Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1272 OF 2015

(@ SLP(Crl) No. 1596 OF 2015)

Neeru Yadav ... Appellant

Versus

State of U.P. and Anr. ...Respondents

J U D G M E N T

Dipak Misra, J.

The present appeal, by special leave, on a summary

glance may appear that a victim who might have an axe to

grind against the accused, the respondent no.2 herein, and

further to wreck his vengeance has approached this Court

seeking cancellation of his bail, possibly being emboldened

by the inaction of the State authorities who have chosen to

maintain sphinx like silence or decided to assume the

stagnated posture of a splendid sculpture of Rome, and

Page 2 2

invigorated by the thought that he can singularly carry the

crusade, without any support, for he has a cause to

vindicate by valiantly exposing the legal infirmities in the

order passed by the High Court admitting the 2

nd

respondent to bail and also unconceal the lackadaisical

attitude of the State, but on a keener scrutiny the initial

impression melts away and the perversity of the order

impugned gets unrolled. Be it stated, at a narrow level it

may look like a combat between two individuals, but when

analytical scrutiny is done and the State is compelled to

wake up from its slumber, the unveiling of facts reveal the

contestation between the accord and the discord, the scuffle

betwixt the sacrosanctity and the majesty of law on one

hand and the maladroit ingenious efforts to get the benefit

by the abuse of process of the Court on the other. The

analysis has to be made, that being an imperative

command, between the honest nidification and the

surreptitious edifice.

2.Mr. Pradeep Kumar Yadav, learned counsel for the

appellant, with all the distress and the intellectual agony at

Page 3 3

his command, has submitted that the High Court without

appropriate analysis and even without being fully apprised

of the fact situation, solely on the basis of parity, as if it is

the only foundation or for that matter, the comet that has

come off to shine, has enlarged the respondent no.2 on bail

totally being oblivious that no accused, however influential

he may be or clever he thinks to be, cannot be allowed to

nullify the sanctity and purity of law and jettison the age old

values “truth in action” and “the firm and continuous desire

to render to every one which is due”, the two fundamental

pillars of justice. The plea, submits Mr. Yadav, apart from

cleverness also shows an attempt of the nonchalant mind of

the respondent No 2 to engage in fertile imagination

possibly thinking that the ground of parity is the real

structure of palladium to bring the nemesis of the

prosecution and put the Court in a situation to choose

between Scylla and Charybdis. And, at this juncture, we

must state that both the appellant and the State (though at

a later stage) have become Argus-eyed and destroyed the

ingenious foundation so astutely built by the accused.

Page 4 4

3.Keeping in view the aforesaid submissions, we shall

proceed to adumbrate the requisite factual score. One

Salek Chand s/o. Satpal Singh lodged an FIR at P.S.

Kavinagar, Ghaziabad on 25.02.2013 about 11.45 a.m.

against certain persons relating to the murder of his elder

brother, Yashvir Yadav. On the basis of the lodging of the

FIR, the criminal law was set in motion and eventually

chargesheet was filed which formed the subject matter of

Case Crime No. 237 of 2013 for the offences punishable

under Sections 147, 148, 149, 302, 307, 394, 411, 454,

506, 120B read with Section 34 IPC. After the application

for bail was rejected by the learned trial Judge, the accused

person, respondent no.2, moved the High Court in Criminal

Misc. Bail Application No. 25466 of 2014. It was contended

before the High Court that an omnibus role had been

ascribed to him and the other accused persons that they

had indulged in general firing as a consequence of which

one person had died, for he had received three gun shot

injuries. It was also contended that there was no credible

evidence against the accused persons. The real plank of

Page 5 5

submission before the High Court, as is perceptible, was

that prayer for bail in respect of 11 accused persons

including Mitthan Yadav had already been allowed, and

there was no justification to deny him the said benefit as he

was similarly placed.

4.The prayer for bail was resisted by the Public

Prosecutor contending, inter alia, that there was

indiscriminate firing by the accused person causing fatal

injuries. The High Court, after hearing both the parties, has

passed following order:-

“In view of above facts, considering the nature of

allegation, severity of punishment and period of

detention, without expressing any opinion on

merit, it is a fit case for bail.

