SUNIL KUMAR versus THE STATE OF BIHAR AND ANR. on 25 January 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Judicature at Patna dated17.08.2021passed in Criminal Miscellaneous Application No. 13149 of2021 by which the High Court has released the respondent No.2 – originalaccused on bail in connection with alleged case No.328 of 2020 – VaishaliPolice Station for the offence under Sections 147, 148, 149, 341, 323,324, 427, 504, 506, 307 and 302 IPC and Section 27 of the Arms Act, theoriginal informant – younger brother of the deceased has preferred thepresent appeal.

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2. That the appellant herein – informant – younger brother of thedeceased Shardanand Bhagat lodged F.I.R. with the Vaishali, Bihar PoliceStation against all the accused named in the F.I.R. for the offence underSections 147, 148, 149, 341, 323, 324, 427, 504, 506, 307 and 302 IPCand Section 27 of the Arms Act for having assaulted them and killed his H

Aelder brother Shardanand Bhagat, who succumbed to the bullet injury.As per the case of the prosecution, on fateful date of occurrence accusedRamawatar Bhagat (respondent No.2 herein) and other accused namedin F.I.R. having armed with lethal weapons came to the Bamboo Clumpsof the informant and they started cutting the bamboos. So, his brother -Shardanand Bhagat went to forbade them. On this accused RamawatarBBhagat ordered to kill Shardanand Bhagat and then Shardanand Bhagatstarted fleeing away but he was chased and surrounded by all the accusedpersons. After that the co-accused Manish Kumar fired upon him fromhis rifle due to which Shardanand Bhagat got injured and fell down andwhen the informant went to save him, the co-accused namely RambabuCKumar fired twice upon the informant due to which the informant alsogot injured to some extent. After that all the accused persons brutallyassaulted the informant by means of Lathi, Danda. When co-villagersstarted assembling there then all the accused persons fled away. Lateron, both the injured persons were brought to the Sadar Hajipur andthereafter they were referred to P.M.C.H. for treatment.D

2.1 That during the course of treatment, Shardanand Bhagatsuccumbed to the bullet injury. So, later on, Section 302 IPC was added.All the accused persons were arrested including the respondent No.2 -Ramawatar Bhagat. The bail application filed by the respondent No.2 -Ramawatar Bhagat came to be rejected by the Sessions Court by givingEcogent reasons and by observing that the respondent No.2 - accusedRamawatar Bhagat and other accused persons named in the F.I.R.formed an unlawful assembly and thereafter killed Shardanand Bhagat.The Sessions Court also observed that so far as respondent No.2 -Ramawatar Bhagat is concerned, he has actively participated in suchFheinous offence and therefore having considered the gravity of the case,no case for bail is made out. That thereafter the respondent No.2approached the High Court by way of present application under Section439 Cr.P.C. and by the impugned judgment and order without assigningany cogent reasons and without even considering the gravity and natureof the offence committed in which one of the persons got killed andGafter narrating the submissions made on behalf of the accused and theState and after observing “Considering the rival submissions as also thefacts and circumstances of the case, this Court for the purposes of grantof bail is inclined to accept the submissions advanced by the petitioner’scounsel. Prayer for bail of the petitioner is allowed.”H

2.2 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court releasing the respondent No.2 onbail, the original informant -younger brother of the deceased, who himselfis an injured eye witness has preferred the present appeal.

3. Shri Rituraj Choudhary, learned counsel appearing on behalf ofthe appellant has vehemently submitted that in the facts and circumstancesof the case, the High Court has committed a grave error in releasing therespondent No.2 accused on bail in a case where one person is killed.

3.1 It is vehemently submitted that while releasing the respondentNo.2 on bail as such no reasons have been assigned by the High Courtexcept after narrating the submissions observing that considering therival submissions as also the facts and circumstances of the case, theCourt is inclined to grant the bail. It is submitted that as held by thisCourt in a catena of decisions, the aforesaid can hardly be said to besufficient reasons assigned while releasing the accused on bail. Relianceis placed on the decisions of this Court in the case of Ramesh BhavanRathod Vs. Vishanbhai Hirabhai Makwana (Koli) and others,(2021) 6 SCC 230, as well as in the case of Mahipal Vs. RajeshKumar, (2020) 2 SCC 118.

