Girraj vs Kiranpal

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 2

(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” 3

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.

4

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 5

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 6

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 7

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. 8

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:

9

(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-