DEEPAK YADAV versus STATE OF U.P. & ANR

[2022] 4 S.C.R. 1

DEEPAK YADAV

STATE OF U.P. & ANR.

(Criminal Appeal No. 861 of 2022)

MAY 20, 2022

[N. V. RAMANA, CJI, KRISHNA MURARI ANDHIMA KOHLI, JJ.]

Code of Criminal Procedure, 1973 : s. 439 – Bail –Cancellation of – Accused with the common intention to kill thevictim, inflicted gun shot injuries to victim who later succumbed tohis injuries – Before death, the victim gave statement naming theaccused and the co-accused which was recorded by the DSP andSI – Criminal case against accused and co-accused u/ss. 302 and34 IPC – Rejection of bail to the accused by the Sessions Court,however, granted by the High Court on the ground of parity as theco-accused was granted bail – Sustainbility of – Held: Notsustainable – In case of cancellation of bail, very cogent andoverwhelming circumstances are necessary for an order directingcancellation of bail, which was already granted – Cancellation ofbail cannot be limited to the occurrence of superveningcircumstances – Even in the absence of the superveningcircumstances, the Court has the inherent powers and discretion togrant bail – On facts, High Court granted bail to the accused withoutconsidering the relevant facts and circumstances and appropriateevidence which proves that the accused was charged with seriousoffence – Granting of bail on the basis of parity shows that theorder suffers from the vice of non-application of mind rendering itunsustainable – Criminal history, nature of crime, material evidencesand recovery of weapon from the possession of the accused notconsidered by the High Court – Thus, the order passed by the HighCourt set aside.

Allowing the appeal, the Court

HELD: 1.1 Section 439 of the CrPC is the guiding principlefor adjudicating Regular Bail Application wherein Court takesinto consideration several aspects. The jurisdiction to grant bailhas to be exercised cautiously on the basis of well - settled

CDEF

Aprinciples having regard to the facts and circumstances of eachcase. [Para 19][10-F]

1.2 The importance of assigning reasoning for the grant ordenial of bail can never be undermined. There is prima facie needto indicate reasons particularly in cases of grant or denial of bailBwhere the accused is charged with serious offence. The soundreasoning in particular case is reassurance that discretionhas been exercised by the decision maker after considering allthe relevant grounds and by disregarding extraneousconsiderations. [Para 26][14-F-G]

C1.3 Bail once granted, should not be cancelled in amechanical manner without considering whether any superveningcircumstances have rendered it no longer conducive to fair trialto allow the accused to retain his freedom by enjoying theconcession of bail during trial. Having said that, in case ofcancellation of bail, very cogent and overwhelming circumstancesDare necessary for an order directing cancellation of bail (whichwas already granted). [Para 30][17-D-E]

1.4 Cancellation of bail cannot be limited to the occurrenceof supervening circumstances. This Court certainly has theinherent powers and discretion to cancel the bail of an accusedEeven in the absence of supervening circumstances. [Para 31][18-A-B]

1.5 In the instant case, the respondent no.2/accused wasarrested on 13.01.2021 subsequent to which, he had applied forregular bail before the Sessions Court which was rejected on theFground that he is named in the FIR on the basis of the informationprovided by the deceased himself and that the same has beenclarified after perusal of the documents/forms that the bullet wasshot by the respondent no.2/accused himself. Being aggrievedby the same, respondent no.2/accused filed an application underGSection 439 Cr.P.C before the High Court seeking regular bail.The High Court granted bail to the respondent no.2/accusedwithout considering the relevant facts and circumstances. [Para35][20-A-C]

1.6 bare perusal of the impugned order reveals that theHigh Court failed to take into consideration that the respondentH

no.2/accused has been named in the FIR lodged under Sections302 and 34 IPC and was the main assailant who had weapon inhis hand; that the main role of respondent no.2/accused was thathe opened fire at the deceased due to which the bullet hit hisright cheek and made its exit through the other side; that thedeceased succumbed to his injuries on 14.01.2021; that therespondent no.2/accused had the intention to murder thedeceased as there was previous enmity between him and thedeceased with regard to some land which accused threatened tograb; that the respondent no.2/accused was clearly been namedby the appellant/informant’s mother and the deceased and he wasactively involved in opening fire which caused the death of thedeceased; that the respondent no.2/accused’s statement wasrecorded by the then IO under Section 161 Cr.P.C in which headmitted to having committed the offence; and that the respondentno.2/accused has criminal history and several criminal mattershave been lodged against him [Para 36][20-C-H; 21-A-B]

