caselaws
Supreme Court of India
Sunil Kumar vs The State Of Bihar on 25 January, 2022Author: M.R. Shah
Bench: M.R. Shah, B.V. Nagarathna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 95 OF 2022
Sunil Kumar …Appellant(s)
Versus
The State of Bihar and Anr. …Respondent(s)
JUDGMENT
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Judicature at Patna dated
17.08.2021 passed in Criminal Miscellaneous Application No. 13149 of
2021 by which the High Court has released the respondent No.2 –
original accused on bail in connection with alleged case No.328 of 2020
– Vaishali Police 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, the original informant – younger brother of the deceased has
preferred the present appeal.
2.
Signature Not Verified
That the appellant herein – informant – younger brother of the
Digitally signed by R
Natarajan
Date: 2022.01.25
16:45:10 IST
Reason:
deceased Shardanand Bhagat lodged F.I.R. with the Vaishali, Bihar
Police Station against all the accused named in the F.I.R. for the offence
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under Sections 147, 148, 149, 341, 323, 324, 427, 504, 506, 307 and
302 IPC and Section 27 of the Arms Act for having assaulted them and
killed his elder brother Shardanand Bhagat, who succumbed to the bullet
injury. As per the case of the prosecution, on fateful date of occurrence
accused Ramawatar Bhagat (respondent No.2 herein) and other
accused named in F.I.R. having armed with lethal weapons came to the
Bamboo Clumps of the informant and they started cutting the bamboos.
So, his brother – Shardanand Bhagat went to forbade them. On this
accused Ramawatar Bhagat ordered to kill Shardanand Bhagat and then
Shardanand Bhagat started fleeing away but he was chased and
surrounded by all the accused persons. After that the co-accused
Manish Kumar fired upon him from his rifle due to which Shardanand
Bhagat got injured and fell down and when the informant went to save
him, the co-accused namely Rambabu Kumar fired twice upon the
informant due to which the informant also got injured to some extent.
After that all the accused persons brutally assaulted the informant by
means of Lathi, Danda. When co-villagers started assembling there then
all the accused persons fled away. Later on, both the injured persons
were brought to the Sadar Hajipur and thereafter they were referred to
P.M.C.H. for treatment.
2.1 That during the course of treatment, Shardanand Bhagat
succumbed to the bullet injury. So, later on, Section 302 IPC was
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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
giving cogent reasons and by observing that the respondent No.2 –
accused Ramawatar 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
such heinous offence and therefore having considered the gravity of the
case, no case for bail is made out. That thereafter the respondent No.2
approached the High Court by way of present application under Section
439 Cr.P.C. and by the impugned judgment and order without assigning
any cogent reasons and without even considering the gravity and nature
of the offence committed in which one of the persons got killed and after
narrating the submissions made on behalf of the accused and the State
and after observing “Considering the rival submissions as also the facts
and circumstances of the case, this Court for the purposes of grant of
bail is inclined to accept the submissions advanced by the petitioner’s
counsel. Prayer for bail of the petitioner is allowed.”
2.2 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court releasing the respondent No.2 on
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bail, the original informant – younger brother of the deceased, who
himself is an injured eye witness has preferred the present appeal.
3. Shri Rituraj Choudhary, learned counsel appearing on behalf of the
appellant has vehemently submitted that in the facts and circumstances
of the case, the High Court has committed a grave error in releasing the
respondent No.2 accused on bail in a case where one person is killed.
3.1 It is vehemently submitted that while releasing the respondent
No.2 on bail as such no reasons have been assigned by the High Court
except after narrating the submissions observing that considering the
rival submissions as also the facts and circumstances of the case, the
Court is inclined to grant the bail. It is submitted that as held by this
Court in a catena of decisions, the aforesaid can hardly be said to be
sufficient reasons assigned while releasing the accused on bail.
