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CASE NO.:

Appeal (crl.) 381-382 of 2002

PETITIONER:

RAM GOVIND UPADHYAY

Vs.

RESPONDENT:

SUDARSHAN SINGH & ORS.

DATE OF JUDGMENT: 18/03/2002

BENCH:

Umesh C. Banerjee & Y.K. sabharwal

JUDGMENT:

Banerjee, J.

Leave granted.

While liberty of an individual is precious and there should

always be an all round effort on the part of Law Courts to protect

such liberties of individuals but this protection can be made

available to the deserving ones only since the term protection

cannot by itself be termed to be absolute in any and every

situation but stand qualified depending upon the exigencies of the

situation. It is on this perspective that in the event of there being

committal of a heinous crime it is the society that needs a

protection from these elements since the latter are having the

capability of spreading a reign of terror so as to disrupt the life and

the tranquility of the people in the society. The protection thus to

be allowed upon proper circumspection depending upon the fact

situation of the matter. It is in this context the observations of this

court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan & Anr. (1987

(2) SCC 684) seem to be rather apposite. This Court observed in

Shahzad Hasan Khan (supra) as below :-

"Had the learned Judge granted time to the

complainant for filing counter-affidavit correct

facts would have been placed before the court and

it could have been pointed out that apart from the

inherent danger of tampering with or intimidating

witnesses and aborting the case, there was also the

danger to the life of the main witnesses or to the

life of the accused being endangered as

experience of life has shown to the members of

the profession and the judiciary, and in that event,

the learned Judge would have been in a better

position to ascertain facts to act judiciously. No

doubt liberty of a citizen must be zealously

safeguarded by court, nonetheless when a person

is accused of a serious offence like murder and his

successive bail applications are rejected on merit

there being prima facie material, the prosecution

is entitled to place correct facts before the court.

Liberty is to be secured through process of law,

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which is administered keeping in mind the

interests 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. Learned Judge was

unduly influenced by the concept of liberty,

disregarding the facts of the case."

Grant of bail though being a discretionary order but,

however, calls for exercise of such a discretion in a judicious

manner and not as a matter of course. Order for Bail bereft of any

cogent reason cannot be sustained. Needless to record, however,

that the grant of bail is dependent upon the contextual facts of the

matter being dealt with by the Court and facts however do always

vary from case to case. While placement of the accused in the

society, though may be considered but that by itself cannot be a

guiding factor in the matter of grant of bail and the same should

and ought always be coupled with other circumstances warranting

the grant of bail. The nature of the offence is one of the basic

consideration for the grant of bail more heinous is a crime, the

greater is the chance of rejection of the bail, though, however,

dependent on the factual matrix of the matter.

Apart from the above, certain other which may be attributed

to be relevant considerations may also be noticed at this juncture

though however, the same are only illustrative and nor exhaustive

neither there can be any. The considerations being:

(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 accepted 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 genuineness of the

prosecution, in the normal course of events, the accused is

entitled to an order of bail.

A recent decision of this Court in Prahlad Singh Bhati v.

NCT, Delhi & Anr. (2001 (4) SCC 280) lends concurrence to the

observations as above.

Turning attention to the factual score, it is stated that the

appellant's brother, one Amar Nath Upadhyay (since deceased),

was a candidate contesting the election for the post of Pradhan in

Budhepur Gram Panchayat along with one Ravindra Nath Singh.

While the polling was in progress on 23rd June, 2000, there were

said to be some scuffles which resulted in the obstruction of

polling process thrice by booth so-called jamming/booth capturing

resulting in forcible taking up of ballot papers from the voters and

said to be casting the same in favour of one particular candidate.

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It has been stated that as and when informant came to the

booth in order to cast his vote, there was stated to be definite

obstruction and resultantly a hue and cry and thus alleged scuffles

were had and on hearing the cries of the informant, Amar Nath

Upadhyay (since deceased) said to have rushed for the informant's

rescue and the torture thereafter fell on to the candidate, which

resulted in the death of Amar Nath Upadhyay. There is thus an

allegation of booth capturing as also that of a refusal to permit the

voters to vote. The First Information Report lodged recorded

offence under Section 302 IPC along with other charges and it is

on this score that the private respondents in these appeals were

arrested. Applications for bail were moved before the trial Court

but the same did not meet with any success. Even the High Court

did not lend any support to the application. Subsequent bail

applications were also filed on behalf of accused persons before

the Sessions Judge, Chandauli, which however stood rejected upon

recording an observation that the prosecution case prima facie

stands supported by ocular testimony of the witnesses as also the

post-mortem report and against such an order of rejection, the co-

accused moved the High Court for the grant of bail being Crl.

