Dr Dhananjaya Y Chandrachud, J
1 Leave granted.
2 A Single Judge of the High Court of Judicature at Allahabad, by an
order dated 4 August 2022, directed the release of the first
respondent on bail in connection with Case Crime No 126 of 2020
registered at Police Station Mundali, District Meerut, Uttar Pradesh for
offences punishable under Sections 147, 148, 149, 302, 307, 352 and
504 read with Section 34 of the Indian Penal Code 18601.
3 The First Information Report was registered on 19 May 2020 on the
1 “IPC” namely, Nazim, Abubakar, Waseem, Aslam, Gayyur, Nadeem,
Hamid, Akram, Kadir and Danish. The allegation in the FIR is that at
around 7.30 pm on the same day, the accused who had prior enmity
with the parties discriminately fired at the appellant and his sons and,
as a result, two sons of the appellant, Abdul Khaliq and Abdul Majid
sustained bullet injuries. Abdul Khaliq died on the spot, while Abdul
Majid died on the way to the hospital. The appellant’s nephew is
alleged to have been seriously injured during the course of the
incident.
4 The postmortem report of the deceased, Abdul Khaliq, indicates that
he had received one fire arm injury in the head and the cause of the
death was cranio-cerebral damage as a result of an ante mortem
firearm injury. The postmortem report of Abdul Majid indicates that
he had sustained one firearm entry wound in the abdomen and one
corresponding exit wound and the cause of death was due to shock
and hemorrhage caused by the ante mortem firearm injury.
5 Though the first respondent was not named in the FIR, his role is
alleged to have emerged during the course of the investigation. In
the statement of the appellant under Section 161 of the Code of
Criminal Procedure Code 19732, he was put to question on why first
respondent was not named as an accused in the first information
2 “CrPC” report, to which the appellant responded as follows:
“I have got written the complaint by Saleem
(scribe of the FIR) orally and told him the name
of Niyaz Ahmad. Niyaz Ahmad was also
involved in the occurrence”
6 After the investigation was completed, a charge-sheet was
submitted under Section 173 CrPC on 23 June 2020 against the
accused, including the first respondent, for offences punishable
under Sections 147, 148, 149, 352, 302, 307 and 504 read with Section
34 of IPC. The charge-sheet was submitted against eight accused,
seven of whom were named in the FIR, while the name of the first
respondent was added later. Three other accused were not found
to be involved after investigation and thus, charge sheet was not filed
against them.
7 Cognizance has been taken and the case has been committed to
the Sessions Court where it has been registered as Sessions Trial No 574
of 2020 which is pending in the court of the Additional Sessions Judge,
Court No 15, Meerut. Charges have been framed. The evidence of
the informant, PW 1, has been recorded. During the course of the
deposition, PW 1 has adverted to the role of the first respondent. The
first bail application filed by the first respondent was dismissed on 29
July 2021 because it was not pressed. The second application for bail
filed by the first respondent was dismissed by the Sessions Court on 16
December 2021 in view of the seriousness of the offence and the fact
that there is prior enmity between the factions The appellant moved
the High Court under Section 482 of CrPC for expeditious conclusion
of the trial. By an order dated 7 May 2022, the High Court directed
the Sessions Court to conclude the trial expeditiously, preferably
within a period of six months. The first respondent moved the High
Court for grant of bail which has resulted in the impugned order
dated 4 August 2022.
8 While granting bail, the Single Judge of the High Court has observed
as follows:
“Having heard the submissions of learned counsel of
both sides, nature of accusation and severity of
punishment in case of conviction, nature of
supporting evidence, prima facie satisfaction of the
Court in support of the charge, reformative theory of
punishment. and considering larger mandate of the
Article 21 of the Constitution of India and the dictum
of Apex Court in the case of Dataram Singh v. State
of U.P. and another, (2018) 3 sec 22, without
expressing any view on the merits of the case, I find it
to be a case of bail.
Considering the facts and circumstances of the case,
I find it to be a fit case for bail.”