3.2 It is submitted that therefore the impugned order passed bythe High Court releasing the respondent No.2 on bail is just contrary tolaw laid down by this Court in the aforesaid decisions as well as therecent decision of this Court in the case of Bhoopendra Singh Vs.State of Rajasthan & another (Criminal Appeal No. 1279 of 2021,decided on 29.10.2021).

3.3 It is further submitted that even otherwise while releasing therespondent No.2 accused on bail, the High Court has not at all advertedto the relevant considerations while granting bail as laid down by thisCourt in a catena of decisions, including the decision of this Court in thecase of Anil Kumar Yadav Vs. State (NCT of Delhi), (2018) 12SCC 129.

3.4 It is further submitted that the High Court has even totallyignored the antecedents of the accused. It is submitted that what isweighed with the High Court seems to be a parity as one other co-accused Shashi Bhushan Bhagat has been allowed bail. It is submittedthat however, the High Court has not at all appreciated the distinct anddistinguished features so far as the case of co-accused Shashi Bhushan A

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ABhagat is concerned. It is submitted that the High Court ought to haveappreciated that the case of co-accused Shashi Bhushan Bhagat isdifferent from the respondent No.2 accused. It is further submitted thatthe High Court has also not at all considered the fact that earlier therespondent No.2 is also an accused in double murder case. He is involvedin murder of the informant’s father and younger brother and for whichBthe cases are pending against him and the trial is at the stage of recordingof evidence. It is submitted that the High Court has not at all noted and/or appreciated the fact that the respondentaccused is threatening andbuilding pressure upon the informant either to withdraw the aforesaidSession trial or to turn hostile in the aforesaid case as the trial is at theCevidence stage. It is submitted that the High Court has not at all consideredthe aforesaid relevant aspects, which are very material while consideringthe grant of bail while releasing the respondent No.2 on bail.

4. Shri Devashish Bharuka, learned counsel appearing on behalfof the State has supported the appellant and submitted that afterDconclusion of the investigation, the respondent No.2 has been chargesheeted for the offence under Sections 147, 148, 149, 302, 34 and 447IPC having murdered/killed Shardanand Bhagat – the elder brother ofthe appellant. It is submitted that therefore the High Court ought not tohave released the respondent No.2 on bail in such a serious case for theoffence under Section 302 IPC.E

5. Present appeal is vehemently opposed by Shri Atul Kumar,learned counsel appearing on behalf of the respondent No.2 accused. Itis vehemently submitted that having accepted the submissions on behalfof the accused and after considering all the facts of the case, the HighCourt has released the accused – respondent No.2 on bail and the sameFis not required to be interfered with by this Court in exercise of thepowers under Article 136 of the Constitution of India.

5.1 It is submitted that the respondent No.2 is a 70 years oldsenior citizen suffering from various ailments and has nothing to do withthe alleged offences. It is submitted that the alleged involvement in twoGprevious cases has not been concealed from the Hon’ble Court whilemaking application or submission of arguments and has also been discussedby the High Court in the impugned order.

5.2 It is further submitted that even otherwise the evidence inother cases is almost complete and only the doctor and the investigatingH

officer are remained to be examined. It is submitted that in the earliercase, the respondent accused is enlarged on bail and that there is noallegation of misuse of liberty granted by the High Court for 30 years.

5.3 Making the above submissions, it is prayed not to cancel thebail and/or interfere with the impugned judgment and order passed bythe High Court releasing the respondent No.2 on bail.

6. We have heard the learned counsel for the respective partiesat length. We have also gone through the impugned judgment and orderpassed by the High Court releasing the respondent No.2 accused onbail.

