Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1456 OF 2012

(Arising out of S.L.P. (Criminal) No. 4083 of 2012)

Ash Mohammad ... Appellants

Versus

Shiv Raj Singh @ Lalla Babu & Anr. ... Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2.The present appeal by special leave has been preferred

assailing the legal defensibility of the order dated 26.04.2012

passed in Criminal Application No. 28461 of 2011 by the High

Court of Judicature at Allahabad and praying for quashment of the

Page 2 same, and further to cancel the grant of bail to the accused-

respondent (hereinafter referred to as ‘the accused’) in respect of

offences punishable under Sections 365/506 of the Indian Penal

Code (for short ‘the IPC’).

3.The facts material for adjudication of this appeal are that an

FIR was lodged by the present appellant on 29.05.2011 alleging

that while he was going to his in-laws’ place in village Samadia, P.S.

Patwai along with Bihari Lal near canal of Milk Road from Patwai

which leads to Samdia Khurd, two persons came on a motorcycle

and after inquiring about the identity of Bihari Lal told him that

they had been asked by Lalla Babu @ Shiv Raj Singh to compel him

to accompany them. As there was resistance, they threatened to

kill him and eventually made Bihari Lal sit in between them on the

Hero Honda motorcycle and fled towards Patwai. The incident was

witnessed by Munish and Rajbir. In quite promptitude the

appellant went to the Patwai Police Station, District Rampur and

lodged the FIR as a consequence of which crime No. 770 of 2011

was registered for offences punishable under Section 364 and 506

2

Page 3 of the IPC. On the basis of the FIR the criminal law was set in

motion and the accused was arrested and taken into custody.

4.The accused Shiv Raj Singh @ Lalla Babu preferred bail

Application No. 1268 of 2011 which came to be dealt by the learned

Additional Sessions Judge, Rampur who taking note of the

allegations in the FIR and the stand put forth in oppugnation by the

prosecution as well as by the victim observed as follows:-

“I have perused the case diary. While

confirming his abduction, victim Bihari Lal has

stated under Section 164 Cr.P.C. that the

abductors took him to the accused. Applicant-

accused and his accomplices kept him

confined in a room for about 8 days and they

also used to assault him and threaten for life.

As per the victim, he escaped from their

captivity after about 8 days of abduction under

the pretext of nature’s call/time. Munish and

Rajbir reported as eye-witnesses in the First

Information Report stated before the

Investigating Officer that the abductors had

stated at the time of abduction that the

applicant-accused Lalla Babu has send them

to mend you.”

5.Thereafter, taking note of the fact that the accused is a

history-sheeter and involved in number of cases rejected the

application for bail.

3

Page 4 6.Being unsuccessful to secure bail from the court of Session,

the accused preferred a Bail Application No. 28461 of 2011 before

the High Court under Section 439 of the Code. The High Court

though took note of the statement made under Section 164 CrPC

that name of Shiv Raj Singh @ Lalla Babu had figured as allegations

were made against him to that effect that victim Bihari Lal was

taken by the kidnappers to him, yet observed that he only sat there

and offended Bihari Lal. The High Court only mentioned the fact

that the accused has a criminal history and is involved in number

of cases but considering the factum that he has been in custody

since 30.09.2011 directed his enlargement on bail on certain

conditions, namely, the accused shall report at the police station

concerned on the first day of each English Calendar month, shall

not commit any offence similar to the offence which he is accused

of, and shall not directly or indirectly make any inducement, threat

or promise to any person acquainted with the facts of the case so as

to dissuade him from disclosing such facts to the court or to any

police officer.

4

Page 5 7.Questioning the justifiability of the impugned order Ms. Abha

R. Sharma, learned counsel for the petitioner has contended that

the High Court has absolutely misdirected itself by not appositely

considering the statement recorded under Section 164 of the Code

of Criminal Procedure, the gravity of the offences and criminal

antecedents of the accused and further the affidavit filed by the

prosecution bringing number of factors as a consequence of which

an illegal order enlarging the appellant on bail has come into

existence. The learned counsel submitted that the non-

consideration of the material facts vitiates the order of the High

Court and annulment of the same is the judicial warrant.

