Jagjeet Singh vs Ashish Mishra @ Monu

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.632 of 2022 [Arising out of Special Leave Petition (Crl.) No. 2640 of 2022]

Jagjeet Singh & Ors ..... Appellant(s) VERSUS

Ashish Mishra @ Monu & Anr ..... Respondent

JUDGEMENT

Surya Kant, J:

Leave Granted.

2. The challenge is laid to an order dated 10.02.2022 passed by the

High Court of Judicature at Allahabad, Lucknow bench, whereby

Respondent No.1 (hereinafter­“Respondent­Accused”), has been

enlarged on bail in a case under Sections 147, 148, 149, 302, 307,

326 read with Sections 34 and 120­B of the Indian Penal Code, 1860

(hereinafter­ “IPC”), as well as Sections 3, 25 and 30 of the Arms Act,

1959.

FACTS Signature Not Verified

3. Digitally signed by VISHAL ANAND Date: 2022.04.18 In brief, it is alleged that several farmers had gathered in the 14:02:15 IST Reason:

Khairaitya village in Lakhimpur Kheri District on 29.09.2021, to

Page | 1 celebrate the birth anniversary of Sardar Bhagat Singh and to protest

against the Indian Agricultural Acts of 2020. During this gathering,

the farmers objected to certain comments made by Mr. Ajay Mishra @

Teni, Union Minister of State for Home. In the course of the meeting,

the farmers decided to organise a protest against Mr. Ajay Mishra in

his ancestral village on 03.10.2021. Various farmers’ organisations

issued appeals to their members and supporters to participate in the

demonstration, and pamphlets were also distributed.

4. On 03.10.2021, an annual Dangal (wrestling) competition was

being organised by Ashish Mishra @ Monu, i.e., Respondent­Accused.

The program was to be attended by Mr. Ajay Mishra, as well as Mr.

Keshav Prasad Maurya, Deputy Chief Minister of the State of Uttar

Pradesh, for whom a helipad was constructed in the playground of

Maharaja Agrasen Inter College, Tikonia. A crowd of farmers started

gathering near the helipad in the morning of 03.10.2021. The route of

the Chief Guest was thus changed to take him by road. But the

changed road route was also passing in front of the Maharaja Agrasen

Inter College, where the protesting farmers had been gathering in large

numbers. This led the authorities to take recourse to yet another

alternative way to reach the Dangal venue.

5. In the meantime, some supporters of Respondent No.1, who were

travelling by a car to the Dangal venue, were statedly attacked by

Page | 2 certain farmers. The mirrors of their vehicle(s) were smashed. A

hoarding board that displayed pictures of Mr. Ajay Mishra and the

Respondent­Accused was also damaged. It is alleged that upon

gathering knowledge of these events, coupled with the information

that the route of the Chief Guest had to be changed because of the

protesting farmers, Respondent­Accused became agitated. He,

thereafter, is said to have conspired with his aides and confidants,

and decided to teach the protesting farmers a lesson. Respondent No.1

and his aides, armed with weapons, left the Dangal venue in a

Mahindra Thar SUV, a Fortuner vehicle and a Scorpio vehicle, and

drove towards the farmers’ protest site.

6. When the farmers were returning to their homes after their

protest was over, Respondent­Accused along with his associates who

were in the aforesaid three vehicles, allegedly drove into the crowd of

the returning farmers and hit them with an intention to kill.

Resultantly, many farmers and other persons were crushed by the

vehicles. The Thar vehicle was eventually stopped. Respondent No.1

and his co­accused Sumit Jaiswal then stepped out of the Thar and

escaped by running towards a nearby sugarcane field while taking

cover by firing their weapons.

7. As a consequence of this incident, four farmers, one journalist,

the driver of the Thar Vehicle­Hariom, and two others, were killed.

Page | 3 Nearly ten farmers suffered major and minor injuries.