1.7 There is certainly no straight jacket formula which existsfor courts to assess an application for grant or rejection of bailbut the determination of whether case is fit for the grant of bailinvolves balancing of numerous factors, among which the natureof the offence, the severity of the punishment and prima facieview of the involvement of the accused are important. This Courtdoes not, normally interfere with an order passed by the HighCourt granting or rejecting bail to the accused. However, it isequally incumbent upon the High Court to exercise its discretionjudiciously, cautiously and strictly in compliance with basicprinciples laid down. [Para 37][21-D-E]

1.8 It is manifestly incorrect on the part of the High Courtto have granted bail to the respondent no.2/accused withouttaking into consideration the relevant facts and circumstancesand appropriate evidence which proves that the respondent no.2/accused has been charged with serious offence. [Para 38][21-E-F]

1.9 Grant of bail to the respondent no.2/accused only onthe basis of parity shows that the impugned order passed by the

ABC

AHigh Court suffers from the vice of non-application of mindrendering it unsustainable. The High Court did not take intoconsideration the criminal history of the respondent no.2/accused,nature of crime, material evidences available, involvement ofrespondent no.2/accused in the said crime and recovery of weaponfrom his possession. The impugned order passed by the HighBCourt is not liable to be sustained and is set aside. [Paras 39,40][21-F-H]

Ramesh Bhavan Rathod v. Vishanbhai HirabhaiMakwana(Koli) & Another (2021) 6 SCC 230; KalyanChandra Sarkar v. Rajesh Ranjan @ Pappu Yadav andAnother (2004) 7 SCC 528; Babu Singh & Ors. v. Stateof U.P. (1978) 1 SCC 579 : [1978] 2 SCR 777; DataramSingh v. State of Uttar Pradesh and Another (2018) 3SCC 22 : [2018] 1 SCR 882; Prahlad Singh Bhati v.NCT of Delhi and Another (2001) 4 SCC 280 : [2001]2 SCR 684; Prasanta Kumar Sarkar v. AshishChatterjee and Another (2010) 14 SCC 496 : [2010]12 SCR 1165; Ash Mohammad v. Shiv Raj Singh aliasLalla Babu and Another (2012) 9 SCC 446 : [2012] 7SCR 584; Ranjit Singh v. State of Madhya Pradesh andOthers (2013) 16 SCC 797 : [2013] 11 SCR 273; NeeruYadav v. State of Uttar Pradesh and Another (2014) 16SCC 508 : [2014] 12 SCR 453; Virupakshappa Goudaand Another v. State of Karnataka and Another (2017)5 SCC 406 : [2017] 4 SCR 373; State of Orissa v.Mahimananda Mishra (2018) 10 SCC 516; ‘Y’ v. Stateof Rajasthan & Anr. Criminal Appeal No. 649 of 2022;Ram Govind Upadhyay v. Sudarshan Singh (2002) 3SCC 598 : [2002] 2 SCR 526; Kalyan Chandra SarkarVs. Rajesh Ranjan Alias Pappu Yadav and Another(2004) 7 SCC 528; Mahipal v. Rajesh Kumar AliasPolia and Another (2020) 2 SCC 118 : [2019] 14 SCR529; Dolat Ram and Others v. State of Haryana (1995)1 SCC 349 : [1994] 6 Suppl. SCR 69; Prakash Kadamand Others v. Ram Prasad Vishwanath Gupta andAnother (2011) 6 SCC 189 : [2011] 6 SCR 800 –referred to.

DEEPAK YADAV v. STATE OF U.P. & ANR.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.861 of 2022.

From the Judgment and Order dated 22.10.2021 of the High Courtof Judicature at Allahabad, Lucknow Bench in Bail No. 11848 of 2021.

Awanish Sinha, Prem Ranjan Kumar, Advs. for the Appellant.

Vinod Diwakar, AAG, Siddharth Dave, Sr. Adv., Pushkar Sharma,Devendra Gupta, Abdul Qadir, Aditya Vaibhav Singh, Satish Pandey,Adarsh Upadhyay, Divyanshu Sahay, Advs. for the Respondents.

6SUPREME COURT REPORTS

AThe Judgment of the Court was delivered byKRISHNA MURARI, J.