8.Per contra, Mr. Irshad Ahmed, learned counsel appearing for

the accused contended that the prosecution case is a fabricated,

false and malicious one and it has been foisted because of political

vendetta. It is urged by him that there is discrepancy between

statements recorded under Section 161 Cr.P.C and 164 Cr.P.C and,

therefore, the order passed by the High Court cannot be found fault

with. It is his further submission that though the accused has

been released on bail, yet he has conducted himself and in the

5

Page 6 absence of any supervening circumstances it would be undesirable

to cancel the order granting bail as the sanctity of liberty should be

treated with paramount importance. It is also argued that the High

Court was absolutely conscious of the cases pending against

accused but because of election disputes and constant animosity of

the administration which was stand of the accused they were not

dwelled upon in detail and an order admitting the accused to bail

was passed on imposing stringent conditions. That apart, it is put

forth that in the absence of any failure on his part to respect the

conditions his liberty should not be put to any jeopardy at the

instance of an interested party who is bent upon to harass him.

9.The centripodal issue that emerges for consideration is

whether the order passed by the High Court is legitimately

acceptable and legally sustainable within the ambit and sweep of

the principles laid down by this Court for grant of regular bail

under Section 439 of the Code.

10.In Ram Govind Upadhyay v. Sudarshan Singh and

Others

1

, it has been opined that the grant of bail though involves

1

(2002) 3 SCC 598

6

Page 7 exercise of discretionary power of the Court, such exercise of

discretion has to be made in a judicious manner and not as a

matter of course. Heinous nature of the crime warrants more

caution and there is greater chance of rejection of bail, though,

however dependent on the factual matrix of the matter. In the said

case the learned Judges referred to the decision in Prahlad Singh

Bhati v. NCT, Delhi and Another

2

and stated as follows:-

“(a) While granting bail the court has to keep

in mind not only the nature of the accusations,

but the severity of the punishment, if the

accusation entails a conviction and the nature

of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses

being tampered with or the apprehension of

there being a threat for the complainant

should also weigh with the court in the matter

of grant of bail.

(c) While it is not expected to have the entire

evidence establishing the guilt of the accused

beyond reasonable doubt but there ought

always to be a prima facie satisfaction of the

court in support of the charge.

(d) Frivolity in prosecution should always be

considered and it is only the element of

genuineness that shall have to be considered

in the matter of grant of bail, and in the event

of there being some doubt as to the

2

(2001) 4 SCC 280

7

Page 8 genuineness of the prosecution, in the normal

course of events, the accused is entitled to an

order of bail. ”

11.In Chaman Lal v. State of U. P. and Another

3

this Court

while dealing with an application for bail has stated that certain

factors are to be considered for grant of bail, they are; (i) the nature

of accusation and the severity of punishment in case of conviction

and the nature of supporting evidence; (ii) reasonable apprehension

of tampering with the witness or apprehension of threat to the

complainant; and (iii) prima facie satisfaction of the court in

support of the charge.

12.In Masroor v. State of Uttar Pradesh and another

4

, while

giving emphasis for ascribing reasons for granting of bail, however,

brief it may be, a two-Judge Bench observed that 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

3

(2004) 7 SCC 525

4

(2009) 14 SCC 286

8

Page 9 has to be balanced. Liberty of a person accused of an offence would

depend upon the exigencies of the case.

13.In Prasanta Kumar Sarkar v. Ashis Chatterjee and

another

5

it has been observed that normally this Court does not

interfere with an order passed by the High Court granting or

rejecting the bail of the accused, 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. Among

other circumstances the factors which are to be borne in mind

while considering an application for bail are whether there is any

prima facie or reasonable ground to believe that the accused had

committed the offence; nature and gravity of the accusation;

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

accused absconding or fleeing, if released on bail; character,

behavior, means, position and standing of the accused; likelihood of

the offence being repeated; reasonable apprehension of the

witnesses being influenced; and danger, of course, of justice being

thwarted by grant of bail.

