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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1938 OF 2017

[Arising out of SLP(Crl.) No.4574 of 2017]

ANIL KUMAR YADAV …Appellant

Versus

STATE (NCT) OF DELHI & ANR. ....Respondents

With

CRIMINAL APPEAL NO. 1940 OF 2017

[Arising out of SLP(Crl.) No.7145 of 2017]

VIKAS BALGUER …Appellant

Versus

STATE (NCT) OF DELHI ....Respondent

With

CRIMINAL APPEAL NO. 1939 OF 2017

[Arising out of SLP(Crl.) No.7131 of 2017]

ASHISH BALGUER AND ANR. …Appellants

Versus

STATE (NCT) OF DELHI ....Respondent

With

CRIMINAL APPEAL NO. 1942 OF 2017

[Arising out of SLP(Crl.) No.7251 of 2017]

VIKAS @ SHAMMI …Appellant

Versus

STATE (NCT) OF DELHI ....Respondent

With

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CRIMINAL APPEAL NO. 1941 OF 2017

[Arising out of SLP(Crl.) No.7213 of 2017]

TARUN @ MADDY …Appellant

Versus

STATE (NCT) OF DELHI ....Respondent

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2.These appeals arise from the order of the High Court of Delhi in

and by which the High Court has cancelled the bail granted to the

respondents-accused by two separate orders dated 31.05.2017 and

08.09.2017. By virtue of the first impugned order, bail granted to Anil

Kumar Yadav (A4) was cancelled and by the second impugned order,

bail granted to other accused were cancelled.

3.The case of prosecution is that on 21.10.2015, Rohit Bansal

(injured witness) along with his friends Vineet, Sonu, Rupesh

(deceased) and Monu had gone to Shanghai Club, Hauz Khas in two

separate cars, i.e. Santro being registration No.UP-16-AM-6317 and

Honda Civic being registration No.DL-7CF-4118. At around midnight

12.00-12.15, while dancing in the club, Rohit Bansal's hand struck an

individual to whom he said "sorry". On this, the said individual abused

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and questioned Rohit Bansal and quarrel started between the two

groups and the said individual took a glass from one of his friends

and hit the complainant-Rohit Bansal; but the matter was pacified by

the bouncers/security personnel of the club. Thereafter, the

complainant-Rohit Bansal and his friends were sent out of the club

and after coming out of the club when they reached IIT Gate, then

Rohit Bansal realized that his mobile phone was missing which might

have fallen during the quarrel and he along with his friends Rupesh,

Sonu and Monu came back in Santro car to the club. When they

came back, they found that a Mercedes and EON car had blocked

the road and a Bolero car was parked on the road-side. When they

asked them to let them pass, one of the accused with whom an

altercation had taken place in the club, threatened to teach them a

lesson. Thereafter, all the accused/assailants started beating them;

one of the assailants brought an iron rod from the car and started

hitting Rupesh and when Rohit intervened to save Rupesh, he was

also attacked. Thereafter, another assailant lifted a cemented brick

and hit Rupesh on his head and they all ran towards different

directions to save themselves leaving Santro car at the spot. When

Rohit Bansal returned back to take his car, he saw Rupesh lying at

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the spot unconscious and sustained multiple injuries on his body.

Complainant Rohit along with one Sunil took Rupesh to the AIIMS

Hospital and got him admitted in the Trauma Centre.

4.On receipt of DD regarding admission of Rupesh and Rohit

Bansal (Complainant) in Trauma Centre AIIMS, ASI Dalbir Singh went

to the hospital and recorded the statement of the injured Rohit

Bansal, based on which FIR No.1187/2015 was registered under

Section 307, Section 308 read with Section 34 IPC. Rupesh

succumbed to injuries on 26.10.2015 and the FIR was altered into

Sections 302, 308 IPC and 201 IPC read with 34 IPC. Upon

completion of the investigation, charge-sheet was filed under

Sections 302 and 308 IPC read with Section 34 IPC against Tarun @

Maddy (A1), Vikas @ Shammi (A2), Ashish Balguer (A3), Anil Kumar

Yadav (A4), Vikas Balguer (A5) and Vishal Balguer (A6);

charge-sheet against Siddhant @ Goldy (A7) was filed under Section

201/212 IPC.