1. Leave granted

2. The present appeal is directed against the judgment and orderBdated 22.10.2021 passed by the High Court of Judicature at Allahabad,Lucknow Bench (hereinafter referred to as “High Court”) in Bail No.11848 of 2021 filed by Respondent No.2 - Accused with prayer torelease him on bail in Case Crime No. 16 of 2021 registered at PS Para,Lucknow under Sections 302 and 34 of the Indian Penal Code, 1860(hereinafter referred to as “IPC”) during pendency of trial. By the saidCjudgment, the High Court granted bail to Respondent No.2/Accused onfurnishing personal bond and two sureties each in the like amount tothe satisfaction of the trial court subject to certain conditions.3. Briefly, the facts relevant for the purpose of this appeal arethat the Appellant/Informant Deepak Yadav lodged an FIR being CrimeDCase No. 16/2021 on 09.01.2021 at PS Para, Lucknow under Section307 IPC against Respondent No. 2/Accused Harjeet Yadav, co-accusedSushil Kumar Yadav and two unknown persons. The allegations againstthe said accused persons were that on the night of 08.01.2021, at around8.30 PM, Appellant’s father Mr. Virendera Yadav (deceased) was onEway to his home from the lawn located near Jaipuria School and at thesame time, the accused persons took position on Kulhad Katta Bridgeand fired at him with the common intention to kill the deceased. Thebullet shot hit his right cheek and made its exit through the other sideleaving him severely injured. In view of his serious condition, the peoplepresent on the spot informed the local police station and admitted him atFthe Trauma Centre, Medical College, Lucknow. The Appellant/Informant,on receiving the information about his injured father rushed to the TraumaCentre with his mother Smt. Sunita Yadav and elder sister Ms. JyotiYadav. The Appellant’s mother asked her husband about the incident towhich he replied that he was shot by Respondent No.2/Accused HarjeetGYadav and one, Sushil Yadav and that they were accompanied by twoother persons as well. The statement given by the deceased was noteddown by Sri Mahesh Kumar Chaurasia, DSP/ACP Chowk, Lucknowand Sri. Ashok Kumar Singh, SI/First Investigating Officer.

4. Respondent No. 2/Accused was arrested by the police on13.01.2021 and one country made pistol with two live cartages wereH

recovered from him. The Appellant/Informant’s father passed away on14.01.2021 on account of which the case was converted to one underSection 302 IPC. The co-accused, Sushil Kumar Yadav surrenderedbefore the Judicial Magistrate, Lucknow on 16.01.2021.

5. After completion of investigation and upon finding sufficientevidence, charge sheet was filed before the trial Court on 06.04.2021against Respondent No.2/Accused and co-accused Sushil Kumar Yadavunder Sections 302 and 34 IPC. Furthermore, investigation against twounknown accused persons is pending

6. Respondent No.2/Accused filed Bail Application No. 3340/2021before the Sessions Judge, Lucknow and the same was rejected videorder dated 28.06.2021 on the ground that he has been named on thebasis of the information provided by the deceased himself and that thesame has been clarified after the perusal of the documents/forms thatthe bullet was shot by Respondent No. 2/Accused himself.

7. Respondent No. 2/Accused then moved the High Court forgrant of regular bail vide Bail No. 11848/2021 wherein Counsel for theRespondent No.2/Accused contended that the co-accused, Sushil KumarYadav has been granted bail by the High Court on 18.10.2021 in BailNo. 8501 of 2021 and that the case of the Respondent No. 2 stands onidentical footing making him entitled for bail on the ground of parity. Thesaid bail application was allowed vide impugned judgment/order dated22.10.2021. The operative portion of the judgment reads as under : -

“Keeping in view the nature of the offence, argumentsadvanced on behalf of the parties, evidence on recordregarding complicity of the accused, larger mandate of theArticle 21 of the Constitution of India and the dictum of ApexCourt in the case of Dataram Singh Vs. State of U.P. & Anr[1]and without expressing any opinion on the merits of the case,the Court is of the view that the applicant has made out acase for bail. The bail application is allowed.

Let the applicant be released on bail on his furnishing apersonal bond and two sureties each in the like amount to thesatisfaction of the court concerned subject to followingconditions. Further, before issuing the release order, thesureties be verified.

1. The applicant shall not tamper with the prosecutionevidence by intimidating/ pressurizing the witnesses, duringthe investigation or trial;

2. The applicant shall cooperate in the trial sincerely withoutseeking any adjournment;

3. The applicant shall not indulge in any criminal activity orcommission of any crime after being released on bail;

4. That the applicant shall not, directly or indirectly, makeany inducement, threat or promise to any person acquaintedwith the facts of the case so as to dissuade him from disclosingsuch facts to the Court or to any police officer;

5. The applicant shall file an undertaking to the effect thathe shall not seek any adjournment on the dates fixed forevidence and the witnesses are present in court. In case ofdefault of this condition, it shall be open for the trial court totreat it as abuse of liberty of bail and pass orders inaccordance with law to ensure presence of the applicant;

6. The applicant shall remain present, in person, before thetrial court on the dates fixed for (i) opening of the case, (ii)framing of charge and (iii) recording of statement underSection 313 Cr.P.C. If in the opinion of the trial court, defaultof this condition is deliberate or without sufficient cause, thenit shall be open for the trial court to treat such default asabuse of liberty of his bail and proceed against him inaccordance with law;

7. The party shall file computer generated copy of such orderdownloaded from the official website of High CourtAllahabad;

8. The concerned court/authority/official shall verify theauthenticity of such computerized copy of the order from theofficial website of High Court Allahabad and shall make adeclaration of such verification in writing.