8. In the early hours of 04.10.2021, FIR no. 219 of 2021 was

registered on the complaint of the Appellant No.1, i.e, Jagjeet Singh, at

Police Station Tikonia against Respondent No.1 and 15­20 unknown

persons, for causing the death of four farmers. It was alleged that

Respondent No.1 along with his accomplices drove into the crowd of

protesting farmers and crushed them. It was further alleged that one

Sukhvinder Singh died on the spot due to a fire arm injury. Another

FIR1 was registered by Sumit Jaiswal against unknown persons and

protesting farmers for having killed four persons, including the

journalist Raman Kashyap, the driver of the Thar vehicle­Hariom and

two other supporters of the Respondent­Accused.

9. Meanwhile, a PIL was filed in this Court expressing serious

concerns regarding the fairness of the investigation into the incidents

of 03.10.2021. This Court, on 17.11.2021, reconstituted the SIT and

new members were inducted to carry out the investigation. Justice

(Retd.) Rakesh Kumar Jain, a former Judge of the Punjab and

Haryana High Court, was appointed to monitor the investigation. The

reconstituted SIT filed a chargesheet on 03.01.2022, wherein, the

Respondent­Accused was found to be the main perpetrator of the

events that took place on 03.10.2021.

1 FIR No. 220 of 2021 was registered under Sections 147, 323, 324, 336 and 302 of the IPC.

Page | 4

10. The Accused­Respondent moved an application for bail before

the High Court of Judicature at Allahabad, Lucknow Bench. Vide the

impugned order dated 10.02.2022 (corrected on 14.02.2022), the High

Court allowed the application and granted regular bail to the

Respondent­Accused. The relief was primarily granted on four counts.

Firstly, the Court held that the primary allegation against the

Respondent­Accused was of firing his weapon and causing gunshot

injuries, but neither the inquest reports nor the injury reports

revealed any firearm injury, therefore, the High Court opined that the

present case was one of “accident by hitting with the vehicle”.

Secondly, the allegation that he provoked the driver of the car could

not be sustained since the driver along with two others, who were in

the vehicle, were killed by the protesters. Thirdly, it was noted that the

Respondent­Accused had joined the investigation. Fourthly, the charge

sheet had been filed.

11. Discontented with the order of the High Court, the aggrieved

‘victims’ are before us.

CONTENTIONS

12. Shri Dushyant Dave, learned Senior Counsel on behalf of the

Appellants vehemently contended that the High Court had erred in

overlooking several important aspects, and instead placed undue

weightage on issues such as the absence of any fire arm injury.

Page | 5 Relying upon the decision of this in Court in the case of Mahipal v.

Rajesh Kumar & Anr.2, it was canvassed that the High Court had

disregarded well­established principles that govern the Court’s

discretion at the time of granting bail. It was further pressed that the

bail order was passed in a mechanical manner with non­application of

mind, rendering it illegal and liable to be set aside. The learned Senior

Counsel also pointed out that during the course of the online

proceedings, counsel for the Complainant/victims were disconnected,

and were not heard by the High Court. It was stated that their

application for re­hearing the bail application was also not considered

by the High Court. Learned Senior Counsel also drew our attention to

FIR No. 46 of 2022, which was filed by one Diljot Singh, a witness to

the incident of 03.10.2021. The said witness therein claimed that on

10.03.2022, he was threatened and attacked by the supporters of the

Respondent­Accused. Alternatively, emphasis was placed on judgment

of this Court in Alister Anthony Pariera v. State of Maharashtra3,

to highlight that if an act of rash and negligent driving was preceded

by real intention on the part of the wrong doer to cause death, then a

charge under section 302 IPC may be attracted.

13. On the other hand, Shri Ranjit Kumar, learned Senior Counsel

appearing on behalf of the Respondent No.1, vigorously defended the

2 (2020) 2 SCC 118 ¶ 12 & 13 3 (2012) 2 SCC 648 ¶ 47

Page | 6 judgment of the High Court. It was submitted that given the

allegations made in FIR No. 219 of 2021, the High Court was bound to

prima facie consider the issue of bullet injuries. He further asserted

that the Respondent­Accused was never in the Thar vehicle and was

instead at the Dangal venue. Lastly, learned Senior Counsel argued

that in the event that this Court was to set aside the impugned order

and cancel the bail, the Respondent accused would be left without any

remedy and it would be nearly impossible for him to be released on

bail till the conclusion of trial.

