PRASHANT SINGH RAJPUT versus THE STATE OF MADHYA PRADESH AND ANR. on 8 October 2021

[2021] 10 S.C.R. 161

PRASHANT SINGH RAJPUT

v.

THE STATE OF MADHYA PRADESH AND ANR.

(Criminal Appeal No. 1202 of 2021)

OCTOBER 08, 2021

[DR. DHANANJAYA Y CHANDRACHUD ANDB. V. NAGARATHNA, JJ.]

Code of Criminal Procedure, 1973: s. 439 – Anticipatory bailin murder case – FIR and the statements under ss. 161 and 164indicated a specific role in the crime to the two respondents – HighCourt granted anticipatory bail to the two respondents – Challengeagainst – Held: The order granting anticipatory bail ignoredmaterial aspects including nature and gravity of the offence andspecific allegations against the respondents – Hence sufficient casemade out for cancelling anticipatory bail granted by High Court.

Bail: Challenge to an order granting bail and applicationseeking cancellation of bail granted – Difference in the approachthe Court should adopt – The considerations that guide the powerof an appellate court explained in Mahipal case.

Allowing the appeals, the Court

HELD: 1. The material at this stage cannot be examinedwith a fine toothcomb in the manner of a criminal trial. What needsto be determined is whether the parameters for the grant ofanticipatory bail were correctly formulated and applied by theSingle Judge. [Para 21][174-A]

2. In relation to the present incident, the appellant’s caseis supported by the FIR, his statements under Sections 161 and164 of the CrPC, and the statements of the other two eye-witnesses under Section 164 of the CrPC. On the other hand,respondents rely on the counter FIR filed by co-accused accordingto which they were not present at the scene of crime andco-accused shot the deceased in self-defense.The orders of theJMFC advert to the contents of the FIR registered at the behestof the appellant. The investigating officer’s first report dated

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A15 December 2020 indicated that there was a prima facie caseagainst the co-accused. The supplementary challan dated 8 March2021 indicates that more material had emerged during the courseof investigation as against the events portrayed in the FIRregistered at the behest of co-accused. Hence, the case portrayedby the appellant could not have been ignored by solely relying onBthe counter-FIR. [Para 27][178-A-D]

3. The High Court has placed reliance upon the reportsubmitted under Section 173 of the CrPC on 15 December 2020to hold that the respondents were not present when the incidentoccurred. However, the High Court has not addressed the clearCdeficiencies in the course of the investigation which have beenhighlighted in the order of the JMFC dated 13 February 2021and the trial Court’s order dated 24 March 2021. These are, interalia: (i)the failure to notice eye-witness statements; (ii) relianceon CCTV footage for the period of time afterincident had occurred,Dignoring prior or contemporaneous footage; (iii)not collectingCCTV footage between Jabalpur and the scene of offence; (iv)relying on CDRs without determining if the respondents hadactually used the number; and (v) not conducting any finger printanalysis. In the order dated 13 February 2021, the JMFCidentified these deficiencies with the investigation and directedEfurther investigation. Upon the submission of the supplementarychallan, the JMFC noted in their order dated 10 March 2021that the challan was only in relation to co-accused, and did notaddress the role of the respondents. The obvious deficiencies inthe investigation have pointed out the errors in the trial Court’sForder rejecting the respondent’s applications for anticipatory bail.The Single Judge has, however, overlooked these crucial aspects.[Para 28][178-D-H]

4. It was also argued on behalf of respondents that whilethe appellant’s statement under Section 164 of the CrPC is thatGthe respondents also shot at the appellant, the FIR and hisstatement under Section 161 of the CrPC only record that he hithim with the butt of the gun. The trial is yet to take place wherethe evidence adduced by the prosecution will be appreciated,and the veracity of appellant’s claim in his statement under Section H

164 can be determined there. However, at the present stage, theFIR and both the appellant’s statements under Section 161 and164 are consistent in as much as that respondent did hit him inhis head with the butt of the gun. An argument has also beenraised in relation to the nature of the injury caused to the appellant,but this has to be decided at the stage of trial after evidence hasbeen led. [Para 29][179-A-C]

5. The Court has to determine whether on the basis of thematerial available at this stage, the High Court has applied thecorrect principles in allowing the applications for anticipatory bail.The offence is of a serious nature in which victim was murdered.The FIR and the statements under Sections 161 and 164 of theCrPC indicate a specific role to the respondents in the crime.The order granting anticipatory bail has ignored material aspects,including the nature and gravity of the offence, and the specificallegations against them. Hence, a sufficient case has been madeout for cancelling the anticipatory bail granted by the High Court.[Para 30][179-D-E]

Mahipal v. Rajesh Kumar (2020) 2 SCC 118 : [2019]14 SCR 529; Dr. Naresh Kumar Mangla v. AnitaAgarwal and Others 2020 SCC OnLine SC 1031 –relied on.