In case of breach of any of the above conditions, it shall be aground for cancellation of bail.”

8. We have heard Mr. Awanish Sinha, learned counsel appearingfor the Appellant and Mr. Siddharth Dave, learned Senior Counselappearing for Respondent No. 2.

9. Mr. Awanish Sinha, learned counsel appearing for the Appellantvehemently submitted that the High Court has granted bail to theRespondent No. 2/Accused, who is known criminal with criminalantecedents in very casual manner only on the ground of parity withoutany focus on the role of the accused. It was further submitted that thearrest of the Respondent No.2/Accused was made on the statement ofthe deceased made to his wife in the presence of IO. It was furtherpointed out that the Respondent No.2/Accused has been named in theFIR as the person who had fired at the deceased leading to his untimelydeath and on commission of such heinous crime, bail cannot be granted.

10. It was further submitted that the High Court has erred ingranting bail to the Respondent No. 2/Accused on the very first day ofbeing listed without granting any opportunity to the Appellant/Informantor the State to respond and that the State was not even given anyopportunity to file counter or even the present status of the case.

11. Heavy reliance was placed on the decisions of this Court inRamesh Bhavan Rathod Vs. Vishanbhai Hirabhai Makwana(Koli)& Another[2], Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ PappuYadav and Another[3].

12. Mr. Siddharth Dave, learned Senior Counsel appearing onbehalf of the Respondent No.2/Accused submitted that the RespondentNo.2/Accused was young student, pursuing the course of D.Pharmafrom Himalayan Garhwal University, Uttarakhand having no criminalantecedents and the case registered against him under Sections 3 and25 of the Arms Act, 1959 is an off-shoot of the instant case and hasbeen lodged on the basis of erroneous recovery in the instant case.

13. It was further submitted that no particular role has beenattributed to the Respondent No.2/Accused, nor has he been expresslymentioned by the deceased in his statement, which simply states thatRatilal’s younger son shot the deceased. Furthermore, granting bail onthe first day of hearing does not violate any established legal concept,statutory requirement or precedent.

2 (2021) 6 SCC 230

3 (2004) 7 SCC 528

14. It was further submitted that while granting bail to theRespondent No.2/Accused, the High Court has weighed all relevantfactors, including the nature of the charge, the gravity of the offenceand penalty, the nature of evidence and the criminal history of the accused.

15. Heavy reliance was placed on the decisions of this Court inBBabu Singh & Ors. Vs. State of U.P.[4] and Dataram Singh Vs. Stateof Uttar Pradesh and Another[5].

16. We have carefully considered the submissions made at theBar and perused the materials placed on record.

17. The main issue arising in this appeal for our consideration isCwhether the High Court was justified in exercising jurisdiction underSection 439(1) of the Code of Criminal Procedure (for short “Cr.P.C”)for grant of regular bail in the facts of the present case.

18. Before adverting to the facts of the case, it is important tounderstand the extent of the power of the High Court to grant bail andDthe factors determining nature and gravity of the crime in order to grantbail to accuse concerned. As rightly stated by Justice V.R. Krishna Iyer“the issue of bail is one of liberty, justice, public safety and burdenof the public treasury, all of which insist that developedjurisprudence of bail is integral to socially sensitized judicialprocess”.EANALYSIS

A. Principles governing grant of bail

19. Section 439 of the Cr.P.C is the guiding principle for adjudicatinga Regular Bail Application wherein Court takes into consideration severalaspects. The jurisdiction to grant bail has to be exercised cautiously onFthe basis of well-settled principles having regard to the facts andcircumstances of each case.

20. In Prahlad Singh Bhati Vs. NCT of Delhi And Another[6], atwo-Judge Bench of this Court stated the principles which are to beconsidered while granting bail which are as follows : -G

“8. The jurisdiction to grant bail has to be exercised on thebasis of well-settled principles having regard to thecircumstances of each case and not in an arbitrary manner.