Misc. Bail application No.17697 of 2000. The records further

depict, however, that between 4th and 6th December, 2000, the

witnesses in the matter were said to have been threatened and

assaulted by reason wherefor a FIR under Sections 323 and 504

IPC was registered at the Police Station on 6th December, 2000 as

M.C.R. No.91 of 2000. The police after completing the

investigation has also submitted the charge-sheet before the Chief

Judicial Magistrate but no committal has taken place as yet, since

the co-accused who had been granted bail, were not attending the

Court of Chief Judicial Magistrate by reason wherefor bailable

warrants against them were issued and it is only thereafter that the

accused persons appeared before the Sessions Judge. The two

petitions for bail as noticed above, by Sudarshan Singh and

Kaushal Singh came up for hearing before the High court on 3rd

May, 2001, whereupon the bail was granted to both the accused

persons and thus the application for cancellation of bail which

however, resulted in an order of rejection and hence the appeals

before this Court.

While it is true that availability of over-whelming

circumstances is necessary for an order as regards the cancellation

of a bail order, the basic criterion, however, being interference or

even an attempt to interfere with the due course of administration

of justice and/or any abuse of the indulgence/privilege granted to

the accused. The contextual facts depict and as noticed

hereinbefore that the incident occurred at the time when the

election was going on and the murder was said to have been

committed in the broad day light by reason of interference of the

deceased when the informant was prohibited from casting his vote.

The situation is rather grave and having regard to the same, the

High Court on 29th August, 2000 refused the application for bail.

Undoubtedly, considerations applicable to the grant of bail

and considerations for cancellation of such an order of bail are

independent and do not overlap each other, but in the event of non-

consideration of considerations relevant for the purpose of grant of

bail and in the event an earlier order of rejection available on the

records, it is a duty incumbent on to the High Court to explicitly

state the reasons as to why the sudden departure in the order of

grant as against the rejection just about a month ago. The

subsequent FIR is on record and incorporated therein are the

charges under Sections 323 and 504 IPC in which the charge-sheet

have already been issued the Court ought to take note of the facts

on record rather than ignoring it. In any event, the discretion to be

used shall always have to be strictly in accordance with law and

not de-hors the same. The High Court thought it fit not to record

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any reason far less any cogent reason as to why there should be a

departure when in fact such a petition was dismissed earlier not

very long ago. The consideration of the period of one year spent

in jail cannot in our view be a relevant consideration in the matter

of grant of bail more so by reason of the fact that the offence

charged is that of murder under Section 302 IPC having the

punishment of death or life imprisonment it is a heinous crime

against the society and as such the Court ought to be rather

circumspect and cautious in its approach in a matter which stands

out to be a social crime of very serious nature.

In our view, the High Court has committed a manifest error

in the matter of grant of bail when public tranquility has been

stated to be disturbed on the election day and when there is an

obstruction for the exercise of a right guaranteed under the

Constitution and when there is an existence of crime against the

society at large. Irrespective of different factors to be taken note

of in regard to the cancellation of the grant of bail, in our view

interest of justice seem to be over-whelmingly in favour of the

appellant herein in the matter of cancellation of the bail. The elder

brother has been brutally murdered and the proceeding is pending

before the Sessions Judge. It is during the period when the

accused persons were enlarged on bail that another FIR was

recorded and charge-sheet having been filed, the Court ought to

have taken a serious note of these factual details. Tampering with

the evidence and threatening of the witnesses are two basic

grounds for cancellation of bail both these two factors stand

alleged and by reason of subsequent filing of charge-sheet therein,

there should have been some mention of it in the order for grant of

bail. The factum of the second charge-sheet has been omitted in

its entirety.

In that view of the matter, these appeals succeed. The order of

the High Court stands set aside and quashed. The bail order as

granted by the High Court stands cancelled and the private

respondents be re-arrested forthwith.

..J.

(Umesh C. Banerjee)

..J.

(Y.K. Sabharwal)

March 18, 2002.

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