SHRI MAHADEV MEENA versus PRAVEEN RATHORE AND ANOTHER on 27 September 2021

1. This appeal arises from a judgment dated 12 February 2021, ofa Single Judge of the High Court of Judicature for Rajasthan at theFBench at Jaipur by which the first respondent has been enlarged on bail.The appellant is the father of the deceased at whose behest the firstinformation report[1 ]was registered.

2. The appellant’s son was a Senior Technical Officer with theIntelligence Bureau in New Delhi. On 21 January, 2011, he got marriedGto Anita Meena, who is a co-accused implicated in his murder. Thecouple had two young children aged 6 years and 4 months. Therelationship of the couple is alleged to have encountered difficulties. On14 February 2018, the deceased travelled from New Delhi to H1 ‘‘FIR’’

Ramgajmandi from where he boarded a train at 1800 hours for Jhalawarwhere his home was situated. Between 7: 30 and 8.00pm, the appellantreceived a phone call that his son had been found in an unconsciousstate near Railway Crossing Puliya and was declared brought dead atthe hospital. On 14 February 2018, the appellant submitted a writtenintimation to the SHO Jhalawar on the basis of which, Merg ReportNo.04/2018 was registered by the police. On 15 February 2018,the post-mortem was conducted by a Medical Board constituted by the MedicalSuperintendent of BRS Hospital, which reported that the right lung, liver,spleen and kidneys were congested. The remarks of the Medical Officerindicated that the viscera was preserved for chemical andhistopathological examination and a final opinion regarding the cause ofdeath would be furnished after receiving those reports. On the sameday, an unnatural death was registered under the provisions of Section174 of the Code of Criminal Procedure, 1973[2 ]with UD No.0004/2018 atthe instance of the appellant. On 28 February2018, samples of the visceraobtained during the post-mortem were sent to the Medical CollegeJhalawar and Forensic Science Laboratory[3], Jaipur, for examination.

3. On 5 March 2018, the appellant submitted an application to theSuperintendent of Police, Jhalawar for the registration of an FIR.Noaction having been taken on the basis of the application, the appellantsubmitted a written complaint on 9 March 2018 to the CJM, Jhalawar,who ordered an investigation. On 10 March 2018, the histopathologicalreport was received from the Department of Pathology, Jhalawar MedicalCollege and SRG Hospital which indicated that the lungs of the deceasedshowed signs of congestion and pulmonary edema. On 12 April 2018,FIR No.69/2018 was registered by PS Jhalawar Sadar under Sections302 and 120B of the Indian Penal Code[4].The contents of the FIR, whichwas registered at the behest of the appellant, indicate that:

(i) The appellant’s son married Anita Meena on 21 January2011;

(ii) Six months after his marriage, the appellant’s son wasselected for appointment with the Intelligence Bureau whilehis spouse was working as a teacher with the PanchayatSamiti; 2 ‘‘CrPC’’

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A(iii)Together, the deceased and his spouse had purchased ahouse at Jhalawar behind Jhalawar’s housing board colonythrough the first respondent who was working with the Anti-Corruption Bureau in Jhalawar;

(iv) The couple had two children aged 6 years and 4 months;B

(v) The deceased had proceeded to Ramganjmandi on 14February 2018, and thereafter for Jhalawar by train.Between 7.30 and 8.00pm, his body was found about 30meters away from the railway crossing culvert. The houseof the deceased is behind a housing board colony, which isCabout 500 meters away from the railway station. The bodywas taken by his brother-in-law to Jhalawar SRG Hospitalwhere he was brought dead;

(vi) The homicidal death of the appellant’s son had occurred asa result of a conspiracy to murder him and previously on 5DJanuary 2018, an attempt had been made to kill him whilehe was on his way from Jhalawar to Ramganjmandi;

