Monday, 15 August 2016

What factors are to be borne in mind while considering application for bail?

The Court proceeded to
enumerate the factors:-
“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 believe that the accused had committed
the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
(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.”
(@ SLP(Crl) No. 1596 OF 2015)
Neeru Yadav ... Appellant
State of U.P. and Anr. ... Respondents
Dated:September 29, 2015
Dipak Misra, J.

The present appeal, by special leave, on a summary
glance may appear that a victim who might have an axe to
grind against the accused, the respondent no.2 herein, and
further to wreck his vengeance has approached this Court
seeking cancellation of his bail, possibly being emboldened
by the inaction of the State authorities who have chosen to
maintain sphinx like silence or decided to assume the
stagnated posture of a splendid sculpture of Rome, and
invigorated by the thought that he can singularly carry the
crusade, without any support, for he has a cause to
vindicate by valiantly exposing the legal infirmities in the
order passed by the High Court admitting the 2nd
respondent to bail and also unconceal the lackadaisical
attitude of the State, but on a keener scrutiny the initial
impression melts away and the perversity of the order
impugned gets unrolled. Be it stated, at a narrow level it
may look like a combat between two individuals, but when
analytical scrutiny is done and the State is compelled to
wake up from its slumber, the unveiling of facts reveal the
contestation between the accord and the discord, the scuffle
betwixt the sacrosanctity and the majesty of law on one
hand and the maladroit ingenious efforts to get the benefit
by the abuse of process of the Court on the other. The
analysis has to be made, that being an imperative
command, between the honest nidification and the
surreptitious edifice.
2. Mr. Pradeep Kumar Yadav, learned counsel for the
appellant, with all the distress and the intellectual agony at
his command, has submitted that the High Court without
appropriate analysis and even without being fully apprised
of the fact situation, solely on the basis of parity, as if it is
the only foundation or for that matter, the comet that has
come off to shine, has enlarged the respondent no.2 on bail
totally being oblivious that no accused, however influential
he may be or clever he thinks to be, cannot be allowed to
nullify the sanctity and purity of law and jettison the age old
values “truth in action” and “the firm and continuous desire
to render to every one which is due”, the two fundamental
pillars of justice. The plea, submits Mr. Yadav, apart from
cleverness also shows an attempt of the nonchalant mind of
the respondent No 2 to engage in fertile imagination
possibly thinking that the ground of parity is the real
structure of palladium to bring the nemesis of the
prosecution and put the Court in a situation to choose
between Scylla and Charybdis. And, at this juncture, we
must state that both the appellant and the State (though at
a later stage) have become Argus-eyed and destroyed the
ingenious foundation so astutely built by the accused.
3. Keeping in view the aforesaid submissions, we shall
proceed to adumbrate the requisite factual score. One
Salek Chand s/o. Satpal Singh lodged an FIR at P.S.
Kavinagar, Ghaziabad on 25.02.2013 about 11.45 a.m.
against certain persons relating to the murder of his elder
brother, Yashvir Yadav. On the basis of the lodging of the
FIR, the criminal law was set in motion and eventually
chargesheet was filed which formed the subject matter of
Case Crime No. 237 of 2013 for the offences punishable
under Sections 147, 148, 149, 302, 307, 394, 411, 454,
506, 120B read with Section 34 IPC. After the application
for bail was rejected by the learned trial Judge, the accused
person, respondent no.2, moved the High Court in Criminal
Misc. Bail Application No. 25466 of 2014. It was contended
before the High Court that an omnibus role had been
ascribed to him and the other accused persons that they
had indulged in general firing as a consequence of which
one person had died, for he had received three gun shot
injuries. It was also contended that there was no credible
evidence against the accused persons. The real plank of
submission before the High Court, as is perceptible, was
that prayer for bail in respect of 11 accused persons
including Mitthan Yadav had already been allowed, and
there was no justification to deny him the said benefit as he
was similarly placed.