5.The trial court granted bail to Anil Kumar Yadav (A4) vide order

dated 27.02.2017, inter alia, on the grounds: - (i) that no other overt

act had been attributed to Anil Kumar Yadav (A4); (ii) Based on CCTV

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footage, in drawing an inference that no specific role had been

assigned to Anil Kumar Yadav (A4); and (iii) that Anil Kumar Yadav

(A4) had been in custody for about sixteen months.

6.The order of granting bail to Anil Kumar Yadav (A4) was

assailed by the complainant before the High Court on the very next

day. Pointing out that at the stage of granting bail, a detailed

examination of the evidence and elaborate documentation of the

minute details of the case is not warranted and placing reliance upon

Puran v. Rambilas and Another (2001) 6 SCC 338, the High Court set

aside the order passed by the trial court thereby cancelling the bail

granted to Anil Kumar Yadav (A4). Being aggrieved by cancellation

of bail, Anil Kumar Yadav (A4) preferred appeal before this Court.

Vide order dated 16.06.2017, this Court issued notice and stayed

surrender of Anil Kumar Yadav (A4).

7.While the appeal against grant of bail to Anil Kumar Yadav (A4)

was under consideration before the High Court, rest of the accused

were granted bail by the Sessions Court vide order dated 24.04.2017,

inter alia, on the ground that co-accused Anil Kumar Yadav (A4) had

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already been granted bail and that they were in custody for about one

and half years.

8.When the appeal of Anil Kumar Yadav (A4) came up for further

hearing before this Court, State took time to take steps to challenge

the order of grant of bail to other accused also. By order dated

08.09.2017, the High Court cancelled the bail granted to other

accused also. Being aggrieved, other accused have also filed their

respective appeals before this Court.

Contentions:-

9.Mr. Siddharth Luthra, learned Senior Counsel for the appellant

Anil Kumar Yadav (A4) contended that Rohit Bansal who claims to be

an injured eye witness, in his statement recorded on 22.10.2015 did

not name the accused Anil Kumar Yadav as the assailant nor stated

about his overt act. It was submitted that the presence of accused

Anil Kumar Yadav or use of baseball bat by him was not seen in the

CCTV footage and also taking note of the fact that the accused had

been in custody for more than sixteen months, the trial court granted

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bail to the appellant and the High Court erred in interfering with the

exercise of discretion by the Sessions Court.

10.Taking us through the order of the trial court dated 27.02.2017,

Mr. R. Basant, learned Senior Counsel appearing for Tarun @ Maddy

(A1) contended that on the material available, the Sessions Court

rightly observed that there was no pre-meditation and that the entire

incident was at the spur of the moment and when the trial court had

taken into consideration the relevant materials, the High Court erred

in substituting its views and setting aside the order of the Sessions

Court. It was further submitted that there was independent

consideration of the materials and while so, the High Court

misdirected itself in observing that bail was granted on the ground of

parity.

11.On behalf of the accused Vikas Balguer (A5) and Ashish

Balguer (A3), Ms. Rebecca M. John learned Senior Counsel

submitted that the Sessions Court has independently considered the

relevant materials and granted bail to the accused and while so, the

High Court erred in proceeding on the erroneous footing that the

accused persons were granted bail on parity with Anil Kumar Yadav.

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The learned Senior Counsel submitted that when the trial court had

properly exercised its jurisdiction, the High Court ought not to have

interfered with the exercise of discretion, more so, when the accused

were granted bail after filing of the charge-sheet.

12.Mr. Pawan K. Bahl, learned counsel appearing on behalf of

Vikas @ Shammi (A2) contended that because Shammi's name was

not mentioned in the FIR and only after the main accused were

arrested and only based on their statement recorded on 22.10.2015

and 23.10.2015, accused Vikas @ Shammi was arrested and there is

no prima facie case showing involvement of Vikas @ Shammi and

the trial court had rightly granted bail. It was contended that based on

the consideration of relevant materials, the trial court exercised its

discretion in granting bail to the accused and the High Court was not

right in setting aside the same.