7. From the impugned judgment and order passed by the HighCourt, it can be seen that no reasons whatsoever have been assigned bythe High Court while releasing the respondent No.2 on bail. After recordingthe submissions made by the learned counsel appearing on behalf of theaccused and the State thereafter the High Court has only observed that“considering the rival submissions as also the facts and circumstancesof the case, this Court for the purposes of grant of bail is inclined toaccept the submissions advanced by the petitioner’s counsel. Prayer forthe bail of the petitioner is allowed.” There is no further reasoning givenat all. Neither the High Court has considered the gravity, nature andseriousness of the offences alleged against the accused. In the case ofMahipal (supra) while emphasizing to give brief reasons while grantingthe bail to an accused in paragraphs 24 to 27, it is observed and held asunder:- “24. There is another reason why the judgment of the learnedSingle Judge has fallen into error. It is a sound exercise of judicialdiscipline for an order granting or rejecting bail to record thereasons which have weighed with the court for the exercise of itsdiscretionary power. In the present case, the assessment by theHigh Court is essentially contained in a single para which reads:(Rajesh Kumar case [Rajesh Kumar v. State of Rajasthan,2019 SCC Online Raj 5197], SCC Online Raj para 4)

“4. Considering the contentions put forth by the counsel forthe petitioner and taking into account the facts andcircumstances of the case and without expressing opinion onthe merits of the case, this Court deems it just and proper toenlarge the petitioner on bail.”

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25. Merely recording “having perused the record” and “on thefacts and circumstances of the case” does not subserve the purposeof a reasoned judicial order. It is a fundamental premise of openjustice, to which our judicial system is committed, that factorswhich have weighed in the mind of the Judge in the rejection orthe grant of bail are recorded in the order passed. Open justice ispremised on the notion that justice should not only be done, butshould manifestly and undoubtedly be seen to be done. The dutyof Judges to give reasoned decisions lies at the heart of thiscommitment. Questions of the grant of bail concern both libertyof individuals undergoing criminal prosecution as well as theinterests of the criminal justice system in ensuring that those whocommit crimes are not afforded the opportunity to obstruct justice.Judges are duty-bound to explain the basis on which they havearrived at a conclusion.

26. In Kalyan Chandra Sarkar v. Rajesh Ranjan [KalyanChandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528], a two-Judge Bench of this Court was required to assess the correctnessof a decision [Rajesh Ranjan v. State of Bihar, Criminal Misc.No. 28179 of 2002, order dated 23-5-2003 (Pat)] of a High Courtenlarging the accused on bail. Santosh Hegde, J. speaking for theCourt, discussed the law on the grant of bail in non-bailableoffences and held : (SCC p. 535, para 11)

“11. The law in regard to grant or refusal of bail is very wellsettled. The court granting bail should exercise its discretion ina judicious manner and not as a matter of course. Though atthe stage of granting bail a detailed examination of evidenceand elaborate documentation of the merit of the case need notbe undertaken, there is a need to indicate in such ordersreasons for prima facie concluding why bail was beinggranted particularly where the accused is charged ofhaving committed a serious offence. Any order devoid ofsuch reasons would suffer from non-application of mind.”

(emphasis supplied)

27. Where an order refusing or granting bail does not furnish thereasons that inform the decision, there is a presumption of thenon-application of mind which may require the intervention of thisCourt. Where an earlier application for bail has been rejected, there is a higher burden on the appellate court to furnish specificreasons as to why bail should be granted.”

8. A similar view has been expressed by this Court in the recentdecision in the case of Ramesh Bhavan Rathod(supra). Emphasizingon giving brief reasons while granting bail, it is observed by this Court inthe above case that though it is a well settled principle that in determiningas to whether bail should be granted, the High Court, or for that matter,the Sessions Court deciding an application under Section 439 Cr.P.C.would not launch upon a detailed evaluation of the facts on merits sincea criminal trial is still to take place. It is further observed that howeverthe Court granting bail cannot obviate its duty to apply a judicial mindand to record reasons, brief as they may be, for the purpose of decidingwhether or not to grant bail. It is observed that the outcome of theapplication has a significant bearing on the liberty of the accused on onehand as well as the public interest in the due enforcement of criminaljustice on the other and the rights of the victims and their families are atstake as well and therefore while granting bail, the Court has to apply ajudicial mind and record brief reasons for the purpose of deciding whetheror not to grant bail. It is further observed by this Court in the aforesaiddecision in paragraph 36 as under:

“36. Grant of bail Under Section 439 of the Code of CriminalProcedure is a matter involving the exercise of judicial discretion.Judicial discretion in granting or refusing bail-as in the case of anyother discretion which is vested in a court as a judicial institution-is not unstructured. The duty to record reasons is a significantsafeguard which ensures that the discretion which is entrusted tothe court is exercised in a judicious manner. The recording ofreasons in a judicial order ensures that the thought processunderlying the order is subject to scrutiny and that it meets objectivestandards of reason and justice.”