4. The prayer for bail was resisted by the Public
Prosecutor contending, inter alia, that there was
indiscriminate firing by the accused person causing fatal
injuries. The High Court, after hearing both the parties, has
passed following order:-
“In view of above facts, considering the nature of
allegation, severity of punishment and period of
detention, without expressing any opinion on
merit, it is a fit case for bail.
Let the applicant Budhpal @ Buddhu be enlarged
on bail on his furnishing a personal bond with
two heavy sureties each in the like amount to the
satisfaction of court concerned in case crime no.
237 of 2013 under Section
147,148,149,302,307,394,411,454,506, 120B, 34
I.P.C. Police Station Kavi Nagar, District
Ghaziabad with the following conditions:
(i) The applicant will not tamper with the
evidence during the trial.
(ii) The applicant will not pressurize/intimidate
the prosecution witness.
(iii) The applicant will appear before the trial
court on the date fixed, unless personal presence
is exempted.
In case of breach of any of the above conditions,
the court below shall be at liberty to cancel the
The said order is the subject matter of assail in the
present appeal by special leave.
5. At the outset we are obliged to clarify that it is not an
appeal seeking cancellation of bail in the strictest sense. It
actually calls in question the legal pregnability of the order
passed by the High Court. The prayer for cancellation of
bail is not sought on the foundation of any kind of
supervening circumstances or breach of any condition
imposed by the High Court. The basic assail is to the
manner in which the High Court has exercised its
jurisdiction under Section 439 CrPC while admitting the
accused to bail. To clarify, if it has failed to take into
consideration the relevant material factors, it would make
the order absolutely perverse and totally indefensible. That
is why there is a difference between cancellation of an order
of bail and legal sustainability of an order granting bail.
[See State of U.P. v. marmani Tripathi1
, Puran v.
, Narendra K. Amin v. State of Gujarat3
, and
Prakash Kadam v. Ramprasad Vishwanah Gupta4
6. Having cleared that maze, we may clarify, though
seriously urged by Mr. P. George Giri that there is no
warrant for cancellation of bail as there has been no
supervening circumstances, yet the said enthusiastic
submission leaves us unimpressed, as that is not the real
thrust of the matter.
7. The mystery does not end there. Mr. P. George Giri,
learned counsel for the respondent on 14.9.2015, in course
of hearing, on instructions advanced an eminently
innocuous, but innovative plea with the potentiality to
create immense confusion that the description of
respondent no.2 is absolutely erroneous, and, in fact, he is
not the accused in any case. Mr. Pradeep Kumar Yadav
very fairly stated that there has been a typographical error
in describing the name of the respondent no.2, for his name
(2005) 8 SCC 21
(2001) 6 SCC 338
(2008) 13 SCC 584
(2011) 6 SCC 189Page 8
should have been Budhpal @ Buddhu s/o. Sh. Ram and not
Santpal Yadav. Mr. R.K. Dash, learned senior counsel
appearing for the State apprised us that the address is
correct as stated in the FIR and the chargesheet and the
same is also reflected in the application for grant of bail.
Taking note of the said situation, we permitted the cause
title to be corrected. However, the issue having been raised
regarding the identity of the respondent no.2, to clear our
conscience, we asked the State to show us the documents
that he is the person who is accused of the offence. On the
next occasion, documents were shown and we were
satisfied, and we allowed the ambitious submission to burn
into ashes, or to put it differently, evaporate in the thin air.
8. It is interesting to note that learned counsel for the
appellant and the learned counsel for the State submitted
that the respondent no.2 is still in jail despite the order of
bail as he is involved in so many cases. We will take up the
said issue at a later stage. It is submitted by Mr. Yadav,
learned counsel for the appellant that despite the factum of
criminal history pointed out before the High Court, it has
given it a glorious ignore which the law does not
countenance. The solitary and the singular grievance which
is propounded with solidity that the High Court should have
dwelt upon the same and thereafter decided the matter. Mr.
