MEENA DEVI versus THE STATE OF U.P. AND ANOTHER on 13 May 2022

[2022] 4 S.C.R. 23

MEENA DEVI

v.

THE STATE OF U.P. AND ANOTHER

(Criminal Appeal No. 808 of 2022)

MAY 13, 2022

[DR. D. Y. CHANDRACHUD ANDHIMA KOHLI, JJ.]

Code of Criminal Procedure, 1973: s 439 – Bail – Grant/cancellation of – When – Held: Power of the High Court u/s. 439 iswide – Exercise of the said discretionary powers vested in the Courtwhen considering grant of bail ought to be in a judicious mannerand not as a matter of course – If an order is passed without properapplication of mind or in contravention of directions of this court,it would be susceptible to interference – When it comes to assessingan application seeking cancellation of bail, the appellate court looksout for, amongst others, supervening circumstances or any violationof the conditions of bail imposed on the person who has beenaccorded such a relief – On facts, the impugned order enlargingthe accused on bail is cryptic and non-speaking demonstrated non-application of mind – High Court erred in not offering any reason,good, bad or indifferent and mechanically recorded the submissions– Thus, looking at the gravity of the offence committed by therespondent no.2 u/s. 302 and the award of life imprisonment, andalso having regards to his criminal antecedents that he is a hardenedcriminal with several cases registered against him, the bail iscancelled.

Disposing of the appeal, the Court

HELD: 1.1 The power to grant bail under Section 439 ofthe Code of Criminal Procedure, 1973 is wide ranging.Nonetheless, the exercise of the said discretionary powers vestedin the Court when considering grant of bail, ought to be in ajudicious manner and not as a matter of course. [Para 16][32-D]

1.2 Ordinarily, this Court would refrain from interfering withan order passed by the High Court, either granting or rejecting

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Athe relief of bail to an accused. However, wherever it is noticedthat such a discretion has been exercised by the High Courtwithout proper application of mind or in contravention of thedirections issued by this Court, such an order shall be susceptibleto interference. [Para 17][33-D-E]

B1.3 The considerations that weigh with the appellate courtwhen called upon to examine the correctness of an order grantingbail is not on the same footing when it comes to examining anapplication moved for cancellation of bail. The yardstick fortesting the correctness of an order granting bail is whether thecourt below has exercised its discretion in an improper or arbitraryCmanner thereby vitiating the said order. When it comes toassessing an application seeking cancellation of bail, the appellatecourt looks out for, amongst others, supervening circumstancesor any violation of the conditions of bail imposed on the personwho has been accorded such a relief. [Para 21][36-C-D]

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1.4 A glance at the impugned order passed by the HighCourt is to state the least, cryptic and non-speaking, amplydemonstrating non-application of mind. The High Court appearsto have shut its eyes to the common submissions that therespondent No.2 is a hardened criminal with several casesEregistered against him. List of cases registered against theaccused reveals that he has faced/is still facing trial in the thirty-seven cases registered against him under the IPC, Arms Act,1959, Uttar Pradesh Gangsters and Anti-Social Activities(Prevention) Act, 1986, U.P. Control of Goondas Act, 1970,Scheduled Castes and the Scheduled Tribes (Prevention ofFAtrocities) Act, 1989, etc., where the offences are grave in nature.[Para 24][39-D-F]

1.5 In the past decade, six cases more have been registeredagainst the respondent No.2, The list that has been furnished tothis Court by the respondent No.1-State, does not mention elevenGcases that had been mentioned in the list of cases pending againstthe respondent no.2. If the said cases are added to the currentlist of thirty-seven criminal cases registered against the accused,the number of criminal cases registered against the him wouldswell to fifty. [Para 27][42-G-H; 43-A]H

1.6 The High Court failed to factor in the relevant materialbefore passing an order enlarging the respondent No.2 on bail.The High Court also seriously erred in not offering any reason,good, bad or indifferent, for exercising its discretion in favour ofthe said respondent. There is no reference made to any particularelement that persuaded the High Court to pass the impugnedorder granting bail to the respondent No.2. Mechanicallyrecording the submissions made by the counsel for the accusedand the complainant and noting the protest of the counsel for theState and thereafter proceeding to release the respondent No.2on bail by pre-fixing the operative para of the order with the words“in view of the aforesaid”, can hardly reflect application of judicialmind by the Court. As an appellate court, this Court is completelyat seas to discern the factors that have weighed with the HighCourt to enlarge the respondent No.2 on bail. [Para 28][43-B-D]

1.7 Looking at the gravity of the offence committed by therespondent No. 2 under Section 302 IPC for which he has beenconvicted by the trial court and awarded a sentence of lifeimprisonment and noting that the period of custody undergoneby him is only for nine months and further, having regard to hiscriminal antecedents, the impugned order passed by the HighCourt is quashed and set aside. The bail bonds of the respondentNo.2 are cancelled and he is directed to surrender forthwith. [Para32][44-G-H; 45-A]