9. Even otherwise the High Court has erred in not considering thematerial relevant to the determination of whether the accused was to beenlarged on bail. The High Court has not at all adverted to the relevantconsiderations for grant of bail. In the case of Anil Kumar Yadav (supra),it is observed and held by this Court that while granting bail, the relevantconsiderations are, (i) nature of seriousness of the offence; (ii) characterof the evidence and circumstances which are peculiar to the accused;and (iii) likelihood of the accused fleeing from justice; (iv) the impact A

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Athat his release may make on the prosecution witnesses, its impact onthe society; and (v) likelihood of his tampering.

10. Even the High Court has also not at all considered the criminalantecedents of the respondent No.2 - accused. Though it was pointedout on behalf of the informant that the accused is involved in two casesBand that the appellant (informant) was restrained from proceeding furtherin earlier cases pending against the accused, the High Court has simplybrushed aside the same and has not considered the same at all. TheHigh Court has noted the submission on behalf of the accused that oneother accused – Shashi Bhushan Bhagat has been released on bail.However, the High Court has not at all considered whether the case ofCShashi Bhushan Bhagat is similar to that of the respondent No.2 – accused

- Ramawatar Bhagat or not. It appears that the High Court has passedthe order mechanically and in a most perfunctory manner. In the case ofIn Neeru Yadav Vs. State of UP & Anr., (2016) 15 SCC 422, afterreferring to a catena of judgments of this Court on the considerations toDbe placed at balance while deciding to grant bail, it is observed inparagraphs 15 and 18 as under:

“15. This being the position of law, it is clear as cloudless sky thatthe High Court has totally ignored the criminal antecedents of theaccused. What has weighed with the High Court is the doctrineEof parity. A history-sheeter involved in the nature of crimes whichwe have reproduced hereinabove, are not minor offences so thathe is not to be retained in custody, but the crimes are of heinousnature and such crimes, by no stretch of imagination, can beregarded as jejune. Such cases do create a thunder and lighteninghaving the effect potentiality of torrential rain in an analytical mind.FThe law expects the judiciary to be alert while admitting thesekind of accused persons to be at large and, therefore, the 11emphasis is on exercise of discretion judiciously and not in awhimsical manner.

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18. Before parting with the case, we may repeat with profit that itis not an appeal for cancellation of bail as the cancellation is notsought because of supervening circumstances. The annulment ofthe order passed by the High Court is sought as many relevantfactors have not been taken into consideration which includes theHcriminal antecedents of the accused and that makes the order a deviant one. Therefore, the inevitable result is the lancination ofthe impugned order.”

11. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand and more particularlyconsidering the fact that respondent No.2 is a history sheeter and ishaving a criminal antecedent and is involved in the double murder ofhaving killed the father and brother of the informant and the trial ofthese cases is at the crucial stage of recording evidence and there areallegations of pressurizing the informant and the witnesses, the impugnedjudgment and order passed by the High Court releasing the respondentNo.2 on bail is absolutely unsustainable and the same cannot stand. TheHigh Court has not at all considered the gravity, nature and seriousnessof the offences alleged.

12. In view of the above and for the reasons stated above, thepresent appeal succeeds. The impugned judgment and order passed bythe High Court releasing the respondent No.2 on bail is hereby quashedand set aside. On quashing and setting aside the impugned judgment andorder passed by the High Court releasing the respondent No.2 on bail,now the respondent No.2 accused to surrender before the concernedjail authority / before the concerned Court forthwith. Present appeal isaccordingly allowed.

Bibhuti Bhushan Bose

Appeal allowed.

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