5

(2010) 14 SCC 496

9

Page 10 14.In State of U.P. through CBI v. Amarmani Tripathi

6

it has

been ruled that in an appeal against grant of bail all aspects that

were relevant under Section 439 read with Section 437 continue to

be relevant.

15.In Puran v. Rambilas and another

7

it has been noted that

the concept of setting aside an unjustified, illegal or perverse order

is totally different from the cancelling an order of bail on the ground

that the accused had misconducted himself or because of some

supervening circumstances warranting such cancellation.

16.In Dr. Narendra K. Amin v. State of Gujarat and another

8

,

a three-Judge Bench has observed that when irrelevant materials

have been taken into consideration the same makes the order

granting bail vulnerable. If the order is perverse, the same can be

set at naught by the superior court.

17.In Prakash Kadam and others v. Ramprasad Vishwanath

Gupta and another

9

, while making a distinction between

6

(2005) 8 SCC 21

7

(2001) 6 SCC 338

8

2008 (6) SCALE 415

9

(2011) 6 SCC 189

1

Page 11 cancellation of bail and consideration for grant of bail, this Court

opined thus: -

“18.In considering whether to cancel the bail the

court has also to consider the gravity and nature of

the offence, prima facie case against the accused,

the position and standing of the accused, etc. If

there are very serious allegations against the

accused his bail may be cancelled even if he has not

misused the bail granted to him. Moreover, the

above principle applies when the same court which

granted bail is approached for cancelling the bail. It

will not apply when the order granting bail is

appealed against before an appellate/Revisional

Court.

19.In our opinion, there is no absolute rule that

once bail is granted to the accused then it can only

be cancelled if there is likelihood of misuse of the

bail. That factor, though no doubt important, is not

the only factor. There are several other factors also

which may be seen while deciding to cancel the

bail.”

18.We have referred to the above authorities solely for the

purpose of reiterating two conceptual principles, namely, factors

that are to be taken into consideration while exercising power of

admitting an accused to bail when offences are of serious nature,

and the distinction between cancellation of bail because of

supervening circumstances and exercise of jurisdiction in nullifying

an order granting bail in an appeal when the bail order is assailed

1

Page 12 on the ground that the same is perverse or based on irrelevant

considerations or founded on non-consideration of the factors

which are relevant.

19.We are absolutely conscious that liberty of a person should

not be lightly dealt with, for deprivation of liberty of a person has

immense impact on the mind of a person. Incarceration creates a

concavity in the personality of an individual. Sometimes it causes a

sense of vacuum. Needless to emphasize, the sacrosanctity of

liberty is paramount in a civilized society. However, in a democratic

body polity which is wedded to Rule of Law an individual is

expected to grow within the social restrictions sanctioned by law.

The individual liberty is restricted by larger social interest and its

deprivation must have due sanction of law. In an orderly society an

individual is expected to live with dignity having respect for law and

also giving due respect to others’ rights. It is a well accepted

principle that the concept of liberty is not in the realm of

absolutism but is a restricted one. The cry of the collective for

justice, its desire for peace and harmony and its necessity for

security cannot be allowed to be trivialized. The life of an individual

1

Page 13 living in a society governed by Rule of Law has to be regulated and

such regulations which are the source in law subserve the social

balance and function as a significant instrument for protection of

human rights and security of the collective. It is because

fundamentally laws are made for their obedience so that every

member of the society lives peacefully in a society to achieve his

individual as well as social interest. That is why Edmond Burke

while discussing about liberty opined, “it is regulated freedom”.

