BHOOPENDRA SINGH versus THE STATE OF RAJASTHAN on 29 October 2021

1. This appeal arises from a judgment dated 11 August 2021 of aSingle Judge at the Jaipur Bench of the High Court of Judicature forDRajasthan. By the judgment impugned in the appeal, the High Court hasallowed the fifth bail application of the second respondent.

2. FIR No. 732 of 2017 was registered at Police StationMathuraghat for offences punishable under Sections 147, 148, 149, 323,341, 307, 302 and 336 of the Indian Penal Code 1860[1]. While allowingthe application for bail, the Single Judge has observed:E

“6. Taking note of the fact that petitioner has remained in custodyfora period of three years and ten months, she is a female, noovert act is assigned to her in the present case, co-accused VijayPalagainst whom there was allegation has been given benefit ofbail,after rejection of fourth bail application by this Court, thereFisvariance in prosecution story, earlier the presence of accusedwass[h]own at the tea shop and later on presence of accusedaccordingto witness is shown at the place of occurrence andconclusion oftrial will take time, hence, I deem it proper to allowthe fifth bail application.”

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3. The appellant is the son of the deceased-Daansingh- who wasthe Sarpanch of the village. It has been alleged that there was a priorenmity between the accused and the deceased, as a consequence ofwhich the husband of the second respondent together with certain othermembers of his family and sharp shootersshot at Daansingh in September H1 “IPC“

2015. Daansingh survived the incident. FIR No. 466 of 2015 underSection 307 of the IPC was registered at Police Station Kumher. Thesecond respondent was arrested and charge-sheeted. The evidence ofDaansingh was to be recorded at the criminal trial. A fortnight prior tothe recording of his evidence, Daansinghwas murdered on 11 September2017.

4. On 12 September 2017, FIR No. 732 of 2017 was registered atPolice Station Mathuraghat by the brother of the appellant for offencespunishable under Sections 147, 148, 149, 323, 341, 307, 302 and 336 ofthe IPC and Sections 3/25 and 4/25 of the Arms Act 1959. The secondrespondent was arrested on 3 October 2017. After investigation, thefinal report under Section 173 of the Code of Criminal Procedure Code1973[2 ]was submitted on 28 December 2017 in which the second respondenthas been named as an accused.

5. The second respondent was denied bail by the High Court on 6April 2018, 5 September 2019 and 8 September 2020. In its order dated5 September 2019, the High Court noted:

“5. […] I.O. is present in person in the Court, who has producedthe calls details. It is informed by Investigating Officer that twomobiles were recovered from the petitioner and from I.M.E.I.number, it is revealed that different sims were used in thesemobiles and two sims that was used, petitioner was in contactwith Prahlad and her son Anek Singh, who is also accused in thiscase. It is also informed that day prior to the incident, petitionerand one Bhuria came to the office of A.S.I and threatened tomurder Dansingh. It is also informed that petitioner informed theshooter about movement of the deceased and she was constantlyin touch with Prahlad and her son-Anek Singh.”

6. By its order dated 8 September 2020, the High Court,whiledismissingthe fourth bail application, also observed that the secondrespondent was not co-operating in the investigation.

7. The High Court has allowed the fifth application for bail of thesecond respondent observing that

(i) The second respondent is a woman;

(ii) She has been in custody for three years and ten months; 2 “CrPC“

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A(iii)No overt act was assigned to her in the present case;

(iv) Co-accused Vijaypal has been granted bail;

(v) There is a variance in the story of the prosecution in respectof the location of the second respondent; and B(vi)The conclusion of the trial is likely to take time.8. Mr Namit Saxena, counsel appearing on behalf of the appellantsubmitted that:

(i) The High Court is in error in proceeding on the basis thatno overt act is attributed to the second respondent sinceCthe charge-sheet, which has been submitted afterinvestigation, indicates that a.The second respondent was using as many as foursim cards and was in constant contact withPrahlad,the co-accused who was hired as a sharpDshooter, and her son Anek, who is also a co-accused;and b.The second respondent was the custodian of theweapons used in the crime;

(ii) The High Court had in its order dated 8 September 2020Especifically noted that the second respondent was not co-operating in the investigation of the case;

(iii) Four earlier bail applications have been rejected and therewasno change in the circumstances to warrant the grant ofbail;F

(iv) No parity could be claimed with the co-accusedVijaypalsince he has not been charge-sheeted;

(v) The investigation has revealed that the deceased wasmurdered with the aid of a hired sharp-shooter shortly beforeGhe was to depose at the criminal trial in the case arising outof FIR No. 466 of 2015 under Section 307 of the IPC;

(vi) The second respondent, as the prosecution alleges, wasfollowing the car of the deceased and was providinginstructions about his location to the sharp-shooter; and H

BHOOPENDRA SINGH v. THE STATE OF RAJASTHAN[DR. DHANANJAYA Y CHANDRACHUD, J.]