Ram Govind Upadhyay v. Sudarshan Singh And Others(2002) 3 SCC 598 : [2002] 2 SCR 526; Mahipal v.Rajesh Kumar Alias Polia and Another (2020) 2 SCC118 : [2019] 14 SCR 529; Prasanta Kumar Sarkar v.Ashis Chatterjee and Another (2010) 14 SCC 496 :[2010] 12 SCR 1165; Kalyan Chandra Sarkar v. RajeshRanjan Alias Pappu Yadav and Another (2004) 7 SCC528; Narendra K. Amin (Dr.) v. State of Gujarat andAnother (2008) 13 SCC 584 : [2008] 6 SCR 1149;Dipak Shubhashchandra Mehta v. Central Bureau ofInvestigation and Another (2012) 4 SCC 134 : [2012]3 SCR 278; Abdul Basit Alias Raju and Others v. Mohd.Abdul Kadir Chaudhary and Another (2014) 10 SCC

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A754 : [2014] 10 SCR 571; Neeru Yadav v. State of UttarPradesh and Another (2014) 16 SCC 508 : [2014] 12SCR 453; Anil Kumar Yadav v. State (NCT of Delhi)and Another (2018) 12 SCC 129 : [2017] 11 SCR 195;Mahipal v. Rajesh Kumar alias Polia and Another(2020) 2 SCC 118 : [2019] 14 SCR 529; Jagjeet SinghBand Others v. Ashish Mishra Alias Monu and Another(2022) SCC Online SC 453; Ms. Y. v. State of Rajasthanand Another (2022) SCC OnLine SC 458; Ms. P. v.State of Madhya Pradesh and Another Criminal AppealNo.740 of 2022 decided on 05.05.2022; PrakashCKadam and Others v. Ramprasad Vishwanath Gupta andAnother (2011) 6 SCC 189 : [2011] 6 SCR 800; Imranv. Mohammed Bhava and Another 2022 SCC OnlineSC 496; Ash Mohammad v. Shiv Raj Singh alias LallaBabu And Another (2012) 9 SCC 446 : [2012] 7 SCR584; Puran v. Rambilas (2001) 6 SCC 338 : [2001] 3DSCR 432 - referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.808 of 2022.

Arising Out of Petition for Special Leave To Appeal (Criminal)No. 5102 of 2019.

From the Judgment and Order dated 19.09.2018 of the High Courtof Judicature at Allahabad in Criminal Miscellaneous Bail ApplicationNos. 609 and 610 of 2018.

Ms. Abha R. Sharma, Ankit Mishra, Advs. for the Appellant.

Sanjay Kumar Tyagi, Gautam Kumar, Prabhat Kumar Rai, AjayKumar Pandey, Mrs. Revathy Raghavan, Ms. Divya Singhvi, Advs. forthe Respondents.

The Judgment of the Court was delivered by HIMA KOHLI, J.

1. Leave granted.

2. This appeal is directed against the order dated 19[th] September,2018 passed by the learned Single Judge of the High Court of Allahabadin Criminal Miscellaneous Bail Application No. 609 of 2018 whereunderthe application filed by the respondent No. 2 under Section 439 of theCriminal Procedure Code[1] was allowed and he was enlarged on bailsubject to certain conditions stipulated therein. The original complainant,wife of the deceased has preferred this appeal by way of special leaveagainst the said order before this Court.

3. Initially, petitions for special leave to appeal were filed againsttwo respondents namely, Shivraj Singh alias Lalla Babu [respondent No.2] and Sonu [respondent No. 3]. However, by an order dated 2[nd] July,2019, the petition qua the respondent No. 3 was dismissed and noticewas issued in respect of the second respondent while taking note of thefact that vide judgment dated 20[th] December, 2012, passed by this Courtin Criminal Appeal No. 1416 of 2012, bail granted to the said respondenthad been cancelled. As a result, Petition for Special Leave to Appeal(Crl.) No. 5103 of 2019 filed by the respondent No. 3 was disposed of.

4. On the basis of a complaint made by Smt. Meena Devi, wife ofthe deceased, FIR No. 173 of 2012 was registered at P.S. Civil Lines,District Badaun for the offence punishable under Section 302 of the 1 For short ‘the Cr.P.C.’