Case Law Reference

[2019] 14 SCR 529relied onPara 15 (v)

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1202 of 2021.

From the Judgment and Order dated 01.07.2021 of the High Courtof Madhya Pradesh, Jabalpur Bench in MCRC No.31835 of 2021.

With

Criminal Appeal No.1203 of 2021

Uday Gupta, Ms. Shivani M. Lal, Sourabh Singh, M. K. Tripathi,Harish Dasan, Rajiv Ranjan, Hiren Dasan, Abhinav Shrivastava, SunnyChoudhary, Advs. for the Appellant.

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AR. C. Mishra, Sr. Adv., S. K. Gangele, Ms. Priya Sharma, PrathviRaj Chauhan, Ms. Ritu Gangele, Rudra Kumar Dey, Arup Banerjee,Ananya Mishra, Ilin Saraswat, Mahendra Kumar, Santosh Kumar Pandey,Advs. for the Respondents.

The Judgment of the Court was delivered byBDR. DHANANJAYA Y CHANDRACHUD, J.

Index

AThe Appeal

BFacts

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CSubmissions

DAnalysis

EConclusion

A The appealD

1. These appeals arise from judgments dated 1 July 2021[1 ]and 31May 2021[2 ]of a Single Judge of the Jabalpur Bench of the High Courtfor the State of Madhya Pradesh through which it allowed the applicationsfor anticipatory bail filed by the second respondents in both the appealsunder Section 438 of the Code of Criminal Procedure 1973[3] in connectionEwith a crime[4] registered at the Police Station Majholi, District Jabalpur,State of Madhya Pradesh for the offences punishable under Sections302 and 323 read with Section 34 of the Indian Penal Code 1860[5].

2. The crime was registered on the basis of a dehatinalsi/FIRlodged by the appellant on 29 September 2020. The allegation in the FIRFis that the appellant was at Negai Tiraha with the deceased, Vikas Singh(who was his brother in-law) and two other individuals (Rajkishore Rajputand Dharmender Patel). It was alleged that the four accused persons,namely Ujiyar Singh, his two sons Chandrabhan Singh and SuryabhanSingh (the second respondent in the companion appeal) and his driverGJogendra Singh (the second respondent in the lead appeal) arrived in ajeep. Thereafter, allegedly due to a previous rivalry, Ujiyar Singh and 1 SLP (Criminal) No 5786 of 2021 (the “lead appeal“)

2 SLP (Criminal) No 5788 of 2021 (the “companion appeal“)3 “CrPC“4 Crime No 329 of 2020H5 “IPC“

Chandrabhan Singh shot at Vikas Singh, while Jogendra Singh held him,leading to his death while Suryabhan Singh hit the appellant on his headwith the butt of his gun, leading to an injury. Upon being brought to ahospital, Vikas Singh was pronounced dead, following which the appellantgot the FIR registered.

3. Suryabhan Singh and Jogendra Singh filed applications seekinganticipatory bail under Section 438 of the CrPC, apprehending their arrestin relation to the crime. While allowing the application for anticipatorybail of Jogendra Singh, the High Court noted that according to the reportsubmitted by the investigating officer under Section173 of the CrPC, theinvestigation did not reveal that he was even present at the spot of crime.The High Court observed that the veracity of such a report could not bequestioned at this stage. Further, it held that even if he was present atthe spot, there was no allegation against him of having fired at thedeceased-Vikas Singh or having provoked Ujiyar Singh/ChandrabhanSingh to fire at the deceased-Vikas Singh. Hence, the High Court passedthe following order allowing his application for anticipatory bail:

“So, looking to the facts and circumstances of the case, theapplication is allowed and it is directed that if the applicantsurrenders himself before concerned court within fifteen daysfrom today, he shall be released on anticipatory bail on furnishinga personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousandonly) with one surety in like amount to the satisfaction of theconcerned Court for his regular appearance before the Court duringtrial.

This order will remain operative subject to compliance of thefollowing conditions by the applicant:-

1. The applicant will comply with all the terms and conditions ofthe bond executed by him;

2. The applicant will cooperate in the investigation/trial, as thecase may be;

3. The applicant will not indulge himself in extending inducement,threat or promise to any person acquainted with the facts of thecase so as to dissuade him from disclosing such facts to the Courtor to the Police Officer, as the case may be;

4. The applicant shall not commit an offence similar to the offenceof which he is accused; A

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[2021] 10 S.C.R.

