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Supreme Court of India
Girraj vs Kiranpal on 8 March, 2021Author: Hon’Ble Dr. Chandrachud
Bench: Hon’Ble Dr. Chandrachud, M.R. Shah
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal Nos 286-290 of 2021
(Arising out of Special Leave Petition (Crl) No 2211-2215 of 2021)
(Arising out of Special Leave Petition (Crl) Diary No 28132 of 2020)
Girraj …. Appellant(s)
Versus
Kiranpal and Anr Etc ….Respondent(s)
JUDGMENT
Dr Dhananjaya Y Chandrachud, J
1 Permission to file the Special Leave Petitions granted.
2 Leave granted.
3 A batch of five Special Leave Petitions (SLP) under Article 136 of the Constitution
has arisen from the orders passed by the High Court of Judicature at Allahabad
granting bail to the five respondent-accused, namely:
(i) Kiranpal;
(ii) Sundar;
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2021.03.12
(iii) Rakesh;
17:54:02 IST
Reason:
(iv) Satish; and
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(v) Dharmendra.
4 The circumstances which have led to the registration of the first information
report1 being Case Crime No 414 of 2019 against the accused under Sections
147, 148, 149, 302, 307, 323, 342 and 508 of the Indian Penal Code 1860 at
Police Station Rabupura, District Gautam Budh Nagar may be adverted to briefly.
The appellant who is the original complainant had two sons, Gajendra aged 34
years and Akash aged 22 years, who were killed in the course of an incident
which took place on 29 November 2019. Two other persons, Sunil and Jeetu, out
of the four others present along with the deceased, are alleged to have been
seriously injured in the course of the incident. The FIR was lodged on 30
November 2019 at 1743 hours against eight accused persons, five of which are
before this Court in these proceedings. The FIR refers to the fact that there was
an enmity between the accused and the complainant and his sons due to “party
politics”. The FIR mentions an earlier incident on 24 October 2019, when five of
the accused (Sundar, Dharmendra, Monu, Kiranpal and Ompal) had attacked
Akash at Chambe in Mirzapur with an intent to kill him. Akash had allegedly
sustained a head injury after being assaulted with an iron rod and a fire-arm
injury in respect of which a first information report was lodged. Two of the
accused (Rakesh and Satish) had also allegedly assaulted the appellant’s sons in
the morning of 29 November 2019 and threatened them with death. The incident
concerning the present case is alleged to have taken place at night, on 29
November 2019. One of the deceased, Gajendra, the son of the appellant, was
conducting a gym and after closing his establishment, he was proceeding in his
vehicle from village Rabupura to village Rampur Bangar together with Akash,
who was in another vehicle. Two other persons, Sunil and Deepak are alleged to
have been in a third vehicle. Jeetu and Subhash were proceeding in a fourth
vehicle. When these persons reached a particular spot at around 8:30 pm, their
1 “FIR”
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passage was found to be blocked by a bullock cart. The eight accused were
allegedly present at the spot armed with rifles, guns and country-made pistols
for an ambush. They are alleged to have surrounded the four vehicles with an
intention of assaulting the appellant’s sons. Accused Mulla is alleged to have
fired with his rifle at Gajendra, while accused Bhupan is alleged to have fired
with his rifle at Akash. Both Gajendra and Akash were killed on the spot. Sunil
and Deepak who were in the third vehicle are alleged to have got down after
seeing the occurrence. Jeetu and Subash also came out of the fourth vehicle.
Among the injured were Sunil and Jeetu. After the FIR was lodged, all the
respondent-accused were arrested on 6 December 2019.
5 Pursuant to the registration of the FIR, the investigation by the police was
completed and a charge sheet was filed on 09 February 2020 under Sections
147, 148, 149, 307, 323, 326, 341 and 506 of the Indian Penal Code 1860
against all the accused and under Section 27 and 30 of the Arms Act against
accused Sunder and Mulla.
6 The details of the impugned orders passed by the HC granting bail to the
respondent-accused are as follows:
Kiranpal By order dated 17 September 2020 in Criminal Miscellaneous
Bail Application No 22538 of 2020
Sundar By order dated 22 September 2020 in Criminal Miscellaneous
Bail Application No 15449 of 2020
Rakesh, Satish, By common order dated 22 September 2020 in Criminal
Dharmendra Miscellaneous Bail Application Nos 14816 of 2020, 14951 of
2020 and 15255 of 2020, respectively.