(vii) Even the brother of the appellant, Gopal Singh,was assaultedAshortly before his testimony was to be recorded.

9. On the other hand, Mr Vivek Sood, senior counsel appearingon behalf of the second respondent submitted that:

(i) The incident took place outside the house of the deceasedBin which event, the role attributed to the second respondentis rendered meaningless;

(ii) There has been a clear over-implication of members of thefamily in the FIR since as many as six persons are allegedto have shot at the deceased whereas only two bullets wereCrecovered;

(iii) Two of the persons named in the FIR have not been charge-sheeted;

(iv) The second respondent is sixty years old and was releasedon bail after being in custody for three years and ten months;D

(v) 28 out of 58 witnesses have been examined and the trial islikely to take some time; and

(vi) Anek Singh with whom the second respondent is alleged tohave been in contact is her son, while Prahlad, the allegedsharp-shooter, is a relative and hence there would be nothinguntoward in the mobile contact.

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10. Ms Ritika Jhurani, counsel appearing on behalf of the State ofRajasthan submitted that:

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(i) The High Court has not considered the gravity of the crimewhile granting bail to the second respondent;

(ii) No parity could have been claimed with co-accused Vijaypalwho was granted bail since he was not found to be involvedin the incident and was not charge-sheeted; and G

(iii) On the other hand, the second respondent was found to bedirectly involved in the conspiracy of a pre-meditatedmurder.

A11. In Anil Kumar Yadav v. State (NCT of Delhi)[3],this Courthas spelt out some of the significant considerations which must be placedin the balance in deciding whether to grant bail:

“17. While granting bail, the relevant considerations are: (i) natureof seriousness of the offence; (ii) character of the evidence andBcircumstances which are peculiar to the accused; and (iii) likelihoodof the accused fleeing from justice; (iv) the impact that his releasemay make on the prosecution witnesses, its impact on the society;and (v) likelihood of his tampering. No doubt, this list is notexhaustive. There are no hard-and-fast rules regarding grant orrefusal of bail, each case has to be considered on its own merits.CThe matter always calls for judicious exercise of discretion by theCourt.”

12. While granting bail in the present case, the High Court hasobserved that “no overt act is assigned to her (the second respondent) inthe present case”. These observations are erroneous.The final reportDunder Section 173 of the CrPC indicates that the investigation has revealedthat :

(i) The second respondent was using as many as four sim cardsand was in touch with one of the sharp-shooters who washired to commit the crime; and E(ii)She was the custodian of the weapons which were storedat the rental premises where she resided.

13. On the first aspect, the charge-sheet contains the followingdetails in regard to the use of the mobile numbers of the secondrespondent:F“From them analysis of these Call Details, following facts have “From them analysis of these Call Details, following facts havecome to light:

1. Mobile Number: [xxxxxxxx00] (Omvati): - The Call detailsofthis Mobile Number were procured from date 01.08.2017onwards until the date of occurrence of the case incident andGfound that said number was active until the date 09.09.2017 afterthe aforesaid date of 01.08.2017 and its corresponding IMEINumber was found to be [xxxxxxxxxxxx810]. It has also come tolight that after said date 09.09.2017, in said mobile phone of IMEI:[xxxxxxxxxxxx810], some other SIM was found to be active ornot to find out the same, the Call Details corresponding to saidHIMEINo. [xxxxxxxxxxxx810]was obtained for Mobile Number [xxxxxxxx36] in the course of which it came to be known thatsaid Mobile Number was active until the date of incident11.09.2017.

2. Mobile Number [xxxxxxxx36] (Omvati): - Mobile Number[xxxxxxxx36] related SIM Card was found to have been issuedin the name of Guddi wife of Shri Lalsingh, R/o; Sabaura, District:Bharatpur, Omvati has used the Mobile Phone of IMEI No:[xxxxxxxxxxxx810]in the past for making and receiving calls toand from Mobile No: [xxxxxxxx00] and then from the same mobilelater also operated Mobile Number [xxxxxxxx36] which clearlyindicates that said Mobile has been used by Omvati only and notGuddi. When the call details of Mobile Number [xxxxxxxx36]was analysed it was found that the mobile location on date11.09.2017 as Kumher, Nagla Baghera Post Bauraayi, AnandNagar,Bharatpur, Ranjit Nagar, Bharatpur, near Railway Station:Bharatpur and found that from said Number, she has made severalcalls and conversed with other Mobile Number [xxxxxxxx31].”