A5. The applicant will not seek unnecessary adjournments duringthe trial; and

6. The applicant will not leave India without previous permissionof the trial Court/Investigating Officer, as the case may be.”

Similarly, while considering the application filed by Suryabhan Singh,Bthe High Court observed that the report of the investigating officer underSection 173 of the CrPC indicated that he was not present at the spot ofthe incident, but was in Jabalpur on the basis of the statements ofwitnesses, tower location of mobile numbers of the accused personsand the CCTV footage. The High Court held that the ‘only’ allegationagainst Suryabhan Singh was that he attacked the appellant, but that itConly resulted in a simple injury. Hence, the High Court allowed hisapplication for anticipatory bail, observing:

“8… So, looking to the facts and circumstances of the case, theapplication is allowed and it is directed that if the applicantsurrenders himself before concerned court within fifteen daysDfrom today, he shall be released on anticipatory bail on furnishinga personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousandonly) with one surety in like amount to the satisfaction of theconcerned Court for his regular appearance before the Court duringtrial.

E9. This order will remain operative subject to compliance of thefollowing conditions by the applicant:-

1. The applicant will comply with all the terms and conditions ofthe bond executed by him;

2. The applicant will cooperate in the investigation/trial, as theFcase may be;

3. The applicant will not indulge himself in extending inducement,threat or promise to any person acquainted with the facts of thecase so as to dissuade him from disclosing such facts to the Courtor to the Police Officer, as the case may be;G4. The applicant shall not commit an offence similar to the offenceof which he is accused;

5. The applicant will not seek unnecessary adjournments duringthe trial; and

6. The applicant will not leave India without previous permissionHof the trial Court/Investigating Officer, as the case may be.”

B Facts

4. The genesis of this dispute between the deceased-Vikas Singhand the accused persons allegedly originated from complaints dated 23February 2019 and 27 July 2020 which the deceased-Vikas Singh hadfiled against the accused persons. In his complaint dated 23 February2019 against Ujiyar Singh and Suryabhan Singh, he had alleged that theaccused persons had been threatening him and his workers who wereengaged in farming activities, allegedly since they did not belong to thearea and had leased the land. He alleged that they had followed him intheir vehicle and had also gotten false complaints registered against him.Further, he alleged that they were threatening him because they wereengaged in the business of illegal mining of sand from the nearby riverand used to pass over the land on which he was cultivating presentlywhile transporting sand (which he had stopped them from doing since hestarted farming). He also alleged that he, and other residents of thevillage, had registered complaints against them previously but no actionhad been taken by the police.

5. Thereafter, in his complaint dated 27 July 2020 against JogendraSingh, Vikas Singh alleged that he had caught Jogendra Singh stealingthe illegally excavated sand which the police had seized from him earlier,following which Jogendra Singh threatened his life. On the basis of hiscomplaint, a crime[6] had been registered at the Police Station Panagar,District Jabalpur, State of Madhya Pradesh against Jogendra Singh underSection 379 of the IPC on 28 July 2020. Deceased-Vikas Singh had alsolodged another written complaint on 4 August 2020 where he allegedthat the he apprehended that his life was at risk at the hands of theJogendra Singh and his brother, who had been threatening him since thecrime had been registered based on his complaint.

6. On the other hand, according to Jogendra Singh and SuryabhanSingh, the complaints made by Vikas Singh were in fact counter-blastsfiled in response to a complaint dated 30 January 2019 filed by UjiyarSingh against him. In his complaint, Ujiyar Singh had alleged that in factit was the deceased-Vikas Singh who headed the sand mafia and it washe who complained against the deceased-Vikas Singh. Further, they alsoargue that the family of the deceased-Vikas Singh has criminalantecedents since: (i)the father of the deceased–Vikas Singh, after beingconvicted under Section 8 read with Section 20(b)(ii)(C) of the Narcotics A

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ADrugs and Psychotropic Substances Act 1985 and Section 25(1)(1B)(a)of the Arms Act 1959, has been undergoing rigorous imprisonment for20 years and 3 years respectively; and (ii) the grandfather of the deceasedwas arraigned as one of the accused in a case of murder with robbery.

7. In relation to the present case, according to the informationBprovided under Section 154 of the CrPC by the appellant, at around12:45 pm on 29 September 2020, the deceased-Vikas Singh along withthe appellant and two other individuals were near the Negai Tiraha. Theaccused persons allegedly arrived in a jeep, which was being driven byJogendra Singh. Once they parked the jeep, Ujiyar Singh allegedly sat ina chair while his sons (Chandrabhan Singh and Suryabhan Singh) stoodCnear him. Allegedly, due to their pre-existing enmity, Ujiyar Singh shotVikas Singh in his abdomen. When Vikas Singh tried to run, he was heldby Jogendra Singh. Chandrabhan Singh then took the gun from UjiyarSingh and is alleged to have shot Vikas Singh in the head, while SuryabhanSingh attacked the appellant on his head with the butt of the gun.DThereafter, the four accused persons are alleged to have left in theirjeep while the appellant and the other two individuals took Vikas Singhto a hospital, where he was pronounced dead. The statement of theappellant under Section 161 of the CrPC was recorded by the police on30 September 2020. Later, the statements of the appellant and the otheralleged eye-witnesses under Section 164 of the CrPC were recorded onE16 October 2020.