Dash, learned senior counsel (though the State has not
moved any application for setting aside the order of bail
granted by the High Court for the reasons which are
unfathomable) unhesitatingly accepted the said submission.
In the additional affidavit, an independent chart has been
filed by the State and we find that apart from the present
case, there are seven cases pending against the respondent
no.2. The chart of the said cases is reproduced below:-
“1. FIR No. 664/02 u/s 302 IPC, PS Kavinagar,
2. FIR No. 558/04 u/s. 392, 411 IPC, PS
Kotwali, Dist. Bulandshahar.
3. FIR No. 14/05 u/s. 398, 401, 307 IPC PS
Noida, Gautam Budh Nagar.
4. FIR No. 15/05 u/s. 25, 27 Arms Act, PS
Sector 49, Noida, Gautam Budh Nagar
5. FIR No. 1614/08 u/s. 364, 302, 201 IPC, PS
Sihani Gate, Ghaziabad
6. FIR No. 98/05 u/s. 2/3 Gangster Act, PS
Sector 49, Noida, Gautam Budh Nagar
7. FIR No. 451/12 u/s. 60 PS Sector 49 Noida,
Gautam Budh Nagar”
9. On a perusal of the aforesaid list, it is quite vivid that
the respondent no.2 is a history-sheeter and is involved in
heinous offences. Having stated the facts and noting the
nature of involvement of the accused in the crimes in
question, there can be no scintilla of doubt to name him a
“history-sheeter”. The question, therefore, arises whether in
these circumstances, should the High Court have enlarged
him on bail on the foundation of parity.
10. In Ram Govind Upadhyay v. Sudarshan Singh5
, it
has been clearly laid down that the grant of bail though
involves exercise of discretionary power of the Court, such
exercise of discretion has to be made in a judicious manner
and not as a matter of course. The heinous nature of
crimes warrants more caution as there is a greater chance
of rejection of bail though, however, dependent on the
factual matrix of the matter. In the said case, reference
was made to Prahlad Singh Bhati v. NCT of Delhi6
, and
thereafter the court proceeded to state the following
(2002) 3 SCC 598
(2001) 4 SCC 280
“(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
(c) While it is not expected 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.”
11. It is a well settled principle of law that while dealing
with an application for grant of bail, it is the duty of the
Court to take into consideration certain factors and they
basically are, (i) the nature of accusation and the
severity of punishment in cases of conviction and the nature
of supporting evidence, (ii) reasonable apprehension of
tampering with the witnesses for apprehension of threat to
the complainant, and (iii) Prima facie satisfaction of the
court in support of the charge. [See Chaman Lal v. State
of U.P.7
12. In Prasanta Kumar Sarkar v. Ashis Chatterjee8
while dealing with the court’s role to interfere with the
power of the High Court to grant bail to the accused, the
Court observed that it is to be seen that the High Court has
exercised this discretion judiciously, cautiously and strictly
in compliance with the basic principles laid down in catena
of judgments on that point. The Court proceeded to
enumerate the factors:-
“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 believe that the accused had committed
the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
(iv) danger of the accused absconding or fleeing,
if released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(2004) 7 SCC 525
(2010) 14 SCC 496Page 13
(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.”
