GIRRAJ versus KIRANPAL AND ANR ETC on 8 March 2021

1. Permission to file the Special Leave Petitions granted.

2. Leave granted.

3. A batch of five Special Leave Petitions (SLP) under ArticleF136 of the Constitution has arisen from the orders passed by the HighCourt of Judicature at Allahabad granting bail to the five respondent-accused, namely:

(i) Kiranpal;

(ii) Sundar;

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(iii) Rakesh;

(iv) Satish; and

(v) Dharmendra.

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GIRRAJ v. KIRANPAL AND ANR ETC

[DR. DHANANJAYA Y CHANDRACHUD, J.]

4. The circumstances which have led to the registration of thefirst information report[1] being Case Crime No 414 of 2019 against theaccused under Sections 147, 148, 149, 302, 307, 323, 342 and 508 of theIndian Penal Code 1860 at Police Station Rabupura, District GautamBudh Nagar may be adverted to briefly. The appellant who is the originalcomplainant had two sons, Gajendra aged 34 years and Akash aged 22years, who were killed in the course of an incident which took place on29 November 2019. Two other persons, Sunil and Jeetu, out of the fourothers present along with the deceased, are alleged to have been seriouslyinjured in the course of the incident. The FIR was lodged on 30 November2019 at 1743 hours against eight accused persons, five of which arebefore this Court in these proceedings. The FIR refers to the fact thatthere was an enmity between the accused and the complainant and hissons due to “party politics”. The FIR mentions an earlier incident on 24October 2019, when five of the accused (Sundar, Dharmendra, Monu,Kiranpal and Ompal) had attacked Akash at Chambe in Mirzapur withan intent to kill him. Akash had allegedly sustained a head injury afterbeing assaulted with an iron rod and a fire-arm injury in respect of whicha first information report was lodged. Two of the accused (Rakesh andSatish) had also allegedly assaulted the appellant’s sons in the morningof 29 November 2019 and threatened them with death. The incidentconcerning the present case is alleged to have taken place at night, on29 November 2019. One of the deceased, Gajendra, the son of theappellant, was conducting a gym and after closing his establishment, hewas proceeding in his vehicle from village Rabupura to village RampurBangar together with Akash, who was in another vehicle. Two otherpersons, Sunil and Deepak are alleged to have been in a third vehicle.Jeetu and Subhash were proceeding in a fourth vehicle. When thesepersons reached a particular spot at around 8:30 pm, their passage wasfound to be blocked by a bullock cart. The eight accused were allegedlypresent at the spot armed with rifles, guns and country-made pistols foran ambush. They are alleged to have surrounded the four vehicles withan intention of assaulting the appellant’s sons. Accused Mulla is allegedto have fired with his rifle at Gajendra, while accused Bhupan is allegedto have fired with his rifle at Akash. Both Gajendra and Akash werekilled on the spot. Sunil and Deepak who were in the third vehicle arealleged to have got down after seeing the occurrence. Jeetu and Subashalso came out of the fourth vehicle. Among the injured were Sunil and 1 “FIR”

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AJeetu. After the FIR was lodged, all the respondent-accused werearrested on 6 December 2019.

5. Pursuant to the registration of the FIR, the investigation by thepolice was completed and a charge sheet was filed on 09 February 2020under Sections 147, 148, 149, 307, 323, 326, 341 and 506 of the IndianBPenal Code 1860 against all the accused and under Section 27 and 30 ofthe Arms Act against accused Sunder and Mulla.

6. The details of the impugned orders passed by the HC grantingbail to the respondent-accused are as follows:

7. Apart from these five accused, another co-accused Narendra(who is not a respondent in this batch of SLPs), was granted bail by theHigh Court in Criminal Miscellaneous Bail Application No. 14060 ofE2020 by an order dated 05 August 2020.

8. At this stage, it is necessary to note that while seeking bailbefore the High Court in Criminal Miscellaneous Bail Application No22538 of 2020, Kiranpal had relied upon the order of the High Courtgranting bail to co-accused Narendra by the above order dated 5 AugustF2020 in Criminal Miscellaneous Bail Application No 14060 of 2020.Similarly, in Criminal Miscellaneous Bail Application No 15449 of 2020,Sundar had also relied upon the order passed on 5 August 2020 grantingbail to Narendra. While granting bail, the High Court, in its orders dated17 September 2020 and 22 September 2020, extracted the earlier orderby which bail was granted to Narendra. In fact, the High Court observedGas follows:

“Keeping in view the nature of the offence, evidence, complicityof the accused, submissions of the learned counsel for the parties,the fact that co-accused having identical role have alreadybeen released on bail by this Court, without expressing any H

opinion on the merits of the case, the Court is of the view that theapplicant has made out a case for bail. The bail application isallowed.”(emphasis supplied)

9. The High Court adverted to the fact that “co-accused havingidentical role have already been released on bail by this Court”. Similarly,while granting bail to Rakesh, Satish and Dharmendra, the High Court,by its order dated 22 September 2020, specifically relied upon the earlierorders by which bail was granted to co-accused Narendra and Kiranpal.