9 At the outset, it needs to be noted that this Court has had occasion
to peruse a succession of orders by the same Judge of the High Court
of Judicature at Allahabad (which were challenged in Special leave
Petitions before this Court) containing identical reasons as recorded
above for the grant of bail. As a matter of fact, in the counter
affidavit, which has been filed by the first respondent, the fact that
similar orders have been passed by the Single Judge has been relied
upon though with the submission that the first respondent should not
be penalized for the High Court’s failure to record adequate reasons.
The first respondent in the course of his counter affidavit states as
follows:
“...In fact, the present case is not the only case, in
which so called reasons are not assigned by the
Hon’ble High Court while granting bail. There are
many other cases also in which the same or similar
orders were passed by the Hon’ble High Court and
perhaps will be passed in future, as well. Therefore,
the Respondent No.1 may not be penalized for
something on which he has no control at all and it is
the judicial discretion of the Hon’ble High Court to
give reasons or not to give reasons while granting
bail...”
10 The manner in which the Single Judge of the High Court has disposed
of the application for bail is unsatisfactory. In determining as to
whether bail should be granted in a matter involving a serious criminal
offence, the Court is duty bound to consider:
(i) The seriousness and gravity of the crime;
(ii) The role attributed to the accused;
(iii) The likelihood of the witnesses being tampered with if bail is
granted;
(iv) The likelihood of the accused not being available for trial if bail
is granted; and
(v) The criminal antecedents of the accused.
11 In successive orders, the Single Judge of the High Court granted bail
containing the same sentence, purportedly of reasons. Merely
recording that the Court has had regard to the nature of the
accusation, the severity of the punishment in the case of conviction,
the nature of supporting evidence, prima facie satisfaction of the
Court in support of the charge, reformative theory of punishment and
the larger mandate of Article 21 is not a satisfactory method for the
simple reason that the facts of the case have to be considered.
Moreover, not all the circumstances referred to above will weigh in
the same direction. The duty to consider the circumstances of the
case cannot be obviated by setting down legal formulations.
12 In Mahipal v. Rajesh Kumar3, a two-Judge Bench observed:
“25. Merely recording “having perused the
record” and “on the facts and circumstances
of the case” does not subserve the purpose of
a reasoned judicial order. It is a fundamental
premise of open justice, to which our judicial
system is committed, that factors which have
weighed in the mind of the Judge in the
rejection or the grant of bail are recorded in
the order passed. Open justice is premised on
the notion that justice should not only be
done, but should manifestly and undoubtedly
be seen to be done. The duty of Judges to
give reasoned decisions lies at the heart of this
commitment. Questions of the grant of bail
3 (2020) 2 SCC 118
concern both liberty of individuals undergoing
criminal prosecution as well as the interests of
the criminal justice system in ensuring that
those who commit crimes are not afforded
the opportunity to obstruct justice. Judges are
duty-bound to explain the basis on which they
have arrived at a conclusion.
27. Where an order refusing or granting bail
does not furnish the reasons that inform the
decision, there is a presumption of the
nonapplication of mind which may require
the intervention of this Court.” In Aminuddin v. State of Uttar Pradesh4, a two-Judge Bench of this
Court of which allowed the appeal filed against the judgment of the
High Court granting bail. The Single Judge of the Allahabad High
Court had disposed the bail application with the same reasoning as
extracted above in this case. The following observations were made
on the reasoning of the High Court :
“8. In the present case, the High Court has
merely observed that bail was being granted
after considering the submissions and having
regard to the “larger mandate of Article 21”.
There can be no manner of doubt that the
protection of personal liberty under Article 21
is a constitutional value which has to be
respected by the High Court, as indeed by all
courts. Equally, in a matter such as the
present, where a serious offence of murder
has taken place, the liberty of the accused
has to be necessarily balanced with the
public interest in the administration of criminal
justice system which requires that a person
who is accused of a crime is held to account.”
13 At the stage of deciding as to whether or not to grant bail, the Court
4 Criminal Appeal No. 317 of 2021
is not expected to write an elaborate or detailed judgment.
However, the reasons in support of an order granting or refusing bail
must emerge from the record and must show a due application of
mind by the Judge to the facts of the case. An over-burdened
docket is no justification for formulaic justice. We, therefore,
disapprove of the manner in which the Single Judge of the High Court
of Judicature at Allahabad has been dealing with applications for
bail.