14. Shri Mahesh Jethmalani, learned Senior Counsel appearing for

Respondent No.2, i.e., State of Uttar Pradesh, at the outset argued

that a bail hearing should not be converted into a mini trail. He urged

that the Court ought to consider three basic parameters at the time of

deciding bail­ (i) the possibility of tampering with evidence; (ii) whether

the accused would be a flight risk; & (iii) the nature of the offense.

With respect to the first consideration, it was highlighted that the

State Government, under the ambit of the Witness Protection Scheme,

2018, had provided adequate security, including armed personnel, to

all the ‘victims’ and witnesses. It was explained that the State was

regularly following up with the witnesses and that the possibility of the

accused tampering with any witness, was narrow. Learned Senior

Counsel further submitted that given the local roots of the

Page | 7 Respondent­Accused, he could not be considered as a flight risk. Shri

Jethmalani, however, stated that the nature of the offense in the

present case was grave. He clarified that the State had vehemently

opposed the bail application before the High Court and in no manner,

does it deviate from its previous stand.

ANALYSIS

15. Having heard learned Senior Counsels for the parties at

considerable length, we find that the following questions fall for our

consideration:­

A. Whether a ‘victim’ as defined under Section 2(wa) of the Code

of Criminal Procedure, 1973 (hereinafter, “Cr.P.C.”) is entitled

to be heard at the stage of adjudication of bail application of

an accused?

B. Whether the High Court overlooked the relevant

considerations while passing the impugned order granting

bail to the Respondent­Accused?; and

C. If so, whether the High Court’s order dated 10.02.2022 is

palpably illegal and warrants interference by this Court?

A. Victim’s right to be heard:

16. Until recently, criminal law had been viewed on a dimensional

plane wherein the Courts were required to adjudicate between the

Page | 8 accused and the State. The ‘victim’ — the de facto sufferer of a crime

had no participation in the adjudicatory process and was made to sit

outside the Court as a mute spectator. However, with the recognition

that the ethos of criminal justice dispensation to prevent and punish

‘crime’ had surreptitiously turned its back on the ‘victim’, the

jurisprudence with respect to the rights of victims to be heard and to

participate in criminal proceedings began to positively evolve.

17. Internationally, the UN Declaration of Basic Principles of Justice

for the Victims of Crime and Abuse of Power, 1985, which was adopted

vide the United Nations General Assembly Resolution 40/34, was a

landmark in boosting the pro­victim movement. The Declaration

defined a ‘victim’ as someone who has suffered harm, physical or

mental injury, emotional suffering, economic loss, impairment of

fundamental rights through acts or omissions that are in violation of

criminal laws operative within a State, regardless of whether the

perpetrator is identified, apprehended, prosecuted or convicted, and

regardless of the familial relationship between the perpetrator and the

‘victim’. Other international bodies, such as the European Union, also

took great strides in granting and protecting the rights of ‘victims’

through various Covenants4.

4 The position of a victim in the framework of Criminal Law and Procedure, Council of Europe Committee of Ministers to Member States, 1985; Strengthening victim's right in the EU communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Reasons, European Union, 2011; Proposal for a Directive of the European Parliament and of the Council establishing “Minimum Standards on the Rights, Support and Protection of Victims of Crime, European

Page | 9

18. Amongst other nations, the United States of America had also

made two enactments on the subject i.e. (i) The Victims of Crime Act,

1984 under which legal assistance is granted to the crime­victims; and

(ii) The Victims' Rights and Restitution Act of 1990. This was followed

by meaningful amendments, repeal and insertion of new provisions in

both the Statutes through an Act passed by the House of

Representatives as well as the Senate. In Australia, the Legislature has

enacted South Australia Victims of Crime Act, 2001. While in Canada

there is the Canadian Victims Bill of Rights. Most of these legislations

have defined the ‘victim’ of a crime liberally and have conferred varied

rights on such victims.