7 Apart from these five accused, another co-accused Narendra (who is not a
respondent in this batch of SLPs), was granted bail by the High Court in Criminal
Miscellaneous Bail Application No. 14060 of 2020 by an order dated 05 August
2020.
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8 At this stage, it is necessary to note that while seeking bail before the High Court
in Criminal Miscellaneous Bail Application No 22538 of 2020, Kiranpal had relied
upon the order of the High Court granting bail to co-accused Narendra by the
above order dated 5 August 2020 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 granting
bail to Narendra. While granting bail, the High Court, in its orders dated 17
September 2020 and 22 September 2020, extracted the earlier order by which
bail was granted to Narendra. In fact, the High Court observed as follows:
“Keeping in view the nature of the offence, evidence,
complicity of the accused, submissions of the learned
counsel for the parties, the fact that co-accused
having identical role have already been released
on bail by this Court, without expressing any opinion
on the merits of the case, the Court is of the view that
the applicant has made out a case for bail. The bail
application is allowed.”(emphasis supplied)
9 The High Court adverted to the fact that “co-accused having identical 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 earlier orders by which bail was
granted to co-accused Narendra and Kiranpal.
10 The above narration of facts makes it abundantly clear that the 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 bail had specifically relied upon the
order passed in the case of Narendra and 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 matter of Criminal
Appeal No 852 of 2020 before this court, arising out of Special Leave Petition
(Criminal) No 5537 of 2020 (Girraj v Narendra @ Munder and Another). By
the judgment and order of this Court dated 11 December 2020, the order
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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
outset note the considerations which weighed with the
High Court. The High 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 all the accused including the first respondent
upon Jeetu and the two deceased and hence it
cannot be determined who has caused the injuries;
(iii) Taking into consideration the quantum of
punishment, nature of offence and period of
detention, the case was found 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 punishment would, as explained hereafter,
militate against the grant of bail in the facts of the
present case. As a matter of fact, it is evident from the
earlier part of the observations of the High Court which
have been extracted above, that the Court did notice the
fact that it is alleged that there was indiscriminate firing
by the side of the accused including the first respondent.
The attention of the court has been drawn to the fact
that in the statement of one of the injured, Jeetu, it has
been specifically stated that the first respondent was
among those who had fired at the deceased and Jeetu.
Above all, the High Court has completely ignored the
circumstance that in terms of the allegations in the FIR,
there was an unlawful assembly and it is as a
consequence of this that the provisions of Section 149
have been attracted.
10 A serious offence has taken place involving the death of
two sons of the appellant. Though, the High Court has
referred to the nature of the offence, it has failed to
notice that the seriousness of the offence in the present
case would militate against the grant of bail in a case
such as the present, where there are not only specific
allegations in the FIR, but the statement of one of the
injured witnesses. The High Court has also ignored the
allegation of enmity between the two groups on account
of party politics, which have allegedly translated into
instances of threats and assault of appellant’s sons as
discussed above. Moreover, the submission of the first
respondent that the failure of the police to register an FIR
at the behest of the accused led them to file an
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application under Section 156(3) CrPC, is clearly
indicative of the fact that prima facie at this stage, the
presence of the first respondent cannot reasonably be
doubted. In his counter affidavit, the first respondent
had, in fact, sought to explain his presence by stating
that he was merely passing from the place.”
12 This Court indicated the following reasons for coming to the conclusion that the
grant of bail to Narendra was contrary to the settled legal principles, including
the decision of this Court in Panchanan Mishra v Digambar Mishra2:
“12 Having regard to the conspectus of facts and our analysis
above, we are clearly of the view that in granting bail,
the High Court has led itself to be governed by several
circumstances which are extraneous to the proper
exercise of discretion under Section 439 of the CrPC.
Merely observing that there was indiscriminate firing and
it was difficult to ascertain as to who had caused the
injury is manifestly an erroneous approach to the issue
for two reasons. First, as the material at this stage
indicates, there are specific allegations against the first
respondent. Second, if as alleged, the first respondent
was a member of an unlawful assembly, the provisions of
Section 149 would stand attracted. In this backdrop,
having regard to the fact that a serious offence of murder
has taken place allegedly motivated by previous enmity
on account of party politics, leading to the death of both
the sons of the appellant, we are of the view that the
High Court was in error in granting bail to the first
respondent. The High Court having granted bail for
reasons which are extraneous to the exercise of the
discretion under Section 439 CrPC, we are constrained to
interfere in the exercise of our jurisdiction under Article
136 of the Constitution to cancel the bail of the first
respondent”
13 The following table will indicate the position in regard to the grant of bail to all
the accused in the case:
Chief Judicial Bail refused.
