Khilari vs State Of U.P.& Ors

Khilari ....Appellant

Versus

State of U.P. & Ors. ....Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a Division Bench of

the Allahabad High Court allowing the prayer for bail made by respondent

nos.2 and 3 during the pendency of Criminal Appeal No.6724 of 2006.

1 Challenge before the High Court was to the conviction recorded by learned

Sessions Judge, Bagpat, in Sessions Trial No.299 of 2000. Respondent nos.

2 and 3 were convicted for offences punishable under Section 302 and

Section 506 of the Indian Penal Code, 1860 (in short `IPC') and each was

sentenced to undergo imprisonment for life and one year for the offences

respectively. The accused persons were convicted allegedly for committing

murder of Shiv Kumar. Challenging the conviction appeal has been filed

and simultaneously prayer for being released on bail during the pendency of

the appeal was filed. By the impugned order the Division Bench accepted

the prayer and granted bail to the respondent nos. 2 & 3. The High Court

noted that the allegation was that the incident took place on 8.6.2000 at

about 8.30 p.m. and accused persons assaulted Shiv Kumar (hereinafter

referred to as the `deceased') mercilessly with iron rods and he succumbed

to the injuries.

3. The only stand taken before the High Court was that the ante mortem

injuries on the body of the deceased included three contusions, one abraded

contusion and four lacerated wounds of different dimensions on various

parts of the body which could not have been caused by iron rods. It was

their stand that some unknown assailants caused the injuries to the

2 deceased. It was also submitted that by order dated 15.11.2006 the co-

accused has been released on bail.

4. The prosecution and the present appellant opposed the prayer for

grant of bail. It was their stand that PWs 1 and 2 and the informant had seen

the attacks and were eye-witnesses to the occurrence and PW3 is an

independent witness. Their evidence has been analysed in great detail by

the trial Court who found it to be credible and cogent. So far as the

possibility of injuries is concerned, that aspect was also examined by the

trial Court.

5. After noticing the rival stands, the High Court by the impugned order

granted the bail with the following conclusions:

"Considering fact and circumstances of the case but without making any opinion on the merit of the appeal at this stage, we are of the view that the accused- appellants Dharmendra and Manoj shall also be released on bail."

6. Learned counsel for the informant appellant submitted that the

approach of the High Court is clearly erroneous. After the conviction has

been recorded by believing three eye witnesses and also discarding the stand

3 that some of the injuries were not possible by iron rods, the High Court

should not have by a cryptic order directed grant of bail. It was, therefore,

submitted that the impugned order is unsustainable.

7. Learned counsel for the State supported the stand of the informant.

8. Learned counsel for the respondent nos.2 and 3 accused submitted

that it is common knowledge that appeals in the High Court take a long time

for disposal. A balance has to be struck between the right to speedy trial

and the need for the accused being in custody. The High Court has taken

note of relevant factors and has granted bail.

9. The parameters to be adopted while dealing with the application for

bail by suspension of sentence during the pendency of the appeal has been

examined by this Court in several cases. In Kishori Lal v. Rupa and Ors.

(2004 (7) SCC 638) it was noted as follow:

"4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly

4 indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused-respondents were on bail."

10. In Anwari Begum v. Sher Mohammad and Anr. (2005 (7) SCC 326) it

was, inter alia, observed as follows:

"7. Even on a cursory perusal the High Court's order shows complete non-application of mind. Though a detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course.

8. There is a need to indicate in the order reasons for prima facie concluding why bail was being granted, particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:

5 1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

2. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant;

3. Prima facie satisfaction of the court in support of the charge.

Any order dehors of such reasons suffers from non-application of mind as was noted by this Court in Ram Govind Upadhyay v. Sudarshan Singh & Ors. (2002 (3) SCC 598), Puran etc. v.

Rambilas and Anr. etc. (2001) (6) SCC 338) and in Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav & Anr. (JT 2004 (3) SC 442)."

11. As the extracted portion of the High Court's order goes to show there

was complete non-application of mind and non-consideration of the relevant

aspects. The order relating to grant of bail in respect of co-accused by order

dated 15.11.2006 was the subject matter of challenge in Pancham Chand &

Ors. v. State of Himahal Pradesh & Ors. (2008 (3) SCALE 379) and the

order was set aside.

12. The impugned order, therefore, is not sustainable and is set aside.

The bail granted to the respondent nos. 2 and 3 is cancelled. The matter is

remitted to the High Court for fresh consideration in accordance with law.

13. The appeal is allowed to the aforesaid extent.

6 ......................................... .............J. (Dr. ARIJIT PASAYAT)

.................................................J. (ASOK KUMAR GANGULY New Delhi January 23, 2009

7