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AIndian Penal Code[2]. It was stated by the appellant/complainant that whenshe and her husband, Narain Singh were returning home on a motorcyclein the evening of 16[th] June, 2012, after having visited Badaun where hewas to appear in the Court in a case pending trial against the respondentNo. 2 herein, four out of the five accused persons came in a Jeep,intercepted them and started firing gunshots at Narain Singh on pointBblank range. Though the complainant’s brother, Sanjeev Kumar Singhaccompanied by one Hari Singh, who were following the deceased andhis wife, had tried to save him and take him to the District Hospital, hesuccumbed to the injuries on route. The complainant stated that the disputebetween the parties related to the ownership of a school namely, JantaCJunior High School, Madhukar Police Station, Tehsil Shahbad, whereher husband was employed as the Head Master. Earlier, on13[th] December, 2011, the same set of the accused persons had abductedher husband from Asafpur Railway Station, Faizganj, Behata.Respondent No. 2 who claimed ownership of the aforesaid school wasinstrumental in the said abduction. A case relating to the said abductionDwas pending trial in a Court in Badaun where the deceased was theprime witness. While in detention in jail at Badaun, respondent No. 2had hatched a conspiracy with four co-accused persons and planned toeliminate the deceased against whom he bore a grudge of having deposedagainst him as a witness in the kidnapping case.E5. After the investigation was complete in FIR No.173 of 2012,the respondent No.2 was charged with the offence under Section 302read with 149 and 120B IPC. Charges were framed against him and theco-accused persons on 3[rd] January, 2014. During the trial, respondentNo.2 was admitted to bail. Vide common judgment dated 6[th] January, F2018, the Sessions Court held the respondent No. 2 and the other co-accused persons as guilty for the offence under Section 302 read withSections 149 and 120B IPC. Respondent No.2 was sentenced to undergolife imprisonment. Resultantly, bail granted to the respondent No. 2 andthree other co-accused was cancelled.

G6. The role of the respondent No. 2 in having hatched a conspiracywith the other co-accused persons of shooting down the deceased, hasbeen elaborately dealt with in paras 53 to 55 of the judgment dated6[th] January, 2018 passed by the Learned Additional Sessions Judge,Badaun wherein the testimonies of the three eye witnesses namely, H2 For short ‘the IPC’

P.W.-1, the appellant/complainant herein, P.W.-2, Sanjeev Kumar Singh(brother of the complainant) and P.W.-3, Hari Singh who wasaccompanying P.W.-2, were considered extensively and it was observedthat there was a past history of enmity between the deceased and therespondent No.2 relating to the management of the school. The deceasedhad even lodged a complaint of his attempted abduction against therespondent No.2. Respondent No. 2 had also got FIR Nos. 343/2003registered against the deceased under Sections 420, 468, 469 and 471IPC and the latter was even arrested by the police in the said case.Reference was also made by the trial Court to a letter sent by therespondent No. 2 from jail, threatening to eliminate the deceased. Thusmotive to eliminate the deceased due to the past grudge was establishedagainst the respondent No. 2 who was indicated in the crime alongwiththe other co-accused who were closely related to him.

7. Aggrieved by the judgment of conviction and order of sentencepassed by the trial Court, respondent No. 2 herein and the other accusedpersons preferred appeals before the High Court, registered as CriminalAppeal Nos. 609 and 610 of 2018. Accompanying the said appeals, wereapplications moved by them for grant of regular bail. In the impugnedorder, the High Court has recorded the following submissions made bythe learned counsel for the respondent No.2 :- “The contention of counsel for the appellant is that theappellant was on bail during the trial and he has not abused ormisused the liberty of bail granted to him. However, he has acriminal history of 28 cases including the present two cases whichhave been explained in paragraph 36. The further contention isthat if the prosecution story is believed to be true in toto, the onlyrole assigned to the appellant is of hatching a conspiracy. Thefurther contention is that the role of conspiracy has also beenassigned only after the letter was received after three days of theincident and that is also a photostat copy. The original letter hasnot seen the day of light. There is no explanation regarding theoriginal letter.”

8. The said bail application was vehemently opposed by the learnedcounsel who appeared for the appellant/complainant herein and madethe following submissions before the High Court:- “The learned counsel for the complainant submitted thatthe appellant is a hardened criminal but he does not dispute the A

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Afact that the only role assigned to the appellant is that of hatchinga conspiracy and that too from a jail. The appellant is herebyrestrained to approach the complainant or his family members tothreaten them. If threat is extended to the complainant or his familymembers, liberty is given to the complainant to move a bailcancellation application before this Court.”B9. After noting the submissions of learned counsel for therespondent No. 2 and counsel for the complainant and recording that thelearned counsel for the State had also opposed the prayer for bail, theHigh Court proceeded to pass the following order: -

“In view of the aforesaid, let the appellant - Shivraj SinghCalias Lalla Babu convicted and sentenced in S.T. No. 523 of 2013arising out of Case Crime No. 605 of 2012 under Section 302/149, 120B IPC, Police State Civil Lines, District Badaun bereleased on bail on his furnishing a personal bond with two suretieseach in the like amount to the satisfaction of the court concerned.”D10. Assailing the impugned order, Ms. Abha R. Sharma, learnedcounsel appearing for the appellant/complainant has submitted that theHigh Court failed to offer any reasons for exercising its discretion infavour of the respondent No.2 and granting him bail; that there wassufficient evidence brought on record before the trial Court which wouldleave no manner of doubt that the appellant’s husband had been shotEdead in broad daylight on account of a conspiracy hatched by therespondent No.2 with the co-accused persons who were closely relatedto him, while he was still in jail; that the deceased had suffered six firearminjuries at the hands of the other co-accused persons who had actedspecifically on the instructions of the respondent No.2; that the HighFCourt has overlooked the fact that the respondent No. 2 is a history-sheeter who is involved in several criminal cases; that the trial Courthaving held the respondent No. 2 as guilty for the offence under Section302 read with 149 IPC, there was sufficient material on record fordeclining him the relief of bail. Lastly, learned counsel for the appellant/complainant handed over a copy of FIR No.517 of 2019 registered atGP.S. Shahabad District Rampur against the respondent No. 2 and fourothers stating that he had extended a threat to one of the eye witnessesin the case namely, Hari Singh [P.W. 3] on 24[th] November, 2019 whenhe was going with his wife to the local market and he was warned not toappear and depose against respondent No.2 in the abduction case of theHdeceased Narain Singh, that was pending trial.

