Kamla Devi vs The State Of Rajasthan

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 342 OF 2022

KAMLA DEVI …..APPELLANT(S)

VERSUS

STATE OF RAJASTHAN & ANR ….RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 343 OF 2022

KAMLA DEVI …...APPELLANT(S)

VERSUS

STATE OF RAJASTHAN & ANR ….RESPONDENT(S)

JUDGMENT

NAGARATHNA J.

These appeals have been preferred by the appellant who is

the wife of the deceased, Sohan Singh, challenging orders dated

9th September, 2019 and 17th October, 2019, passed by the High Signature Not Verified Digitally signed by R

Court of Rajasthan at Jodhpur, in S.B. Criminal Miscellaneous Natarajan Date: 2022.03.11 16:39:38 IST Reason:

Bail Application Nos. 10473 of 2019 and 11546 of 2019

1 respectively, whereby bail has been granted to the two accused,

namely, Kishor Singh @ Kishan Singh, who is the second

respondent in Criminal Appeal No. 342 of 2022 and Kalu Singh

who is the second respondent in Criminal Appeal No. 343 of

2022, in connection with FIR No.229 of 2019, registered at Police

Station Bhim, District Rajsamand, Rajasthan.

2. The facts in a nutshell are that appellant is the wife of the

deceased. She is stated to be the person who lodged a missing

person report on 14th May, 2019 stating therein that the

deceased, Sohan Singh, aged 48 years, had on 13 th May 2019 left

their residence to attend the marriage ceremony of one Sawai

Singh and was expected to return by 2.00 a.m. the next

morning. When the deceased did not return home, the appellant

assumed that he may have continued to stay at Sawai Singh’s

house. However, when she inquired the next morning, Sawai

Singh informed her that the deceased had left the marriage

ceremony the previous night itself.

The appellant further stated in the missing person report

that she had a suspicion that the respondents­accused herein in

connivance with their mother, Teji Devi, had in some manner

caused harm to her husband.

2

3. That a First Information Report, being FIR No. 229 of 2019

dated 15th May, 2019 came to be lodged, at the instance of the

son of the deceased, stating that the deceased was returning to

his house after attending the marriage function of Sawai Singh,

the nephew of the deceased. The deceased was last seen outside

the house of the three accused, namely Kishore Singh alias

Kishan Singh, Kalu Singh, who are the two respondents­accused

herein and Teji Devi who is the mother of the respondents­

accused. That three passersby had disclosed to the informant­

son of the deceased that they saw the accused persons

quarrelling with the deceased on the night of his death. One

Nath Singh had informed the complainant that he had seen the

accused quarrelling with the deceased outside their house and

subsequently dragging the deceased into their house, wherein he

was assaulted and murdered. The dead body of the deceased was

dragged by the accused and thrown into a well nearby.

4. Report of the post­mortem examination conducted on 15 th

May, 2019 recorded that the deceased had died as a result of

“cardiopulmonary arrest due asphyxia and venous congestion.”

The report further stated that the deceased was drowned

following his death and that the hyoid bone of the deceased

appeared to be fractured. Final report as to cause of death was

3 reserved, to be finalised based on the report of the forensic

science laboratory.

5. A charge sheet was submitted by the police on 9 th July,

2019, against the three accused persons, before the Court of the

District Judge, Rajsamand, Rajasthan, for charges under

Sections 302, 201 and 34 of the Indian Penal Code, 1860 (for

short, the “IPC”). The charge­sheet has recorded that on the

night of the incident, the deceased had at about 2.00 a.m.

knocked on the door of Teji Devi. She informed her sons, Kalu

Singh and Kishan Singh, the respondents­accused, of the same.

The respondents­accused who were on the roof of their house,

jumped down and attacked the deceased with lathis, with an

intention to murder him. After the deceased was killed, all three

accused dragged the dead body of the deceased and threw it in a

well nearby, together with the lathi used to cause his death.