Reliance is placed on the decisions of this Court in the case of Ramesh
Bhavan Rathod Vs. Vishanbhai Hirabhai Makwana (Koli) and others,
(2021) 6 SCC 230, as well as in the case of Mahipal Vs. Rajesh Kumar,
(2020) 2 SCC 118.
3.2 It is submitted that therefore the impugned order passed by the
High Court releasing the respondent No.2 on bail is just contrary to law
laid down by this Court in the aforesaid decisions as well as the recent
decision of this Court in the case of Bhoopendra Singh Vs. State of
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Rajasthan & another (Criminal Appeal No. 1279 of 2021, decided on
29.10.2021).
3.3 It is further submitted that even otherwise while releasing the
respondent No.2 accused on bail, the High Court has not at all adverted
to the relevant considerations while granting bail as laid down by this
Court in a catena of decisions, including the decision of this Court in the
case of Anil Kumar Yadav Vs. State (NCT of Delhi), (2018) 12 SCC
129.
3.4 It is further submitted that the High Court has even totally ignored
the antecedents of the accused. It is submitted that what is weighed
with the High Court seems to be a parity as one other co-accused
Shashi Bhushan Bhagat has been allowed bail. It is submitted that
however, the High Court has not at all appreciated the distinct and
distinguished features so far as the case of co-accused Shashi Bhushan
Bhagat is concerned. It is submitted that the High Court ought to have
appreciated that the case of co-accused Shashi Bhushan Bhagat is
different from the respondent No.2 accused. It is further submitted that
the High Court has also not at all considered the fact that earlier the
respondent No.2 is also an accused in double murder case. He is
involved in murder of the informant’s father and younger brother and for
which the cases are pending against him and the trial is at the stage of
recording of evidence. It is submitted that the High Court has not at all
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noted and/or appreciated the fact that the respondent accused is
threatening and building pressure upon the informant either to withdraw
the aforesaid Session trial or to turn hostile in the aforesaid case as the
trial is at the evidence stage. It is submitted that the High Court has not
at all considered the aforesaid relevant aspects, which are very material
while considering the grant of bail while releasing the respondent No.2
on bail.
4. Shri Devashish Bharuka, learned counsel appearing on behalf of
the State has supported the appellant and submitted that after
conclusion of the investigation, the respondent No.2 has been charge
sheeted for the offence under Sections 147, 148, 149, 302, 34 and 447
IPC having murdered/killed Shardanand Bhagat – the elder brother of
the appellant. It is submitted that therefore the High Court ought not to
have released the respondent No.2 on bail in such a serious case for the
offence under Section 302 IPC.
5. Present appeal is vehemently opposed by Shri Atul Kumar, learned
counsel appearing on behalf of the respondent No.2 accused. It is
vehemently submitted that having accepted the submissions on behalf of
the accused and after considering all the facts of the case, the High
Court has released the accused – respondent No.2 on bail and the same
is not required to be interfered with by this Court in exercise of the
powers under Article 136 of the Constitution of India.
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5.1 It is submitted that the respondent No.2 is a 70 years old senior
citizen suffering from various ailments and has nothing to do with the
alleged offences. It is submitted that the alleged involvement in two
previous cases has not been concealed from the Hon’ble Court while
making application or submission of arguments and has also been
discussed by the High Court in the impugned order.
5.2 It is further submitted that even otherwise the evidence in other
cases is almost complete and only the doctor and the investigating
officer are remained to be examined. It is submitted that in the earlier
case, the respondent accused is enlarged on bail and that there is no
allegation of misuse of liberty granted by the High Court for 30 years.
5.3 Making the above submissions, it is prayed not to cancel the bail
and/or interfere with the impugned judgment and order passed by the
High Court releasing the respondent No.2 on bail.
6. We have heard the learned counsel for the respective parties at
length. We have also gone through the impugned judgment and order
passed by the High Court releasing the respondent No.2 accused on
bail.
