Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2587 OF 2014

(Arising out of S.L.P. (Crl.) No. 8469 of 2014)

Neeru Yadav …

Appellant

Versus

State of U.P and another …

Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2.The present appeal, by special leave, calls in question the

legal substantiality and defensibility of the order dated

22.09.2014 passed by the High Court of judicature at

Allahabad in Criminal Misc. Bail Application No. 31078 of 2014

whereby the learned Judge, in exercise of power under Section

439 of Code of Criminal Procedure, 1973 (Cr.PC) had admitted

the 2

nd

respondent to bail in Crime No. 237 of 2013 instituted

Page 2 for offences punishable under Sections 147, 148, 149, 302,

307, 394, 411, 454, 506, 120B and 34 of the Indian Penal Code

(IPC).

3.As the impugned order would reveal, it was contended on

behalf of the 2

nd

respondent that similarly placed co-accused,

Ashok, had already been enlarged on bail by the High Court by

order dated 23.9.2013 in Criminal Misc. Bail Application No.

21876 of 2013 and role of the accused-respondent No.2 was

identical to that of Ashok Kumar and he should be released on

bail. Thus the foundation of the prayer for grant of bail was on

the bedrock of parity. The said prayer for grant of bail was

opposed with vehemence by the learned A.G.A. contending,

inter alia, that the accused had criminal antecedents and the

role attributed to him was different. The same was

controverted by the accused asserting that the said aspect

had been explained in the affidavit attached to the bail

application.

4.As the factual narration would further undrape, the

learned Single Judge keeping in view the aforesaid aspects

passed the following order:-

2

Page 3 “Considering the submission made by the learned

counsel for the applicant as well as learned

A.G.A., this Court is of the view that the applicant

has made out a case for grant of bail on the

ground of party.

In view of the above, let the applicant, Mitthan

Yadav be released on bail on his executing a

personal bond and furnishing two sureties each in

the like amount to the satisfaction of the court

concerned in Case Crime No. 237 of 2013, under

sections 147, 148, 149, 302, 307, 394, 411, 454,

506, 120B and 34 I.P.C., P.S. Kavinagar, district-

Ghaziabad with the following conditions:-

(a)The applicant shall attend the court

according to the conditions of the bond

executed by him.

(b)The applicant 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 or tamper with the evidence.”

5.Being aggrieved by the aforesaid order, the wife of the

deceased has preferred this appeal for setting aside the order.

6.At this juncture, it is apt to note that 2

nd

respondent had

moved an application for bail before the learned Additional

District & Sessions Judge, Ghaziabad who took note of the

factual matrix, which is as follows:-

“As per the prosecution story complainant Sakek

Chand has lodged the report at PS Kavi Nagar that

accused Mitthan, Manoj, lala Kapil and Budhu @

Budhpal were keeping enmity with the brother of

the complainant Salekh Chand on their consuming

3

Page 4 wine in front of the house of complainant and due

to this fear brother the complainant had keep a

private gunner. On 25.2.13 at about 11.00 a.m.

complainant and his brother Yashvir, Munir and

Deepak were sitting in the house and suddenly

above all accused carrying weapon in their hands

entered into the house of the complainant and

began hectic firing. Brother of the complainant

received several bullet injuries. Complainant ran

raising noise and also caught him and cause

grievous injuries on his head, due to which he fell

down. Hearing the voice of firing gunner also

came and his rifle was snatched him them and

also gave beatings to him and injured him. When

people of the village gathered accused fled away

giving threatening. People of the village admitted

brother of the complainant in hospital where

doctor declared him dead.”

Learned Additional District & Sessions Judge, after taking note

of the aforesaid allegations, declined to grant bail. Being

unsuccessful to secure bail from the Court of Session, the 2

nd

respondent approached the High Court and as has been stated

hereinbefore, the High Court has admitted him to bail.

7.Questioning the legal acceptability of the impugned

order, it is contended by Mr. Malkan, learned counsel for the

appellant that the High Court has failed to appreciate the role

ascribed to Ashok Kumar and to the 2

nd

respondent who had

fired on the deceased; and further the High Court has

absolutely remained oblivious to the criminal antecedents of

the said accused. That apart, it is contended by him that the

4

Page 5 trial has commenced and at that stage it was absolutely

improper on the part of the High Court to enlarge the accused

on bail brushing aside the fact that the man with criminal

antecedents has the potentiality to intimidate the rest of the

witnesses. In essence, the submission is that the gravity of the

offence, the manner in which it has been committed and the

criminal antecedents of the accused – the 2

nd

respondent,

have been totally ignored by the High Court and bail has been

granted on non-consideration of the material facts, which

makes the order vulnerable.

8.Mr. Ratnakar Dash, learned senior counsel appearing for

the State of Uttar Pradesh, supporting the stand of the

appellant submitted that though the State has not assailed the

legal acceptability of the impugned order, yet the fact remains

that when the real victim has approached this Court and on a

perusal of the facts which have been asserted, it is quite

manifest that the 2

nd

respondent is a history-sheeter and the

order passed by the High Court should be nullified.