4 (1978) 1 SCC 5795 (2018) 3 SCC 22H6 (2001) 4 SCC 280

While granting the bail, the court has to keep in mind thenature of accusations, the nature of evidence in supportthereof, the severity of the punishment which conviction willentail, the character, behaviour, means and standing of theaccused, circumstances which are peculiar to the accused,reasonable possibility of securing the presence of the accusedat the trial, reasonable apprehension of the witnesses beingtampered with, the larger interests of the public or State andsimilar other considerations. It has also to be kept in mindthat for the purposes of granting the bail the Legislature hasused the words “reasonable grounds for believing” insteadof “the evidence” which means the court dealing with thegrant of bail can only satisfy it as to whether there is genuinecase against the accused and that the prosecution will beable to produce prima facie evidence in support of the charge.It is not excepted, at this stage, to have the evidenceestablishing the guilt of the accused beyond reasonabledoubt.”

21. As reiterated by the two-Judge Bench of this Court in PrasantaKumar Sarkar Vs. Ashish Chatterjee And Another[7], it is well-settledthat the factors to be borne in mind while considering an application forbail are:

(i)whether there is any prima facie or reasonable ground tobelieve that the accused had committed the offence;

(ii)nature and gravity of the accusation;

(iii)severity of the punishment in the event of conviction;

(iv)danger of the accused absconding or fleeing, if released onbail;

(v)character, behaviour, means, position and standing of theaccused;

(vi)likelihood of the offence being repeated;G

(vii)reasonable apprehension of the witnesses being influenced;and

(viii) danger, of course, of justice being thwarted by grant of bail.

7 (2010) 14 SCC 496

A22. The decision in Prasanta(Supra) has been consistentlyfollowed by this Court in Ash Mohammad Vs. Shiv Raj Singh aliasLalla Babu And Another[8], Ranjit Singh Vs. State of MadhyaPradesh And Others[9], Neeru Yadav Vs. State of Uttar PradeshAnd Another[10], Virupakshappa Gouda And Another Vs. State ofKarnataka And Another[11], State of Orissa Vs. MahimanandaBMishra[12].

23. In recent pronouncement of this Court in the case of ‘Y’ Vs.State of Rajasthan & Anr.[13] authored by one of us (Hon’ble N.V.Ramana, CJI), it has been observed as under :-

C“22. The impugned order passed by the High Court is cryptic,and does not suggest any application of mind. There is arecent trend of passing such orders granting or refusing togrant bail, where the Courts make general observation that“the facts and the circumstances” have been considered. Nospecific reasons are indicated which precipitated the passingDof the order by the Court.

23. Such situation continues despite various judgments ofthis Court wherein this Court has disapproved of such apractice. In the case of Mahipal (Supra), this Court observedas follows:-

25. Merely recording “having perused the record” and“on the facts and circumstances of the case” does notsubserve the purpose of reasoned judicial order.It is fundamental premise of open justice, to which ourjudicial system is committed, that factors which haveFweighed in the mind of the Judge in the rejection or thegrant of bail are recorded in the order passed. Open justiceis premised on the notion that justice should not only bedone, but should manifestly and undoubtedly be seen tobe done. The duty of Judges to give reasoned decisionslies at the heart of this commitment. Questions of the grant

8 (2012) 9 SCC 4469 (2013) 16 SCC 79710 (2014) 16 SCC 50811 (2017) 5 SCC 40612 (2018) 10 SCC 516H13 Criminal Appeal No. 649 of 2022 decided on 19.04.2022

of bail concern both liberty of individuals undergoingcriminal prosecution as well as the interests of the criminaljustice system in ensuring that those who commit crimesare not afforded the opportunity to obstruct justice. Judgesare duty-bound to explain the basis on which they havearrived at conclusion.”

(emphasis supplied)

24. For grant or denial of bail, the “nature of crime” has hugerelevancy. The key consideration which govern the grant of bail wereelucidated in the judgment of this Court in Ram Govind Upadhyay Vs.Sudarshan Singh[14], wherein it has been observed as under: -

“4. Apart from the above, certain other which may be attributedto be relevant considerations may also be noticed at thisjuncture, though however, the same are only illustrative andnot exhaustive, neither there can be any. The considerationsbeing:

(a) While granting bail the court has to keep in mind not onlythe nature of the accusations, but the severity of thepunishment, if the accusation entails conviction and thenature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tamperedwith or the apprehension of there being threat for thecomplainant should also weigh with the court in the matter ofgrant of bail.

(c) While it is not expected to have the entire evidenceestablishing the guilt of the accused beyond reasonable doubtbut there ought always to be prima facie satisfaction of thecourt in support of the charge.

(d) Frivolity in prosecution should always be considered andit is only the element of genuineness that shall have to beconsidered in the matter of grant of bail, and in the event ofthere being some doubt as to the genuineness of theprosecution, in the normal course of events, the accused isentitled to an order of bail.”