7. From the impugned judgment and order passed by the High Court,
it can be seen that no reasons whatsoever have been assigned by the
High Court while releasing the respondent No.2 on bail. After recording
the submissions made by the learned counsel appearing on behalf of the
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accused and the State thereafter the High Court has only observed that
“considering the rival submissions as also the facts and circumstances of
the case, this Court for the purposes of grant of bail is inclined to accept
the submissions advanced by the petitioner’s counsel. Prayer for the
bail of the petitioner is allowed.” There is no further reasoning given at
all. Neither the High Court has considered the gravity, nature and
seriousness of the offences alleged against the accused. In the case of
Mahipal (supra) while emphasizing to give brief reasons while granting
the bail to an accused in paragraphs 24 to 27, it is observed and held as
under:-
“24. There is another reason why the judgment of the
learned Single Judge has fallen into error. It is a sound
exercise of judicial discipline for an order granting or
rejecting bail to record the reasons which have weighed
with the court for the exercise of its discretionary power.
In the present case, the assessment by the High 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 for the petitioner and taking into
account the facts and circumstances of the
case and without expressing opinion on the
merits of the case, this Court deems it just and
proper to enlarge the petitioner on bail.”
25. Merely recording “having perused the record” and “on
the facts and circumstances of the case” does not
subserve the purpose of a reasoned judicial order. It is a
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fundamental premise of open justice, to which our judicial
system is committed, that factors which have weighed in
the mind of the Judge in the rejection or the grant of bail
are recorded in the order passed. Open justice is
premised on the notion that justice should not only be
done, but should manifestly and undoubtedly be seen to
be done. The duty of Judges to give reasoned decisions
lies at the heart of this commitment. Questions of the
grant of bail concern both liberty of individuals undergoing
criminal prosecution as well as the interests of the
criminal justice system in ensuring that those who commit
crimes are not afforded the opportunity to obstruct justice.
Judges are duty-bound to explain the basis on which they
have arrived at a conclusion.
26. In Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan
Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528], a
two-Judge Bench of this Court was required to assess the
correctness of a decision [Rajesh Ranjan v. State of
Bihar, Criminal Misc. No. 28179 of 2002, order dated 23-
5-2003 (Pat)] of a High Court enlarging the accused on
bail. Santosh Hegde, J. speaking for the Court, discussed
the law on the grant of bail in non-bailable offences and
held : (SCC p. 535, para 11)
“11. The law in regard to grant or refusal of
bail is very well settled. The court granting bail
should exercise its discretion in a judicious
manner and not as a matter of course.
Though at the stage of granting bail a detailed
examination of evidence and elaborate
documentation of the merit of the case need
not be undertaken, there is a need to indicate
in such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged of
having committed a serious offence. Any
order devoid of such reasons would suffer
from non-application of mind.”
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(emphasis supplied)
27. Where an order refusing or granting bail does not
furnish the reasons that inform the decision, there is a
presumption of the non-application of mind which may
require the intervention of this Court. Where an earlier
application for bail has been rejected, there is a higher
burden on the appellate court to furnish specific reasons
as to why bail should be granted.”
8. A similar view has been expressed by this Court in the recent
decision in the case of Ramesh Bhavan Rathod (supra).
Emphasizing on giving brief reasons while granting bail, it is observed by
this Court in the above case that though it is a well settled principle that
in determining as 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 since a criminal trial is still to take place. It is further observed that
however the Court granting bail cannot obviate its duty to apply a judicial
mind and to record reasons, brief as they may be, for the purpose of
deciding whether or not to grant bail. It is observed that the outcome of
the application has a significant bearing on the liberty of the accused on
one hand as well as the public interest in the due enforcement of
criminal justice on the other and the rights of the victims and their
families are at stake as well and therefore while granting bail, the Court
has to apply a judicial mind and record brief reasons for the purpose of
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deciding whether or not to grant bail. It is further observed by this Court
in the aforesaid decision in paragraph 36 as under:
“36. Grant of bail Under Section 439 of the Code of
Criminal Procedure is a matter involving the exercise of
judicial discretion. Judicial discretion in granting or
refusing bail-as in the case of any other discretion which
is vested in a court as a judicial institution-is not
unstructured. The duty to record reasons is a significant
safeguard which ensures that the discretion which is
entrusted to the court is exercised in a judicious manner.