Magistrate, Noida
04.01.2020 – Kiranpal
06.01.2020 – Rakesh and Satish
07.01.2020 – Narendra
08.01.2020 – Bhupan, Dharmendra, Mulla and Sundar.
2 (2005) 3 SCC 143
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Addl Sessions Considering the nature of the offence, being armed with gun,
Judge, Gautam rifle, manner, no bail to be granted.
Budh Nagar, U.P.
04.02.2020 – Kiranpal
07.02.2020 – Rakesh & Satish
10.02.2020 – Narendra
13.02.2020 – Bhupan & Dharmendra
24.02.2020 – Mulla & Sundar
High Court of 05.08.2020 – Bail granted to Narendra as he has “ no history
Judicature at and that indiscriminate fire is said to be have been made all,
Allahabad thereby cannot be determined 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 Court 11.12.2020 – Cancelled the bail of Narendra
14 Since bail has been granted to all the respondent-accused who 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 was granted to Narendra must
have a similar consequence insofar as the grant of bail to the remaining five
accused is concerned. The circumstances in which bail that was granted to co-
accused Narendra was cancelled have already been adverted to in the earlier
part of this order.
15 Mr Rajiv Garg, learned counsel appearing on behalf of the appellant, submits
that since the respondents had claimed parity on the basis of the order which
was passed in the case of Narendra, they must necessarily now submit to the
final order passed by this Court cancelling bail which was granted to co-accused
Narendra. This submission has been supported on behalf of the State by Mr
Vinod Diwakar, learned Additional Advocate General.
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16 On the other hand, an effort has been made by Mr Rajul Bhargava, learned
Senior Counsel appearing on behalf of the respondent-accused to advert to
certain circumstances which in his submissions would distinguish the case of the
respondent-accused. In particular, reliance has been placed during the course of
the submissions on the information regarding the death of the appellant’s sons
which was furnished by the Kailash Hospital and by the Yatharth Hospital on 29
November 2019 to the Police Station. The submission is that the information
furnished by the hospitals adverts to the circumstances and location at which
the incident took place and that this is at variance as to what was eventually
recorded in the FIR which was registered at about 1743 hours on 30 November
2019.
17 We are unable to accede to the submission which was urged on behalf of the
respondent-accused in these proceedings. We are not at this stage dealing a
finding arrived at in the course of a criminal trial on the basis of evidence.
Serious offences are alleged to have been committed in the course of the
incident, leading up to the death of two sons of the informant and serious
injuries to others.
18 Ex facie, the orders of the High Court would indicate that the only basis for
claiming bail in the present batch of cases was by placing reliance on the order
granting bail to the co-accused Narendra. The bail which has been granted to
Narendra has been cancelled by the order of this Court dated 11 December
2020. Nonetheless, in order to ensure fairness to the co-accused, who are the
respondents in these proceedings, we are of the view that it would be
appropriate to furnish them an opportunity to apply for bail before the High
Court, conditional on their surrendering in pursuance of the order which we
propose to pass cancelling their bail. We accordingly allow the present appeals
in terms of the following directions:
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(i) In view of the order dated 11 December 2020 passed by this Court in
Criminal Appeal No 852 of 2020 cancelling the bail which was granted to
the co-accused Narendra and since bail was sought by the respondents on
a footing of parity, the orders passed by the High Court granting bail to
the five respondent – accused, namely, Kiranpal, Sundar, Rakesh, Satish
and Dharmendra, shall stand cancelled;
(ii) The respondent–accused shall surrender, as a consequence of the
cancellation of bail forthwith;
(iii) Conditional on the respondents’ surrendering within a period of 24 hours
of the uploading of a copy of this order on the website of this Court, the
respondents are granted liberty to move the High Court afresh for the
grant of bail.
19 Pending application, if any, stands disposed of.
………………………….……………………..J.
[Dr Dhananjaya Y Chandrachud]
..…..…….………..……………….………..J.
[M R Shah]
New Delhi;
March 08, 2021
-S-
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