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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 601 OF 2017

(Arising out of S.L.P. (Crl.) No. 8781 of 2016)

VIRUPAKSHAPPA GOUDA AND ANOTHER Appellants

VERSUS

THE STATE OF KARNATAKA AND Respondents

ANOTHER

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The appellants, who have been arraigned as accused in

sessions case being S.C. No.90 of 2015 arising out of Crime

No.118 of 2015, registered at Raichur Rural Police Station for

the offences punishable under Sections 143, 147, 148, 323,

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302, 504, 114 read with Section 149 of the Indian Penal Code

(IPC) after being taken into custody, in the course of

investigation being aspirant for obtaining liberty, preferred an

application under Section 439 of the Code of Criminal Procedure

(Cr.P.C.), that is, Criminal Misc. No. 457 of 2015 in the court of

Principal Sessions Judge at Raichur, which stood dismissed.

3. Being grieved by the aforesaid order of rejection for

grant of bail, the accused-appellants moved the High Court of

Karnataka at Kalaburagi Bench in Criminal Petition No. 200629

of 2015. The High Court adverted to the deadly weapons that

were carried by the accused persons, the nature of injuries

sustained on the vital parts by the deceased and the allegation

of specific overt acts, and rejected the application.

4. Thereafter, a second application for grant of bail was

moved by the appellants before the Principal Sessions Judge at

Raichur, that is, Criminal Misc. No. 791 of 2015. It was

contended before the learned trial Judge that as, in the

meantime, the investigation had been completed and the

charge-sheet had been filed, there had been a change of

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circumstance and hence, they were entitled to be admitted to

bail. That apart, certain grounds pertaining to ailment of some

of the accused persons were highlighted. The learned trial

Judge, as is evident, referred to the allegations made in the

F.I.R., the materials that had come on record during the

investigation and the postmortem report and considering all

other relevant aspects, declined to enlarge the appellants on

bail. It is worthy to note here that though a ground of parity

was urged on the base that the accused Nos. 4 to 7 had been

released on anticipatory bail, the same did not impress the court

and accordingly the inevitable result, the dismissal, followed.

5. The aforesaid order of dismissal constrained the

appellants to move the High Court in Criminal Petition No.

200944 of 2015. The High Court vide its order dated 23

rd

September, 2015, after referring to the nature of alleged assault

by the accused persons, the type of injury sustained by the

deceased and considering the pertinent facts did not accede to

the prayer for grant of bail.

6. Being grieved by the aforesaid order, the appellants

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preferred Special Leave Petition (Criminal) No. 9858 of 2015,

which was dismissed vide order dated 27

th

November, 2015.

7. The aforesaid narration of facts would give one the

impression that the attempt of the appellants to be enlarged on

bail was over unless some extraordinary circumstance could

usher in which could be considered as change of circumstance,

but as the chronology of events would show the indefatigable

spirit of the appellants forced them to remain embedded in their

stance for putting any stand as a change of circumstance for the

purpose of grant of bail. We do not intend to mean even for a

moment that the accused cannot move successive application

for grant of bail. That is his right in law. Our emphasis is on

the delineation by the Court. The said right invigorated with

adroit efforts, resulted in filing of an application in S.C. No. 90

of 2015. As is evident from the record, the earlier bail

applications were rejected by the Principal Sessions Judge,

Raichur, but the third application was taken up by the learned

Additional Sessions Judge, Raichur. As the order would reveal,

the learned trial Judge has thought it apposite to deal with the

application as if he was dealing with the first application and

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copiously referred to the materials brought on record, referred to

pronouncements in Sanjay Chandra vs. Central Bureau of

Investigation

1

and Siddharam Satlingappa Mhetre vs. State

of Maharashtra and others

2

and commented on the delay in

trial and, eventually, released the appellants on bail on certain

conditions.

8. The enlargement of bail to the accused persons, as it

seems, did not affect the prosecution. The State of Karnataka

chose to maintain silence and did not think it appropriate to

assail the order.