19. On the domestic front, recent amendments to the Cr.P.C. have

recognised a victim’s rights in the Indian criminal justice system. The

genesis of such rights lies in the 154 th Report of the Law Commission

of India, wherein, radical recommendations on the aspect of

compensatory justice to a victim under a compensation scheme were

made. Thereafter, a Committee on the Reforms of Criminal Justice

System in its Report in 2003, suggested ways and means to develop a

cohesive system in which all parts are to work in coordination to

achieve the common goal of restoring the lost confidence of the people

in the criminal justice system. The Committee recommended the

Union, 2011.

Page | 10 rights of the victim or his/her legal representative “to be impleaded

as a party in every criminal proceeding where the charges

punishable with seven years’ imprisonment or more”.

20. It was further recommended that the victim be armed with a

right to be represented by an advocate of his/her choice, and if he/she

is not in a position to afford the same, to provide an advocate at the

State’s expense. The victim’s right to participate in criminal trial and

his/her right to know the status of investigation, and take necessary

steps, or to be heard at every crucial stage of the criminal proceedings,

including at the time of grant or cancellation of bail, were also duly

recognised by the Committee. Repeated judicial intervention, coupled

with the recommendations made from time to time as briefly noticed

above, prompted the Parliament to bring into force the Code of

Criminal Procedure (Amendment) Act, 2008, which not only inserted

the definition of a ‘victim’ under Section 2 (wa) but also statutorily

recognised various rights of such victims at different stages of trial.

21. It is pertinent to mention that the legislature has thoughtfully

given a wide and expansive meaning to the expression ‘victim’ which

“means a person who has suffered any loss or injury caused by

reason of the act or omission for which the accused person has

been charged and the expression “victim” includes his or her

guardian or legal heir” Page | 11

22. This Court, in Mallikarjun Kodagali (Dead) v. State of

Karnataka & Ors5, while dealing with questions regarding a victim’s

right to file an appeal under section 372 of Cr.P.C, observed that there

was need to give adequate representation to victims in criminal

proceedings. The Court therein affirmed the victim’s right to file an

appeal against an order of acquittal. In Mallikarjun Kodagali,

though the Court was primarily concerned with a different legal issue,

it will be fruitful in the present context to take note of some of the

observations made therein:

“3. What follows in a trial is often secondary victimisation through repeated appearances in court in a hostile or a semi­ hostile environment in the courtroom. Till sometime back, secondary victimisation was in the form of aggressive and intimidating cross­examination, but a more humane interpretation of the provisions of the Evidence Act, 1872 has made the trial a little less uncomfortable for the victim of an offence, particularly the victim of a sexual crime. In this regard, the judiciary has been proactive in ensuring that the rights of victims are addressed, but a lot more needs to be done. Today, the rights of an accused far outweigh the rights of the victim of an offence in many respects. There needs to be some balancing of the concerns and equalising their rights so that the criminal proceedings are fair to both. [Girish Kumar Suneja v. CBI, (2017) 14 SCC 809 : (2018) 1 SCC (Cri) 202]…… xxx

8. The rights of victims, and indeed victimology, is an evolving jurisprudence and it is more than appropriate to move forward in a positive direction, rather than stand still or worse, take a step backward. A voice has

5 (2019) 2 SCC 752, ¶ 3 & 8

Page | 12 been given to victims of crime by Parliament and the judiciary and that voice needs to be heard, and if not already heard, it needs to be raised to a higher decibel so that it is clearly heard.” (Emphasis Supplied)

23. It cannot be gainsaid that the right of a victim under the

amended Cr.P.C. are substantive, enforceable, and are another facet of

human rights. The victim’s right, therefore, cannot be termed or

construed restrictively like a brutum fulmen. We reiterate that these

rights are totally independent, incomparable, and are not accessory or

auxiliary to those of the State under the Cr.P.C. The presence of ‘State’

in the proceedings, therefore, does not tantamount to according a

hearing to a ‘victim’ of the crime.

24. A ‘victim’ within the meaning of Cr.P.C. cannot be asked to await

the commencement of trial for asserting his/her right to participate in

the proceedings. He/She has a legally vested right to be heard at every

step post the occurrence of an offence. Such a ‘victim’ has unbridled

participatory rights from the stage of investigation till the culmination

of the proceedings in an appeal or revision. We may hasten to clarify

that ‘victim’ and ‘complainant/informant’ are two distinct

connotations in criminal jurisprudence. It is not always necessary that

the complainant/informant is also a ‘victim’, for even a stranger to the

act of crime can be an ‘informant’, and similarly, a ‘victim’ need not be

the complainant or informant of a felony.

