Summary
A school headmaster, the prime witness in a pending abduction case against the second respondent, was shot dead at Badaun on 16.06.2012 while returning from court; the Sessions Court found that the respondent, then in jail, had conspired with four relatives to eliminate him and sentenced him to life imprisonment under Sections 302/149/120B IPC. In his appeal the Allahabad High Court granted bail by an order that merely recorded counsel's submissions and released him 'in view of the aforesaid', though told that he was a hardened criminal. On the widow's appeal, supported by the State, which listed 37 cases against him, the Supreme Court set aside the bail order as cryptic, non-speaking and reflecting non-application of mind, cancelled his bail bonds and directed him to surrender, leaving his pending appeal open.
Issues
- Whether the High Court, suspending sentence and granting bail under Section 439 CrPC to a convict sentenced to life imprisonment for murder by conspiracy, could do so by a cryptic order recording only counsel's submissions, without reasons and without considering the gravity of the offence, his criminal antecedents and the apprehension to the complainant and witnesses.
- On what grounds a superior court may set aside an order granting bail as distinct from cancelling bail for supervening circumstances.
Provisions considered
- Section 439 (and Section 389, suspension of sentence pending appeal), Code of Criminal Procedure, 1973The discretion to grant bail must be exercised judiciously, not as a matter of course, having regard to the nature and gravity of the accusation, severity of punishment, the evidence, the accused's character and antecedents, apprehension of tampering or threats and the danger of justice being thwarted, with reasons recorded (Ram Govind Upadhyay; Prasanta Kumar Sarkar; Kalyan Chandra Sarkar; Mahipal). The High Court's unreasoned order ignoring these factors was set aside. (¶¶ 16, 17, 18, 19, 20, 24, 28, 29, 30, 31, 32)
- Sections 302, 149 and 120B, Indian Penal Code, 1860The respondent was convicted of murder by conspiracy hatched from jail against a witness who had deposed against him, with established motive; the gravity of the offence, the life sentence, only nine months' custody and his antecedents made bail inappropriate. (¶¶ 4, 5, 6, 32)
Held
- The yardstick for testing an order granting bail is whether the court below exercised its discretion improperly or arbitrarily, whereas cancellation of bail turns on supervening circumstances or violation of conditions; a superior court may set aside a grant of bail where the lower court ignored relevant material, the gravity of the offence or its societal impact, or considered irrelevant factors (Prakash Kadam; Neeru Yadav; Imran v. Mohammed Bhava), and the gravity of the offence, the accused's conduct and the societal impact of undue indulgence are among such situations. (¶¶ 21, 22, 23)
- The High Court's order is cryptic and non-speaking and demonstrates non-application of mind: it shut its eyes to the common submission of the complainant and the State that the respondent is a hardened criminal, and mechanically recorded the submissions before releasing him 'in view of the aforesaid' without a single reason; the appellate court is at sea to discern what weighed with it. Giving reasons is different from discussing merits, and an order granting bail in a serious offence without indicating why suffers from non-application of mind (Puran v. Rambilas; Kalyan Chandra Sarkar; Mahipal). (¶¶ 24, 28, 29, 30, 31)
- The State's list shows 37 criminal cases against the respondent under the IPC, Arms Act, Gangsters Act, Goondas Act and Atrocities Act, including a life sentence in another murder case, and a further eleven noted in Ash Mohammad, where this Court had cancelled his bail stressing that societal concern must be weighed against individual liberty and criminal antecedents properly analysed; six more cases have been registered in the last decade. Given his conviction for murder, life sentence, only nine months in custody and these antecedents, the bail order is quashed, his bail bonds cancelled and he must surrender, without prejudice to his pending appeal or a fresh application on new circumstances. (¶¶ 25, 26, 27, 32, 33)
Result
Appeal disposed of; the Allahabad High Court's order of 19.09.2018 in Criminal Misc. Bail Application No. 609 of 2018 granting bail to the second respondent, convicted under Sections 302/149/120B IPC and sentenced to life imprisonment, quashed; his bail bonds cancelled and he directed to surrender forthwith, with liberty to apply afresh if new circumstances arise; the merits of his pending appeal left open.