9.Mr. Praveen Chaturvedi, learned counsel appearing for

the respondent no.2, resisting the aforesaid stand and stance

put forth by the learned counsel for the appellant as well as

5

Page 6 the learned senior counsel for the State has canvassed that

the High Court has appositely applied the principle of parity

and, therefore, the order passed by it cannot be faulted. It is

urged by him that when the trial has commenced and many

witnesses have been examined, there was no justification not

to release the 2

nd

respondent on bail on such terms and

conditions which have been determined by the High Court. It

is put forth by him that the number of cases which were

instituted against the 2

nd

respondent are not that grave and in

some cases he has been acquitted, but unfortunately,

emphasis has been laid on the same by the appellant and also

learned senior counsel for the State. It is further contended

that in the absence of any failure to abide by the terms and

conditions imposed by the High Court while granting the

accused the benefit of bail, this Court should not interfere as

that would seriously jeopardize the liberty of the respondent

no.2.

10.The pivotal issue that emanates for consideration is

whether the impugned order passed by the High Court

deserves legitimate acceptation and put in the compartment

of a legal, sustainable order so that this Court should not

6

Page 7 interfere with the same in exercise of jurisdiction under Article

136 of the Constitution of India. In this context, a fruitful

reference be made to the pronouncement in Ram Govind

Upadhyay v. Sudarshan Singh

1

, wherein this Court has

observed that grant of bail though discretionary in nature, yet

such exercise cannot be arbitrary, capricious and injudicious,

for the heinous nature of the crime warrants more caution

and there is greater change of rejection of bail, though,

however dependant on the factual matrix of the matter. In the

said decision, reference was made to Prahlad Singh Bhati v.

NCT, Delhi

2

and the Court opined thus:

“(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

1

(2002) 3 SCC 598

2

(2001) 4 SCC 280

7

Page 8 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 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.

3

, the Court has laid

down certain factors, namely, the nature of accusation,

severity of punishment in case of conviction and the character

of supporting evidence, reasonable apprehension of tampering

with the witness or apprehension of threat to the complainant,

and prima facie satisfaction of the Court in support of the

charge which are to be kept in mind.

12.In this context, we may profitably refer to the dictum in

Prasanta Kumar Sarkar v. Ashis Chatterjee

4

, wherein it

has been held that normally this Court does not interfere with

the order passed by the High Court when a bail application is

allowed or declined, but the High Court has a duty to exercise

its discretion cautiously and strictly. Regard being had to the

basic principles laid down by this Court from time to time, the

Court enumerated number of considerations and some of the

considerations which are relevant for the present purpose are;

3

(2004) 7 SCC 525

4

(2010) 14 SCC 496

8

Page 9 whether there is likelihood of the offence being repeated and

whether there is danger of justice being thwarted by grant of

bail.

13.We have referred to certain principles to be kept in mind

while granting bail, as has been laid down by this Court from

time to time. It is well settled in law that cancellation of bail

after it is granted because the accused has misconducted

himself or of some supervening circumstances warranting

such cancellation have occurred is in a different compartment

altogether than an order granting bail which is unjustified,

illegal and perverse. If in a case, the relevant factors which

should have been taken into consideration while dealing with

the application for bail and have not been taken note of bail or

it is founded on irrelevant considerations, indisputably the

superior court can set aside the order of such a grant of bail.

Such a case belongs to a different category and is in a

separate realm. While dealing with a case of second nature,

the Court does not dwell upon the violation of conditions by

the accused or the supervening circumstances that have

happened subsequently. It, on the contrary, delves into the

9

Page 10 justifiability and the soundness of the order passed by the

Court.

14.In the case at hand, two aspects have been highlighted

before us. One, the criminal antecedents of the 2

nd

respondent and second, the non-applicability of the principles

of parity on the foundation that the accusations against the

accused Ashok and 2

nd

respondent are different. First, we

shall dwell upon the criminal antecedents. The appellant, the

real victim, being the wife of the deceased, has annexed a

chart relating to the criminal history of the accused. The State

has filed a counter affidavit. We think it apt to refer to the

cases which find place in the counter affidavit filed by the

state. Be it clarified though it has been filed as a counter

affidavit, it is not in oppugnation of the prayer sought in the

petition. On the contrary, it is supportive of the stand put

forth in the petition. It has been asseverated that the

respondent no.2 is a history-sheeter and number of cases

have been lodged against him. The following are the details of

the cases:-

“(i)Case crime No. 1009/2006 u/s 302/201/34

IPC Police Station Shahibabad, District Ghaziabad.

10

Page 11 (ii)Case crime No. 1007/2006 u/s 302 IPC Police

Station Shahibabad, District Ghaziabad.

(iii)Case crime No. 360/2008 u/s 302/201 IPC

Police Station Shahibabad, District Ghaziabad.

(iv)Case crime No. 1614/2008 u/s 364/302/201

IPC Police Station Sihani Gate, District Ghaziabad.

(v)Case crime No. 495/2008 u/s 8/15 NDPS Act,

Police Station Kavi Nagar, District Ghaziabad.