The matter was committed to the Court of the Additional

Sessions Judge, Rajsamand, Rajasthan for trial.

6. The respondents­accused were arrested on 23 rd May, 2019,

in connection with FIR No. 229 of 2019 and were sent to judicial

custody. They remained in judicial custody for a period of nearly

four months before they were granted bail by the High Court

vide the impugned judgments.

4

7. The respondents­accused preferred separate applications

seeking bail, under Section 439 of the Code of Criminal

Procedure, 1973 (for short, the “CrPC”) before the Court of the

Additional Sessions Judge, Rajsamand, Rajasthan. Bail

application preferred by Kishan Singh, respondent­accused in

Criminal Appeal No. 342 of 2022 came to be rejected by an order

dated 09th July, 2019, having regard to the gravity of the offences

alleged and the prima­facie evidence on record as regards the

guilt of the accused. Subsequently, the bail application preferred

by Kalu Singh, respondent­accused in Criminal Appeal No. 343

of 2022 was also rejected by an order dated 05th September,

2019.

8. The respondents­accused preferred separate bail

applications before the High Court and by the impugned orders

dated 9th September, 2019 and 17th October, 2019, the High

Court has enlarged them on bail in the case arising out of FIR

No. 229 of 2019.

Being aggrieved by the grant of bail to the respondents­

accused, the appellant­wife of the deceased has preferred the

instant appeals before this Court.

9. We have heard Sri. H.D. Thanvi, learned counsel appearing

on behalf of the appellant and Sri. Mehul M. Gupta, learned

5 counsel for the second respondent in Criminal Appeal No. 342 of

2022 and perused the material on record.

10. Learned counsel for the appellant submitted that the High

Court has not properly exercised its discretionary power to grant

bail to the respondents­accused in a judicious manner. That the

High Court, in the impugned orders, had failed to consider the

severity of the offences alleged against the respondents­accused

and the brutal manner in which the offences were committed

and attempted to be concealed by throwing the body of the

deceased, together with the murder weapon, into a well.

11. It was urged that the trial has just commenced and

thirteen witnesses are yet to be examined; therefore, it is

imperative that the accused remain under custody, in order to

ensure that they do not abscond or tamper with evidences or

threaten the family of the deceased and/or witnesses, more so

because, the accused had previously attempted to cause

disappearance of evidence by disposing off the body of the

deceased, together with the lathis used to commit murder, by

throwing the same into a well.

12. That following the grant of bail by the High Court, the

accused, Kishan Singh had threatened the appellant herein of

dire consequences of her pursuing the criminal trial in connection

6 with case No. 299 of 2019. That a complaint under Sections 107

and 116(3) of the Cr.P.C. has also been filed in this regard.

13. According to the learned counsel for the appellant, the

High Court has not assigned reasons for the grant of bail to the

respondents­accused and has granted bail by a cryptic order de

hors any reasoning, notwithstanding the fact that the accused, if

convicted for the offences alleged, could be sentenced to life

imprisonment.

14. In order to buttress his submissions, learned counsel for

the appellant placed reliance on the following decisions of this

Court:

i) In Kalyan Chandra Sarkar vs. Rajesh Ranjan alias

Pappu Yadav & Anr. – [(2004) 7 SCC 528], this Court

held that although it is established that a Court

considering a bail application cannot undertake a detailed

examination of the evidence and make an elaborate

discussion on the merits of the case, the Court is required

to indicate the prima facie reasons justifying the grant of

bail.

ii) Reference was made to Ash Mohammad vs. Shiv Raj

Singh @ Lalla Bahu & Anr. – [(2012) 9 SCC 446] to

contend that the period of custody undergone by the

7 accused seeking bail, was a relevant factor to be

considered while deciding an application for bail. That in

the instant case, the accused had been committed to

custody barely four months before they were released on

bail and therefore, the impugned orders granting bail to

the accused are not tenable in the eyes of law.