Page | 13

25. The above stated enunciations are not to be conflated with

certain statutory provisions, such as those present in Special Acts like

the Scheduled Cast and Scheduled Tribes (Prevention of Atrocities)

Act, 1989, where there is a legal obligation to hear the victim at the

time of granting bail. Instead, what must be taken note of is that;

First, the Indian jurisprudence is constantly evolving, whereby, the

right of victims to be heard, especially in cases involving heinous

crimes, is increasingly being acknowledged; Second, where the victims

themselves have come forward to participate in a criminal proceeding,

they must be accorded with an opportunity of a fair and effective

hearing. If the right to file an appeal against acquittal, is not

accompanied with the right to be heard at the time of deciding a bail

application, the same may result in grave miscarriage of justice.

Victims certainly cannot be expected to be sitting on the fence and

watching the proceedings from afar, especially when they may have

legitimate grievances. It is the solemn duty of a court to deliver justice

before the memory of an injustice eclipses.

26. Adverting to the case at hand, we are constrained to express our

disappointment with the manner in which the High Court has failed to

acknowledge the right of the victims. It is worth mentioning that, the

complainant in FIR No. 219 of 2021, as well as the present Appellants,

are close relatives of the farmers who have lost their lives in the

Page | 14 incident dated 03.10.2021. The specific stance taken by learned

Senior Counsel for the Appellants that the Counsel for the ‘victims’

had got disconnected from the online proceedings and could not make

effective submissions before the High Court has not been controverted

by the Respondents. Thereafter, an application seeking a rehearing on

the ground that the ‘victims’ could not participate in the proceedings

was also moved but it appears that the same was not considered by

the High Court while granting bail to the Respondent­Accused.

27. We, therefore, answer question (A) in the affirmative, and hold

that in the present case, the ‘victims’ have been denied a fair and

effective hearing at the time of granting bail to the Respondent­

Accused.

B. Whether the High Court overlooked relevant considerations:

28. We may, at the outset, clarify that power to grant bail under

Section 439 of Cr.P.C., is one of wide amplitude. A High Court or a

Sessions Court, as the case may be, are bestowed with considerable

discretion while deciding an application for bail. But, as has been held

by this Court on multiple occasions, this discretion is not unfettered.

On the contrary, the High Court or the Sessions Court must grant bail

after the application of a judicial mind, following well­established

principles, and not in a cryptic or mechanical manner.

29. Ordinarily, this Court would be slow in interfering with any order

Page | 15 wherein bail has been granted by the Court below. However, if it is

found that such an order is illegal or perverse 6, or is founded upon

irrelevant materials adding vulnerability to the order granting bail 7, an

appellate Court will be well within its ambit in setting aside the same

and cancelling the bail. This position of law has been consistently

reiterated, including in the case of Kanwar Singh Meena v. State of

Rajasthan8, wherein this Court set aside the bail granted to the

accused on the premise that relevant considerations and prima facie

material against the accused were ignored. It was held that:

“10….Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial.…The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well­recognised principles underlying the power

6 Puran v. Rambilas & Anr., (2001) 6 SCC 338, ¶10 7 Narendra K. Amin (Dr.) v. State of Gujarat & Anr., (2008) 13 SCC 584, ¶ 25 8 (2012) 12 SCC 180, ¶ 10

Page | 16 to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail.”

(Emphasis Supplied)

30. It will be beneficial at this stage to recapitulate the principles

that a Court must bear in mind while deciding an application for grant

of bail. This Court in the case of Prasanta Kumar Sarkar v. Ashis

Chatterjee & Anr.9, after taking into account several precedents,

elucidated the following:

“9…However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation; 9 (2010) 14 SCC 496, ¶ 9 & 10

Page | 17

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

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

(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 of bail.”

