that if in future any application for grant of bail is filed
by the second respondent, it shall be considered on its own merits,
uninfluenced by this order.
...........................................J.
( D.K. JAIN )
...........................................J.
( R.M. LODHA )
NEW
DELHI,
APRIL
27, 2009.
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