NEERU YADAV Vs. STATE OF U P AnD ANR
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 339 - Delivery of lunatic to care of relative or friend
Section 34 - Acts done by several persons in futherance of common intention
Section 302 - Punishment for murder
Section 506 - Punishment for criminal intimidation
Section 147 - Punishment for rioting
Section 148 - Rioting, armed with deadly weapon
Section 394 - Voluntarily causing hurt in committing robbery
Section 307 - Attempt to murder
Section 120 - Concealing design to commit offence punishable with imprisonment
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 2587 of 2014, Judgment Date: Dec 16, 2014
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2587 OF 2014
(Arising out of S.L.P. (Crl.) No. 8469 of 2014)
Neeru Yadav ... Appellant
Versus
State of U.P and another ...Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
The present appeal, by special leave, calls in question the legal
substantiality and defensibility of the order dated 22.09.2014 passed by
the High Court of judicature at Allahabad in Criminal Misc. Bail
Application No. 31078 of 2014 whereby the learned Judge, in exercise of
power under Section 439 of Code of Criminal Procedure, 1973 (Cr.PC) had
admitted the 2nd respondent to bail in Crime No. 237 of 2013 instituted for
offences punishable under Sections 147, 148, 149, 302, 307, 394, 411, 454,
506, 120B and 34 of the Indian Penal Code (IPC).
As the impugned order would reveal, it was contended on behalf of the 2nd
respondent that similarly placed co-accused, Ashok, had already been
enlarged on bail by the High Court by order dated 23.9.2013 in Criminal
Misc. Bail Application No. 21876 of 2013 and role of the accused-respondent
No.2 was identical to that of Ashok Kumar and he should be released on
bail. Thus the foundation of the prayer for grant of bail was on the
bedrock of parity. The said prayer for grant of bail was opposed with
vehemence by the learned A.G.A. contending, inter alia, that the accused
had criminal antecedents and the role attributed to him was different. The
same was controverted by the accused asserting that the said aspect had
been explained in the affidavit attached to the bail application.
As the factual narration would further undrape, the learned Single Judge
keeping in view the aforesaid aspects passed the following order:-
"Considering the submission made by the learned counsel for the applicant
as well as learned A.G.A., this Court is of the view that the applicant has
made out a case for grant of bail on the ground of party.
In view of the above, let the applicant, Mitthan Yadav be released on bail
on his executing a personal bond and furnishing two sureties each in the
like amount to the satisfaction of the court concerned in Case Crime No.
237 of 2013, under sections 147, 148, 149, 302, 307, 394, 411, 454, 506,
120B and 34 I.P.C., P.S. Kavinagar, district-Ghaziabad with the following
conditions:-
(a) The applicant shall attend the court according to the conditions of
the bond executed by him.
(b) The applicant shall not directly or indirectly make any inducement,
threat or promise to any person acquainted with the facts of the case so as
to dissuade him from disclosing such facts to the Court or to any police
officer or tamper with the evidence."
Being aggrieved by the aforesaid order, the wife of the deceased has
preferred this appeal for setting aside the order.
At this juncture, it is apt to note that 2nd respondent had moved an
application for bail before the learned Additional District & Sessions
Judge, Ghaziabad who took note of the factual matrix, which is as follows:-
"As per the prosecution story complainant Sakek Chand has lodged the report
at PS Kavi Nagar that accused Mitthan, Manoj, lala Kapil and Budhu @
Budhpal were keeping enmity with the brother of the complainant Salekh
Chand on their consuming wine in front of the house of complainant and due
to this fear brother the complainant had keep a private gunner. On 25.2.13
at about 11.00 a.m. complainant and his brother Yashvir, Munir and Deepak
were sitting in the house and suddenly above all accused carrying weapon in
their hands entered into the house of the complainant and began hectic
firing. Brother of the complainant received several bullet injuries.
Complainant ran raising noise and also caught him and cause grievous
injuries on his head, due to which he fell down. Hearing the voice of
firing gunner also came and his rifle was snatched him them and also gave
beatings to him and injured him. When people of the village gathered
accused fled away giving threatening. People of the village admitted
brother of the complainant in hospital where doctor declared him dead."
Learned Additional District & Sessions Judge, after taking note of the
aforesaid allegations, declined to grant bail. Being unsuccessful to
secure bail from the Court of Session, the 2nd respondent approached the
High Court and as has been stated hereinbefore, the High Court has admitted
him to bail.
Questioning the legal acceptability of the impugned order, it is contended
by Mr. Malkan, learned counsel for the appellant that the High Court has
failed to appreciate the role ascribed to Ashok Kumar and to the 2nd
respondent who had fired on the deceased; and further the High Court has
absolutely remained oblivious to the criminal antecedents of the said
accused. That apart, it is contended by him that the trial has commenced
and at that stage it was absolutely improper on the part of the High Court
to enlarge the accused on bail brushing aside the fact that the man with
criminal antecedents has the potentiality to intimidate the rest of the
witnesses. In essence, the submission is that the gravity of the offence,
the manner in which it has been committed and the criminal antecedents of
the accused - the 2nd respondent, have been totally ignored by the High
Court and bail has been granted on non-consideration of the material facts,
which makes the order vulnerable.