11. Respondent No.1-State has filed a counter affidavit and anadditional affidavit supporting the present appeals by way of specialleave. Mr. Sanjay Kumar Tyagi, learned counsel for the State has pointedout that the impugned order is a cryptic one and unsustainable as theHigh Court has failed to consider the nature of the accusations levelledagainst the respondent No.2, the gravity of the crime and the severity ofthe punishment imposed upon him and the fact that there is reasonableapprehension to the life of the appellant and the other eye witnesses.Learned counsel alluded to a case registered against the respondentNo.2 at P.S. Shahbad, District Rampur, under Sections 364 and 506 IPCbearing FIR No. 450 of 2019 and stated that the bail application movedby him in the said case was rejected by the court of the learned AdditionalSessions Judge, Badaun, taking note of the fact that he is a history-sheeter and involved in a number of criminal cases. Thereafter, respondentNo. 2 had filed Bail Application No. 28461 of 2011 before the HighCourt and vide order dated 26[th] April, 2012, he was enlarged on bail.Aggrieved by the aforesaid order, Ash Mohammed, the complainant inthe said case, had filed Criminal Appeal No.1456 of 2012 before thisCourt which was allowed vide order dated 20[th] September, 2012 and thebail granted to the respondent No. 2 was cancelled.

12. With the additional affidavit filed by the respondent No.1-State, in terms of the order dated 16[th] March, 2022, dilating upon thecriminal antecedents of the respondent No.2 described in the counteraffidavit as a hardened criminal with 25 criminal cases of serious natureregistered against him in different police stations of different districts inthe State of Uttar Pradesh, a tabulated statement of 37 criminal casesregistered against the said respondent in different districts across theState of Uttar Pradesh has been filed. Learned State counsel has thusurged that bail granted in favour of the respondent No.2 ought to becancelled forthwith.

13. On the other hand, Ms. Revathy Raghavan, learned counselappearing for the respondent No. 2 seeks to defend the impugned orderstating that the same has been passed being mindful of his advanced ageand the fact that he is suffering from several old age ailments. Shesubmitted that there are no special supervening circumstances that wouldjustify cancellation of the bail granted to the respondent No.2 who hadfully cooperated during the trial. She further stated that from out of thelist of 37 criminal cases registered against the respondent No.2, as A

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Afurnished by the respondent No.1 – State, he has been acquittal in quitea few and some are still pending trial and that he has a good case onmerits even in the pending appeal where he has been extended the benefitof bail by virtue of the impugned order. Therefore, the discretion exercisedby the High Court in favour of the respondent No. 2 does not deserveany interference.B

14. We have given our thoughtful consideration to the rivalsubmissions of learned counsel for the appellant – complainant, respondentNo.1 – State and the respondent No. 2 – accused and have carefullyexamined the record.

C15. This Court is called upon to decide as to whether the HighCourt has rightly exercised the power conferred under Section 439 ofthe Cr.P.C for granting bail in favour of the respondent No. 2 in thegiven facts of the case.

16. It cannot be gainsaid that the power to grant bail under SectionD439 Cr.P.C. is wide ranging. Nonetheless, it has been consistentlyemphasized in several judicial verdicts that exercise of the saiddiscretionary powers vested in the Court when considering grant of bail,ought to be in a judicious manner and not as a matter of course. In RamGovind Upadhyay v. Sudarshan Singh And Others[3], a Division Benchof this Court had laid down the following guiding principles whileEexercising the power to grant bail:- “3. Grant of bail though being a discretionary order – but, however,calls for exercise of such a discretion in a judicious manner andnot as a matter of course. Order for bail bereft of any cogentreason cannot be sustained. Needless to record, however, thatFthe grant of bail is dependent upon the contextual facts of thematter being dealt with by the court and facts, however, do alwaysvary from case to case…… The nature of the offence is one ofthe basic considerations for the grant of bail – more heinous is thecrime, the greater is the chance of rejection of the bail, though,Ghowever, dependent on the factual matrix of the matter.4. Apart from the above, certain other which may be attributed tobe relevant considerations may also be noticed at this juncture,though however, the same are only illustrative and not exhaustive,neither there can be any. The consideration being:

H3 (2002) 3 SCC 598,

(a) While granting bail the court has to keep in mind not only thenature of the accusations, but the severity of the punishment, ifthe accusation entails a conviction and the nature of evidence insupport of the accusations.