(vi)Case crime No. 496/2008 u/s 25 Arms Act,

Police Station Kavi Nagar, District Ghaziabad.

(vii)Case crime No. 405/2008 u/s 307 IPC Police

Station Kavi Nagar, Ghaziabad.

(viii)Case crime No. 913/2008 u/s 25 Arms Act,

Police Station Kavi Nagar, Ghaziabad.

(ix)Case crime No. 1247/2009 u/s

147/323/324/506 IPC P.S. Kavi Nagar, Ghaziabad.

(x)Case crime No. 116/2011 u/s 307 IPC Police

Station Kavi Nagar, Ghaziabad.

(xi)Case crime No. 170/2011 u/s 25 Arms Act,

P.S. Sec-58, Noida, Gautambudh Nagar.

(xii)Case crime No. 2372013 u/s

247/148/149/302/307/ 394/411/506/120B/34 IPC

P.S. Kavi Nagar, Ghaziabad.

(xiii)Case crime No. 330/2013 u/s 60 Excise Act,

P.S. Kavi Nagar, Ghaziabad.

(xiv)Case crime No. 1091/2013 u/s 384/506 IPC

P.S. Kavi Nagar, Ghaziabad.

(xv)Case crime No. 1238/2013 u/s 2/3 Gangster

Act, P.S. Kavi Nagar, Ghaziabad.

Note:- The respondent Mitthan has been declared

as History Sheetor being H.S. No. 39-A P.S. Kavi

Nagar”.

11

Page 12 In the reply filed by the respondent no.2 contended, inter

alia, that he has been acquitted in certain case. However, in

the course of hearing, we have been apprised that most of the

cases instituted against the respondent no.2 are still pending

and some of them are under Section 302 IPC and other

heinous offences.

15.In the case at hand the 2

nd

respondent, as the allegations

would show, had fired at the deceased. Two persons were

also injured in the attack. The occurrence took place in the

broad day light. As we find from the FIR and statement

recorded under Section 161 CrPC, the allegations against

Ashok and the 2

nd

respondent are different. That apart, the

number and nature of crimes registered against the 2

nd

respondent speaks voluminously about his antecedents.

16.The issue that is presented before us is whether this

Court can annul the order passed by the High Court and curtail

the liberty of the 2

nd

respondent. We are not oblivious of the

fact that the liberty is a priceless treasure for a human being.

It is founded on the bed rock of constitutional right and

accentuated further on human rights principle. It is basically a

natural right. In fact, some regard it as the grammar of life.

12

Page 13 No one would like to lose his liberty or barter it for all the

wealth of the world. People from centuries have fought for

liberty, for absence of liberty causes sense of emptiness. The

sanctity of liberty is the fulcrum of any civilized society. It is a

cardinal value on which the civilisation rests. It cannot be

allowed to be paralysed and immobilized. Deprivation of

liberty of a person has enormous impact on his mind as well as

body. A democratic body polity which is wedded to rule of

law, anxiously guards liberty. But, a pregnant and significant

one, the liberty of an individual is not absolute. The society by

its collective wisdom through process of law can withdraw the

liberty that it has sanctioned to an individual when an

individual becomes a danger to the collective and to the

societal order. Accent on individual liberty cannot be

pyramided to that extent which would bring chaos and

anarchy to a society. A society expects responsibility and

accountability from the member, and it desires that the

citizens should obey the law, respecting it as a cherished

social norm. No individual can make an attempt to create a

concavity in the stem of social stream. It is impermissible.

Therefore, when an individual behaves in a disharmonious

13

Page 14 manner ushering in disorderly things which the society

disapproves, the legal consequences are bound to follow. At

that stage, the Court has a duty. It cannot abandon its

sacrosanct obligation and pass an order at its own whim or

caprice. It has to be guided by the established parameters of

law.

17.Coming to the case at hand, it is found that when a stand

was taken that the 2

nd

respondent was a history sheeter, it

was imperative on the part of the High Court to scrutinize

every aspect and not capriciously record that the 2

nd

respondent is entitled to be admitted to bail on the ground of

parity. It can be stated with absolute certitude that it was not

a case of parity and, therefore, the impugned order clearly

exposes the non-application of mind. That apart, as a matter

of fact it has been brought on record that the 2

nd

respondent

has been charge sheeted in respect of number of other

heinous offences. The High Court has failed to take note of the

same. Therefore, the order has to pave the path of extinction,

for its approval by this court would tantamount to travesty of

justice, and accordingly we set it aside.

14

Page 15 18.Consequently, the appeal is allowed and the order passed

by the High Court admitting the respondent no.2 on bail is set

aside. The respondent no. 2 is commanded to surrender to

custody forthwith failing which it shall be the duty of the

Investigating Agency to take him into custody immediately.

We may hasten to clarify that what we have stated here is

only to be read and understood for the purpose of annulling

the order of grant of bail and they would have no bearing on

the trial. The learned trial Judge shall proceed with the trial as

per the evidence brought on record.

........................................J.

[DIPAK MISRA]

........................................J.

[UDAY UMESH LALIT]

NEW DELHI

DECEMBER 16, 2014.

15