8. In relation to this same incident, Ujiyar Singh also got a crime[7]registered at the Police Station Majholi, District Jabalpur, State of MadhyaPradesh against the deceased-Vikas Singh and the appellant on30 September 2020 under Sections 294, 506, 323, 324 and 34 of theFIPC.In the cross-FIR, he alleged that the crime took place between12.45 pm to 1 pm on 29 September 2020. He alleged that he was beingdriven by his driver Babloo when he came across the deceased-VikasSingh and the appellant near Negai Tiraha. There, the deceased-VikasSingh allegedly started recording a video, told him he belonged to theGsand mafia and started abusing him. When he allegedly asked him tostop, the appellant is alleged to have assaulted him with a lathi on theleft side of his head above the ear which started bleeding, while thedeceased-Vikas Singh starting assaulting him with kicks and punches.He alleges that this is when he fired his registered firearm – a 0.22 rifle

– at Vikas Singh, which hit him in his stomach and head. The appellantallegedly then hit his hand with the lathi, due to which the butt and barrelof the gun broke apart and blood started oozing from his left hand.Allegedly, he then managed to run away from the spot with his driverBabloo.

9. During the investigation of the present incident, Jogendra Singhhad filed an application for anticipatory bail in the crime registered againsthim under Section 379 of the IPC for stealing sand. By its order dated 8October 2020, the High Court rejected the application, while noting thatthe objector (deceased-Vikas Singh) in the application had been murdered,in which Jogendra Singh was one of the individuals who had been namedas an accused in the FIR. The High Court had held:

“This case has transcended and gone beyond a simple case foranticipatory bail in a case of theft of sand. Subsequently, duringthe pendency of this application the objector has been murderedin which the applicant herein has been named as an accused andthere are eyewitness testimony which speak about his presenceat the scene of occurrence and also his participation in pullingback the deceased when the deceased tried to run away andsaved his life.

Be that as it may, this court refrains from passing any observationson the merits of Crime No. 329/2020 as the same is not beforethis court. But at the same time, this court cannot close its eyes tothe fact that the objector in this case has been murdered and thecase has taken a far more serious turn and is no more merelyrestricted to a case of theft of sand.

Under the circumstances, this may be a case that would requirecustodial interrogation as far as Crime No.720/2020 is concernedand, therefore, the application is dismissed.”

Thereafter, Jogendra Singh withdrew his application altogether,seeking to move an application for regular bail under Section 439 of theCrPC, which was recorded by the High Court in its final order dated 7January 2021.

10. In the final report submitted on 15 December 2020under Section173 of the CrPC, Ujiyar Singh and Chandrabhan Singh were named asaccused, butJogendra Singh and Suryabhan Singh were stated to havehad no role in the death of Vikas Singh since they were in Jabalpur, 40

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Akm away from the spot where the incident occurred.The report is statedto have been based on: (i) Call Data Records[8], Tower Mapping andPublic Switched Telephone Network[9] data from Jogendra Singh andSuryabhan Singh’s mobile phones; (ii) CCTV footage; and (iii) statementsof independent witnesses confirming their presence in Jabalpur.

B11. The appellant and other family members of the deceased-Vikas Singhfiled a protest petition. By an order dated 13 January 2021,the Judicial Magistrate First Class, Siroha[10 ] directed a further investigation,for the following reasons: (i) the investigating officer’s report focusedmore on the CCTV footage and witness statements proving JogendraSingh and Suryabhan Singh’s presence in Jabalpur, rather than the witnessCstatements of the appellant and other eye-witnesses who noted theirpresence at the spot where the crime occurred; (ii) the CCTV footageobtained by the police of the scene of crime was from 1.00 pm to 5.00pm, while the appellant’s FIR and even Ujiyar Singh’s FIR place thetime of the incident between 12 noon and 1 pm and 12.45 pm and 1.00Dpm respectively: (iii) the police had not checked the CCTV footage ofthe roads between the place where the incident took place and Jabalpur;(iv) there were inconsistencies between the statement of Ujiyar Singhand his FIR; (v) Jogendra Singh’s fingerprints had not been obtainedfrom the jeep (which he was alleged to be driving); and (vi) SuryabhanSingh’s finger prints had not been lifted from Ujiyar Singh’s gun.E

12. The investigating officer then filed a supplementary challanon 8 March 2021 indicating that on the basis of the further investigationdirected by the JMFC, evidence had emerged showing the involvementof Ujiyar Singh and Chandrabhan Singh in the death of Vikas Singh.Hence, in the order dated 10 March 2021, the JMFC observed that theFinvestigating officer had conducted an investigation only against UjiyarSingh and Chandrabhan Singh, and had not properly considered theaccusations against Suryabhan Singh and Jogendra Singh. Both of themwere thus summoned.