14 In the above facts, we would have considered remanding the
proceedings back to the High Court. However, during the course of
hearing, elaborate submissions have been addressed before this
Court on whether or not the grant of bail was justified.
15 Certain significant aspects which bear on the issue as to whether bail
ought to be granted in the facts of the present case need to be
elaborated after considering the submissions of the counsel
appearing on behalf of the rival parties.
16 On behalf of the appellant, it has been submitted that:
(i) Two sons of the appellant have been murdered in the course
of the incident;
(ii) The role of the first respondent has emerged during the course
of the statements which were recorded under Section 161
CrPC;
(iii) In the course of his deposition, the appellant as PW1 has
specifically adverted to the role of the first respondent in the
course of the incident;
(iv) Having due regard to the nature and gravity of the offence,
there is no justification for the grant of bail, particularly when
the role of the first respondent has been adverted to not only
by the appellant but by other witnesses in the course of their
statements recorded under Section 161 CrPC in the counter
case filed by the wife of the first respondent FIR in Case Crime
No 361 of 2020; and
(v) Though the trial was expedited by the High Court, by its order
dated 7 April 2022, repeated adjournments have been sought
by the first respondent to avoid an expeditious trial, to which a
reference has been made by the Trial Court in an order dated
23 August 2022. The first respondent is avoiding the trial.
17 Supporting the submissions of the appellant, it has been urged on
behalf of the State of Uttar Pradesh that, in the present case, the High
Court has erred in granting bail without having due regard to the
following circumstances, namely:
(i) The nature and gravity of the crime;
(ii) The role attributed to the first respondent in the deposition of
PW 1 and even prior thereto in the statements which were
recorded during the course of the investigation;
(iii) The recovery made of five country made pistols;
(iv) The postmortem reports which indicate that the death was
caused due to gun-shot injuries suffered in the head and
abdomen, respectively; and
(v) The criminal antecedents of the first respondent.
18 On behalf of the first respondent, it has been submitted that:
(i) A cross case was sought to be registered at the behest of the
wife of the first respondent;
(ii) Eventually, an FIR in Case Crime No 361 of 2020 was registered
on 21 November 2020, inter alia, for offences punishable under
Sections 147, 148, 149, 452, 323, 307, 504 and 506 read with
Section 34 of IPC;
(iii) The FIR was registered on the directions of the Judicial
Magistrate;
(iv) A closure report was submitted by the Police on two occasions.
The Magistrate by an order dated 31 August 2021 declined to
accept the closure report and directed further investigation;
and
(v) The first respondent suffered a gun-shot injury during the course
of the incident and the injury report would support the cross
case which has been registered on the information provided
by his wife.
19 The High Court has failed to notice the facts bearing on the
seriousness and gravity of the offence. The incident has led to the
murder of two sons of the appellant as a result of firearm injuries. The
name of the first respondent has clearly emerged during the course
of the investigation in the statement recorded under Section 161 of
CrPC. As a matter of fact, the cross case alleging that the first
respondent was injured during the course of the investigation would
indicate prima facie, his presence at the scene of the incident. Once
the role of the first respondent has emerged during the course of the
investigation, followed by the filing of a charge-sheet, we are clearly
of the view that no case for the grant of bail was made out before
the High Court. The first respondent has undergone about two years
and two months of custody. That apart, the Additional Sessions Judge
at Meerut in his order dated 23 August 2022 adverted to the fact that
the first respondent upon being granted bail has consistently
remained absent from the trial and has sought repeated
adjournments as a result of which the cross-examination of the
witnesses has remained to be concluded. As a result, it is evident that
the first respondent upon being released on bail has failed to
cooperate in the expeditious disposal of the trial despite the
directions given by the High Court in its order dated 7 April 2022. He is
evading the conclusion of the trial.
20 We accordingly allow the appeal and set aside the impugned order
of the Single Judge dated 4 August 2022 enlarging the first respondent
on bail.
21 The first respondent is granted two weeks’ time to surrender.
22 We also clarify that any observations made in the order shall not
affect the merits of the trial.
23 Pending application, if any, stands disposed of.
[Dr Dhananjaya Y Chandrachud]
[Hima Kohli]
New Delhi; September 30, 2022
-S-