15. In the aforesaid case, this Court held that a Court, before

granting bail ought to consider the factors which would justify

the grant of bail, in juxtaposition with the societal concern

involved in releasing an accused on bail.

(i) In State through C.B.I vs. Amaramani Tripathi –

[(2005) 8 SCC 21], this Court held that a Court granting

bail to an accused, must apply its mind and go into the

merits and evidence on record and determine whether a

prima­facie case was established against the accused. It

was held that the seriousness and gravity of the crime was

also a relevant consideration. Based on such

observations, this Court set aside an order of the High

Court whereby bail had been granted to the accused

therein, having no regard to the material placed by the

prosecution therein, which indicated that the accused

had, at all material times, tried to interfere with the course

8 of investigation, tamper with witnesses, fabricate evidence,

intimidate or create obstacles in the path of investigation

officers and derail the case.

16. In the above context, it was contended by Sri H.D. Thanvi,

learned counsel for the appellant that it was highly probable that

the accused herein, if not remanded to custody on cancellation

of their bail bonds, are likely to interfere with the investigation,

abscond or even cause harm to the appellant herein and the

informant. It was urged that the grant of bail to the respondents­

accused was contrary to the settled principles of law and

judgments of this Court. It was submitted on behalf of the

appellant­wife of the deceased that these appeals may be allowed

by setting aside the impugned orders.

17. Per contra, Sri. Mehul M. Gupta, learned counsel for the

respondent accused in Criminal Appeal No.342 of 2022

submitted that the impugned orders do not suffer from any

infirmity warranting interference by this Court. That the

appellant and her son, the informant, have narrated an untrue

version of events in order to falsely implicate the accused.

18. Referring to the contents of the post­mortem report of the

deceased dated 15th May, 2019, it was contended that the

deceased had died as a result of suffering a sudden cardio

9 pulmonary arrest and therefore, the death of the deceased could

not be attributed to an assault by the accused. It was further

submitted that, since the final report as to the cause of death

was reserved and was to be finalised based on the forensic

laboratory reports, it was rather premature to conclude that the

accused had any role to play in the death of the deceased.

19. The allegation that accused­Kishan Singh, after he was

enlarged on bail threatened the appellant herein, has been

denied. It has been submitted in this regard that such allegation

and the complaint registered by the appellant in connection with

such allegation were merely attempts to further implicate the

accused, falsely.

20. It was next urged that the High Court was not required to

conduct an elaborate discussion as to the merits of the case and

the evidence on record, at a pre­trial stage. That such exercise, if

undertaken by the High Court while deciding a bail application,

would prejudice fair trial. That the accused have no criminal

antecedents and have been cooperating with the investigation of

the case. Therefore, the impugned orders granting bail to the

accused do not call for interference by this Court.

21. Having regard to the contention of Sri. H.D. Thanvi,

learned counsel for the appellant, that the impugned orders of

10 the High Court whereby bail was granted to the respondents­

accused, are bereft of any reasoning and that such orders are

casual and cryptic, we extract, hereinunder, those portions of

the impugned orders dated 9th September, 2019 and 17th

October, 2019 passed by the High Court, which records the

“reasoning” of the High Court for granting bail:

Impugned order dated 09th September, 2019

“Having regard to the totality of the facts and circumstances of the case, without expressing any opinion on the merits of the case, I deem it just and proper to grant bail to the accused petitioner under Section 439 Cr.P.C.

Accordingly, this bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner Kishore Singh @ Kishan Singh S/o Sh. Dungar Singh Rawat shall be released on bail in connection with FIR No.229/2019 of Police Station Bhim, District Rajsamand provided he executes a personal bond in a sum of Rs.50,000/­ with two sound and solvent sureties of Rs.25,000/­ each to the satisfaction of learned trial Court for his appearance before that Court on each and every date of hearing and whenever called upon to do so till the completion of the trial.”