14. The mobile number with which the cell phone of the secondrespondent was in contact with is of the co-accused Prahlad, who isalleged to be a hired sharp-shooter. Apart from the above two mobilenumbers, there were two other mobile numbers which were in the useby the second respondent,as indicated in the following extracts from thecharge-sheet:

“7. Mobile Number: [xxxxxxxx57] (Omvati):-In the course ofinvestigation, in this case matter, it hascome to light that MobileNo: [xxxxxxxx57] has been used in the name of one Pradeep sonof Udaysingh resident of Badeeka, Tehsil Kathoomar, District:Alwar and its IMEI [xxxxxxxxxxxx960]was under consistent usagetoo. On the date of occurrence of the case incident i. e., 11.09.2017,the location of this number was traced as Ashok Nagar, Near:Subhash Nagar, Bharatpur, Nagal Ganga, Tehsil: Kumher, Kumher,Rarah. Said IMEI based CDR was obtained fro[m] which it wasfound that [xxxxxxxx89] was an active number and was found tobe under the usage of Omvati.

8. Mobile Number [xxxxxxxx89] (Omvati):- this Mobile Number[xxxxxxxx89] was found to have been issued in the name ofOmvati – wife of Ratansingh – resident of Sabaura, Police Station:Kumher, Bharatpur and on analysing the CDR of said number it AB

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Awas found to have been used in an instruments or instrument ofIMEI Numbers [xxxxxxxxxxxx970] and [xxxxxxxxxxxx960].When the CDR of IMEI No. [xxxxxxxxxxxx960]was procured, itwas found that Mobile Number [xxxxxxxx57] related SIM cardhas been used in it. In this way, it has become apparent that saidMobile No: [xxxxxxxx57] was used by Omvati wife of Ratansingh,Bresident ofSabaura, Kumher, Bharatpur and the aforesaid IMEIs[xxxxxxxxxxxx970] & [xxxxxxxxxxxx960] were used from asingle Mobile Handset by her. On 11.09.2017 – i. e. the date ofoccurrence of this case incident, its location was traced asAshokVihar, Subhash Nagar, Bharatpur, Kumher, Ranjeet Nagar,CBharatpur, Near Railway Station Bharatpur etc.”

15. The charge-sheet contains an analysis of the call data records.Apart from the material drawn from the call data records, it has beenfound during the course of the investigation that in order to purchase thefire arms for the crime, Ratan Singh, the husband of the secondrespondent, had paid an advance of Rs. 40,000 to Prahlad. Prahlad hadDbrought three katas and ten cartridges. The weapons were kept in aroom by Anek Singhat Bharatpur in which the second respondent wasresiding on a rental basis. Moreover, there is a specific allegation thatthe second respondent has actively aided the commission of the crimeby furnishing information about the movements ofthe deceasedE(Daansingh) to the killers. There has been an evident error on the partof the High Court in surmising that no specific or overt act is attributedto the second respondent. As regards the co-accused Vijaypal, it hasbeen submitted that during the course of the investigation he was notfound to be present at the scene of the offence and was not charge-sheeted.F16. In deciding as to whether the fifth bail application of the second F16. In deciding as to whether the fifth bail application of the secondrespondent should be allowed, the High Court has failed to consider theseriousness and gravity of the crime and the specific role which isattributed to the second respondent. The deceased was due to testify inthe trial in the prior case under Section 307 of the IPC and the murderwas committed barely a fortnight prior to the date on which he was toGdepose. The High Court had rejected four previous bail applications.There was no change in circumstances. In this backdrop, the High Courthaving failed to notice material circumstances bearing upon the grant ofbail to the second respondent and, as noted above, having proceeded ona palpable erroneous basis, a case for the setting aside of the order ofthe High Court has been duly established.H

17. In Mahipal v. Rajesh Kumar[4], one of us (Justice DYChandrachud), speaking for a two-judge Bench of this Court, afteradverting to the precedents on the subject, enunciated the considerationswhich must weigh in the determination of whether bail should be granted:

“13. The principles that guide this Court in assessing the correctnessof an order [Ashish Chatterjee v. State of W.B., CRM No. 272of 2010, order dated 11-1-2010 (Cal)] passed by the High Courtgranting bail were succinctly laid down by this Court in PrasantaKumar Sarkar v. Ashis Chatterjee [Prasanta KumarSarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC(Cri) 765] . In that case, the accused was facing trial for an offencepunishable under Section 302 of the Penal Code. Several bailapplications filed by the accused were dismissed by the AdditionalChief Judicial Magistrate. The High Court in turn allowed the bailapplication filed by the accused. Setting aside the order [AshishChatterjee v. State of W.B., CRM No. 272 of 2010, order dated11-1-2010 (Cal)] of the High Court, D.K. Jain, J., speaking for atwo-Judge Bench of this Court, held: (SCC pp. 499-500, paras 9-10)

“9. … It is trite that this Court does not, normally, interfere withan order [Ashish Chatterjee v. State of W.B., CRM No. 272 of2010, order dated 11-1-2010 (Cal)] passed by the High Courtgranting or rejecting bail to the accused. However, it is equallyincumbent upon the High Court to exercise its discretion judiciously,cautiously and strictly in compliance with the basic principles laiddown in a plethora of decisions of this Court on the point. It is wellsettled that, among other circumstances, the factors to be bornein mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believethat the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released onbail;

(v) character, behaviour, means, position and standing of theaccused; A

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A(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced;and

(viii) danger, of course, of justice being thwarted by grant of bail.

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10. It is manifest that if the High Court does not advert to theserelevant considerations and mechanically grants bail, the said orderwould suffer from the vice of non-application of mind, renderingit to be illegal.”

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15. The decision of this Court in Prasanta [Prasanta KumarSarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC(Cri) 765] has been consistently followed by this Court in AshMohammad v. Shiv Raj Singh [Ash Mohammad v. Shiv RajDSingh, (2012) 9 SCC 446 : (2012) 3 SCC (Cri) 1172] , RanjitSingh v. State of M.P. [Ranjit Singh v. State of M.P., (2013) 16SCC 797 : (2014) 6 SCC (Cri) 405] , Neeru Yadav v. State ofU.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015)3 SCC (Cri) 527], Virupakshappa Gouda v. State of Karnataka[Virupakshappa Gouda v. State of Karnataka, (2017) 5 SCCE406 : (2017) 2 SCC (Cri) 542] and State of Orissa v.Mahimananda Mishra [State of Orissa v. MahimanandaMishra, (2018) 10 SCC 516 : (2019) 1 SCC (Cri) 325].”

18. The Court noted that the considerations whichmust weigh inthe exercise of the power of the appellate court to determine whetherFbail has been granted for valid reasons stand on a distinct footing froman application for cancellation of bail. The Court observed:

“16. The considerations that guide the power of an appellate courtin assessing the correctness of an order granting bail stand on adifferent footing from an assessment of an application for theGcancellation of bail. The correctness of an order granting bail istested on the anvil of whether there was an improper or arbitraryexercise of the discretion in the grant of bail. The test is whetherthe order granting bail is perverse, illegal or unjustified. On theother hand, an application for cancellation of bail is generallyHexamined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person towhom bail has been granted.”

(See also in this context the judgment in Ramesh Bhavan Rathodv. Vishanbhai Hirabhai Makwana Koli[5]) and Harjit Singh v.Inderpreet Singh alias Inder[6])

19. On the touchstoneof the above decisions and for the reasonswe have indicated above, the impugned order granting bailisunsustainable. The High Court has failed to notice relevantcircumstances bearing on the seriousness and gravity of the crime andthe role attributed to the second respondent. The High Court hasproceeded on the erroneous basis that no overt act has been assigned tothe second respondent. There was no change in circumstanceswarranting the grant of bail.

20. For the above reasons we allow the appeal and set aside theimpugned judgment and order of the Single Judge at the Jaipur Bench ofthe High Court of Judicature for Rajasthan dated 11 August 2021 in SBCriminal Miscellaneous Fifth Bail Application No. 11627 of 2021. Theapplication for bail filed by the second respondent shall consequentlystand rejected.The second respondent shall surrender on or before7 November 2021.

21. The observations made in this judgment are only for the purposeof considering the application for bail and shall have no bearing on themerits of the case or the pending trial.

22. Pending application(s), if any, stand disposed of.

Nidhi Jain

Appeal allowed.

5 (2021) 6 SCC 230

6 2021 SCC OnLine SC 633

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