13.On behalf of the prosecution, Ms. Kiran Suri, learned Senior

Counsel has submitted that the statements of injured witness Rohit

Bansal and other witnesses prima facie show involvement of the

accused in attacking the deceased Rupesh Tanwar and injured

witness Rohit Bansal. It was submitted that based on the statement

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recorded from the accused, the incriminating articles were also

recovered from the accused and the trial court ignored these relevant

materials prima facie indicating involvement of the accused. It was

submitted that the trial court granted bail based on the alleged

discrepancies in CCTV footage and discrepancies in statement of the

witnesses which are not relevant consideration for grant of bail and

the High Court rightly set aside the order granting bail to the accused

and the impugned orders warrant no interference. Placing reliance

upon Gobarbhai Naranbhai Singala v. State of Gujarat and Others

(2008) 3 SCC 775, it was submitted that the period inside the jail is

not a relevant consideration for grant of bail.

14.Mr. Dushyant Dave, learned Senior Counsel appearing for the

complainant submitted that perversity in the order of the trial court

flows from the fact that irrelevant materials had been taken into

consideration and when the bail order is unjustified or perverse, the

High Court rightly set aside the order. In support of his contention,

the learned Senior Counsel placed reliance upon Brij Nandan Jaiswal

v. Munna alias Munna Jaiswal and Anr. (2009) 1 SCC 678 and

Kanwar Singh Meena v. State of Rajasthan and Anr. (2012) 12 SCC

180.

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15.We have given our thoughtful consideration to the rival

submissions made by the counsel appearing on either side. The

point falling for consideration is whether the Sessions Court ignored

relevant materials while granting bail to the appellants accused and

whether the order of the Sessions Court suffered from serious

infirmities, justifying interference by the High Court in exercise of

judicial discretion.

16.As held in Puran case, while considering the question of grant

of bail, Court should avoid consideration of details of the evidence as

it is not a relevant consideration. While it is necessary to consider the

prima facie case, an exhaustive exploration of the merits of the case

should be avoided. We, therefore, consciously refrain from

considering the merits of the materials/evidence collected by the

prosecution.

17.At the outset, it is to be pointed out that the Sessions Court

considered both framing of charges and also grant of bail to accused

Anil Kumar Yadav by way of a common order. On 27.02.2017,

charges were framed against all the accused and bail was granted to

appellant Anil Kumar Yadav. Insofar as framing of charges, in a case

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before the Sessions Court, under Section 228 of the Criminal

Procedure Code, the court is required to consider "whether there is

ground for presuming that the accused has committed an offence....."

and then Court shall frame in writing a charge against the accused.

For grant of bail, the court is required to consider several other

factors. The considerations for framing of charge and grant of bail

are different. It was stated by the Bar that by and large this is the

procedure followed in Delhi. We may however indicate that it is not

desirable to frame charge and grant bail by way of a common order.

18.While granting bail, the relevant considerations are:- (i) nature

of seriousness of the offence; (ii) character of the evidence and

circumstances which are peculiar to the accused; and (iii) likelihood

of the accused fleeing from justice; (iv) the impact that his release

may make on the prosecution witnesses, its impact on the society;

and (v) likelihood of his tampering. No doubt, this list is not

exhaustive. There are no hard and fast rules regarding grant or

refusal of bail, each case has to be considered on its own merits.

The matter always calls for judicious exercise of discretion by the

Court.

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19.While considering the basic requirements for grant of bail, in

State of U.P. through CBI v. Amarmani Tripathi, (2005) 8 SCC 21, this

Court has held as under:-

"18. It is well settled that the matters to be considered in 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 charge; (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 tampered with; and (viii) danger, of course, of

justice being thwarted by grant of bail [see Prahlad Singh Bhati v.

NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi

Admn.) (1978) 1 SCC 118]. While a vague allegation that the

accused may tamper with the evidence or witnesses may not be a

ground to refuse bail, if the accused is of such character that his

mere presence at large would intimidate the witnesses or if there is

material to show that he will use his liberty to subvert justice or

tamper with the evidence, then bail will be refused. We may also

refer to the following principles relating to grant or refusal of bail

stated in Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC

528: (SCC pp. 535-36, para 11)

“11. The law in regard to grant or refusal of bail is very

well settled. The court granting bail should exercise its

discretion in a judicious manner and not as a matter

of course. Though at the stage of granting bail a

detailed examination of evidence and elaborate

documentation of the merit of the case need not be

undertaken, there is a need to indicate in such orders

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 following

factors also before granting bail; they are:

(a) The nature of accusation and the

severity of punishment in case of conviction

and the nature of supporting evidence.

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(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. (See Ram Govind

Upadhyay v. Sudarshan Singh (2002) 3 SCC

598 and Puran v. Rambilas (2001) 6 SCC

338.)”"