Let the applicant Budhpal @ Buddhu be enlarged

on bail on his furnishing a personal bond with

two heavy sureties each in the like amount to the

satisfaction of court concerned in case crime no.

237 of 2013 under Section

147,148,149,302,307,394,411,454,506, 120B, 34

I.P.C. Police Station Kavi Nagar, District

Ghaziabad with the following conditions:

(i) The applicant will not tamper with the

evidence during the trial.

(ii) The applicant will not pressurize/intimidate

the prosecution witness.

(iii) The applicant will appear before the trial

court on the date fixed, unless personal presence

Page 6 6

is exempted.

In case of breach of any of the above conditions,

the court below shall be at liberty to cancel the

bail.”

The said order is the subject matter of assail in the

present appeal by special leave.

5.At the outset we are obliged to clarify that it is not an

appeal seeking cancellation of bail in the strictest sense. It

actually calls in question the legal pregnability of the order

passed by the High Court. The prayer for cancellation of

bail is not sought on the foundation of any kind of

supervening circumstances or breach of any condition

imposed by the High Court. The basic assail is to the

manner in which the High Court has exercised its

jurisdiction under Section 439 CrPC while admitting the

accused to bail. To clarify, if it has failed to take into

consideration the relevant material factors, it would make

the order absolutely perverse and totally indefensible. That

is why there is a difference between cancellation of an order

of bail and legal sustainability of an order granting bail.

Page 7 7

[See State of U.P. v. marmani Tripathi

1

, Puran v.

Rambilas

2

, Narendra K. Amin v. State of Gujarat

3

, and

Prakash Kadam v. Ramprasad Vishwanah Gupta

4

.]

6.Having cleared that maze, we may clarify, though

seriously urged by Mr. P. George Giri that there is no

warrant for cancellation of bail as there has been no

supervening circumstances, yet the said enthusiastic

submission leaves us unimpressed, as that is not the real

thrust of the matter.

7.The mystery does not end there. Mr. P. George Giri,

learned counsel for the respondent on 14.9.2015, in course

of hearing, on instructions advanced an eminently

innocuous, but innovative plea with the potentiality to

create immense confusion that the description of

respondent no.2 is absolutely erroneous, and, in fact, he is

not the accused in any case. Mr. Pradeep Kumar Yadav

very fairly stated that there has been a typographical error

in describing the name of the respondent no.2, for his name

1

(2005) 8 SCC 21

2

(2001) 6 SCC 338

3

(2008) 13 SCC 584

4

(2011) 6 SCC 189

Page 8 8

should have been Budhpal @ Buddhu s/o. Sh. Ram and not

Santpal Yadav. Mr. R.K. Dash, learned senior counsel

appearing for the State apprised us that the address is

correct as stated in the FIR and the chargesheet and the

same is also reflected in the application for grant of bail.

Taking note of the said situation, we permitted the cause

title to be corrected. However, the issue having been raised

regarding the identity of the respondent no.2, to clear our

conscience, we asked the State to show us the documents

that he is the person who is accused of the offence. On the

next occasion, documents were shown and we were

satisfied, and we allowed the ambitious submission to burn

into ashes, or to put it differently, evaporate in the thin air.

8. It is interesting to note that learned counsel for the

appellant and the learned counsel for the State submitted

that the respondent no.2 is still in jail despite the order of

bail as he is involved in so many cases. We will take up the

said issue at a later stage. It is submitted by Mr. Yadav,

learned counsel for the appellant that despite the factum of

criminal history pointed out before the High Court, it has

Page 9 9

given it a glorious ignore which the law does not

countenance. The solitary and the singular grievance which

is propounded with solidity that the High Court should have

dwelt upon the same and thereafter decided the matter. Mr.

Dash, learned senior counsel (though the State has not

moved any application for setting aside the order of bail

granted by the High Court for the reasons which are

unfathomable) unhesitatingly accepted the said submission.