(vii) While the first respondent was working as a constable inthe Anti-Corruption Bureau, Jhalawar, his wife was workingin a school together with the wife of the deceased. AboutEtwo months prior to the incident, the deceased had calledupon the first respondent not to visit their house anymore;

(viii) After the death of the appellant’s son, the first respondentwas not present either in the hospital or during the cremation;

(ix) The arrival of the deceased from Delhi to Jhalawar wasFwithin the knowledge of his wife and the first respondent,which would be evident from the call data records;

(x) The first respondent was present at every hour when thewife of the deceased delivered a child and he had developedclose relations with her;G

(xi) The body had been planted by killing the deceased at someother place under a conspiracy and the murder has beencommitted using a special method; and

(xii) The first respondent had been an active participant in thecase involving the murder of the deceased.H

SHRI MAHADEV MEENA v. PRAVEEN RATHORE ANDANOTHER [DR DHANANJAYA Y CHANDRACHUD, J.]

4. On 9 May 2018, FSL report 285/2018 dated 4 May 2018, wasreceived from the FSL, Jaipur, stating:

“RESULT OF EXAMINATION

On chemical examination, portions of viscera (1-5) and bloodsample (6) from three packets marked A, B and C respectivelygave negative tests for metallic poisons, ethyl and methyl alcohol,cyanide, alkaloids, Barbiturates, tranquillizers and insecticides.”

5. Based on an analysis of the call details records, co-accusedShahrukh Khan was arrested on 19 June 2018. The first respondentwas found to be absconding. It is alleged that the call data records showthat on the date of the incident the accused persons were incommunication with each other. During the course of the investigation,it was allegedly revealed by Sharukh Khan that the death of the deceasedhad occurred by injecting him with ketamine, an anesthetic drug. A reportof the Medical Board, constituted by the police, dated 19 June 2018 wascalled. The relevant extracts are reproduced below:

“Q. No. 4- Can (sic) use this injection for any criminal purpose?If yes, How?

Ans. No. 4- The possibility of criminal use of this injection cannotbe ruled out. The person can be sedated by this injection, whichreduces his or her ability to resist.

Q. No. 6- Whether giving heavy dose of Ketamine Injection cancause Lungs congestion and pulmonary edema or not?

Ans. No. 6- Lungs congestion & pulmonary edema is possible ifa person has hypoxia or asphyxia by giving heavy dose of KetamineInjection.”

6. During the course of the investigation, statements were recordedunder Section 161 CrPC, including the statement of (i) Chotmal Kashyapdated 22 June 2018; and (ii) Manohar Rathore dated 12 August 2018.

7. The first of these statements was of a resident of Jhalawarwho claims to have seen the deceased disembarking at the railway stationand going towards the road of the housing board. While coming out ofthe station, he allegedly saw the first respondent along with two otherpersons in a Ford Figo vehicle. According to him, the first respondentstepped out of the vehicle and went towards the same road. The second A

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Astatement under Section 161 CrPC is of a relative of the first respondentwhose services were being used as a driver by the first respondent. Hehas narrated certain events which took place on 3 May 2018, 9 May2018 and 14 June 2018, when the first respondent is alleged to havevisited the FSL at Jaipur.B8. Apart from the statements under Section 161 CrPC, on 23June 2018, a recovery was made at the behest of co-accused SantoshNirmal of a personal diary stored in a bag in the Operation TheatreStore at the Orthopedic Hospital, Jhalawar. The diary is apparently printedof the year 2010. It is alleged to contain telephone numbers of severalpersons including the first respondent against the date 15 January, whileCagainst the date of 16 January, it records that injections of two ketaminevials 10 ml/500mg had been handed over to the first respondent. SantoshNirmal, who worked as an Assistant in the Trauma Centre, Jhalawar,was arrested on 21 June 2018.On 24 June 2018, a vial of ketamine andsyringe were alleged to have been discovered in consequence ofDinformation received from accused Shahrukh Khan. The wife of thedeceased was arrested on 25 June 2018, while co-accused Farhan Khanwas arrested on 28 June 2018.The mobile phone of the wife of thedeceased was seized and it showed that she had been in constant touchwith the first respondent after the death of her husband. The firstrespondent was arrested on 18 August 2018.It is alleged that on 19 AugustE2018, the police recovered an empty vial of ketamine, a syringe, mobilecover and a pair of glasses (spectacles) belonging to the deceased inconsequence of the information furnished by the first respondent underSection 27 of the Indian Evidence Act 1872.On 25 October 2018, areport of the State FSL at Jaipur was submitted indicating that the samplesFof remnants containing viscera had tested positive for the presence ofthe drug, Ketamine.

