MASROOR v. STATE OF U.P. & ANR

Citation: [2009] 6 S.C.R. 1030

Court: Supreme Court of India

Bench: D.K. JAIN, RAJENDRA MAL LODHA

Case summary

MASROOR v. STATE OF U.P. & ANR.pdf

Judgment text

[2009] 6 S. C. R. 1030 ..... - MASROOR v. STATE OF U. P. & ANR. (Criminal Appeal No. 838 of 2009) APRIL 27, 2009 [D. K. JAIN AND R. M. LODHA, JJ. ] Code of Criminal Procedure, 1973 - s. 439 - Bail - Prosecution of accused u/ss. 147, 148, 149, 302 and 307 /PC - Bail granted by High Coult - On appeal, held: Bail granted ignoring basic principles for grant of bail - In view of nature of offence and in the background in which it was committed, bail should not have been granted Bail - Grant of - Criteria for - Discussed. ,... Respondent No. 2-accused alongwith 21 accused, ... was prosecuted u/s. 147, 148, 149, 302 and 307 IPC. Bail application of the respondent-accused was rejected by Sessions Judge. However, bail was granted by High Court. Hence, the present appeal by the complainant seeking cancellation of bail. Allowing the appeal, the Court "I ~ HELD: 1. 1.

Normally this Court does not interfere with the order of the High Court relating to grant or rejection of bail but in the instant case, the High Court has completely ignored the basic principles which are to be kept in view while dealing with an application filed u/ s. 439 Cr. P. C. for grant of bail and has thus, committed a manifest error in the matter of grant of bail to the second ,.. respondent, warranting interference by this Court. [Para ~ -. 11) [1037-B-D] 1. 2. Having regard to the nature of the offences, the . second respondent has been charged with, the . background in which these were committed and the stage of the trial, the High Court was not justified in granting bail to the respondent and set him free~ [Para 14] [1038- F] 1. 3. High Court has not indicated any reason whatsoever for grant of bail.

There is no consideration of any of the factors, like nature of the offence; the evidence collected by the prosecution and forming part of the chargesheet and the circumstances under which the offences were committed, all relevant for deciding the question whether the bail should be granted or not. Failure in not indicating any reason for grant of bail particularly when charges against the second respondent are serious, makes his order indefensible. At the stage of granting bail, a detailed examination of - +- evidence and elaborate documentation of the merits of the case is not to be undertaken but that does not mean that while granting bail some reasons for prima facie concluding why bail was granted are not to be indicated, which is the case here. [Para 15] [1039-E-H] Puran etc. etc. v. Rambi/as and Anr. etc. etc. 2001 (6) SCC 338; Suresh Kumar Somabhai Rana v. Ashok Kumar Harakfal Mitta/ and Ors. JT 2002 (2) SC 431; Ram Govind Upadhyay v. Sudarshan Singh and Ors.

2002 (3) SCC 598; Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. 2004 (7) sec 528, relied on. 2. It is trite to state. that the Court granting bail has to exercise its discretion in. a judicious manner with care and caution and not as a matter of course. 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. Any order devoid of such reasons would suffer from non-application of mind. , It is also necessary for the court granting bail to consider among other circumstances, the factors viz. (a) The 1 nature of accusation and the te' erity of punishment in case of conviction and the r.

ature of supporting evidence, (b) Reasonable apprehension of tampering with the witness or apprehension. of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. [Para 12] [1037-D-F] Ram Govind Upadhyay v. Sudarshan Singh 2002 (3) SCC 598; Puran v. Rambilas 2001 (6) SCC 338; Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. 2004 (7) sec 528, relied on. ' 3. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. [Para 13) [1038-B-C] Shahzad Hasan Khan v. /shtiaq Hasan Khan 1987 (2) sec 684, relied on.

Case Law Reference: 2001 (6) sec 338 relied on Paras 9 and 12 JT 2002 (2) SC 431 relied on Para 9 2002 (3) sec 598 relied on Paras 9 and 12 2004 (7) sec 528 relied on Para 9 1987 (2) sec 684 relied on Para 13 J ; ... """\ CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 838 of 2009. From the Judgment & Order dated 10. 03. 2008 of the High Court of Judicature at Allahabad in Criminal Miscellaneous Bail Application No. 4167 of 2008. Manoj Goel, Gopal Verma, Wajat Sahfig and Brij Bhushan for the Appellant. .... S. K. Agarwal, Ratnakar Dash, Rauf Rahim, Y. Bansal, Kamlendra Mishra and Rajeev Dubey for the Respondent. The Judgment of the Court was delivered by D. K. JAIN, J. 1. Leave granted. 2. Challenge in this appeal by the complainant is to the ~ order dated 10th March, 2008 passed by a Single Judge of / -;. the High Court of Judicature at Allahabad in Criminal Miscellaneous Bail Application No. 4167 of 2008, granting bail to the second respondent, Chhunnu @ Chhidda.

The said respondent was one of the persons named in FIR No. 181 of 2007, registered at Police Station Asmouli, District Moradabad against 22 persons. The FIR was initially registered for offences under Sections 147, 148, 149 and 307 of the Indian Penal Code ("IPC" for short), but subsequently, on the death of two injured ,. I' persons, Section 302, IPC was also added. The first respondent is the State of U. P. 3. Briefly stated, the background facts giving rise to the present appeal are as follows: On 18th September, 2007, at about 5. 25 p. m. , an FIR was . ""' lodged by the appellant with the· said police station for an + incident which took place at about 3. 30 p. m. at village Asmouli. The case was registered as Crime Case No. 347 of 2007. It was reported that at about 3. 30 p. m. , on that day the appellant had gone to the shop of one Anzar s/o Mehboob where one Basiruddin @ Lala also came to buy some fruits. On Anzar's ,...