13. Jogendra Singh and Suryabhan Singh thenfiled applicationsGfor anticipatory bail[11]. By separate orders dated 24 March 2021, the trialCourt rejected their applications while noting that: (i) the earlier order 8 “CDRs“9 “PSTN“10 “JMFC“H11 Bail Application No 89 of 2021 and Bail Application No 88 of 2021

dated 13 January 2021 of the JMFChad adverted to the omissions of theinvestigating officer; (ii) the investigating officer relied upon CDRs butdid not ascertain if Jogendra Singh and Suryabhan Singh even used thosenumbers or whether they were just registered in their name; and (iii) thewitness statements under Sections 161 and 164 of the CrPC assign thema specific role, which cannot be overlooked only because of a priorenmity between the deceased-Vikas Singh and the accused persons.

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14. Jogendra Singh and Suryabhan Singh then moved the HighCourt in applications[12 ]for anticipatory bail. The High Court allowed theapplications on 1 July 2021 and 31 May 2021 respectively. The orders ofthe High Court are in question before this Court.

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C Submissions

15. Assailing the judgment of the Single Judge of the High Court,Mr Uday Gupta, learned Counsel appearing on behalf of the appellanthas urged the following submissions:

(i) The Single Judge relied exclusively upon the report of theinvestigating officer to hold that Jogendra Singh andSuryabhan Singh could not have been present at the spotwhere the incident occurred and that the veracity of thereport could not be called into question at this stage; D

(ii) The Single Judge ignored the observations in the order ofthe JMFC dated 13 January 2021 and in the subsequentorder of the trial Court dated 24 March 2021, which indicateEthat the investigation conducted by the investigating officerignored vital circumstances pertaining to the crime;

(iii) The Single Judge ignored the FIR and the statements ofthe appellant and the other eye-witnesses according to whichJogendra Singh and Suryabhan Singhwere present at theFspot since the four accused had come together in a jeep,and each had specific role in the crime: (a)Jogendra Singhwas driving the jeep and then held Vikas Singh while hewas trying to escape after Ujiyar Singh had shot him in theabdomen, following which Chandrabhan Singh shot him inthe head; and (b)Suryabhan Singh assaulted the appellantGwith the butt of the rifle;

(iv) That another Single Judge of the High Court rejected theapplication for anticipatory bail filed by Jogendra Singh evenin the case registered against him for illegal sand mining on H

12 MCRC No 31835 of 2021 and MCRC No 18604 of 2021

172SUPREME COURT REPORTS

Athe complaint filed by the deceased-Vikas Singh, due to thenature of allegations against him in the present case; and

(v) The Single Judge has ignored the seriousness and gravityof the crime as well as material aspects and hence, thisCourt should cancel the anticipatory bail granted, inBaccordance with the principles laid down by this Court inMahipal v. Rajesh Kumar[13] (“Mahipal”).

16. Mr S K Gangele, learned Counsel appearing on behalf ofJogendra Singh urged that:

(i) The report filed by the investigating officer shows thatCJogendra Singh was not present at the spot where theincident occurred, but was in Jabalpur;

(ii) The FIR registered at the behest of Ujiyar Singh providesan alternate explanation of the events leading to the deathof Vikas Singh, according to which Ujiyar Singh fired at theDdeceased since he and the appellant were threatening hislife; and

(iii) Ujiyar Singh’s FIR notes that his rifle was broken by theappellant and he was also injured by a lathi on his head andhand, both of which injuries have not been explained.

E17. Mr R C Mishra, learned Senior Counsel appeared on behalfof Suryabhan Singh, urged:

(i) The FIR has been registered due to enmity between hisfamily and the deceased-Vikas Singh who used to run asand mafia against which his father, accused Ujiyar Singh,Fhad complained. The deceased-Vikas Singh also had criminalantecedents;

(ii) The allegation that the appellant suffered an injury on hishead due to Suryabhan Singh assaulting him with the buttof the rifle is inconsistent with the nature of the injury, whichis an abrasion; andG

(iii) The FIR and the appellant’s statement under Section 161of the CrPC do not make any allegation of SuryabhanSinghhaving fired at the appellant prior to hitting him with agun, while his statement under Section 164 of the CrPC

H13 (2020) 2 SCC 118, para 16

makes that claim for the first time. No such empty cartridgehas been found and only the bullets in body of the deceased-Vikas Singhhave been recovered.