In the additional affidavit, an independent chart has been

filed by the State and we find that apart from the present

case, there are seven cases pending against the respondent

no.2. The chart of the said cases is reproduced below:-

“1.FIR No. 664/02 u/s 302 IPC, PS Kavinagar,

Ghaziabad.

2.FIR No. 558/04 u/s. 392, 411 IPC, PS

Kotwali, Dist. Bulandshahar.

3.FIR No. 14/05 u/s. 398, 401, 307 IPC PS

Noida, Gautam Budh Nagar.

4.FIR No. 15/05 u/s. 25, 27 Arms Act, PS

Sector 49, Noida, Gautam Budh Nagar

5.FIR No. 1614/08 u/s. 364, 302, 201 IPC, PS

Sihani Gate, Ghaziabad

6.FIR No. 98/05 u/s. 2/3 Gangster Act, PS

Sector 49, Noida, Gautam Budh Nagar

7.FIR No. 451/12 u/s. 60 PS Sector 49 Noida,

Page 10 10

Gautam Budh Nagar”

9.On a perusal of the aforesaid list, it is quite vivid that

the respondent no.2 is a history-sheeter and is involved in

heinous offences. Having stated the facts and noting the

nature of involvement of the accused in the crimes in

question, there can be no scintilla of doubt to name him a

“history-sheeter”. The question, therefore, arises whether in

these circumstances, should the High Court have enlarged

him on bail on the foundation of parity.

10.In Ram Govind Upadhyay v. Sudarshan Singh

5

, it

has been clearly laid down that the grant of bail though

involves 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. The heinous nature of

crimes warrants more caution as there is a greater chance

of rejection of bail though, however, dependent on the

factual matrix of the matter. In the said case, reference

was made to Prahlad Singh Bhati v. NCT of Delhi

6

, and

thereafter the court proceeded to state the following

5

(2002) 3 SCC 598

6

(2001) 4 SCC 280

Page 11 11

principles:-

“(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 evi-

dence establishing the guilt of the accused be-

yond reasonable doubt but there ought always to

be a prima facie satisfaction of the court in sup-

port of the charge.

(d) Frivolity in prosecution should always be con-

sidered 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 genuineness of the prosecution,

in the normal course of events, the accused is en-

titled to an order of bail.”

11.It is a well settled principle of law that while dealing

with an application for grant of bail, it is the duty of the

Court to take into consideration certain factors and they

basically are, (i)the nature of accusation and the

severity of punishment in cases of conviction and the nature

of supporting evidence, (ii)reasonable apprehension of

tampering with the witnesses for apprehension of threat to

Page 12 12

the complainant, and (iii)Prima facie satisfaction of the

court in support of the charge. [See Chaman Lal v. State

of U.P.

7

)

12.In Prasanta Kumar Sarkar v. Ashis Chatterjee

8

,

while dealing with the court’s role to interfere with the

power of the High Court to grant bail to the accused, the

Court observed that it is to be seen that the High Court has

exercised this discretion judiciously, cautiously and strictly

in compliance with the basic principles laid down in catena

of judgments on that point. The Court proceeded to

enumerate the factors:-

“9. … among other circumstances, the factors

[which are] to be borne in mind while considering

an application for bail are:

(i) whether there is any prima facie or reasonable

ground to believe that the accused had commit-

ted the offence;

(ii) nature and gravity of the accusation;

(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;

7

(2004) 7 SCC 525

8

(2010) 14 SCC 496

Page 13 13

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses be-

ing influenced; and

(viii) danger, of course, of justice being thwarted

by grant of bail.”