10. The above narration of facts makes it abundantly clear thatthe first order granting bail dated 5 August 2020 was in the case of co-accused Narendra. All the other accused while claiming the grant of bailhad specifically relied upon the order passed in the case of Narendraand sought bail on the basis of parity. Following the principle of parity,the High Court enlarged them on bail.

11. Now, the order granting bail to Narendra was the subject matterof Criminal Appeal No 852 of 2020 before this court, arising out of SpecialLeave Petition (Criminal) No 5537 of 2020 (Girraj v Narendra @Munder and Another). By the judgment and order of this Court dated11 December 2020, the order granting bail to Narendra was set aside.Paragraphs 8, 9 and 10 of the judgment of this Court read as follows:

“8 While analyzing the rival submissions, we must at the outsetnote the considerations which weighed with the High Court. TheHigh Court has basically adverted to the following reasons:

(i) The first respondent has no criminal history;

(ii) Indiscriminate firing is stated to have been made by allthe accused including the first respondent upon Jeetuand the two deceased and hence it cannot be determinedwho has caused the injuries;

(iii) Taking into consideration the quantum of punishment,nature of offence and period of detention, the case wasfound fit for grant of bail.

9 The last of the observations above, is an omnibus observation.The serious nature of the offence and the quantum of punishmentwould, as explained hereafter, militate against the grant of bail inthe facts of the present case. As a matter of fact, it is evidentfrom the earlier part of the observations of the High Court which A

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SUPREME COURT REPORTS

Ahave been extracted above, that the Court did notice the fact thatit is alleged that there was indiscriminate firing by the side of theaccused including the first respondent. The attention of the courthas been drawn to the fact that in the statement of one of theinjured, Jeetu, it has been specifically stated that the firstrespondent was among those who had fired at the deceased andBJeetu. Above all, the High Court has completely ignored thecircumstance that in terms of the allegations in the FIR, therewas an unlawful assembly and it is as a consequence of this thatthe provisions of Section 149 have been attracted.

10. A serious offence has taken place involving the death of twoCsons of the appellant. Though, the High Court has referred to thenature of the offence, it has failed to notice that the seriousnessof the offence in the present case would militate against the grantof bail in a case such as the present, where there are not onlyspecific allegations in the FIR, but the statement of one of theDinjured witnesses. The High Court has also ignored the allegationof enmity between the two groups on account of party politics,which have allegedly translated into instances of threats and assaultof appellant’s sons as discussed above. Moreover, the submissionof the first respondent that the failure of the police to register anFIR at the behest of the accused led them to file an applicationEunder Section 156(3) CrPC, is clearly indicative of the fact thatprima facie at this stage, the presence of the first respondentcannot reasonably be doubted. In his counter affidavit, the firstrespondent had, in fact, sought to explain his presence by statingthat he was merely passing from the place.”F12. This Court indicated the following reasons for coming to theconclusion that the grant of bail to Narendra was contrary to the settledlegal principles, including the decision of this Court in Panchanan Mishrav Digambar Mishra[2]:“12 Having regard to the conspectus of facts and our analysisGabove, we are clearly of the view that in granting bail, the HighCourt has led itself to be governed by several circumstances whichare extraneous to the proper exercise of discretion under Section439 of the CrPC. Merely observing that there was indiscriminate GIRRAJ v. KIRANPAL AND ANR ETC[DR. DHANANJAYA Y CHANDRACHUD, J.]

firing and it was difficult to ascertain as to who had caused theinjury is manifestly an erroneous approach to the issue for tworeasons. First, as the material at this stage indicates, there arespecific allegations against the first respondent. Second, if asalleged, the first respondent was a member of an unlawfulassembly, the provisions of Section 149 would stand attracted. Inthis backdrop, having regard to the fact that a serious offence ofmurder has taken place allegedly motivated by previous enmityon account of party politics, leading to the death of both the sonsof the appellant, we are of the view that the High Court was inerror in granting bail to the first respondent. The High Court havinggranted bail for reasons which are extraneous to the exercise ofthe discretion under Section 439 CrPC, we are constrained tointerfere in the exercise of our jurisdiction under Article 136 ofthe Constitution to cancel the bail of the first respondent”