18. Mr Abhinav Srivastava, learned Counsel has appeared onbehalf of the State of Madhya Pradesh, urged that the order grantinganticipatory bail is unsustainable since:

(i) The crime is of a serious nature; and

(ii) As noted in JMFC’s order dated 13 January 2021, whileUjiyar Singh and Chandrabhan Singh had been arrested andkept in judicial custody, Jogendra Singh and Suryabhan Singhcontinued to abscond.

19. The rival submissions now fall for our consideration.

D Analysis

20. The FIR attributes specific roles to both Jogendra Singh andSuryabhan Singh in the commission of the crime. The statement of theappellant under Section 161 of the CrPC adverts to the following:(i) thatUjiyar Singh would take sand illegally mined through the land on whichhe was cultivating along with the deceased-Vikas Singh; (ii) when theytold Ujiyar Singh to desist, he took offence and filed false complaintsagainst the deceased-Vikas Singh; (iii) on 29 September 2020, thedeceased-Vikas Singh and the appellant went to Negai Tiraha in thevehicle of the deceased-Vikas Singhand reached there at about 1.00pm, where they met the two others (Rajkishore Rajput and DharmendraPatel); (iv) the four accused persons (Ujiyar Singh, Chandrabhan Singh,Suryabhan Singh and Jogendra Singh) arrived in a jeep being driven byJogendra Singh; (v) Vikas Singh received a call and started movingtowards Negai Road when Ujiyar Singh shot him in the abdomen; (vi)when Vikas Singh tried to flee, Jogendra Singh caught hold of him whileChandrabhan Singh took the gun from Ujiyar Singh and shot him in thehead; (vii)SuryabhanSingh took the gun from Chandrabhan Singh andassaulted the appellant on the head using the butt of the gun;(viii) oneNilesh Gotia came around in his car and saw them, following which theappellant and the other two individuals took Vikas Singh to a hospital inNilesh’s car, from where they transferred him to the medical college inan ambulance, where he was pronounced dead; and (ix) the police arrivedat the medical college, following which the appellant registered hiscomplaint.

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A21. The material at this stage cannot be examined with a finetooth comb in the manner of a criminal trial. What needs to be determinedis whether the parameters for the grant of anticipatory bail were correctlyformulated and applied by the Single Judge. The line of submission ofthe counsel for the accused persons dwells on some variance betweenthe statements of the appellant under Section 161 and Section 164 of theBCrPC, namely: (i) that the appellant and the deceased reached the NegaiTiraha around 12.15 pm, and not 1.00 pm; and (ii) after Vikas Singh wasshot in the head by Chandrabhan Singh, Suryabhan Singh first shot atthe appellant but the shot went above his head. Thereafter, SuryabhanSingh hit him in the head with the butt of the gun, following which theChandle of the rifle broke and fell there.

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22. The statement of Rajkishore Rajput, an eye-witness, underSection 164 of the CrPC mentions that: (i) on 29 September 2020, thedeceased-Vikas Singh came to his house at 9 am and told him to meethim at Negai Tiraha; (ii) he reached Negai Tiraha with DharmenderDPatel at 12 noon, following which the deceased-Vikas Singh arrived inhis vehicle with the appellant; and (iii) after committing the murder ofthe Vikas Singh, the four accused left in their jeep.

23. The statement of Dharmender Patel, another eye-witness,under Section 164 of the CrPC, mentions that when he reached NegaiETiraha, he saw Rajkishore Rajput who informed him that the deceased-Vikas Singh was about to arrive. Other than that, his statement accordswith those of the appellant and Rajkishore Rajput under Section 164.

D.1 Cancellation of Anticipatory Bail

24. In a recent judgment of a two Judge Bench of this Court inFMahipal(supra), this Court noted the difference in the approach thatthis Court must adopt while considering a challenge to an order whichhas granted bail and an application for cancelling the bail granted. TheCourt held:

“16. The considerations that guide the power of an appellate courtGin assessing the correctness of an order granting bail stand on adifferent footing from an assessment of an application for thecancellation of bail. The correctness of an order granting bailis tested on the anvil of whether there was an improper orarbitrary exercise of the discretion in the grant of bail. Thetest is whether the order granting bail is perverse, illegalH

or unjustified. On the other hand, an application for cancellationof bail is generally examined on the anvil of the existence ofsupervening circumstances or violations of the conditions of bailby a person to whom bail has been granted. In Neeru Yadav v.State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508: (2015) 3 SCC (Cri) 527] , the accused was granted bail by theHigh Court [Mitthan Yadav v. State of U.P., 2014 SCC OnLineAll 16031] . In an appeal against the order [Mitthan Yadav v.State of U.P., 2014 SCC OnLine All 16031] of the High Court, atwo-Judge Bench of this Court surveyed the precedent on theprinciples that guide the grant of bail. Dipak Misra, J. (as thelearned Chief Justice then was) held: (Neeru Yadav case [NeeruYadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri)527] , SCC p. 513, para 12)

“12. … It is well settled in law that cancellation of bail after it isgranted because the accused has misconducted himself or of somesupervening circumstances warranting such cancellation haveoccurred is in a different compartment altogether than an ordergranting bail which is unjustified, illegal and perverse. If in a case,the relevant factors which should have been taken intoconsideration while dealing with the application for bail havenot been taken note of, or bail is founded on irrelevantconsiderations, indisputably the superior court can set asidethe order of such a grant of bail. Such a case belongs to adifferent category and is in a separate realm. While dealingwith a case of the second nature, the Court does not dwellupon the violation of conditions by the accused or thesupervening circumstances that have happenedsubsequently. It, on the contrary, delves into the justifiabilityand the soundness of the order passed by the Court.”

17. Where a court considering an application for bail failsto consider relevant factors, an appellate court mayjustifiably set aside the order granting bail. An appellatecourt is thus required to consider whether the ordergranting bail suffers from a non-application of mind or isnot borne out from a prima facie view of the evidence onrecord. It is thus necessary for this Court to assess whether,on the basis of the evidentiary record, there existed a prima

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Afacie or reasonable ground to believe that the accused hadcommitted the crime, also taking into account theseriousness of the crime and the severity of thepunishment…”

(emphasis supplied)B

25. In another decision in Dr. Naresh Kumar Mangla v. AnitaAgarwal and Others[14 ]a three Judge Bench of this Court cancelled theanticipatory bail granted to the accused, following the unnatural death ofhis wife. The Court surveyed the authorities on the grant of anticipatorybail and held:C

“19. In the recent decision of the Constitution Bench in SushilaAggarwal v. State (NCT of Delhi) [(2020) 5 SCC 1], theconsiderations which ought to weigh with the Court in deciding anapplication for the grant of anticipatory bail have been reiterated.The final conclusions of the Court indicate that:

D

“….92.3…While considering an application (for grant ofanticipatory bail) the court has to consider the nature of the offence,the role of the person, the likelihood of his influencing the courseof investigation, or tampering with evidence (including intimidatingwitnesses), likelihood of fleeing justice (such as leaving theEcountry), etc.

92.4. Courts ought to be generally guided by considerations suchas the nature and gravity of the offences, the role attributed to theapplicant, and the facts of the case, while considering whether togrant anticipatory bail, or refuse it. Whether to grant or not is aFmatter of discretion; equally whether and if so, what kind of specialconditions are to be imposed (or not imposed) are dependent onfacts of the case, and subject to the discretion of the court.”

20. The Constitution Bench has reiterated that the correctness ofan order granting bail is subject to assessment by an appellate orGsuperior court and it may be set aside on the ground that theCourt granting bail did not consider material facts or crucialcircumstances…

[…]

22. It is apposite to mention here the distinction between theconsiderations which guide the grant of anticipatory bail and regularbail. In Pokar Ram v. State of Rajasthan [(1985) 2 SCC 597],while setting aside an order granting anticipatory bail, this Courtobserved:

“…Says the learned Chief Justice that in regard to anticipatorybail, if the proposed accusation appears to stem not from motivesof furthering the ends of justice but from some ulterior motive, theobject being to injure and humiliate the applicant by having himarrested, a direction for the release of the applicant on bail in theevent of his arrest would generally be made. It was observed that“it cannot be laid down as an inexorable rule that anticipatory bailcannot be granted unless the proposed accusation appears to beactuated by mala fides; and, equally, that anticipatory bail must begranted if there is no fear that the applicant will abscond”. Someof the relevant considerations which govern the discretion, noticedtherein are “the nature and seriousness of the proposed charges,the context of the events likely to lead to the making of the charges,a reasonable possibility of the applicant’s presence not beingsecured at the trial, a reasonable apprehension that witnesses willbe tampered with and ‘the larger interests of the public or theState’, are some of the considerations which the court has tokeep in mind while deciding an application for anticipatory bail”.A caution was voiced that “in the evaluation of the considerationwhether the applicant is likely to abscond, there can be nopresumption that the wealthy and the mighty will submit themselvesto trial and that the humble and the poor will run away from thecourse of justice, any more than there can be a presumption thatthe former are not likely to commit a crime and the latter aremore likely to commit it.””