Impugned order dated 17th October, 2019

“Having regard to the totality of the facts and circumstances of the case, without expressing any opinion on the merits of the case, I deem it just and proper to grant bail to the accused petitioner under Section 439 Cr.P.C. Accordingly, this bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner Kalu Singh S/o Sh. Dungar

11 Singh Rawat shall be released on bail in connection with FIR No.229/2019 of Police Station Bheem, District Rajsamand provided he executes a personal bond in a sum of Rs.50,000/­ with two sound and solvent sureties of Rs.25,000/­ each to the satisfaction of learned trial Court for his appearance before that Court on each and every date of hearing and whenever called upon to do so till the completion of the trial.”

22. This Court has, on several occasions has discussed the

factors to be considered by a Court while deciding a bail

application. The primary considerations which must be placed at

balance while deciding the grant of bail are: (i) the seriousness of

the offence; (ii) the likelihood of the accused fleeing from justice;

(iii) the impact of release of the accused on the prosecution

witnesses; (iv) likelihood of the accused tampering with

evidence. While such list is not exhaustive, it may be stated that

if a Court takes into account such factors in deciding a bail

application, it could be concluded that the decision has resulted

from a judicious exercise of its discretion, vide Gudikanti

Narasimhulu & Ors. vs. Public Prosecutor, High Court of

Andhra Pradesh­ [(1978) 1 SCC 240] ; Prahlad Singh Bhati

vs. NCT of Delhi & Ors. – [(2001) 4 SCC 280 ; Anil Kumar

Yadav vs. State (NCT of Delhi) ­ [(2018) 12 SCC 129]. 12

23. This Court has also ruled that an order granting bail in a

mechanical manner, without recording reasons, would suffer

from the vice of non­application of mind, rendering it illegal,

vide Ram Govind Upadhyay vs. Sudarshan Singh­ [(2002) 3

SCC 598 ; Kalyan Chandra Sarkar vs. Rajesh Ranjan (supra)

; Prasanta Kumar Sarkar vs. Ashis Chaterjee – [(2010) 14

SCC 496] ; Ramesh Bhawan Rathod vs. Voshanbhai

Hirabhai Makwana (Koli) & Ors. – [(2021) 6 SCC 230 ;

Brijmani Devi vs. Pappu Kumar & Anr. – Criminal Appeal

No. 1663 of 2021 [2021 SCC OnLine SC 1280].

24. Reference may also be had to recent decisions of this very

Bench in Manoj Kumar Khokhar vs. State of Rajasthan &

Anr., Criminal Appeal No. 36 of 2022 [2022 SCC OnLine SC

30] and Jaibunisha vs. Meharban & Anr., Criminal Appeal

77 of 2022 [2022 SCC OnLine SC 58], wherein, on engaging in

an elaborate discussion of the case law cited supra and after

duly acknowledging that liberty of individual is an invaluable

right, we have held that an order granting bail to an accused, if

passed in a casual and cryptic manner, de hors reasoning which

would validate the grant of bail, is liable to be set aside by this

13 Court while exercising jurisdiction under Article 136 of the

Constitution of India.

25. The Latin maxim “cessante ratione legis cessat ipsa lex”

meaning “reason is the soul of the law, and when the reason of

any particular law ceases, so does the law itself,” is also

apposite.

26. We have extracted the relevant portions of the impugned

order above. At the outset, we observe that the extracted

portions are the only portions forming part of the “reasoning” of

the High court while granting bail. As noted from the aforecited

judgments, it is not necessary for a Court to give elaborate

reasons while granting bail, particularly when the case is at the

initial stage and the allegations of the offences by the accused

would not have been crystalised as such. There cannot be

elaborate details recorded to give an impression that the case is

one that would result in a conviction or, by contrast, in an

acquittal while passing an order on an application for grant of

bail. However, the Court deciding a bail application cannot

completely divorce its decision from material aspects of the case

such as the allegations made against the accused; severity of the

punishment if the allegations are proved beyond reasonable

doubt which would result in a conviction; reasonable

14 apprehension of the witnesses being influenced by the accused;

tampering of the evidence; the frivolity in the case of the

prosecution; criminal antecedents of the accused; and a prima­

facie satisfaction of the Court in support of the charge against

the accused.