(b) Reasonable apprehensions of the witnesses being tamperedwith or the apprehension of there being a threat for the complainantshould also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishingthe guilt of the accused beyond reasonable doubt but there oughtalways to be a prima facie satisfaction of the court in support ofthe charge.

(d) Frivolity in prosecution should always be considered and it isonly the element of genuineness that shall have to be consideredin the matter of grant of bail, and in the event of there being somedoubt as to the genuineness of the prosecution, in the normal courseof events, the accused is entitled to an order of bail.”

17. Holding as above, the Court went on to consider the guidingfactors when called upon to assess the validity of an order passed by theHigh Court granting bail and has opined that ordinarily, this Court wouldrefrain from interfering with an order passed by the High Court, eithergranting or rejecting the relief of bail to an accused. However, whereverit is noticed that such a discretion has been exercised by the High Courtwithout proper application of mind or in contravention of the directionsissued by this Court, such an order shall be susceptible to interference.

18. In a recent decision, authored by one of us (Dr. D.Y.Chandrachud, J.) in Mahipal v. Rajesh Kumar alias Polia AndAnother[4], a case where the offence committed was under Section 302of the IPC, trial was pending before the Sessions Court and the bailapplication filed by the respondent was rejected by the learned AdditionalSessions Judge but was subsequently allowed by the High Court, thefollowing pertinent observations have been made :

“12. The determination of whether a case is fit for the grant ofbail involves the balancing of numerous factors, among which thenature of the offence, the severity of the punishment and a primafacie view of the involvement of the accused are important. No 4 (2020) 2 SCC 118

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straitjacket formula exists for courts to assess an application forthe grant or rejection of bail. At the stage of assessing whether acase is fit for the grant of bail, the court is not required to enterinto a detailed analysis of the evidence on record to establish beyondreasonable doubt the commission of the crime by the accused.That is a matter for trial. However, the Court is required to examinewhether there is a prima facie or reasonable ground to believethat the accused had committed the offence and on a balance ofthe considerations involved, the continued custody of the accusedsubserves the purpose of the criminal justice system. Where bailhas been granted by a lower court, an appellate court must beslow to interfere and ought to be guided by the principles set outfor the exercise of the power to set aside bail.

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14. The provision for an accused to be released on bail touchesupon the liberty of an individual. It is for this reason that this Courtdoes not ordinarily interfere with an order of the High Courtgranting bail. However, where the discretion of the High Court togrant bail has been exercised without the due application of mindor in contravention of the directions of this Court, such an ordergranting bail is liable to be set aside. The Court is required tofactor, amongst other things, a prima facie view that the accusedhad committed the offence, the nature and gravity of the offenceand the likelihood of the accused obstructing the proceedings ofthe trial in any manner or evading the course of justice. Theprovision for being released on bail draws an appropriate balancebetween public interest in the administration of justice and theprotection of individual liberty pending adjudication of the case.However, the grant of bail is to be secured within the bounds ofthe law and in compliance with the conditions laid down by thisCourt. It is for this reason that a court must balance numerousfactors that guide the exercise of the discretionary power to grantbail on a case-by-case basis. Inherent in this determination iswhether, on an analysis of the record, it appears that there is aprima facie or reasonable cause to believe that the accused hadcommitted the crime. It is not relevant at this stage for the courtto examine in detail the evidence on record to come to a conclusivefinding.”

19. In Prasanta Kumar Sarkar v. Ashis Chatterjee AndAnother[5], where the accused was facing trial for an offence punishableunder Section 302 of the IPC and though his persistent bail applicationswere rejected by the trial Court, the High Court had granted him bail,which order was set aside by a Division Bench of this Court, the followingguidelines were enunciated for assessing the correctness of an orderpassed by the High Court while granting bail:

“9. ………It is trite that this Court does not, normally, interferewith an order passed by the High Court granting or rejecting bailto the accused. However, it is equally incumbent upon the HighCourt to exercise its discretion judiciously, cautiously and strictlyin compliance with the basic principles laid down in a plethora ofdecisions of this Court on the point. It is well settled that, amongother circumstances, the factors to be borne in mind whileconsidering an application for bail are:

(i) whether there is any prima facie or reasonable ground tobelieve that 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 releasedon bail;

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

(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 ofbail.”

20. The aforesaid principles have been underscored in severaldecisions rendered by this Court including Kalyan Chandra Sarkar v.Rajesh Ranjan alias Pappu Yadav and Another[6], Narendra K. Amin(Dr.) v. State of Gujarat and Another[7], Dipak Shubhashchandra 5 (2010) 14 SCC 4966 (2004) 7 SCC 5287 (2008) 13 SCC 584

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AMehta v. Central Bureau of Investigation and Another[8], Abdul Basitalias Raju and Others v. Mohd. Abdul Kadir Chaudhary andAnother[9], Neeru Yadav v. State of Uttar Pradesh and Another[10],Anil Kumar Yadav v. State (NCT of Delhi) and Another[11], Mahipalv. Rajesh Kumar alias Polia and Another[12], and as recently as inJagjeet Singh and Others v. Ashish Mishra alias Monu andBAnother[13], Ms. Y. v. State of Rajasthan and Another[14]and Ms. P. v.State of Madhya Pradesh and Another[15].