20.It is also to be kept in mind that individual liberty cannot be

accentuated to such an extent or elevated to such a high pedestal

which would bring in anarchy or disorder in the society. The

prospect of greater justice requires that law and order should

prevail in a civilized milieu. True it is, there can be no arithmetical

formula for fixing the parameters in precise exactitude but the

adjudication should express not only application of mind but also

exercise of jurisdiction on accepted and established norms. Law

and order in a society protect the established precepts and see to it

that contagious crimes do not become epidemic. In an organized

society the concept of liberty basically requires citizens to be

1

Page 14 responsible and not to disturb the tranquility and safety which

every well-meaning person desires. Not for nothing J. Oerter

stated:

“Personal liberty is the right to act without

interference within the limits of the law.”

21.Thus analyzed, it is clear that though liberty is a greatly

cherished value in the life of an individual, it is a controlled and

restricted one and no element in the society can act in a manner by

consequence of which the life or liberty of others is jeopardized, for

the rational collective does not countenance an anti-social or anti-

collective act.

22.Having said about the sanctity of liberty and the restrictions

imposed by law and the necessity of collective security, we may

proceed to state as to what is the connotative concept of bail. In

Halsbury’s Laws of England

10

it has been stated thus: -

“The effect of granting bail is not to set the

defendant (accused) at liberty but to release him

from the custody of law and to entrust him to the

custody of his sureties who are bound to produce

him to appear at his trial at a specified time and

place. The sureties may seize their principal at any

time and may discharge themselves by handing him

10

Halsbury’s Laws of England, 4

th

Edn., Vol. 11, para 166

1

Page 15 over to the custody of law and he will then be

imprisoned.”

23.In Sunil Fulchand Shah v. Union of India and others

11

Dr.

A.S. Anand, learned Chief Justice, in his concurring opinion,

observed: -

“Bail is well understood in criminal jurisprudence

and Chapter XXXIII of the Code of Criminal

Procedure contains elaborate provisions relating to

grant of bail. Bail is granted to a person who has

been arrested in a non-bailable offence or has been

convicted of an offence after trial. The effect of

granting bail is to release the accused from

internment though the court would still retain

constructive control over him through the sureties.

In case the accused is released on his own bond

such constructive control could still be exercised

through the conditions of the bond secured from

him. The literal meaning of the word “bail” is

surety.”

24.As grant of bail as a legal phenomenon arises when a crime is

committed it is profitable to refer to certain authorities as to how

this Court has understood the concept of crime in the context of

society. In P.S.R. Sadhanantham v. Arunachalam and

another

12

, R.S. Pathak, J. (as his Lordship then was), speaking for

himself and A.D. Kaushal, J, referred to Mogul Steamship Co. v.

11

(2000) 3 SCC 409

12

AIR 1980 SC 856

1

Page 16 McGregor Gow & Co. (1989) 23 QBD 598, 606 and the definition

given by Blackstone and opined thus: -

“A crime, therefore, is an act deemed by law to be

harmful to society in general, even though its

immediate victim is an individual.”

25.In Mrs. Harpreet Kaur Harvinder Singh Bedi v. State of

Maharashtra and another

13

a two-Judge Bench, though in a

different context, has observed: -

“Crime is a revolt against the whole society and an

attack on the civilization of the day. Order is the

basic need of any organized civilized society and any

attempt to disturb that order affects the society and

the community.”

26.In T.K. Gopal alias Gopi v. State of Karnataka

14

it has

been held that crime can be defined as an act that subjects the doer

to legal punishment. It may also be defined as commission of an

act specifically forbidden by law; it may be an offence against

morality or social order.

27.Keeping in mind the aforesaid aspects, namely, the factors

which are to be borne in mind while dealing with an application

preferred under Section 439 of the Code of Criminal Procedure in

13

AIR 1992 SC 979

14

AIR 2000 SC 1669

1

Page 17 respect of serious offences, the distinction between a perverse or

illegal order and cancellation of order granting bail, the individual

liberty and social security, the concept of bail, the definition of

crime and the duty of the court, we may proceed to deal as to how

in the case at hand the bail application has been dealt with by the

High Court.