9. On 2 September 2018, a charge sheet was submitted foroffences under Sections 302, 364, 201 and 120B of the IPC and underSection 3(2)(v), SC/ST Act, against the first respondent and four otherGco-accused, namely, (i) Anita Meena, (ii) Shahrukh Khan, (iii) FarhanKhan and (iv) Santosh Nirmal. The application for bail filed by the firstrespondent was dismissed by a Single Judge of the High Court on 26February 2019.The co-accused Anita Meena was granted bail on 4 June2019.The High Court noted that she had a child of eleven months anddue to her incarceration, her child was also confined with her in the jail.H

A Special Leave Petition filed against the order granting bail to the co-accused (Anita Meena) on the above ground was dismissed by this Courton 6 September 2019.On 5 August 2020 and 23 November 2020, theHigh Court dismissed the application for bail filed by the first respondentas withdrawn. The Special Judge SC/ST Act (Prevention of Atrocities)Cases, Jhalawar dismissed the bail application filed the first respondenton 19 December 2020. Eventually, by the impugned order dated 12February 2021, the Single Judge has allowed the application for bail.Inallowing the application, the High Court has relied upon on the followingcircumstances:

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(i) The appellant was in custody for a period of two and a halfyears; C

(ii) Out of seventy-six witnesses only twenty-five have beenexamined;

(iii) There was a delay in lodging the FIR;

(iv) While the initial FSL report did not contain any reference toDthe use of the Ketamine, it was after four months that policehad developed a case that Ketamine was administered tothe deceased; and

(v) The co-accused had been enlarged on bail.

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10. Ms Chitrangda Rastravara, learned Counsel appearing onbehalf of the appellant submitted that there has been a serious error onthe part of the High Court in enlarging the first respondent on bail. LearnedCounsel submitted that:

(i) There was no delay on the part of the appellant in lodgingthe written intimation about the unnatural death of his sonimmediately after the incident on 14 February 2018; F

(ii) On 15 February 2018, a report of an unnatural death wasregistered under the provisions of Section 174 of the CrPC;

(iii) The police initially failed to register the FIR and it was onlyon 12 April, 2018 that FIR 69/2018 was registered at PSJhalabad Sadar; G

(iv) The charge sheet has been filed after investigation andthough the case ultimately rests on circumstantial evidence, H

222SUPREME COURT REPORTS

Athere is sufficient material on record, at this stage, to indicatethe involvement of the first respondent;

(v) The FSL report indicates the presence of the drug Ketaminewhile even the earlier report which has been brought onrecord demonstrates pulmonary edema in the lungs of theBdeceased, which was a likely consequence of theadministration of Ketamine;

(vi) The High Court in granting bail has failed to notice theseriousness and gravity of the crime involving the murderof the appellant’s son, who was employed with theCIntelligence Bureau in New Delhi;

(vii) The first respondent is a constable employed with the Anti-Corruption Bureau at Jhalawar. There is every likelihoodof the evidence being tampered with if the first respondentis enlarged on bail; and D(viii) The circumstances which weighed with the High Court ingranting bail to the co-accused Anita Meena, namely, thatshe had an infant of eleven months would demonstrate thatbail was granted in special circumstance. The firstrespondent who is a prime accused cannot claim parity.