21. At the cost of repetition, it may be highlighted that theconsiderations that weigh with the Appellate Court when called upon toexamine the correctness of an order granting bail is not on the sameCfooting when it comes to examining an application moved for cancellationof bail. The yardstick for testing the correctness of an order grantingbail is whether the court below has exercised its discretion in an improperor arbitrary manner thereby vitiating the said order. When it comes toassessing an application seeking cancellation of bail, the Appellate CourtDlooks out for, amongst others, supervening circumstances or any violationof the conditions of bail imposed on the person who has been accordedsuch a relief. In this context, we may profitably cite the decision of aDivision Bench of this Court in Prakash Kadam and Others v.Ramprasad Vishwanath Gupta and Another[16], where it was held thus :

E“18. In considering whether to cancel the bail the court has alsoto consider the gravity and nature of the offence, prima faciecase against the accused, the position and standing of the accused,etc. If there are very serious allegations against the accused hisbail may be cancelled even if he has not misused the bail grantedto him. Moreover, the above principle applies when the same courtFwhich granted bail is approached for cancelling the bail. It will notapply when the order granting bail is appealed against before anappellate/Revisional Court.

8 (2012) 4 SCC 134

9 (2014) 10 SCC 754G10 (2014) 16 SCC 50811 (2018) 12 SCC 12912 (2020) 2 SCC 11813 (2022) SCC online SC 453

14 2022 SCC OnLine SC 458

15 Criminal Appeal No.740 of 2022 (arising out of SLP (Crl.) No. 3564 of 2022) decidedon 05.05.2022.H16 (2011) 6 SCC 189

19. In our opinion, there is no absolute rule that once bail is grantedto the accused then it can only be cancelled if there is likelihoodof misuse of the bail. That factor, though no doubt important, isnot the only factor. There are several other factors also whichmay be seen while deciding to cancel the bail.”

22. The aforesaid principles guiding the grant of bail have beenrestated in Neeru Yadav v. State of Uttar Pradesh And Another[17], inthe following words:

“12. We have referred to certain principles to be kept in mindwhile granting bail, as has been laid down by this Court from timeto time. 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 into considerationwhile dealing with the application for bail have not been takennote of, or bail is founded on irrelevant considerations, indisputablythe superior court can set aside the order of such a grant of bail.Such a case belongs to a different category and is in a separaterealm. While dealing with a case of second nature, the court doesnot dwell upon the violation of conditions by the accused or thesupervening circumstances that have happened subsequently. It,on the contrary, delves into the justifiability and the soundness ofthe order passed by the court.”

23. In a recent decision of a three Judge Bench of this Court inImran v. Mohammed Bhava and Another[18] it has been held as follows:

23. Indeed, it is a well-established principle that once bail has beengranted it would require overwhelming circumstances for itscancellation. However, this Court in its judgment in Vipan KumarDhir v. State of Punjab has also reiterated, that whileconventionally, certain supervening circumstances impeding fairtrial must develop after granting bail to an accused, for itscancellation by a superior court, bail, can also be revoked by asuperior court, when the previous court granting bail has ignored 17 (2014) 16 SCC 508

18 2022 SCC Online SC 496

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relevant material available on record, gravity of the offence or itssocietal impact. It was thus observed:—

“9. …… Conventionally, there can be supervening circumstanceswhich may develop post the grant of bail and are non conduciveto fair trial, making it necessary to cancel the bail. This Courtin Daulat Ram v. State of Haryana observed that:

“Rejection of bail in a non-bailable case at the initial stage andthe cancellation of bail so granted, have to be considered anddealt with on different basis. Very cogent and overwhelmingcircumstances are necessary for an order directing thecancellation of the bail, already granted. Generally speaking,the grounds for cancellation of bail, broadly (illustrative andnot exhaustive) are : interference or attempt to interfere withthe due course of administration of Justice or evasion or attemptto evade the due course of justice or abuse of the concessiongranted to the accused in any manner. The satisfaction of thecourt, on the basis of material placed on the record of thepossibility of the accused absconding is yet another reasonjustifying the cancellation of bail. However, bail once grantedshould not be cancelled in a mechanical manner withoutconsidering whether any supervening circumstances haverendered it no longer conducive to a fair trial to allow theaccused to retain his freedom by enjoying the concession ofbail during the trial.”

10. These principles have been reiterated time and again, morerecently by a 3 Judge Bench of this Court in X v. State ofTelegana and Another.