13. We will be failing in our duty if we do not take note of
the concept of liberty and its curtailment by law. It is an
established fact that a crime though committed against an
individual, in all cases it does not retain an individual
character. It, on occasions and in certain offences,
accentuates and causes harm to the society. The victim may
be an individual, but in the ultimate eventuate, it is the
society which is the victim. A crime, as is understood,
creates a dent in the law and order situation. In a civilised
society, a crime disturbs orderliness. It affects the peaceful
life of the society. An individual can enjoy his liberty which
is definitely of paramount value but he cannot be a law unto
himself. He cannot cause harm to others. He cannot be a
nuisance to the collective. He cannot be a terror to the
society; and that is why Edmund Burke, the great English
thinker, almost two centuries and a decade back eloquently
spoke thus:-
“Men are qualified for civil liberty, in exact proportion
to their disposition to put moral chains
upon their own appetites; in proportion as their
love to justice is above their rapacity; in proportion
as their soundness and sobriety of understanding
is above their vanity and presumption;
in proportion as they are more disposed to listen
to the counsel of the wise and good, in preference
to the flattery of knaves. Society cannot exist unless
a controlling power upon will and appetite be
placed somewhere and the less of it there is
within, the more there must be without. It is ordained
in the eternal constitution of things that
men of intemperate minds cannot be free. Their
passions forge their fetters9
14. E. Barrett Prettyman, a retired Chief Judge of US
Court of Appeals had to state thus:-
 “In an ordered society of mankind there is no
such thing as unrestricted liberty, either of nations
or of individuals. Liberty itself is the product
of restraints; it is inherently a composite of
restraints; it dies when restraints are withdrawn.
Freedom, I say, is not an absence of restraints; it
is a composite of restraints. There is no liberty
without order. There is no order without systematised
restraint. Restraints are the substance without
which liberty does not exist. They are the
essence of liberty. The great problem of the democratic
process is not to strip men of restraints
merely because they are restraints. The great
problem is to design a system of restraints which
will nurture the maximum development of man’s
9 Alfred Howard, The Beauties of Burke (T. Davison, London) 109
capabilities, not in a massive globe of faceless animations
but as a perfect realisation, of each separate
human mind, soul and body; not in mute,
motionless meditation but in flashing, thrashing

15. This being the position of law, it is clear as cloudless
sky that the High Court has totally ignored the criminal
antecedents of the accused. What has weighed with the
High Court is the doctrine of parity. A history-sheeter
involved in the nature of crimes which we have reproduced
hereinabove, are not minor offences so that he is not to be
retained in custody, but the crimes are of heinous nature
and such crimes, by no stretch of imagination, can be
regarded as jejune. Such cases do create a thunder and
lightening having the effect potentiality of torrential rain in
an analytical mind. The law expects the judiciary to be alert
while admitting these kind of accused persons to be at large
and, therefore, the emphasis is on exercise of discretion
judiciously and not in a whimsical manner.
16. In this regard, we may profitably reproduce a few
significant lines from Benjamin Disraeli:-
10 Speech at Law Day Observances (Pentagon, 1962) as quoted in Case and Comment, Mar-Apr 1963
“I repeat……… that all power is a trust-that we
are accountable for its exercise- that, from the
people and for the people, all springs, and all
must exist.”
17. That apart, it has to be remembered that justice in its
conceptual eventuality and connotative expanse engulfs the
magnanimity of the sun, the sternness of mountain, the
complexity of creation, the simplicity and humility of a saint
and the austerity of a Spartan, but it always remains
wedded to rule of law absolutely unshaken, unterrified,
unperturbed and loyal.
18. Before parting with the case, we may repeat with profit
that it is not an appeal for cancellation of bail as the
cancellation is not sought because of supervening
circumstances. The annulment of the order passed by the
High Court is sought as many relevant factors have not
been taken into consideration which includes the criminal
antecedents of the accused and that makes the order a
deviant one. Therefore, the inevitable result is the
lancination of the impugned order
19. Resultantly, the appeal is allowed and the order passed
by the High Court is set aside. If the respondent no.2 is at
large, he shall be taken into custody forthwith; and if he is
still in custody because of certain other cases, he shall not
be admitted to bail in connection with the present case. We
make it clear that we have not expressed any opinion with
regard to other cases and simultaneously we also clearly
state that our observations in this case are only meant for
purpose of setting aside the order granting bail and would
have no impact or effect during the trial.
[Dipak Misra]
..........................., J.
[Prafulla C. Pant]
New Delhi
September 29, 2015
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