The recording of reasons in a judicial order ensures that
the thought process underlying the order is subject to
scrutiny and that it meets objective standards of reason
and justice.”
9. Even otherwise the High Court has erred in not considering the
material relevant to the determination of whether the accused was to be
enlarged on bail. The High Court has not at all adverted to the relevant
considerations 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
relevant considerations are, (i) nature of seriousness of the offence; (ii)
character of the evidence and circumstances which are peculiar to the
accused; and (iii) likelihood of the accused fleeing from justice; (iv) the
impact that his release may make on the prosecution witnesses, its
impact on the society; and (v) likelihood of his tampering.
10. Even the High Court has also not at all considered the criminal
antecedents of the respondent No.2 – accused. Though it was pointed
out on behalf of the informant that the accused is involved in two cases
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and that the appellant (informant) was restrained from proceeding further
in earlier cases pending against the accused, the High Court has simply
brushed aside the same and has not considered the same at all. The
High Court has noted the submission on behalf of the accused that one
other accused – Shashi Bhushan Bhagat has been released on bail.
However, the High Court has not at all considered whether the case of
Shashi Bhushan Bhagat is similar to that of the respondent No.2 –
accused – Ramawatar Bhagat or not. It appears that the High Court has
passed the order mechanically and in a most perfunctory manner. In the
case of In Neeru Yadav Vs. State of UP & Anr., (2016) 15 SCC 422,
after referring to a catena of judgments of this Court on the
considerations to be placed at balance while deciding to grant bail, it is
observed in paragraphs 15 and 18 as under:
“15. This being the position of law, it is clear as cloudless
sky that the High Court has totally ignored the criminal
antecedents of the accused. What has weighed with the
High Court is the doctrine of parity. A history-sheeter
involved in the nature of crimes which we have
reproduced hereinabove, are not minor offences so that
he is not to be retained in custody, but the crimes are of
heinous nature and such crimes, by no stretch of
imagination, can be regarded as jejune. Such cases do
create a thunder and lightening having the effect
potentiality of torrential rain in an analytical mind. The law
expects the judiciary to be alert while admitting these kind
of accused persons to be at large and, therefore, the 11
emphasis is on exercise of discretion judiciously and not
in a whimsical manner.
xxx
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18. Before parting with the case, we may repeat with
profit that it is not an appeal for cancellation of bail as the
cancellation is not sought because of supervening
circumstances. The annulment of the order passed by the
High Court is sought as many relevant factors have not
been taken into consideration which includes the criminal
antecedents of the accused and that makes the order a
deviant one. Therefore, the inevitable result is the
lancination of the impugned order.”
11. Applying the law laid down by this Court in the aforesaid decisions
to the facts of the case on hand and more particularly considering the
fact that respondent No.2 is a history sheeter and is having a criminal
antecedent and is involved in the double murder of having killed the
father and brother of the informant and the trial of these cases is at the
crucial stage of recording evidence and there are allegations of
pressurizing the informant and the witnesses, the impugned judgment
and order passed by the High Court releasing the respondent No.2 on
bail is absolutely unsustainable and the same cannot stand. The High
Court has not at all considered the gravity, nature and seriousness of the
offences alleged.
12. In view of the above and for the reasons stated above, the present
appeal succeeds. The impugned judgment and order passed by the
High Court releasing the respondent No.2 on bail is hereby quashed and
set aside. On quashing and setting aside the impugned judgment and
order passed by the High Court releasing the respondent No.2 on bail,
now the respondent No.2 accused to surrender before the concerned jail
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authority / before the concerned Court forthwith. Present appeal is
accordingly allowed.
………………………………….J. [M.R. SHAH]
NEW DELHI; ………………………………….J.
JANUARY 25, 2022. [SANJIV KHANNA]
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