E11. On the other hand, Mr Siddhartha Dave, learned SeniorCounsel, appearing on behalf of the first respondent submitted that:

(i) At this stage when the court is dealing with the grant ofbail, there is no material on record to implicate the firstrespondent, where the case of the prosecution would restFon circumstantial evidence;

(ii) The recovery of the diary of co-accused Santosh Nirmalregarding the handing over of the Ketamine vial to the firstrespondent would be inadmissible in evidence against thefirst respondent; G(iii)The recoveries which have been madeover six months afterthe date of the incident, after the arrest of the first respondenton 18 August 2018, from a public place would have to bediscounted; H

(iv) The initial FSL report did not contain a reference to theApresence of Ketamine while it is only in a subsequent FSLreport that traces of the drug have been noticed. Theburden would lie on the prosecution to explain thecircumstances in which this fact emerged belatedly in thereport dated 25 October 2018 nearly eight months after theBdate of incident; A

(v) The statement given by Chotmal Kashyap under Section161 of the CrPC does not disclose that the deceased andthe first respondent were last seen together. Further,Chotmal Kashyap has made a profession out of appearingCas witness in many cases; and

(vi) The first respondent should be enlarged on bail on the groundof parity with the co-accused.

12. The order of the High Court contains serious infirmities.TheHigh Court has noted that there was a delay in lodging the FIR.Primafacie, the narration of facts in the earlier part of the judgment wouldindicate that on 14 February 2018, the appellant furnished a writtenintimation to the SHO at PS Jhalawar Sadar recording the unnaturaldeath of his son who had travelled from New Delhi to Jhalawar, uponthe discovery of the body close to the railway tracks at around 8.30 pm.Theinitial intimation recorded that while there was no injury on the body, thenails of the hands and feet of the deceased were found to have turnedblue and the death had occurred in suspicious circumstances. It was onthe basis of this statement that on 15 February 2018, an unnatural deathwas recorded under Section 174 of the CrPC.The post-mortem reportof 15 February 2018 indicates that the cause of death would be determinedonce histopathological examination of the viscera is concluded. The reportdated 10 March 2018, of the Department of Pathology at the JhalawarMedical College & SRG Hospital showed congestion in the lungs andpulmonary edema. On 12 April 2018, the FIR was registered at PSJhalawar Sadar.The FIR contains specific allegations against the firstrespondent in respect of(i) his proximity to the wife of the deceased; (ii)the deceased having objected to the first respondent visiting their maritalhome and directing him to cease doing so; and (iii) the call data recordsand WhatsApp messages exchanged between the first respondent, thedeceased and the co-accused Anita Meena. While the initial report ofthe FSL, Jaipur, dated 4 May 2018,was negative for metallic poison, D

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Aethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizersand insecticides, the report dated 25 October 2018 indicates that theremnants of the viscera samples had tested positive for the presence ofKetamine, an anesthetic drug.

13. Having analyzed prima facie the circumstances in which theBoffence was committed and the nature of the allegations, it will be usefulto refer to the precedents of this Court governing the grant of bail. Atwo-judge Bench of this Court in Ram Govind Upadhyay v. SudharshanSingh[5]has listed the considerations that govern the grant of bail withoutattributing an exhaustive character to them. This Court has observed:

C“4. Apart from the above, certain other which may be attributedto be 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 considerations being:

(a) While granting bail the court has to keep in mind notDonly the nature of the accusations, but the severity of thepunishment, if the accusation entails a conviction and the natureof evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses beingtampered with or the apprehension of there being a threat for theEcomplainant should also weigh with the court in the matter ofgrant of bail.