14SUPREME COURT REPORTS

A25. Similarly, the parameters to be taken into consideration forgrant of bail by the courts has been described in Kalyan Chandra SarkarVs. Rajesh Ranjan alias Pappu Yadav And Another[15]as under : -

“11. The law in regard to grant or refusal of bail is very well-settled. The Court granting bail should exercise its discretionBin judicious manner and not as matter of course. Thoughat the stage of granting bail detailed examination ofevidence and elaborate documentation of the merit of the caseneed not be undertaken, there is need to indicate in suchorders reasons for prima facie concluding why bail was beinggranted particularly where the accused is charged of havingCcommitted serious offence. Any order devoid of such reasonswould suffer from non-application of mind. It is also necessaryfor the court granting bail to consider among othercircumstances, the following factors also before granting bail;they are:

(a) the nature of accusation and the severity of punishmentin case of conviction and the nature of supporting evidence.

(b) reasonable apprehension of tampering with the witnessor apprehension of threat to the complainant.

E(c) prima facie satisfaction of the court in support of thecharge.”

B. Recording of reasons for grant of bail by the High Courtof the Sessions Court

26. The importance of assigning reasoning for grant or denial ofFbail can never be undermined. There is prima facie need to indicatereasons particularly in cases of grant or denial of bail where the accusedis charged with serious offence. The sound reasoning in particularcase is reassurance that discretion has been exercised by the decisionmaker after considering all the relevant grounds and by disregardingextraneous considerations.G

27. two-Judge Bench of this Court in Ramesh Bhavan Rathod(Supra) held that the duty to record reasons is significant safeguardwhich ensures that the discretion which is entrusted to the court, is

H15 (2004) 7 SCC 528

exercised in judicious manner. The operative portion of the judgmentreads as under : -

“35. We disapprove of the observations of the High Court ina succession of orders in the present case recording that theCounsel for the parties “do not press for further reasonedorder”. The grant of bail is matter which implicates theliberty of the accused, the interest of the State and the victimsof crime in the proper administration of criminal justice. It isa well-settled principle that in determining as to whether bailshould be granted, the High Court, or for that matter, theSessions Court deciding an application under Section 439 ofCr.P.C would not launch upon detailed evaluation of thefacts on merits since criminal trial is still to take place.These observations while adjudicating upon bail would alsonot be binding on the outcome of the trial. But the Courtgranting bail cannot obviate its duty to apply judicial mindand to record reasons, brief as they may be, for the purposeof deciding whether or not to grant bail. The consent of partiescannot obviate the duty of the High Court to indicate itsreasons why it has either granted or refused bail. This is forthe reason that the outcome of the application has significantbearing on the liberty of the accused on one hand as well asthe public interest in the due enforcement of criminal justiceon the other. The rights of the victims and their families are atstake as well. These are not matters involving the private rightsof two individual parties, as in civil proceeding. The properenforcement of criminal law is matter of public interest. Wemust, therefore, disapprove of the manner in which asuccession of orders in the present batch of cases has recordedthat counsel for the “respective parties do not press for furtherreasoned order”. If this is euphemism for not recordingadequate reasons, this kind of formula cannot shield theorder from judicial scrutiny.

36. Grant of bail under Section 439of the Cr.P.C is matterinvolving the exercise of judicial discretion. Judicial discretionin granting or refusing bail – as in the case of any otherdiscretion which is vested in court as judicial institution –is not unstructured. The duty to record reasons is significant

safeguard which ensures that the discretion which is entrustedto the court is exercised in judicious manner. The recordingof reasons in judicial order ensures that the thought processunderlying the order is subject to scrutiny and that it meetsobjective standards of reason and justice.”

B28. Similarly, this Court in Ram Govind Upadhyay (Supra),observed that :-

“3. Grant of bail though being discretionary order but,however, calls for exercise of such discretion in judiciousmanner and not as matter of course. Order for Bail bereftCof any cogent reason cannot be sustained. Needless to record,however, that the grant of bail is dependent upon the contextualfacts of the matter being dealt with by the Court and factshowever do always vary from case to case. While placementof the accused in the society, though may be considered butthat by itself cannot be guiding factor in the matter of grantDof bail and the same should and ought always be coupledwith other circumstances warranting the grant of bail. Thenature of the offence is one of the basic consideration for thegrant of bail more heinous is crime, the greater is the chanceof rejection of the bail, though, however, dependent on theEfactual matrix of the matter.”