26. Let us now consider these principles in the context of thefacts of the present case. Both the sides have presented their point-of-view in relation to the enmity which existed between the deceased-Vikas Singh and the family of Ujiyar Singh. However, we are not requiredto adjudicate on whether it was the deceased-Vikas Singh or UjiyarSingh who was mining sand illegally; rather, it is sufficient to note thatprevious enmity did exist between both, whoever be the instigator.

A

BC

DE

F

G

H

A27. In relation to the present incident, the appellant’s case issupported by the FIR, his statements under Sections 161 and 164 of theCrPC, and the statements of the other two eye-witnesses under Section164 of the CrPC. On the other hand, Jogendra Singh and SuryabhanSingh rely on the counter FIR filed by Ujiyar Singh according to whichthey were not present at the scene of crime and Ujiyar Singh shot theBdeceased-Vikas Singh in self-defense.The orders of the JMFC dated 13January 2021 and 10 March 2021 advert to the contents of the FIRregistered at the behest of the appellant. The investigating officer’s firstreport dated 15 December 2020 indicated that there was a prima faciecase against Ujiyar Singh and Chandrabhan Singh. The supplementaryCchallan dated 8 March 2021 indicates that more material had emergedduring the course of investigation as against the events portrayed in theFIR registered at the behest of Ujiyar Singh. Hence, the case portrayedby the appellant could not have been ignored by solely relying on thecounter-FIR.D28. The High Court has placed reliance upon the report submittedunder Section 173 of the CrPC on 15 December 2020 to hold thatJogendra Singh and Suryabhan Singh were not present when the incidentoccurred. However, the High Court has not addressed the cleardeficiencies in the course of the investigation which have been highlightedin the order of the JMFC dated 13 February 2021 and the trial Court’sEorder dated 24 March 2021. These are, inter alia: (i) the failure tonotice eye-witness statements; (ii) reliance on CCTV footage for theperiod of time afterincident had occurred, ignoring prior orcontemporaneous footage; (iii) not collecting CCTV footage betweenJabalpur and the scene of offence; (iv) relying on CDRs withoutFdetermining if Jogendra Singh and Suryabhan Singh had actually usedthe number; and (v) not conducting any finger print analysis. In the orderdated 13 February 2021, the JMFC identified these deficiencies with theinvestigation and directed further investigation. Upon the submission ofthe supplementary challan, the JMFC noted in their order dated 10March 2021 that the challan was only in relation to Ujiyar Singh andGChandrabhan Singh, and did not address the role of Jogendra Singh andSuryabhan Singh. The obvious deficiencies in the investigation havepointed out the errors in thetrial Court’s order dated 24 March 2021rejecting Jogendra Singh and Suryabhan Singh’s applications foranticipatory bail. The Single Judge has, however, overlooked these crucialHaspects.

29. Finally, it has also been argued on behalf of Suryabhan Singhthat while the appellant’s statement under Section 164 of the CrPC isthat Suryabhan Singh also shot at the appellant, the FIR and his statementunder Section 161 of the CrPC only record that he hit him with the buttof the gun. The trial is yet to take place where the evidence adduced bythe prosecution will be appreciated, and the veracity of appellant’s claimin his statement under Section 164 can be determined there. However,at the present stage, the FIR and both the appellant’s statements underSection 161 and 164 are consistent in as much as that Suryabhan Singhdid hit him in his head with the butt of the gun. An argument has alsobeen raised in relation to the nature of the injury caused to the appellant,but this has to be decided at the stage of trial after evidence has beenled.

30. The Court has to determine whether on the basis of the materialavailable at this stage, the High Court has applied the correct principlesin allowing the applications for anticipatory bail. The offence is of aserious nature in which Vikas Singh was murdered. The FIR and thestatements under Sections 161 and 164 of the CrPC indicate a specificrole to Jogendra Singh and Suryabhan Singh in the crime. The ordergranting anticipatory bail has ignored material aspects, including the natureand gravity of the offence, and the specific allegations against JogendraSingh and Suryabhan Singh. Hence, a sufficient case has been made outfor cancelling the anticipatory bail granted by the High Court.

E Conclusion

31 Therefore, the appeals are allowed. The impugned judgmentsdated 1 July 2021 and 31 May 2021 of the Single Judge of the HighCourt of Madhya Pradesh granting anticipatory bail to Jogendra Singhand Suryabhan Singh–the second respondents in these appeals– are setaside.

32 Pending applications, if any, also stand disposed of.

Devika Gujral

Appeals allowed.

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B

C

DE

F

G

H