(Emphasis Supplied)

31. The Court in Prasanta Kumar Sarkar went on to note:

“10. It is manifest that if the High Court does not advert to

these relevant considerations and mechanically grants bail,

the said order would suffer from the vice of non­application

of mind, rendering it to be illegal. In Masroor [(2009) 14 SCC

286 : (2010) 1 SCC (Cri) 1368] , a Division Bench of this

Court, of which one of us (D.K. Jain, J.) was a member,

observed as follows : (SCC p. 290, para 13)

“13. … Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided, but there is a need to indicate in such order reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence.”

(Emphasis Supplied)

Page | 18

32. The aforestated principles have been affirmed and restated in a

number of subsequent decisions, including in the recent judgments of

Neeru Yadav v. State of U.P. & Anr.10, Anil Kumar Yadav v. State

(NCT of Delhi) & Anr.,11 and Mahipal v. Rajesh Kumar & Anr.12.

33. Before dealing with the case at hand, we may, at the cost of

repetition, emphasise that a Court while deciding an application for

bail, should refrain from evaluating or undertaking a detailed

assessment of evidence, as the same is not a relevant consideration at

the threshold stage. While a Court may examine prima facie issues,

including any reasonable grounds whether the accused committed an

offence or the severity of the offence itself, an extensive consideration

of merits which has the potential to prejudice either the case of the

prosecution or the defence, is undesirable. It is thus deemed

appropriate to outrightly clarify that neither have we considered the

merits of the case nor are we inclined to comment on the evidence

collected by the SIT in the present case.

34. We may now briefly note the holding of the High Court as is

manifest from paragraph 25 of the impugned order which reads as

follows:

“Considering the facts and circumstances of the case in toto, it is evidence that as per the F.I.R., role of firing was assigned to the

10 (2014) 16 SCC 508, ¶ 11 11 (2018) 12 SCC 129, ¶ 17 & 18 12 (2020) 2 SCC 118, ¶ 13

Page | 19 applicant for killing the protestors, but during the course of investigation, no such firearm injuries were found either on the body of any of the deceased or on the body of any injured person.

Thereafter, the prosecution alleged that the applicant provoked the driver of the vehicle for crushing the protestors, however, the driver along with two others, who were in the vehicle, has been killed by the protestors. It is further evidence that during the course of investigation, notice was issued to the applicant and he appeared before the Investigation Officer. It is also evidence that charge sheet has already been filed. In such circumstances, this Court is of the view that the applicant is entitled to be released on bail.”

35. We find ourselves in agreement with the learned Senior Counsel

for the Appellants that the High Court has completely lost sight of the

principles enumerated above, which conventionally govern a Court’s

discretion when deciding the question whether or not to grant bail.

Instead of looking into aspects such as the nature and gravity of the

offence; severity of the punishment in the event of conviction;

circumstances which are peculiar to the accused or victims; likelihood

of the accused fleeing; likelihood of tampering with the evidence and

witnesses and the impact that his release may have on the trial and

the society at large; the High Court has adopted a myopic view of the

evidence on the record and proceeded to decide the case on merits.

36. The High Court has taken into account several irrelevant

considerations, whilst simultaneously ignoring judicial precedents and

established parameters for grant of bail. It has been ruled on

Page | 20 numerous occasions that a F.I.R. cannot be treated as an

encyclopaedia of events. While the allegations in the F.I.R., that the

accused used his firearm and the subsequent post mortem and injury

reports may have some limited bearing, there was no legal necessity to

give undue weightage to the same. Moreover, the observations on

merits of a case when the trial has yet to commence, are likely to have

an impact on the outcome of the trial proceedings.

37. Keeping all these factors cumulatively in mind, we have no

difficulty in answering question (B) also in the affirmative. It is held

that the order under challenge does not conform to the relevant

considerations.

C. Whether interference is warranted by this Court:

38. As a natural and consequential corollary to the findings under

questions (A) & (B) above, the impugned order of the High Court dated

10.2.2022 (as corrected on 14.2.2022) cannot be sustained and has to

be set aside. Ordered accordingly.

39. As a sequel thereto, bail bonds of the respondent/accused are

cancelled and he is directed to surrender within a week.