(c) While it is not expected to have the entire evidenceestablishing the guilt of the accused beyond reasonable doubt butthere ought always to be a prima facie satisfaction of the court inFsupport of the charge.(d) Frivolity in prosecution should always be consideredand it is only the element of genuineness that shall have to beconsidered in the matter of grant of bail, and in the event of therebeing some doubt as to the genuineness of the prosecution, in thenormal course of events, the accused is entitled to an order ofGbail.”This Court has further elucidated on the power of the court tointerfere with an order of bail in the following terms:

“3. Grant of bail though being a discretionary order — but,however, calls for exercise of such a discretion in a judicious mannerand not as a matter of course. Order for bail bereft of any cogentreason cannot be sustained.”

The above principles have been reiterated by a two judge Benchof this Court in Prasanta Kumar Sarkar v. Ashis Chatterjee[6]:

“9. … It is trite that this Court does not, normally, interfere withan order passed by the High Court granting or rejecting bail to theaccused. However, it is equally incumbent upon the High Court toexercise its discretion judiciously, cautiously and strictly incompliance 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.

[internal citation omitted]”

In Ramesh Bhavan Rathod v. Vishanbhai HirabhaiMakwana[7], a two judge Bench of this Court of which one of us (JusticeDY Chandrachud) was a part, has held that the High Court while granting 6 (2010) 14 SCC 4967 2021 (6) SCC 230

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Abail must focus on the role of the accused in deciding the aspect ofparity. This Court observed:

“26.…The High Court has evidently misunderstood the centralaspect of what is meant by parity. Parity while granting bail mustfocus upon the role of the accused. Merely observing that anotherBaccused who was granted bail was armed with a similar weaponis not sufficient to determine whether a case for the grant of bailon the basis of parity has been established. In deciding the aspectof parity, the role attached to the accused, their position in relationto the incident and to the victims is of utmost importance. TheHigh Court has proceeded on the basis of parity on a simplisticCassessment as noted above, which again cannot pass muster underthe law.”

14. The High Court ought to have had due regard to theseriousness and gravity of the crime. The deceased was employed withthe Intelligence Bureau in New Delhi. The first respondent is an employeeDof the Anti-Corruption Bureau at Jhalawar. The material which hasemerged during the course of investigation cannot simply be ignored orglossed over (as the High Court has done). The first respondent himselfbeing an employee of the Anti-Corruption Bureau at Jhalawar, thelikelihood of the evidence being tampered with and of the witnessesEbeing suborned cannot be discounted. At this stage, when the Court iscalled upon to evaluate whether a case for the grant of bail has beenmade out, it is inappropriate to enter upon matters which would form thesubject of the trial when evidence is adduced by the prosecution. Bailwas granted to the co-accused Anita Meena primarily and substantiallyon the ground that she had a child of eleven months with her in jail. ThisFcannot be the basis to a claim of parity on the part of the first respondent.The first respondent cannot claim parity with the co-accused since theallegations in the FIR and the material that has emerged from theinvestigation indicate that a major role has been attributed to him in themurder of the deceased.G

15. For the above reasons, we have come to the conclusion thatthe High Court was in error in allowing the application for bail. Theconsideration that twenty-five witnesses out of seventy-six witnesseshad been examined must equally be weighed with the seriousness of thecrime, the role attributed to the first respondent and the likelihood of theHevidence being tampered with if the first respondent were to remain on SHRI MAHADEV MEENA v. PRAVEEN RATHORE ANDANOTHER [DR DHANANJAYA Y CHANDRACHUD, J.]

bail during the course of the trial.In this backdrop, it was whollyinappropriate for the High Court to proceed on the surmise that thepolice had “developed a case” that Ketamine was administered, afterfour months of the incident.

16. For the above reasons, we allow the appeal and set aside theimpugned order of the High Court dated 12 February, 2021 enlarging thefirst respondent on bail.As a consequence, the first respondent shallsurrender forthwith and be taken into custody.

17. All observations in this judgment are for the purpose of thepresent case and will not have a bearing on the final outcome of the trial.

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

Divya Pandey

Appeal allowed.

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