11. In addition to the caveat illustrated in the cited decision(s),bail can also be revoked where the court has consideredirrelevant factors or has ignored relevant material available onrecord which renders the order granting bail legally untenable.The gravity of the offence, conduct of the accused and societalimpact of an undue indulgence by Court when the investigationis at the threshold, are also amongst a few situations, where aSuperior Court can interfere in an order of bail to prevent themiscarriage of justice and to bolster the administration ofcriminal justice system…”

24. xxxxxxx

25. xxxxxxx

26. Thus, while considering cancellation of bail already grantedby a lower court, would indeed require significant scrutiny atthe instance of superior court, however, bail when granted canalways be revoked if the relevant material on record, gravityof the offence or its societal impact have not been consideredby the lower court. In such instances, where bail is granted ina mechanical manner, the order granting bail is liable to be setaside. Moreover, the decisions cited herein above, enumeratecertain basic principles which must be borne in mind whendeciding upon an application for grant of bail. Thus, while eachcase has its own unique factual matrix, which assumes asignificant role in determination of bail matters, grant of bailmust also be exercised by having regard to the above-mentioned well-settled principles.

24. Coming back to the case in hand, a glance at the impugnedorder passed by the High Court is to state the least, cryptic and non-speaking, amply demonstrating non-application of mind. The High Courtappears to have shut its eyes to the common submissions made by learnedcounsel for the appellant/complainant and the counsel for the State thatthe respondent No.2 is a hardened criminal with several cases registeredagainst him. Enclosed with the additional affidavit filed by the respondentNo. 1- State, is a list of cases registered against the respondent No. 2which reveals that he has faced/is still facing trial in the following thirty-seven cases registered against him under the IPC, The Arms Act, 1959,The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention)Act, 1986, The U.P. Control of Goondas Act, 1970, The Scheduled Castesand the Scheduled Tribes (Prevention of Atrocities) Act, 1989, etc., wherethe offences are grave in nature:- A

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40SUPREME COURT REPORTS[2022] 4 S.C.R.ABCDEFGH

MEENA DEVI v. THE STATE OF U.P. AND ANOTHER[HIMA KOHLI, J.]

23. 187/88 Rampur-do- 3(1) Gangster Act A.D.J.-5 Acquitted AP.S. Shahbad 24. 485/94 Rampur-do- 147/148/324/504/506 A.D.J. – 2 Acquitted P.S. IPC & 3(1)10 S.S .. T Act Shahbad 25. 158/97 Rampur-do- 3(1) Gunda Act A.D.M. Closed P.S. Shahbad 26. 345/99 Rampur-do- 147/148/149/325/307 IPC J.M. Final Report BP.S. Shahbad 27. 169/10 Rampur-do- 147/323/504/506 IPC J.M. Acquitted P.S. Shahbad 28.841/11Rampur-do-307/326 IPCJ.M.Final report P.S. Shahbad29. 507/11 Rampur-do- 147/506 IPC J.M. Acquitted CP.S. Shahbad30. 623/05 Rampur-do- 302 IPC A.D.J. – 1 Life P.S. imprisonmentShahbad 31. 380/19 Rampur-do- 364/323/504/506 IPC A.C.J.M. Final report P.S. – 2 for Shahbad cancellation Dof crime 32. 450/19 Rampur-do- 147/148/341/279/338/504/307/506 A.C.J.M. Final report P.S. IPC – 2 for Shahbad cancellation of crime33. 499/19 Rampur-do- 147/148/307/506 IPC A.C.J.M. Pending P.S. – 2 investigation Shahbad34. 1031/2009RampurState Vs. 147/148/149/323/283/ A.C.J.M. Under trial EP.S. Munna 7-Act – 2 Shahbad Lal & District Ors.Rampur 35. 3633/2016RampurState Vs. 420/467/468 IPC A.C.J.M. Under trial P.S. Shivraj – 2 Shahbad Singh 36. 232/2012 Rampur-State Vs. 3(1) Gangster Act A.S.J. Under trial P.S. Bajraj Gangster Shahbad Singh Rampur F37. 195/2021 RampurState Vs. 304/120-8 IPC Special Under trial P.S. Sonu & Judge/ Shahbad Ors. S.C.S.T. Rampur

25. Even if one ignores eighteen cases, out of the aforesaid list ofcases registered against the respondent No.2, fact remains that he iscontinuing to face trial in the remaining cases.

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26. In one such case, subject matter of Criminal Appeal No.770of 2011 registered against the respondent No.2 for offences underSections 364 and 506 IPC, the bail application moved by him was rejectedby the learned Additional Sessions Judge, Rampur. When the respondent 42SUPREME COURT REPORTS

ANo.2 moved a similar application before the High Court under Section439 of the Cr.P.C., the same was allowed vide order dated 26[th] July,2012. Aggrieved by the said order, the complainant therein, AshMohammed preferred an appeal before this Court registered as CriminalAppeal No.1456 of 2012. After taking into consideration the involvementof the respondent No.2 in several crimes, duly extracted in para 27 ofBthe judgment in Ash Mohammad v. Shiv Raj Singh alias Lalla BabuAnd Another[19], a Division Bench of this Court had questioned thepropriety of the order granting bail to the respondent No.2, and had setaside the impugned order. Speaking for the Bench, Justice Dipak Misra(as the then Hon’ble Chief Justice was) held as under:C“30. We may usefully state that when the citizens are scared tolead a peaceful life and this kind of offences usher in an impedimentin establishment of orderly society, the duty of the court becomesmore pronounced and the burden is heavy. There should havebeen proper analysis of the criminal antecedents. Needless toDsay, imposition of conditions is subsequent to the order admittingan accused to bail. The question should be posed whether theaccused deserves to be enlarged on bail or not and only thereafterissue of imposing conditions would arise. We do not deny for amoment that period of custody is a relevant factor butsimultaneously the totality of circumstances and the criminalEantecedents are also to be weighed. They are to be weighed inthe scale of collective cry and desire. The societal concern has tobe kept in view in juxtaposition of individual liberty. Regard beinghad to the said parameter we are inclined to think that the socialconcern in the case at hand deserves to be given priority overFlifting the restriction on liberty of the accused.”

