Khilari Vs. State of
U.P.& Ors.  INSC 140 (23 January 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 141 OF 2009
(Arising out of S.L.P. (Crl.) No.2589 of 2008 Khilari ....Appellant Versus
State of U.P. & Ors. ....Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the order passed by a Division Bench of the Allahabad High
Court allowing the prayer for bail made by respondent nos.2 and 3 during the
pendency of Criminal Appeal No.6724 of 2006.
Challenge before the
High Court was to the conviction recorded by learned Sessions Judge, Bagpat, in
Sessions Trial No.299 of 2000. Respondent nos.
2 and 3 were
convicted for offences punishable under Section 302 and Section 506 of the
Indian Penal Code, 1860 (in short `IPC') and each was sentenced to undergo
imprisonment for life and one year for the offences respectively. The accused
persons were convicted allegedly for committing murder of Shiv Kumar.
Challenging the conviction appeal has been filed and simultaneously prayer for
being released on bail during the pendency of the appeal was filed. By the
impugned order the Division Bench accepted the prayer and granted bail to the
respondent nos. 2 & 3. The High Court noted that the allegation was that
the incident took place on 8.6.2000 at about 8.30 p.m. and accused persons
assaulted Shiv Kumar (hereinafter referred to as the `deceased') mercilessly
with iron rods and he succumbed to the injuries.
only stand taken before the High Court was that the ante mortem injuries on the
body of the deceased included three contusions, one abraded contusion and four
lacerated wounds of different dimensions on various parts of the body which
could not have been caused by iron rods. It was their stand that some unknown
assailants caused the injuries to the deceased. It was also submitted that by
order dated 15.11.2006 the co- accused has been released on bail.
prosecution and the present appellant opposed the prayer for grant of bail. It
was their stand that PWs 1 and 2 and the informant had seen the attacks and
were eye-witnesses to the occurrence and PW3 is an independent witness. Their
evidence has been analysed in great detail by the trial Court who found it to
be credible and cogent. So far as the possibility of injuries is concerned, that
aspect was also examined by the trial Court.
noticing the rival stands, the High Court by the impugned order granted the
bail with the following conclusions:
fact and circumstances of the case but without making any opinion on the merit
of the appeal at this stage, we are of the view that the accused- appellants
Dharmendra and Manoj shall also be released on bail."
counsel for the informant appellant submitted that the approach of the High
Court is clearly erroneous. After the conviction has been recorded by believing
three eye witnesses and also discarding the stand that some of the injuries
were not possible by iron rods, the High Court should not have by a cryptic
order directed grant of bail. It was, therefore, submitted that the impugned
order is unsustainable.
counsel for the State supported the stand of the informant.
counsel for the respondent nos.2 and 3 accused submitted that it is common
knowledge that appeals in the High Court take a long time for disposal. A
balance has to be struck between the right to speedy trial and the need for the
accused being in custody. The High Court has taken note of relevant factors and
has granted bail.
parameters to be adopted while dealing with the application for bail by
suspension of sentence during the pendency of the appeal has been examined by
this Court in several cases. In Kishori Lal v. Rupa and Ors.
(2004 (7) SCC 638) it
was noted as follow:
"4. Section 389
of the Code deals with suspension of execution of sentence pending the appeal
and release of the appellant on bail. There is a distinction between bail and
suspension of sentence. One of the essential ingredients of Section 389 is the
requirement for the appellate court to record reasons in writing for ordering
suspension of execution of the sentence or order appealed against. If he is in
confinement, the said court can direct that he be released on bail or on his
The requirement of
recording reasons in writing clearly indicates that there has to be careful
consideration of the relevant aspects and the order directing suspension of
sentence and grant of bail should not be passed as a matter of routine.
5. The appellate
court is duty-bound to objectively assess the matter and to record reasons for
the conclusion that the case warrants suspension of execution of sentence and
grant of bail. In the instant case, the only factor which seems to have weighed
with the High Court for directing suspension of sentence and grant of bail is
the absence of allegation of misuse of liberty during the earlier period when
the accused-respondents were on bail."
Anwari Begum v. Sher Mohammad and Anr. (2005 (7) SCC 326) it was, inter alia,
observed as follows:
"7. Even on a
cursory perusal the High Court's order shows complete non-application of mind.
Though a 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.
8. 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;
apprehension of tampering with the witness or apprehension of threat to the
3. 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 & 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)."
the extracted portion of the High Court's order goes to show there was complete
non-application of mind and non-consideration of the relevant aspects. The
order relating to grant of bail in respect of co-accused by order dated
15.11.2006 was the subject matter of challenge in Pancham Chand & Ors. v.
State of Himahal Pradesh & Ors. (2008 (3) SCALE 379) and the order was set
impugned order, therefore, is not sustainable and is set aside.
The bail granted to
the respondent nos. 2 and 3 is cancelled. The matter is remitted to the High
Court for fresh consideration in accordance with law.
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)
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