REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. __838__ OF 2009

ARISING OUT OF

SPECIAL LEAVE PETITION (CRL.) NO. 3572 OF 2008

Masroor … Appellant

Versus

State of U.P. & Anr. … Respondents

J U D G M E N T

D.K. JAIN, J.

Leave granted.

2.Challenge in this appeal by the complainant is to the order

dated 10

th

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 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 18

th

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

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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 19

th

September, 2007, Anzar

Hussain died on 30

th

September, 2007.

4.On the very same day viz. 18

th

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 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,

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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 No.347/2007, including the second respondent, on 19

th

November, 2007.

6.The second respondent moved an application before

Additional Sessions Judge/Fast Track Court, Moradabad for

grant of bail. Keeping in view the fact that two persons had

died and few others had sustained multiple injuries, by an

order dated 18

th

January, 2008, the Addl. Sessions Judge

rejected the bail application. On 20

th

February, 2008, charges

were framed against all the accused for offences under

Sections 148, 307 read with Section 149 IPC and Section

302 read with 149, IPC.

7.Aggrieved by the order passed by the trial Court rejecting his

bail application, the second respondent preferred the

aforementioned bail application before the High Court. As

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noted above, by the impugned order, the High Court allowed

the application and granted bail to the second respondent.

The operative part of the impugned order reads as follows:

“Considering the facts, circumstances of this case,

submissions made by learned counsel for the applicant,

learned A.G.A., learned counsel for the complainant and

without expressing any opinion on the merits of the

case, the applicant is entitled to be released on bail with

the below mentioned conditions.

Let the applicant Chhunna @ Chhidda involved in Crime

Case No. 347 of 2007 under Sections 147, 148, 149,

307 & 302, IPC, P.S. Asmoli, District Moradabad be

released on bail on his furnishing a personal bond and

two heavy sureties each in the like amount to the

satisfaction of the Court concerned.

·The applicant shall report to the court of learned

C.J.M. concerned in the first week of each month to

show his good conduct and behaviour.

·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.

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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 non-application of mind and, therefore, deserves to be set

aside. In support of the proposition that any order de hors the

reasons for grant of bail suffers from non-application of mind,

learned counsel placed reliance on the decisions of this

Court in Puran etc. etc. Vs. Rambilas & Anr. etc. etc.

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,

Suresh Kumar Somabhai Rana Vs. Ashok Kumar

Haraklal Mittal & Ors.

2

, Ram Govind Upadhyay Vs.

Sudarshan Singh & Ors.

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and Kalyan Chandra Sarkar Vs.

Rajesh Ranjan @ Pappu Yadav & Anr.

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. It was also

pointed out that relying on the order impugned in this appeal,

all other accused have also been released on bail.

1

(2001) 6 SCC 338

2

JT 2002 (2) SC 431

3

(2002) 3 SCC 598

4

(2004) 7 SCC 528

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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 incident, as projected in the FIRs

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.

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

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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 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 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.

(b) Reasonable apprehension of tampering with the

witness or apprehension of threat to the complainant.

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(c) Prima facie satisfaction of the Court in support of the

charge. (See: Ram Govind Upadhyay Vs. Sudarshan

Singh

5

, Puran Vs. Rambilas

6

and Kalyan Chandra

Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr.

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13.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. It is possible that in a given

situation, the collective interest of the community may

outweigh the right of personal liberty of the individual

concerned. In this context, the following observations of this

Court in Shahzad Hasan Khan Vs. Ishtiaq Hasan Khan

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,

are quite apposite:

“Liberty is to be secured through process of law, which is

administered keeping in mind the interest of the accused,

the near and dear of the victim who lost his life and who

feel helpless and believe that there is no justice in the

world as also the collective interest of the community so

that parties do not lose faith in the institution and indulge

in private retribution.”

5

(2002) 3 SCC 598

6

(2001) 6 SCC 338

7

(2004) 7 SCC 528

8

(1987) 2 SCC 684

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14.Therefore, the question for consideration is whether 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

justified in granting bail to the said respondent and set him

free?

15.As noted earlier, according to both the FIRs, the genesis of

the incident is some heated argument between accused

Basiruddin and Anzar (shopkeeper). Perhaps on refusal by

Anzar to sell his goods to Basiruddin on credit, he took it as a

personal affront and the altercation ensued. Though the

stand of Basiruddin in the FIR lodged by him is that after the

incident, he had gone back to his house but the fact remains

that after the investigation, which included recording of

statements of many persons, a chargesheet for serious

offences has been filed against 22 persons, including the

second respondent, for committing the murder of two

persons and causing multiple injuries to 8 persons. The

background of the incident, the nature of the assembly, the

nature of the arms carried by the accused and the manner in

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which the offences were committed, prima facie, reflect the

character and the conduct of the accused for whom perhaps

refusal by the shopkeeper to sell goods on credit was a

challenge to their authority and the power they wielded in the

area. Be that as it may, the significant feature of the case is

that the learned Judge, except for recording the submissions

of counsel for both the parties, has not indicated any reason

whatsoever for grant of bail. This is manifest from the afore-

extracted order that 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. In our opinion, failure on the part of the

learned judge in not indicating any reason for grant of bail

particularly when charges against the second respondent are

serious, makes his order indefensible. As observed by this

Court in Puran’s case (supra), giving reasons is different

from discussing merits or demerits. At the stage of granting

bail, a detailed examination of evidence and elaborate

documentation of the merits of the case is not to be

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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.

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

20

th

February, 2008 not a single witness has been examined

by the prosecution so far. We say no more.

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18.It goes without saying that any observations touching the

merits of the case against the second respondent are purely

for 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.

………………………………….…J .

( D.K. JAIN )

…………………………………….J .

( R.M. LODHA )

NEW DELHI,

APRIL 27, 2009.

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