27. It is also noteworthy that in the past decade, six cases morehave been registered against the respondent No.2, as would be apparentfrom a comparison of the list forming a part of the order in the case ofAsh Mohammad (supra) with the current list extracted above. It isGalso relevant to note that the list that has been furnished to this Court bythe respondent No.1-State, does not mention eleven cases that had beenmentioned in the list of cases pending against the respondent No.2 andextracted in para 27 of the order passed in Ash Mohammad (supra), atSr. Nos. 4, 12, 17 and 23 to 30. If the said cases are added to the current H19 (2012) 9 SCC 446

list of thirty-seven criminal cases registered against the respondent No.2,the number of criminal cases registered against the him would swell tofifty.

28. In the above facts and circumstances, we are compelled toobserve that the High Court has failed to factor in the relevant materialbefore passing an order enlarging the respondent No.2 on bail. Not justthat, the High Court has seriously erred in not offering any reason, good,bad or indifferent, for exercising its discretion in favour of the saidrespondent. There is no reference made to any particular element thathas persuaded the High Court to pass the impugned order granting bailto the respondent No.2. Mechanically recording the submissions madeby the learned counsel for the accused and the complainant and notingthe protest of the learned counsel for the State and thereafter proceedingto release the respondent No.2 on bail by pre-fixing the operative paraof the order with the words “In view of the aforesaid”, can hardlyreflect application of judicial mind by the Court. As an Appellate Court,we are completely at seas to discern the factors that have weighed withthe High Court to enlarge the respondent No.2 on bail.

29. In Puran v. Rambilas[20] pointing out the vice of arbitrarinessin an unreasoned order, this Court held that: - “8. …Giving reasons is different from discussing merits ordemerits. At the stage of granting bail a detailed examination ofevidence and elaborate documentation of the merits of the caseha not to be undertaken. What the Additional Sessions Judge addone in the order dated 11-9-2000 was to discuss the merits anddemerits of the evidence. That was what was deprecated. Thatdid not mean that whilst granting bail some reasons for primafacie concluding why bail was being granted did not have to beindicated.”

30. In Kalyan Chandra Sarkar v. Rajesh Ranjan alias PappuYadav And Another[21]it was observed by this Court that: - “11. The law in regard to grant or refusal of bail is very wellsettled. The court granting bail should exercise its discretion in ajudicious manner and not as a matter of course. Though at thestage of granting bail a detailed examination of evidence and 20 (2001) 6 SCC 338

21 (2004) 7 SCC 528

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Aelaborate documentation of the merit of the case need not beundertaken, there is a need to indicate in such orders reasons forprima facie concluding why bail was being granted particularlywhere the accused is charged of having committed a seriousoffence. Any order devoid of such reasons would suffer fromnon-application of mind. It is also necessary for the court grantingBbail to consider among other circumstances, the following factorsalso before granting bail; they are:

(a) The nature of accusation and the severity of punishment incase of conviction and the nature of supporting evidence.

C(b) Reasonable apprehension of tampering with the witness orapprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge.”

31. Citing the aforesaid decision, in Mahipal (supra), this Courthas stressed the necessity of recording reasons for granting bail inDoffences that are non-bailable in nature in the following words: -

“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 factorsEwhich 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 thisFcommitment. 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.”G

32. In the instant case, looking at the gravity of the offencecommitted by the respondent No. 2 under Section 302 of the IPC forwhich he has been convicted by the trial Court and awarded a sentenceof life imprisonment and noting that the period of custody undergone byhim is only for nine months and further, having regard to his criminalHantecedents, we have no hesitation in quashing and setting aside the impugned order dated 19[th] September, 2018 passed by the High Court.The bail bonds of the respondent No.2 are cancelled and he is directedto surrender forthwith. The appeal is disposed of in the above terms.

33. Before parting with the case, it is clarified that the presentjudgment shall not be treated as an expression on the merits of the appealpreferred by the respondent No.2 against the judgment dated 6[th] January,2018 passed by the Sessions Court, which is pending consideration beforethe High Court. It is also clarified that this order shall also not precludethe respondent No.2 from applying afresh for bail at a later stage, if any,new circumstances are brought to light.

34. A copy of this judgment shall be forwarded to the High Courtand the concerned Police Station for perusal and compliance.

Nidhi Jain

Appeal disposed of.

(Assisted by : Shashwat Jain, LCRA)

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