28.On a perusal of the order passed by the High Court it will be

difficult to say that the High Court has passed a totally cryptic or

unreasoned order. The spinal question is whether it has ignored

the relevant factors which were brought to its notice at the time of

extending the benefit of enlargement of bail to the accused. The

prosecution by way of an affidavit had brought to the notice of the

High Court about the cases pending against the accused. The High

Court recorded the submission of the complainant that the accused

was involved in 52 cases. On a perusal of the counter-affidavit filed

before the High Court it is perceptible that it was categorically

stated that the accused was a history-sheeter; that he was the

pivotal force in getting the kidnapping done; that the victim Bihari

Lal was in captivity for eight days; and that he escaped under the

1

Page 18 pretext that he was going to attend the call of nature. The High

Court has only made a passing reference to the same and took note

of period of custody of seven months and held, “considering the

facts and circumstances of the case but without expressing any

opinion on the merits of the case, the applicant is entitled to be

released on bail”.

29.It is worthy to note that the fact relating to involvement of the

accused in various crimes was brought to the notice of the High

Court by virtue of an affidavit filed by the competent authority of

the prosecution. As per the Inspector-in-charge of the concerned

police station the following cases were pending against the accused:

S.

No.

Crime No. Sections Police

Station

District

1.270/86 25 Arms Act Shahabad Rampur

2.271/86 395/397/307/332/

337/225/427

Shahabad Rampur

3.137/88 3(1) Gangster Act Shahabad Rampur

4.209/92 147/148/149/302 Shahabad Rampur

5.189/95 323/342/35/504/

506

Shahabad Rampur

6.184/96 3/4 U.P. Gunda ActShahabad Rampur

7.185/96 147/148/149/307/

225

Shahabad Rampur

8.485/98 323/504/506/3(1)

10 S.C./S.T. Act

Shahabad Rampur

9.493/98 420/506/467/468/

47

Shahabad Rampur

1

Page 19 10.281/99 3/4 U.P. Gunda ActShahabad Rampur

11.626/05 347/504/506 Shahabad Rampur

12.628A/05 452/352/504/506 Shahabad Rampur

13.363/06 3(1) Prevention of

damage to Public

Property Act, 1984

Shahabad Rampur

14.2171/08 147/143/283/341

and 6 United

Province Special

Power Act, 1936 and

Section 7 of Criminal

Law Amendment Act.

Shahabad Rampur

15.670/09 3(1) Gangster Act Shahabad Rampur

16.1207/09 448/380 Shahabad Rampur

17.939/10 323/324/307/302 Shahabad Rampur

18.507/11 147/506 Shahabad Rampur

19.537/11 147/148/149/307 Shahabad Rampur

20.538/11 147/148/149/307/

353/354 and Section

7 of Criminal Law

Amendment Act

Shahabad Rampur

21.313/91 447/323/504/506 &

3(1) 10 S.C./S.T. Act

Shahabad Rampur

22.391/92 348/379/504/506 &

3(4) 10 S.C./S.T. Act

Shahabad Rampur

23.99/09 147/148/307/323/

504/506 & 3(2) 10

S.C./S.T. Act

Milk Rampur

24.2007/08 147/504/506/307/

427 & 3(1) 10 S.C./

S.T. Act

Milk Rampur

25.770/11 364/506 Patwai Rampur

26.575/93 302/392/412 IPC Islam

Nagar

Badayun

27.441/94 25 Arms Act Civil Line Moradabad

28.17/01 364 IPC (The court

issued non-bailable

warrants but

absconding)

Faizganj

Behta

Badayun

29.269/02 420 IPC Kasganj Eta

30.270/02 25 Arms Act Kasganj Eta

1

Page 20 In this Court also the same list has been filed. Thus, there is no

doubt that the accused is a history-sheeter.

30.Coming to the nature of crime it is perceivable that two

persons came on a motorcycle and kidnapped Bihari Lal and kept

him in confinement for eight days. The role of the accused is clearly

stated. It is apt to note that a history-sheeter has a recorded past.