13. The following table will indicate the position in regard to thegrant of bail to all the accused in the case:

Chief Judicial Bail refused.Magistrate, Noida04.01.2020 – Kiranpal06.01.2020 – Rakesh and Satish07.01.2020 - Narendra08.01.2020 – Bhupan, Dharmendra, Mulla and Sundar.Addl Sessions Judge, Considering the nature of the offence, being armed with gun, rifle, Gautam Budh Nagar, manner, no bail to be granted.U.P.04.02.2020 - Kiranpal07.02.2020 - Rakesh & Satish10.02.2020 - Narendra13.02.2020 - Bhupan & Dharmendra24.02.2020 - Mulla & SundarHigh Court of 05.08.2020 – Bail granted to Narendra as he has “no history and that Judicature at indiscriminate fire is said to be have been made all, thereby cannot be Allahabaddetermined as to who has caused the said injury.”17.09.2020 - Bail granted to Kiranpal with same reasoning, ignoring the SLP filed on 04.09.2020 against the order dated 05.08.2020.22.09.2020 – Bail granted to Sundar, Rakesh, Satish and Dharmendra by relying on the orders dated 05.08.2020 and 17.09.2020.Supreme Court11.12.2020 – Cancelled the bail of Narendra ABC

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A14. Since bail has been granted to all the respondent-accusedwho have claimed parity on the basis of the order granting bail to Narendra,there can be no manner of doubt that the cancellation of bail that wasgranted to Narendra must have a similar consequence insofar as thegrant of bail to the remaining five accused is concerned. Thecircumstances in which bail that was granted to co-accused NarendraBwas cancelled have already been adverted to in the earlier part of thisorder.

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15. Mr Rajiv Garg, learned counsel appearing on behalf of theappellant, submits that since the respondents had claimed parity on thebasis of the order which was passed in the case of Narendra, they mustCnecessarily now submit to the final order passed by this Court cancellingbail which was granted to co-accused Narendra. This submission hasbeen supported on behalf of the State by Mr Vinod Diwakar, learnedAdditional Advocate General.

16. On the other hand, an effort has been made by Mr RajulDBhargava, learned Senior Counsel appearing on behalf of the respondent-accused to advert to certain circumstances which in his submissionswould distinguish the case of the respondent-accused. In particular,reliance has been placed during the course of the submissions on theinformation regarding the death of the appellant’s sons which wasEfurnished by the Kailash Hospital and by the Yatharth Hospital on 29November 2019 to the Police Station. The submission is that theinformation furnished by the hospitals adverts to the circumstances andlocation at which the incident took place and that this is at variance as towhat was eventually recorded in the FIR which was registered at about1743 hours on 30 November 2019.F

17. We are unable to accede to the submission which was urgedon behalf of the respondent-accused in these proceedings. We are notat this stage dealing a finding arrived at in the course of a criminal trialon the basis of evidence. Serious offences are alleged to have beencommitted in the course of the incident, leading up to the death of twoGsons of the informant and serious injuries to others.

18. Ex facie, the orders of the High Court would indicate that theonly basis for claiming bail in the present batch of cases was by placingreliance on the order granting bail to the co-accused Narendra. The bailwhich has been granted to Narendra has been cancelled by the order ofH

GIRRAJ v. KIRANPAL AND ANR ETC[DR. DHANANJAYA Y CHANDRACHUD, J.]

this Court dated 11 December 2020. Nonetheless, in order to ensurefairness to the co-accused, who are the respondents in these proceedings,we are of the view that it would be appropriate to furnish them anopportunity to apply for bail before the High Court, conditional on theirsurrendering in pursuance of the order which we propose to passcancelling their bail. We accordingly allow the present appeals in termsof the following directions:

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(i) In view of the order dated 11 December 2020 passed bythis Court in Criminal Appeal No 852 of 2020 cancellingthe bail which was granted to the co-accused Narendraand since bail was sought by the respondents on a footingCof parity, the orders passed by the High Court granting bailto the five respondent – accused, namely, Kiranpal, Sundar,Rakesh, Satish and Dharmendra, shall stand cancelled;

(ii) The respondent–accused shall surrender, as a consequenceof the cancellation of bail forthwith; D

(iii) Conditional on the respondents’ surrendering within a periodof 24 hours of the uploading of a copy of this order on thewebsite of this Court, the respondents are granted libertyto move the High Court afresh for the grant of bail.

19. Pending application, if any, stands disposed of.

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Kalpana K. Tripathy

Appeals allowed

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