20.The test to be applied for grant of bail was also considered in

Jayendra Saraswathi Swamigal v. State of T.N., (2005) 2 SCC 13,

wherein it was held as under:-

"16. ........The considerations which normally weigh with the court in

granting bail in non-bailable offences have been explained by this

Court in State v. Capt. Jagjit Singh [1962] 3 SCR 622 and

Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 and

basically they are — the nature and seriousness of the offence; the

character of the evidence; circumstances which are peculiar to the

accused; a reasonable possibility of the presence of the accused

not being secured at the trial; reasonable apprehension of

witnesses being tampered with; the larger interest of the public or

the State and other similar factors which may be relevant in the

facts and circumstances of the case..........."

21.In the present case, accused Anil Kumar Yadav was granted

bail by the Sessions Court mainly on the grounds:- (i) as per CCTV

footage deciphered by the Investigating Officer, no role could be

attributed to Anil Kumar Yadav that he inflicted injuries on Rohit

Bansal as well as to deceased Rupesh Tanwar and the photographs

do not show the presence of the accused Anil Kumar Yadav; (ii)

CCTV footage do not corroborate the statement of the witnesses that

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the accused along with their cars were blocking the road; and (iii)

accused Anil Kumar Yadav has been in custody since 31.10.2015.

The Sessions Court pointed out that possibly no role could be

attributed to accused Anil Kumar Yadav and observed as under:-

".......Admittedly, the crux of the CCTV footage is deciphered by the

IO in the chargesheet as mentioned above and in the said crux no

role of accused Anil Kumar Yadav is found. Furthermore, there are

other discrepancies pointed out by the counsel as discussed above

which though could not be considered for the purpose of charge but

could be considered as ground of bail........."

The Sessions Court though repeatedly observed that the court ought

not to go into the merits of the prosecution case actually the court

appears to have gone into the merits of the matter, in particular the

CCTV footage to hold that Anil Kumar Yadav could not have been

present at the place of occurrence or participated in the incident.

Further, the Sessions Court had also gone into the discrepancies of

the statement of the witnesses. The probability or improbability of the

prosecution version has to be judged based on the materials

available to the court at the time when bail is considered and not on

the basis of discrepancies.

22.While considering the correctness of the above findings, the

learned Judge of the High Court viewed the CCTV footage and

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observed that the camera installed at the place of occurrence was a

revolving camera moving horizontally and vertically and further

observed that the "CCTV footage possibly could not capture the

whole instance from all angles at the same time". After personally

viewing CCTV footage, the learned Judge had given graphic

description of the various slots/points and the relevant portion of the

High Court judgment reads as under:-

"I have examined/viewed the CCTV footage/CD provided by the

learned counsel for the respondent in the computer in chamber.

Seemingly, the footage recorded in the CCTV did not cover the

entire place of occurrence. It was a revolving camera moving

horizontally and vertically. Possibly, it could not capture the whole

incident from all angles at the same time. In the CCTV footage,

Mercedes car is seen to have arrived at the spot at 1:30:26. It

remained at the spot subsequent to it. At 1:39:34, the Mercedes is

seen leaving the spot by reversing it. The respondent is seen

entering into the Mercedes. It is, however, not clear as to when the

said individual (the respondent) had come out of the said

Mercedes. The petitioner has also placed on record photographs

developed from the footage recorded in the CCTV. In photographs

No.1, 2 and 4, the respondent is indicated inflicting injuries to the

victim along with others at 1:37:30; 1:37:31; and 1:37:31

respectively.

In photograph No.3, Mercedes is seen at the spot at 1:34:49.

In photo No.5 the respondent is seen entering the Mercedes at

1:38:29. It belies the respondent's contention that the Mercedes

entered for the first time in the lane of the occurrence only at

1:37:56. In photos Mark 'A' and 'B' the respondent's car is seen at

the spot at 1:30:41 and 1:31:50 too."

23.The High Court had gone into the details of CCTV footage and

noted the presence of accused Anil Kumar Yadav at the scene of

occurrence that "he was seen entering into the Mercedes". The

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Sessions Court was not right in raising doubts about the presence of

accused Anil Kumar Yadav and his role in inflicting injuries to

deceased Rupesh Tanwar as well as to the injured Rohit Bansal at

the present stage. Since the Sessions Court proceeded to grant bail

on erroneous footing and also going into the merits of the materials

collected, the High Court, in our view, rightly set aside the order

granting bail to the accused Anil Kumar Yadav.