27. In view of the aforesaid discussion, we shall now consider

the facts of the present case. The allegations against

respondents­ accused as well as the contentions raised at the

Bar have been narrated supra. On a consideration of the same,

the following aspects of the case would emerge:

a) The allegations against the respondents­accused are under

Section 302, 201 and 34 of the IPC, with regard to the

murder of Sohan Singh, husband of the appellant herein.

The offences alleged against the respondents­accused are

of grave nature.

b) The accusation against the accused is that they committed

the offence of murder on the deceased and attempted to

clandestinely dispose off the dead body of the deceased and

the lathis used to attack him, by throwing the same in a

well nearby so as to conceal the offence.

c) It is also the case of the appellant that following the release

of accused­Kishan Singh on bail, he had threatened the

15 appellant herein with dire consequences for pursuing the

criminal trial in connection with FIR No. 299 of 2019. A

complaint in this regard also came to be filed against

Kishan Singh. Thus, the possibility of the accused

threatening or otherwise influencing the witnesses, if on

bail, cannot be ruled out.

d) As regards the contention advanced on behalf of the

respondents­accused to the effect that the deceased had

died as a result of suffering a sudden cardio pulmonary

arrest and therefore, the death of the deceased could not

be attributed to an assault by the accused, we observe,

while not expressing any opinion on merits of the case,

that, the post­mortem report when considered in its

entirety is suggestive of the fact that the deceased was

murdered. Although the cause of death is recorded as

“cardio pulmonary arrest due asphyxia and venous

congestion,” the hyoid bone of the deceased appeared to be

fractured. Therefore, we are not inclined to hold that the

prosecution has not established a prima facie case as to

the guilt of the accused. We are therefore, not of the prima

facie opinion that the subject FIR was filed with a view to

implicate the accused.

16

e) The bail applications preferred by the respondents­accused

under Section 439 of the CrPC before the Additional

Sessions Judge, Rajsamand, Rajasthan were rejected,

having regard to the gravity of the offences alleged.

f) The High Court of Rajasthan, in the impugned orders

dated 9th September, 2019 and 17th October, 2019 has not

considered the aforestated aspects of the case in the

context of the grant of bail.

28. Having considered the aforesaid facts of the present case in

light of the law cited above, we do not think that this case is a fit

case for the grant of bail to the respondents­accused, given the

seriousness of the allegations against them.

29. As noted in Gurcharan Singh vs. State (Delhi Admn.)

[1978 CriLJ 129], when bail has been granted to an accused,

the State may, if new circumstances have arisen following the

grant of such bail, approach the High Court seeking cancellation

of bail under section 439 (2) of the CrPC. However, if no new

circumstances have arisen since the grant of bail, the State may

prefer an appeal against the order granting bail, on the ground

that the same is perverse or illegal or has been arrived at by

ignoring material aspects which establish a prima­facie case

17 against the accused. Strangely, the State of Rajasthan has not

filed any appeal against the impugned orders herein.

While we are conscious of the fact that a Court considering

the grant of bail must not engage in an elaborate discussion on

the merits of the case, we are of the view that the High Court

while passing the impugned orders has not taken into account

even a single material aspect of the case. The High Court has

granted bail to the respondents­accused by passing a very

cryptic and casual order, de hors cogent reasoning. We find that

the High Court was not right in allowing the applications for bail

filed by the respondents accused. Hence the impugned orders

dated 9th September, 2019 and 17th October, 2019 are set aside.

The appeals are allowed.

30. The respondents­accused are on bail. Their bail bonds

stand cancelled and they are directed to surrender before the

concerned jail authorities within a period of two weeks from

today.

.................................J. (M.R. SHAH)

.................................J. (B.V. NAGARATHNA)

NEW DELHI;

11th MARCH, 2022.

18