~ (shopkeeper) refusal to sell goods to him on credit, Basiruddin started beating him, on which the appellant intervened. Being annoyed, Basiruddin left the place. But, after a short while he came back, accompanied by 21 other persons, including the second respondent. All of them were armed with guns and country made firearms. Due to fear, the appellant rushed to the house of his brother Qayyum. All the said 22 persons attacked the house of Qayyum. On hearing noise, the residents of the house and many other residents of the village, collected at the spot. The said accused started firing indiscriminately, injuring 9 persons. Some of them sustained multiple injuries. All the injured persons were removed to the District hospital for examination. As per the medical reports, the injured persons sustained gunshot injuries which were grievous in nature. Two persons, namely, Anzar Hussain s/o Mazhar Hussain and Rizwan @ Bhoora s/o Matloob Hussain, later succumbed to ~ their injuries.

While Rizwan died on 19th September, 2007, ' Anzar Hussain died on 30th September, 2007. 4. On the very same day viz. 18th September, 2007, another FIR (No. 182 of 2007), pertaining to the same incident, . was lodged at about 6. 40 p. m. by the said Basiruddin@ Lala against 25 persons, inter alia, alleging that when he went to the shop of Anzar s/o Mehboob to buy some vegetables, he told Anzar that his vegetables were very expensive, on which Anzar 'I .. and one Shahroz, who was standing there, started abusing him. When Basiruddin protested, they started beating him with legs and fists. Basiruddin then came back home but after some time, many people, including Shahroz, Anzar (since deceased) and Qayyum, came to his house and started firing with an intention to kill him. 5. The persons named in the first FIR were arrested on + different dates.

Upon recording the statements of some eye- --witnesses, including the injured witnesses, charge-sheet was filed against all the 22 accused persons named in Crime Case He shall not tamper with the evidence. >-... • In case of default of any of the above mentioned conditions, the bail granted to the applicant shall be deemed cancelled and he shall be taken into custody forthwith. " 8. Being aggrieved by the order enlarging the second respondent on bail, the complainant is before us in this appeal. 9. Learned counsel appearing for the appellant strenuously urged that the High Court has not only failed to take into consideration the circumstances under which a heinous crime, resulting in loss of two lives and grievous injuries to a number of persons was committed, it also failed to record any reason as to why the ·bail was being granted to the said respondent. It was argued that the order suffers from the vice of nonapplication of mind and, therefore, deserves to be set aside.

In s'upport of the proposition that any order de hors the teasons .... - ... for grant of bail suffers from non-application of mind, learned counsel placed reliance on the decisions of this Court in Puran 1 etc. etc. v. Rambilas & Anr. etc. etc. , Suresh Kumar 2 Somabhai Rana v. Ashok Kumar Haraklal Mittal & Ors. , Ram 3 Govind Upadhyay v. Sudarshan Singh & Ors. and Kalyan 4 Chandra Sarkar v. Rajesh Ranjan@ Pappu Yadav & Anr. • It was also pointed out that relying on the order impugned in this appeal, all other accused have also been released on bail. "' .. 10. Learned counsel appearing for the second respondent, supported the order passed by the High Court. It was contended that the reasons for grant of bail are implicit in the preceding paragraphs of the impugned order, wherein the contentions of both the sides have been recorded by the High Court. Learned counsel also submitted that there being cross versions of the ,_ ·-+ 2. JT 2002 (2) SC 431.

incident, as projected in the FlRs lodged by both the sides, the High Court was justified in granting bail to the said respondent. It was urged that the present appeal not being one for cancellation of bail on any of the grounds contemplated in Section 439 (2) of the Code of Criminal Procedure (for short "the Code"), there is no other reason warranting interference by this Court. -. 4. 11. Normally this Court does not interfere with the order of the High Court relating to grant or rejection of bail but in the instant case, having carefully gone through the impugned order, we are constrained to observe that the High Court has completely ignored the basic principles which are to be kept in view while dealing with an application. filed under Section 439 of the Code for grant of bail and has thus, committed a manifest .... , error in the matter of grant of bail to the second respondent, ~ warranting interference by this Court. 12.

It is trite to state that the Court granting bail has to exercise its discretion in a judicious manner with care and caution and not as a matter of course. 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 . ... ) --' 16. For the foregoing reasons, the appeal is allowed and the impugned order granting bail to the second respondent is set aside. The bail bond and surety furnished by the said respondent in terms of the High Court's order stand cancelled and it is directed that he shall be taken into custody forthwith. 17. Before closing, we may also note some disturbing features of the case, which not only show the lack of will on the part of prosecution to get the guilty punished as early as possible, it also prima facie, shows some unholy nexus between the prosecuting agency and the accused.

In the first instance, the prosecution did not question the order passed by the High Court granting bail to the second respondent and other accused and after the framing of charges as far back as on 20th February, 2008 not a single witness has been examined by the prosecution so far. We say no more. .. - 18. It goes without saying that any observations touching the merits of the case against the second respondent are purely fdr the purpose of deciding the question of grant of bail and shall not be construed as an expression of final opinion in the main matter. 19. We may also clarify that if in future any application for grant of bail is filed by the second respondent, it shall be '( - ~ considered on its own merits, uninfluenced by this order. K. K. T. Appeal allowed. •