9. The informant, who has crossed six scores and five,

lost his son in an unfortunate and brutal circumstance, moved

the High Court in Criminal Petition No. 200768 of 2016 under

Section 439(2) Cr.P.C. seeking cancellation of bail. The High

Court while dealing with the application, adverted to the

allegations in the F.I.R. The nature of allegations, being

significant, deserves to be adverted by us. It is alleged in the

F.I.R. that the accused-appellant No.1, had a daughter named

1(2012) 1 SCC 40

2(2011) 1 SCC 694

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Basavarajeshwari who fell in love with the deceased Anand

Sagar, the son of the informant, who belongs to “Uppar”

community and the accused belongs to “Lingayat” community.

The deceased, Anand Sagar, had eloped with the daughter of the

accused No.1 in the year 2014 and at that juncture, an F.I.R.

was registered filed by the accused to that effect. As the

narration would further unroll, the couple left the village,

entered into wedlock and thereafter started residing at

Bengaluru and later on at Bellary. On 17

th

May, 2015, the

deceased, Anand Sagar, had come to his native place Yeramarus

and had gone to Raichur on the motorbike of his father. When

he returned to Yeramarus at 9.30 p.m. and reached near the

bus stop, the accused persons assaulted him with weapons and

he breathed his last on the spot. After noting the facts and the

injuries sustained by the deceased, the High Court also adverted

to the attempts made by the accused persons to obtain liberty

despite the same having been declined by this Court. It also

came to hold that the spark of life of the deceased had been

extinguished because he had dared to fall in love and get

married to the daughter of the accused No.1, and ultimately

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opined that delineation by the learned trial Judge with regard to

grant of order of bail, was absolutely perverse and, founded on

irrelevant aspects. In view of the aforesaid premises, it allowed

the application for cancellation of bail and set aside the order

passed by the learned Additional Sessions Judge, admitting the

appellants to bail.

10. We have heard Mr. Basava Prabhu S. Patil, learned

senior counsel along with Mr. Anirudh Sanganeria, learned

counsel for the appellants and Mr. V.N. Raghupathy, learned

counsel for the respondent-State. Despite service of notice, no

one has entered appearance on behalf of the informant.

11. It is submitted by Mr. Patil, learned senior counsel for

the appellants that the High Court has erred in cancelling the

order of bail as the appellants, after being enlarged on bail, had

neither abused the freedom nor have they violated the terms

and conditions of the bail order. It is urged by him that there is

no allegation of tampering with the evidence or influencing any

witnesses and therefore, there was no justification for

cancellation of the order of granting bail. Learned senior

counsel would further contend that the analysis made by the

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learned trial Judge for the purpose of grant of bail cannot be

regarded as perverse and he has correctly relied upon the

pronouncements as is noticeable from his order. It is put forth

by Mr. Patil that at such distance of time not to admit the

appellants on bail and give the stamp of approval to the order

cancelling the bail by the High Court, would not sub-serve the

cause of justice.

12. Mr. Raghupathy, learned counsel appearing for the

State, per contra, would submit that the learned trial Judge

should not have entertained the prayer for bail after this Court

has special leave petition for the same relief. It is his

submission that the High Court has correctly opined that there

is perversity in the approach by the learned trial Judge while

dealing with the application under Section 439 Cr.P.C. and

hence, it deserved to be set aside.

13. On a perusal of the order passed by the learned trial

Judge, we find that he has been swayed by the factum that

when a charge-sheet is filed it amounts to change of

circumstance. Needless to say, filing of the charge-sheet does

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not in any manner lessen the allegations made by the

prosecution. On the contrary, filing of the charge-sheet

establishes that after due investigation the investigating agency,

having found materials, has placed the charge-sheet for trial of

the accused persons. As is further demonstrable, the learned

trial Judge has remained absolutely oblivious of the fact that the

appellants had moved the special leave petition before this

Court for grant of bail and the same was not entertained. Be it

noted, the second bail application was filed before the Principal

Sessions Judge after filing of the charge-sheet which was

challenged in the High Court and that had travelled to this

Court. These facts, unfortunately, have not been taken note of

by the learned trial Judge. He has been swayed by the

observations made in Siddharam Satlingappa Mhetre (supra),

especially in paragraph 86, the relevant part of which reads

thus:-

“The courts considering the bail application should

try to maintain fine balance between the societal

interest vis-a-vis personal liberty while adhering to

the fundamental principle of criminal

jurisprudence that the accused is presumed to be

innocent till he is found guilty by the competent

court.”