40. Having held so, we cannot be oblivious to what has been urged

on behalf of the Respondent­Accused that cancellation of bail by this

Court is likely to be construed as an indefinite foreclosure of his right

to seek bail. It is not necessary to dwell upon the wealth of case law

Page | 21 which, regardless of the stringent provisions in a penal law or the

gravity of the offence, has time and again recognised the legitimacy of

seeking liberty from incarceration. To put it differently, no accused

can be subjected to unending detention pending trial, especially when

the law presumes him to be innocent until proven guilty. Even where

statutory provisions expressly bar the grant of bail, such as in cases

under the Unlawful Activities (Prevention) Act, 1967, this Court has

expressly ruled that after a reasonably long period of incarceration, or

for any other valid reason, such stringent provisions will melt down,

and cannot be measured over and above the right of liberty

guaranteed under Article 21 of the Constitution (See Union of India

v. K.A. Najeeb, (2021) 3 SCC 713, ¶ 15 & 17).

41. We are, thus, of the view that this Court on account of the

factors like (i) irrelevant considerations having impacted the impugned

order granting bail; (ii) the High Court exceeding its jurisdiction by

touching upon the merits of the case; (iii) denial of victims’ right to

participate in the proceedings; and (iv) the tearing hurry shown by the

High Court in entertaining or granting bail to the respondent/accused;

can rightfully cancel the bail, without depriving the Respondent­

Accused of his legitimate right to seek enlargement on bail on relevant

considerations.

Page | 22

42. We are thus inclined to allay the apprehension in the mind of

learned Senior Counsel for the Respondent­Accused that the

cancellation of bail by this Court shall amount to denial bail to the

Respondent­Accused till conclusion of the trial.

43. This Court is tasked with ensuring that neither the right of an

accused to seek bail pending trial is expropriated, nor the ‘victim’ or

the State are denuded of their right to oppose such a prayer. In a

situation like this, and with a view to balance the competing rights,

this Court has been invariably remanding the matter(s) back to the

High Court for a fresh consideration. 13 We are also of the considered

view that ends of justice would be adequately met by remitting this

case to the High Court for a fresh adjudication of the bail application

of the Respondent­Accused, in a fair, impartial and dispassionate

manner, and keeping in view the settled parameters which have been

elaborated in paragraphs 30 & 31 of this order.

44. Needless to say that the bail application shall be decided on

merits and after giving adequate opportunity of hearing to the victims

as well. If the victims are unable to engage the services of a private

counsel, it shall be obligatory upon the High Court to provide them a

legal aid counsel with adequate experience in criminal law, at the

State’s expense.

13 Naresh Pal Singh v. Raj Karan and Anr, (1999) 9 SCC 104, ¶2; Brij Nandan Jaiswal v. Munna alias Munna Jaiswal & Anr, (2009) 1 SCC 678, ¶ 12 & 13; Hari Om Yadav v. Dinesh Singh Jaat & Anr, 2013 SCC Online SC 610, ¶ 6.

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45. Lastly, in furtherance of the order of this court dated 26.10.2021

in Writ Petition (Criminal) No. 426/2021, and keeping in mind the

allegations of the Appellants with respect to the incident dated

10.03.2022, we deem it appropriate to observe that if the aforestated

incident, has happened in the manner as alleged, the same should

serve as an awakening call to the State authorities to reinforce

adequate protection for the life, liberty, and properties of the

eye/injured witnesses, as well as for the families of the deceased.

CONCLUSION

46. We set aside the impugned order dated 10.02.2022 (corrected on

14.2.2022) and remit the matter back to the High Court. Respondent

No.1 shall surrender and be taken into custody as already directed in

paragraph 39 above. We have not expressed any opinion either on

facts or merits, and all questions of law are left open for the High

Court to consider and decide. The High Court shall decide the bail

application afresh expeditiously, and preferably within a period of

three months. The appeal is disposed of in the above terms.

………………………….. CJI.

(N.V. RAMANA) …….……..………………… J.

(SURYA KANT) ………….…………………...J. (HIMA KOHLI) NEW DELHI DATED : 18.04.2022

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