29. two-Judge Bench of this Court in Mahipal Vs. RajeshKumar Alias Polia And Another[16]observed :-

“14. The provision for an accused to be released on bailtouches upon the liberty of an individual. It is for this reasonFthat this Court does not ordinarily interfere with an order ofthe High Court granting bail. However, where the discretionof the High Court to grant bail has been exercised withoutthe due application of mind or in contravention of thedirections of this Court, such an order granting bail is liableGto be set aside. The Court is required to factor, amongst otherthings, prima facie view that the accused had committed theoffence, the nature and gravity of the offence and thelikelihood of the accused obstructing the proceedings of thetrial in any manner or evading the course of justice. The

provision for being released on bail draws an appropriatebalance between public interest in the administration of justiceand the protection of individual liberty pending adjudicationof the case. However, the grant of bail is to be secured withinthe bounds of the law and in compliance with the conditionslaid down by this Court. It is for this reason that court mustbalance numerous factors that guide the exercise of thediscretionary power to grant bail on case by case basis.Inherent in this determination is whether, on an analysis ofthe record, it appears that there is prima facie or reasonablecause to believe that the accused had committed the crime. Itis not relevant at this stage for the court to examine in detailthe evidence on record to come to conclusive finding.”

C. Cancellation of Bail

30. This Court has reiterated in several instances that bail oncegranted, should not be cancelled in mechanical manner withoutconsidering whether any supervening circumstances have rendered itno longer conducive to fair trial to allow the accused to retain hisfreedom by enjoying the concession of bail during trial. Having said that,in case of cancellation of bail, very cogent and overwhelmingcircumstances are necessary for an order directing cancellation of bail(which was already granted). two-Judge Bench of this Court in DolatRam And Others Vs. State of Haryana[17]laid down the grounds forcancellation of bail which are :-

(i)interference or attempt to interfere with the due course ofadministration of Justice

(ii)evasion or attempt to evade the due course of justiceF

(iii)abuse of the concession granted to the accused in anymanner

(iv)Possibility of accused absconding

(v)Likelihood of/actual misuse of bailG

(vi)Likelihood of the accused tampering with the evidence orthreatening witnesses.

A31. It is no doubt true that cancellation of bail cannot be limited tothe occurrence of supervening circumstances. This Court certainly hasthe inherent powers and discretion to cancel the bail of an accused evenin the absence of supervening circumstances. Following are the illustrativecircumstances where the bail can be cancelled :-

Ba) Where the court granting bail takes into account irrelevantmaterial of substantial nature and not trivial nature while ignoringrelevant material on record.

b) Where the court granting bail overlooks the influential positionof the accused in comparison to the victim of abuse or theCwitnesses especially when there is prima facie misuse ofposition and power over the victim.

c) Where the past criminal record and conduct of the accused iscompletely ignored while granting bail.

d) Where bail has been granted on untenable grounds.

e) Where serious discrepancies are found in the order grantingbail thereby causing prejudice to justice.

f)Where the grant of bail was not appropriate in the first placegiven the very serious nature of the charges against theaccused which disentitles him for bail and thus cannot beEjustified.

g) When the order granting bail is apparently whimsical, capriciousand perverse in the facts of the given case.

32. In Neeru Yadav Vs. State of Uttar Pradesh And Another[18],Fthe accused was granted bail by the High Court. In an appeal againstthe order of the High Court, two-Judge Bench of this Court examinedthe precedents on the principles that guide grant of bail and observed asunder :-

“12…It is well settled in law that cancellation of bail after itGis granted because the accused has misconducted himself orof some supervening circumstances warranting suchcancellation have occurred is in different compartmentaltogether than an order granting bail which is unjustified,illegal and perverse. If in case, the relevant factors which

should have been taken into consideration while dealing withthe application for bail and have not been taken note of bailor it is founded on irrelevant considerations, indisputably thesuperior court can set aside the order of such grant of bail.Such case belongs to different category and is in separaterealm. While dealing with case of second nature, the Courtdoes not dwell upon the violation of conditions by the accusedor the supervening circumstances that have happenedsubsequently. It, on the contrary, delves into the justifiabilityand the soundness of the order passed by the Court”

33. This Court in Mahipal (Supra) held that: -

“17. Where court considering an application for bail failsto consider relevant factors, an appellate court may justifiablyset aside the order granting bail. An appellate court is thusrequired to consider whether the order granting bailsuffers from non-application of mind or is not borne outfrom prima facie view of the evidence on record. It is thusnecessary for this Court to assess whether, on the basis of theevidentiary record, there existed prima facie or reasonableground to believe that the accused had committed the crime,also taking into account the seriousness of the crime and theseverity of the punishment.”

34. two-Judge Bench of this Court in Prakash Kadam AndOthers Vs. Ram Prasad Vishwanath Gupta And Another[19]held that:-

“18. In considering whether to cancel the bail, the court hasalso to consider the gravity and nature of the offence, primafacie case against the accused, the position and standing ofthe accused, etc. if there are serious allegations against theaccused, his bail may be cancelled even if he has not misusedthe bail granted to him.