13.We will be failing in our duty if we do not take note of

the concept of liberty and its curtailment by law. It is an

established fact that a crime though committed against an

individual, in all cases it does not retain an individual

character. It, on occasions and in certain offences,

accentuates and causes harm to the society. The victim may

be an individual, but in the ultimate eventuate, it is the

society which is the victim. A crime, as is understood,

creates a dent in the law and order situation. In a civilised

society, a crime disturbs orderliness. It affects the peaceful

life of the society. An individual can enjoy his liberty which

is definitely of paramount value but he cannot be a law unto

himself. He cannot cause harm to others. He cannot be a

nuisance to the collective. He cannot be a terror to the

society; and that is why Edmund Burke, the great English

thinker, almost two centuries and a decade back eloquently

Page 14 14

spoke thus:-

“Men are qualified for civil liberty, in exact pro-

portion to their disposition to put moral chains

upon their own appetites; in proportion as their

love to justice is above their rapacity; in propor-

tion as their soundness and sobriety of under-

standing is above their vanity and presumption;

in proportion as they are more disposed to listen

to the counsel of the wise and good, in preference

to the flattery of knaves. Society cannot exist un-

less a controlling power upon will and appetite be

placed somewhere and the less of it there is

within, the more there must be without. It is or-

dained in the eternal constitution of things that

men of intemperate minds cannot be free. Their

passions forge their fetters

9

.

14.E. Barrett Prettyman, a retired Chief Judge of US

Court of Appeals had to state thus:-

“In an ordered society of mankind there is no

such thing as unrestricted liberty, either of na-

tions or of individuals. Liberty itself is the prod-

uct of restraints; it is inherently a composite of

restraints; it dies when restraints are withdrawn.

Freedom, I say, is not an absence of restraints; it

is a composite of restraints. There is no liberty

without order. There is no order without systema-

tised restraint. Restraints are the substance with-

out which liberty does not exist. They are the

essence of liberty. The great problem of the demo-

cratic process is not to strip men of restraints

merely because they are restraints. The great

problem is to design a system of restraints which

will nurture the maximum development of man’s

9

Alfred Howard, The Beauties of Burke (T. Davison, London) 109

Page 15 15

capabilities, not in a massive globe of faceless an-

imations but as a perfect realisation, of each sep-

arate human mind, soul and body; not in mute,

motionless meditation but in flashing, thrashing

activity.

10

”

15.This being the position of law, it is clear as cloudless

sky that the High Court has totally ignored the criminal

antecedents of the accused. What has weighed with the

High Court is the doctrine of parity. A history-sheeter

involved in the nature of crimes which we have reproduced

hereinabove, are not minor offences so that he is not to be

retained in custody, but the crimes are of heinous nature

and such crimes, by no stretch of imagination, can be

regarded as jejune. Such cases do create a thunder and

lightening having the effect potentiality of torrential rain in

an analytical mind. The law expects the judiciary to be alert

while admitting these kind of accused persons to be at large

and, therefore, the emphasis is on exercise of discretion

judiciously and not in a whimsical manner.

16.In this regard, we may profitably reproduce a few

significant lines from Benjamin Disraeli:-

10

Speech at Law Day Observances (Pentagon, 1962) as quoted in Case and Comment, Mar-Apr 1963

Page 16 16

“I repeat……… that all power is a trust-that we

are accountable for its exercise- that, from the

people and for the people, all springs, and all

must exist.”

17.That apart, it has to be remembered that justice in its

conceptual eventuality and connotative expanse engulfs the

magnanimity of the sun, the sternness of mountain, the

complexity of creation, the simplicity and humility of a saint

and the austerity of a Spartan, but it always remains

wedded to rule of law absolutely unshaken, unterrified,

unperturbed and loyal.

18.Before parting with the case, we may repeat with profit

that it is not an appeal for cancellation of bail as the

cancellation is not sought because of supervening

circumstances. The annulment of the order passed by the

High Court is sought as many relevant factors have not

been taken into consideration which includes the criminal

antecedents of the accused and that makes the order a

deviant one. Therefore, the inevitable result is the

lancination of the impugned order

19.Resultantly, the appeal is allowed and the order passed

Page 17 17

by the High Court is set aside. If the respondent no.2 is at

large, he shall be taken into custody forthwith; and if he is

still in custody because of certain other cases, he shall not

be admitted to bail in connection with the present case. We

make it clear that we have not expressed any opinion with

regard to other cases and simultaneously we also clearly

state that our observations in this case are only meant for

purpose of setting aside the order granting bail and would

have no impact or effect during the trial.

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

[Dipak Misra]

..........................., J.

[Prafulla C. Pant]

New Delhi

September 29, 2015