The High Court, in toto, has ignored the criminal antecedents of the

accused. What has weighed with the High Court is that the

accused had spent seven months in custody. That may be one of

the factors but that cannot be the whole and the sole factor in every

case. It depends upon the nature of the offence, the manner in

which it is committed and its impact on the society. We may

hasten to add that when we state that the accused is a history-

sheeter we may not be understood to have said that a history-

sheeter is never entitled to bail. But, it is a significant factor to be

taken note of regard being had to the nature of crime in respect of

which he has been booked. In the case at hand, as the prosecution

case unfolds, the accused did not want anyone to speak against his

2

Page 21 activities. He had sent two persons to kidnap Bihari Lal, who

remained in confinement for eight days. The victim was tortured.

Kidnapping, as an offence, is on the increase throughout the

country. Sometimes it is dealt with formidable skill and sometimes

with terror and sometimes with threat or brute force. The crime

relating to kidnapping has taken many a contour. True it is,

sometimes allegations are made that a guardian has kidnapped a

child or a boy in love has kidnapped a girl. They do stand on a

different footing. But kidnapping for ransom or for revenge or to

spread terror or to establish authority are in a different realm

altogether. In the present case the victim had been kidnapped

under threat, confined and abused. The sole reason for kidnapping

is because the victim had shown some courage to speak against the

accused. This may be the purpose for sustaining of authority in the

area by the accused and his criminal antecedents, speak eloquently

in that regard. In his plea for bail the accused had stated that such

offences had been registered because of political motivations but

the range of offence and their alleged years of occurrence do not

lend prima facie acceptance to the same. Thus, in the present case

his criminal antecedents could not have been totally ignored.

2

Page 22 31.Be it noted, a stage has come that in certain States abduction

and kidnapping have been regarded as heroism. A particular crime

changes its colour with efflux of time. The concept of crime in the

contextual sense of kidnapping has really undergone a sea change

and has really shattered the spine of the orderly society. It is

almost nauseating to read almost every day about the criminal

activities relating to kidnapping and particularly by people who call

themselves experts in the said nature of crime.

32.We may usefully state that when the citizens are scared to

lead a peaceful life and this kind of offences usher in an

impediment in establishment of orderly society, the duty of the

court becomes more pronounced and the burden is heavy. There

should have been proper analysis of the criminal antecedents.

Needless to say, imposition of conditions is subsequent to the order

admitting an accused to bail. The question should be posed

whether the accused deserves to be enlarged on bail or not and only

thereafter issue of imposing conditions would arise. We do not

deny for a moment that period of custody is a relevant factor but

simultaneously the totality of circumstances and the criminal

2

Page 23 antecedents are also to be weighed. They are to be weighed in the

scale of collective cry and desire. The societal concern has to be

kept in view in juxtaposition of individual liberty. Regard being had

to the said parameter we are inclined to think that the social

concern in the case at hand deserves to be given priority over lifting

the restriction of liberty of the accused.

33.In the present context the period of custody of seven months,

in our considered opinion, melts into insignificance. We repeat at

the cost of repetition that granting of bail is a matter of discretion

for the High Court and this Court is slow to interfere with such

orders. But regard being had to the antecedents of the accused

which is also a factor to be taken into consideration as per the

pronouncements of this Court and the nature of the crime

committed and the confinement of the victim for eight days, we are

disposed to interfere with the order impugned.

34.We may note with profit that it is not an appeal for

cancellation of bail as cancellation is not sought because of

supervening circumstances. The present one is basically an appeal

challenging grant of bail where the High Court has failed to take

2

Page 24 into consideration the relevant material factors which make the

order perverse.

35.Consequently, the order passed by the High Court is set aside

and the bail bonds of the accused are cancelled. The accused is

directed to surrender to custody forthwith failing which it shall be

the duty of the investigating agency to take him to custody

immediately. We may hasten to clarify that anything that has been

stated here are only to be read and understood for the purpose of

annulment of the order of grant of bail and they would have no

bearing whatsoever on trial.

36.The appeal is, accordingly, allowed.

……………………… .J.

[K. S. Radhakrishnan]

……………………… .J.

[Dipak Misra]

New Delhi;

September 20, 2012.

2