24.As pointed out earlier, one of the grounds for grant of bail to the

appellant Anil Kumar Yadav by the Sessions Court was that he was in

custody for more than one year. In crimes like murder, the mere fact

that the accused was in custody for more than one year, may not be a

relevant consideration. In Gobarbhai Naranbhai case, it was

observed that the period of incarceration by itself would not entitle the

accused to be enlarged on bail. The same was reiterated in Ram

Govind Upadhyay v. Sudarshan Singh and others (2002) 3 SCC 598.

25.On behalf of the prosecution, learned senior counsel Ms. Suri

and Mr. Dave, learned senior counsel appearing for the complainant

submitted that CCTV footage is not the sole material relied upon by

the prosecution. It was submitted that apart from CCTV footage,

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there are eight eye witnesses who named the accused persons and

also stated the role of the accused persons. Our attention was drawn

to Section 161 Cr.P.C., statement of injured witness Rohit Bansal and

other witnesses namely Vineet, Mohinder @ Monu, Jitender, Sagar

Sharma @ Sonu and Bouncers at the Club namely Sonu, Rohit

Kumar, Praveen and Chetan Prakash who have stated about the

presence of the accused in the scene of occurrence and their overt

acts. That apart, based on the statements of the accused persons,

incriminating articles were also recovered and at this stage, it is not

necessary to elaborate upon the recoveries made and their

relevance.

26.By perusal of Post-Mortem certificate, it is seen that over twenty

one injuries were inflicted on the various parts of the body of the

deceased and he was disrobed and left unconscious on the spot.

The manner in which the deceased was allegedly attacked and the

number of injuries inflicted on him prima facie indicate pre-meditation.

Injured witness Rohit Bansal also sustained laceration injuries over

scalp.

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27.As rightly contended by the prosecution, apart from CCTV

footage, there are other materials on record to show the "prima facie"

case against the appellants/accused viz. (i) statement of eye

witnesses who have named the accused and also given statements

as to the overt acts of each of the accused; (ii) recoveries made from

the accused; and (iii) the incident in which deceased Rupesh Tanwar

and complainant Rohit Bansal have sustained injuries. The Sessions

Court had not taken into consideration these relevant materials; but

the Sessions Court granted bail to the appellants/accused on the

ground of discrepancies in the statement of witnesses, CCTV footage

and the period of incarceration of the accused which are not relevant

considerations for grant of bail by the Sessions Court in the facts and

stage of this case.

28.In Kanwar Singh Meena case, the High Court granted bail

ignoring the averments made against the accused thereon and

statement of witnesses recorded under Section 164 Cr.P.C. Pointing

out that the High Court did not keep in view the prima facie materials

against the accused, this Court cancelled the bail. By setting aside

the order of bail, in para (10), this Court observed as under:-

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"10. Thus, Section 439 of the Code confers very wide powers on

the High Court and the Court of Session regarding bail. But, while

granting bail, the High Court and the Sessions Court are guided by

the same considerations as other courts. That is to say, the gravity

of the crime, the character of the evidence, position and status of

the accused with reference to the victim and witnesses, the

likelihood of the accused fleeing from justice and repeating the

offence, the possibility of his tampering with the witnesses and

obstructing the course of justice and such other grounds are

required to be taken into consideration. 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. While cancelling the bail under Section 439(2) of the Code, the

primary considerations which weigh with the court are whether the

accused is likely to tamper with the evidence or interfere or attempt

to interfere with the due course of justice or evade the due course

of justice. But, that is not all. 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

well-recognised principles underlying the power 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." [underlying added]

29.In the present case, the trial is at a very crucial stage. The trial

court is yet to record the testimony of material witnesses including the

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complainant as well as all the material witnesses. The trial has

commenced and the trial is said to be posted for 04.12.2017. For

ensuring the fair trial, witnesses must be in a position to freely depose

without fear. In the facts and circumstances of the case, we are

convinced that a fair trial can be ensured only if the appellants are not

enlarged on bail.

30.We are conscious of the fact that the appellants are only under

trials and their liberty is also a relevant consideration. But equally

important is to consider the impact of their release on bail on the

prosecution witnesses and also its impact on society. In order to

ensure that during trial the material witnesses depose without fear

and justice being done to the society, a balance has to be struck.