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14. The proposition expounded above, has to be accepted,

but that has to be applied appositely to the facts of each case. A

bail application cannot be allowed solely or exclusively on the

ground that the fundamental principle of criminal jurisprudence

is that the accused is presumed to be innocent till he is found

guilty by the competent court. The learned trial Judge has also

referred to the decision in Sanjay Chandra (supra), wherein a

two-Judge Bench while dealing with bail applications, observed

thus:-

“21.In bail applications, generally, it has been

laid down from the earliest times that the object of

bail is to secure the appearance of the accused

person at his trial by reasonable amount of bail.

The object of bail is neither punitive nor

preventative. Deprivation of liberty must be

considered a punishment, unless it can be required

to ensure that an accused person will stand his

trial when called upon. The courts owe more than

verbal respect to the principle that punishment

begins after conviction, and that every man is

deemed to be innocent until duly tried and duly

found guilty.

22.From the earliest times, it was appreciated

that detention in custody pending completion of

trial could be a cause of great hardship. From time

to time, necessity demands that some un-convicted

persons should be held in custody pending trial to

secure their attendance at the trial but in such

cases, ‘necessity’ is the operative test. In this

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country, it would be quite contrary to the concept

of personal liberty enshrined in the Constitution

that any person should be punished in respect of

any matter, upon which, he has not been convicted

or that in any circumstances, he should be

deprived of his liberty upon only the belief that he

will tamper with the witnesses if left at liberty, save

in the most extraordinary circumstances.

23.Apart from the question of prevention being

the object of a refusal of bail, one must not lose

sight of the fact that any imprisonment before

conviction has a substantial punitive content and it

would be improper for any Court to refuse bail as a

mark of disapproval of former conduct whether the

accused has been convicted for it or not or to

refuse bail to an unconvicted person for the

purpose of giving him a taste of imprisonment as a

lesson.”

15. Be it noted, though the aforesaid passages have their

relevance but the same cannot be made applicable in each and

every case for grant of bail. In the said case, the

accused-appellant was facing trial for the offences under

Sections 420-B, 468, 471 and 109 of the IPC and Section 13(2)

read with Section 13(1)(d) of the Prevention of Corruption Act,

1988. Thus, the factual matrix was quite different. That apart, it

depends upon the nature of the crime and the manner in which

it is committed. A bail application is not to be entertained on the

basis of certain observations made in a different context. There

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has to be application of mind and appreciation of the factual

score and understanding of the pronouncements in the field.

16. The court has to keep in mind what has been stated in

Chaman Lal vs. State of U.P. and another

3

. The requisite

factors 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. In

Prasanta Kumar Sarkar vs. Ashis Chatterjee and another

4

,

it has been opined that while exercising the power for grant of

bail, the court has to keep in mind certain circumstances and

factors. We may usefully reproduce the said passage:-

“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 be believed that the

accused had committed the offence.

(ii)nature and gravity of the accusation;

(iii)severity of the punishment in the event of

conviction;

3(2004) 7 SCC 525

4(2010) 14 SCC 496

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(iv)danger of the accused absconding or

fleeing, if released on bail;

(v) character, behaviour, means, position and

standing of the accused;

(vi)likelihood of the offence being repeated;

(vii)reasonable apprehension of the witnesses

being influenced; and

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

by grant of bail.”

