Summary
The informant's father was shot on a bridge in Lucknow on 08.01.2021 and, before dying on 14.01.2021, named the accused Harjeet Yadav as the shooter to his wife in the presence of police officers; a country-made pistol with live cartridges was recovered on the accused's arrest and a charge sheet was filed under Sections 302/34 IPC. The Sessions Court refused bail, but the Allahabad High Court (Lucknow Bench) granted regular bail on the first day of listing, essentially on parity with a co-accused, without giving the State or the informant an opportunity to respond. The Supreme Court, in the informant's appeal, set the bail order aside for non-application of mind and directed the accused to surrender within a week.
Issues
- Whether the High Court was justified in granting regular bail under Section 439 CrPC to an accused named by the deceased as the shooter in a murder case, solely on the ground of parity with a co-accused, without recording reasons or considering the nature of the crime, the evidence, the recovery of the weapon and the accused's criminal history.
- On what grounds a superior court may set aside an order granting bail as unjustified or perverse, as distinct from cancelling bail for supervening circumstances or misuse.
Provisions considered
- Section 439(1) (regular bail); cancellation/setting aside of bail, Code of Criminal Procedure, 1973The discretion under Section 439 must be exercised judiciously on settled factors — prima facie case, nature and gravity of the accusation, severity of punishment, risk of absconding, character and antecedents, likelihood of repetition, tampering with witnesses and justice being thwarted — with reasons recorded, however brief. The High Court's order granting bail on parity alone ignored these and was set aside. (¶¶ 19, 20, 21, 25, 26, 27, 29, 35, 36, 37, 38, 39, 40)
- Sections 302 and 34, Indian Penal Code, 1860The accused was named in the FIR and by the deceased as the main assailant who fired the fatal shot, with a motive of previous enmity over land; the seriousness of the charge and the material against him were relevant factors the High Court failed to consider. (¶¶ 3, 4, 5, 36, 38)
Held
- The factors governing bail under Section 439 CrPC (Prahlad Singh Bhati; Prasanta Kumar Sarkar; Ram Govind Upadhyay; Kalyan Chandra Sarkar) include a prima facie case, the nature and gravity of the accusation, severity of punishment, danger of absconding, character and standing of the accused, likelihood of repetition, apprehension of witnesses being influenced and the danger of justice being thwarted; the nature of the crime has huge relevance and the more heinous the crime the greater the chance of refusal. (¶¶ 19, 20, 21, 24, 25, 28)
- A court granting or refusing bail, particularly where the accused is charged with a serious offence, must record reasons, brief as they may be; cryptic orders stating only that the facts and circumstances have been considered reflect non-application of mind and are disapproved ('Y' v. State of Rajasthan; Mahipal; Ramesh Bhavan Rathod). (¶¶ 23, 26, 27, 29)
- Cancellation of bail for supervening circumstances or misuse (Dolat Ram) is in a different compartment from setting aside an order granting bail that is unjustified, illegal or perverse; a superior court may set aside a grant of bail that ignores relevant material, takes irrelevant material into account, overlooks the accused's criminal record or influential position, rests on untenable grounds or is whimsical or perverse, even without supervening circumstances or misuse of bail (Neeru Yadav; Mahipal; Prakash Kadam). (¶¶ 30, 31, 32, 33, 34)
- The High Court failed to consider that the accused was named by the deceased as the shooter, that a weapon was recovered from him, his admission in his Section 161 statement, his motive and his criminal history; bail granted only on parity, without regard to the nature of the crime, the material evidence and the accused's involvement, suffers from non-application of mind and is unsustainable, though the Supreme Court does not ordinarily interfere with the High Court's discretion. (¶¶ 35, 36, 37, 38, 39)
- The observations are confined to the issue of bail; the trial court is to decide the case uninfluenced by them, and the accused may apply afresh for bail if new circumstances emerge. (¶ 41)
Result
Appeal allowed; the Allahabad High Court (Lucknow Bench) order of 22.10.2021 in Bail No. 11848 of 2021 set aside, the accused's bail bonds cancelled and he directed to surrender within one week, failing which the police are to take him into custody; the trial to proceed uninfluenced by these observations.