19. In our opinion, there is no absolute rule that once bail isgranted to the accused then it can only be cancelled if thereis likelihood of misuse of bail. that factor, though no doubtimportant, is not the only factor. There are several other factorsalso which may be seen while deciding to cancel the bail.”

A35. Coming to the present case at hand, the Respondent No.2/Accused was arrested on 13.01.2021 subsequent to which, he had appliedfor regular bail before the Sessions Court which was rejected on theground that he is named in the FIR on the basis of the information providedby the deceased himself and that the same has been clarified after perusalof the documents/forms that the bullet was shot by the Respondent No.B2/Accused himself. Being aggrieved by the same, Respondent No.2/Accused filed an application under Section 439 Cr.P.C before the HighCourt seeking regular bail. The High Court vide its impugned ordergranted bail to the Respondent No.2/Accused without considering therelevant facts and circumstances.C

36. bare perusal of the impugned order reveals that the HighCourt has failed to take into consideration the following:-

�Respondent No.2/Accused has been named in the FIRbearing Crime Case No. 16/2021 lodged under Sections302 and 34 IPC and was the main assailant who had aDweapon in his hand.

�The main role of Respondent No.2/Accused was that heopened fire at the deceased due to which the bullet hit hisright cheek and made its exit through the other side.

�The deceased succumbed to his injuries on 14.01.2021

�Respondent No.2/Accused had the intention to murder thedeceased as there was previous enmity between him andthe deceased with regard to some land which RespondentNo.2 threatened to grab.

F�On being asked about the incident by the Appellant/Informant’s mother, the deceased replied “Ratipal ka dusranumber ka ladka aur ram asre ka putra Sushil Yadavne pull par gaadi rukwakar goli maar di hai or unkesath 2 ladke aur the”. On re-clarifying, the deceasedreplied “Ratipal ka dusra number ka ladka matlabGHarjeet Yadav”.

�Respondent No.2/accused has clearly been named by thedeceased and he was actively involved in opening fire whichcaused the death of the deceased.

�Respondent No. 2/Accused’s statement was recorded byAthe then IO under Section 161 Cr.P.C in which he admittedto having committed the offence.

�Respondent No. 2 has criminal history and several criminalmatters have been lodged against him:

(1) Case Crime no. 016/2021 u/s 302/34 IPC

(2) Case Crime no. 020/2021 u/s 25 of the Arms Act

(3) Proceedings of 110G on 05.11.2021

(4) Beat Information (G.D No. 33) dated 18.12.2021

(5) Beat Information (G.D. No. 44) dated 19.12.2021

37. There is certainly no straight jacket formula which exists forcourts to assess an application for grant or rejection of bail but thedetermination of whether case is fit for the grant of bail involvesbalancing of numerous factors, among which the nature of the offence,the severity of the punishment and prima facie view of the involvementof the accused are important. This Court does not, normally interferewith an order passed by the High Court granting or rejecting bail to theaccused. However, it is equally incumbent upon the High Court to exerciseits discretion judiciously, cautiously and strictly in compliance with basicprinciples laid down in catena of judgments by this Court.

38. However having said that, in the case at hand, it is manifestlyincorrect on the part of the High Court to have granted bail to theRespondent No.2/Accused without taking into consideration the relevantfacts and circumstances and appropriate evidence which proves thatthe Respondent No.2/Accused has been charged with serious offence.

39. Grant of bail to the Respondent No.2/Accused only on thebasis of parity shows that the impugned order passed by the High Courtsuffers from the vice of non-application of mind rendering it unsustainable.The High Court has not taken into consideration the criminal history ofthe Respondent No.2/Accused, nature of crime, material evidencesavailable, involvement of Respondent No.2/Accused in the said crimeand recovery of weapon from his possession.

40. Having considered the aforesaid facts of the present case injuxtaposition with the judgments referred to above, we are of the opinionthat the impugned order passed by the High Court is not liable to be

Asustained and is hereby set aside. The bail bonds of Respondent No.2/Accused stand cancelled and he is hereby directed to surrender withinone week from the date of passing of this order, failing which, theconcerned police authorities shall take him into custody.

41. It is however clarified that observations made hereinaboveBare limited to our consideration of the issue of cancellation of bail, asraised by the appellant. They shall not come in the way of final adjudicationbefore the trial Court. At the cost of repetition, it is stated that the trialCourt is to consider the matter pending before it, uninfluenced by any ofthe observations made, strictly on the basis of evidence that shall bebrought on record. This order shall also not preclude the RespondentCNo. 2/Accused from applying afresh for bail at later stage, if any, newcircumstances are brought to light.

42. As result, appeal stands allowed.

DNidhi Jain

(Assisted by : Shashwat Jain, LCRA)

Appeal allowed.