Referring to Masroor v. State of Uttar Pradesh and another (2009) 14

SCC 286 and other cases, in State of Bihar v. Rajballav Prasad alias

Rajballav Prasad Yadav alias Rajballabh Yadav (2017) 2 SCC 178,

this Court held as under:-

"26. We are conscious of the fact that the respondent is only an

undertrial and his liberty is also a relevant consideration. However,

equally important consideration is the interest of the society and fair

trial of the case. Thus, undoubtedly the courts have to adopt a

liberal approach while considering bail applications of the accused

persons. However, in a given case, if it is found that there is a

possibility of interdicting fair trial by the accused if released on bail,

this public interest of fair trial would outweigh the personal interest

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of the accused while undertaking the task of balancing the liberty of

the accused on the one hand and interest of the society to have a

fair trial on the other hand. When the witnesses are not able to

depose correctly in the court of law, it results in low rate of

conviction and many times even hardened criminals escape the

conviction. It shakes public confidence in the criminal

justice-delivery system. It is this need for larger public interest to

ensure that criminal justice-delivery system works efficiently,

smoothly and in a fair manner that has to be given prime

importance in such situations. After all, if there is a threat to fair trial

because of intimidation of witnesses, etc., that would happen

because of wrongdoing of the accused himself, and the

consequences thereof, he has to suffer........" [underlying added]

31.After referring to various case laws and observing that in a

criminal trial, witnesses must be able to depose without fear, freely

and truthfully, in Rajballav Prasad case, this Court cancelled the bail

granted to the accused thereon. In para (24) of the judgment, it was

held as under:-

"24. As indicated by us in the beginning, prime consideration before

us is to protect the fair trial and ensure that justice is done. This

may happen only if the witnesses are able to depose without fear,

freely and truthfully and this Court is convinced that in the present

case, that can be ensured only if the respondent is not enlarged on

bail. This importance of fair trial was emphasised in Panchanan

Mishra v. Digambar Mishra (2005) 3 SCC 143 while setting aside

the order of the High Court granting bail in the following terms:

(SCC pp. 147-48, para 13)

“13. We have given our careful consideration to the

rival submissions made by the counsel appearing on

either side. The object underlying the cancellation of

bail is to protect the fair trial and secure justice being

done to the society by preventing the accused who is

set at liberty by the bail order from tampering with the

evidence in the heinous crime and if there is delay in

such a case the underlying object of cancellation of

bail practically loses all its purpose and significance to

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the greatest prejudice and the interest of the

prosecution. It hardly requires to be stated that once a

person is released on bail in serious criminal cases

where the punishment is quite stringent and deterrent,

the accused in order to get away from the clutches of

the same indulge in various activities like tampering

with the prosecution witnesses, threatening the family

members of the deceased victim and also create

problems of law and order situation.”"

32.It was repeatedly urged that the High Court misdirected itself in

interfering with the discretionary order of Sessions Court granting bail

to the accused and there was absolutely nothing to show that the

appellants are likely to abuse the bail or tamper with evidence. The

court while granting bail should exercise its discretion in a judicious

manner. Of course, once discretion is exercised by the Sessions

Court to grant bail on consideration of relevant materials, the High

Court would not normally interfere with such discretion, unless the

same suffers from serious infirmities or perversity. While considering

the correctness of the order granting bail, the approach should be

whether the order granting bail to the accused is vitiated by any

serious infirmity, in which case, the High Court can certainly interfere

with the exercise of discretion. The materials available on record

prima facie indicating the involvement of the accused, possibility of

accused tampering with witnesses and the gravity of the crime were

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CRIMINAL APPEAL NO. ..... @ SLP (CRL.) NO. 4574/2017 ETC. ETC.

not kept in view by the Sessions Court. Since the Sessions Court

granted bail to the appellants on irrelevant considerations and the

same suffered from serious infirmity, the High Court rightly set aside

the order of grant of bail to the accused. The impugned orders do not

suffer from any infirmity warranting interference.

33.In the result, all the appeals are dismissed. All the

appellants/accused are directed to surrender before the Committal

Court within one week from the date of this order.

…….…………...………J.

[KURIAN JOSEPH]

…………….……………J.

[R. BANUMATHI]

New Delhi;

November 14, 2017

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