17. In Central Bureau of Investigation vs. V. Vijay Sai

Reddy

5

, the Court had reiterated the principle by observing

thus:-

“While granting bail, the court has to keep in

mind the nature of accusation, the nature of

evidence in support thereof, the severity of the

punishment which conviction will entail, the

character of the accused, circumstances which are

peculiar to the accused, reasonable possibility of

securing the presence of the accused at the trial,

reasonable apprehension of the witnesses being

tampered with, the larger interests of the

public/State and other similar considerations. It

has also to be kept in mind that for the purpose of

granting bail, the legislature has used the words

reasonable grounds for believing instead of the

evidence which means the court dealing with the

grant of bail can only satisfy itself as to whether

there is a genuine case against the accused and

that the prosecution will be able to produce prima

5(2013) 7 SCC 452

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facie evidence in support of the charge. It is not

expected, at this stage, to have the evidence

establishing the guilt of the accused beyond

reasonable doubt.”

18. From the aforesaid principles, it is quite clear that an

order of bail cannot be granted in an arbitrary or fanciful

manner. In this context, we may, with profit, reproduce a

passage from Neeru Yadav vs. State of Uttar Pradesh and

another

6

, wherein the Court setting aside an order granting bail

observed:-

“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. 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

6(2014) 16 SCC 508

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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 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.”

19. In this context what has been stated by a three-Judge

bench in Dinesh M.N. (S.P.) v. State of Gujarat

7

is quite

instructive. In the said case, the Court has held that where the

Court admits the accused to bail by taking into consideration

irrelevant materials and keeping out of consideration the

relevant materials the order becomes vulnerable and such

vulnerability warrants annulment of the order.

20. In the instant case, as is demonstrable, the learned

trial Judge has not been guided by the established parameters

7 (2008) 5 SCC 66

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for grant of bail. He has not kept himself alive to the fact that

twice the bail applications had been rejected and the matter had

travelled to this Court. Once this Court has declined to enlarge

the appellants on bail, endevours to project same factual score

should not have been allowed. It is absolute impropriety and

that impropriety call for axing of the order.

21. That apart, as we find from the narration of allegations

from the order of the High Court, it is not a case where the trial

court could have entertained a bail application by elaborate

dissection of facts and appreciation of statements recorded

under Section 161 Cr.P.C. The gravity of the crime should have

been taken note of by the learned trial Judge. The deceased and

his wife (the daughter of the accused-appellant No.1) were

staying in peace away from the acrimonious community, but

due to some kind of “misconceived class honour”, the vengeance

reigned and awe for law went on a holiday. They thought that

their perception mattered and as alleged, they put an end to the

life spark of the young man. The choice of the daughter was

allowed no space. Her identity was crushed and her thinking

was crucified by parental dominance which has roots in an

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unfathomable sense of community honour. Though the lovers

became fugitive, the anger founded on anachronistic values

prompted the accused persons to annihilate the life of a young

man. In such a situation, the factors that have been highlighted

by this Court from time to time were required to be adverted to

and the accused persons should not have been granted liberty

on the grounds that have been thought appropriate by the

learned trial Judge. The perversity of approach by the learned

Additional Sessions Judge, who has enlarged the appellants on

bail, is totally unacceptable. It is reflective of sanctuary of

errors. In such a situation, we are obligated to say that the

High Court has performed its legal duty by lancinating the order

passed by the learned trial Judge.

22. Consequently, the appeal, being sans merit, stands

dismissed. As we have dismissed the appeal, the appellants

shall surrender to custody forthwith and it will be the duty of

the trial Judge to see that they are taken into custody. Needless

to say, whatever we have stated in the present judgment, is only

confined to the defensibility of the order passed by the High

Court cancelling the bail granted by the learned Additional

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Sessions Judge and shall not weigh in the mind of the learned

trial Judge for the purpose of the trial as that shall depend upon

evidence to be adduced during the trial.

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

(Dipak Misra)

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

(A.M. Khanwilkar)

New Delhi

March 28, 2017.