Mr. Ratnakar Dash, learned senior counsel appearing for the State of Uttar
Pradesh, supporting the stand of the appellant submitted that though the
State has not assailed the legal acceptability of the impugned order, yet
the fact remains that when the real victim has approached this Court and on
a perusal of the facts which have been asserted, it is quite manifest that
the 2nd respondent is a history-sheeter and the order passed by the High
Court should be nullified.
Mr. Praveen Chaturvedi, learned counsel appearing for the respondent no.2,
resisting the aforesaid stand and stance put forth by the learned counsel
for the appellant as well as the learned senior counsel for the State has
canvassed that the High Court has appositely applied the principle of
parity and, therefore, the order passed by it cannot be faulted. It is
urged by him that when the trial has commenced and many witnesses have been
examined, there was no justification not to release the 2nd respondent on
bail on such terms and conditions which have been determined by the High
Court. It is put forth by him that the number of cases which were
instituted against the 2nd respondent are not that grave and in some cases
he has been acquitted, but unfortunately, emphasis has been laid on the
same by the appellant and also learned senior counsel for the State. It is
further contended that in the absence of any failure to abide by the terms
and conditions imposed by the High Court while granting the accused the
benefit of bail, this Court should not interfere as that would seriously
jeopardize the liberty of the respondent no.2.
The pivotal issue that emanates for consideration is whether the impugned
order passed by the High Court deserves legitimate acceptation and put in
the compartment of a legal, sustainable order so that this Court should not
interfere with the same in exercise of jurisdiction under Article 136 of
the Constitution of India. In this context, a fruitful reference be made
to the pronouncement in Ram Govind Upadhyay v. Sudarshan Singh[1], wherein
this Court has observed that grant of bail though discretionary in nature,
yet such exercise cannot be arbitrary, capricious and injudicious, for the
heinous nature of the crime warrants more caution and there is greater
change of rejection of bail, though, however dependant on the factual
matrix of the matter. In the said decision, reference was made to Prahlad
Singh Bhati v. NCT, Delhi[2] and the Court opined thus:
"(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 bail.
(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.
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(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."
In Chaman Lal V. State of U.P.[3], the Court has laid down certain factors,
namely, the nature of accusation, severity of punishment in case of
conviction and the character of supporting evidence, reasonable
apprehension of tampering with the witness or apprehension of threat to the
complainant, and prima facie satisfaction of the Court in support of the
charge which are to be kept in mind.
In this context, we may profitably refer to the dictum in Prasanta Kumar
Sarkar v. Ashis Chatterjee[4], wherein it has been held that normally this
Court does not interfere with the order passed by the High Court when a
bail application is allowed or declined, but the High Court has a duty to
exercise its discretion cautiously and strictly. Regard being had to the
basic principles laid down by this Court from time to time, the Court
enumerated number of considerations and some of the considerations which
are relevant for the present purpose are; whether there is likelihood of
the offence being repeated and whether there is danger of justice being
thwarted by grant of bail.
We have referred to certain principles to be kept in mind while granting
bail, as has been laid down by this Court from time to time. It is well
settled in law that cancellation of bail after it is granted because the
accused has misconducted himself or of some supervening circumstances
warranting such cancellation have occurred is in a different compartment
altogether than an order granting bail which is unjustified, illegal and
perverse. If in a case, the relevant factors which should have been taken
into consideration while dealing with the application for bail and have not
been taken note of bail or it is founded on irrelevant considerations,
indisputably the superior court can set aside the order of such a grant of
bail. Such a case belongs to a different category and is in a separate
realm. While dealing with a case of second nature, the Court does not dwell
upon the violation of conditions by the accused or the supervening
circumstances that have happened subsequently. It, on the contrary, delves
into the justifiability and the soundness of the order passed by the Court.
In the case at hand, two aspects have been highlighted before us. One, the
criminal antecedents of the 2nd respondent and second, the non-
applicability of the principles of parity on the foundation that the
accusations against the accused Ashok and 2nd respondent are different.
First, we shall dwell upon the criminal antecedents. The appellant, the
real victim, being the wife of the deceased, has annexed a chart relating
to the criminal history of the accused. The State has filed a counter
affidavit. We think it apt to refer to the cases which find place in the
counter affidavit filed by the state. Be it clarified though it has been
filed as a counter affidavit, it is not in oppugnation of the prayer sought
in the petition. On the contrary, it is supportive of the stand put forth
in the petition. It has been asseverated that the respondent no.2 is a
history-sheeter and number of cases have been lodged against him. The
following are the details of the cases:-
"(i) Case crime No. 1009/2006 u/s 302/201/34 IPC Police Station
Shahibabad, District Ghaziabad.
(ii) Case crime No. 1007/2006 u/s 302 IPC Police Station Shahibabad,
District Ghaziabad.
(iii) Case crime No. 360/2008 u/s 302/201 IPC Police Station Shahibabad,
District Ghaziabad.
(iv) Case crime No. 1614/2008 u/s 364/302/201 IPC Police Station Sihani
Gate, District Ghaziabad.
(v) Case crime No. 495/2008 u/s 8/15 NDPS Act, Police Station Kavi Nagar,
District Ghaziabad.
(vi) Case crime No. 496/2008 u/s 25 Arms Act, Police Station Kavi Nagar,
District Ghaziabad.
(vii) Case crime No. 405/2008 u/s 307 IPC Police Station Kavi Nagar,
Ghaziabad.
(viii) Case crime No. 913/2008 u/s 25 Arms Act, Police Station Kavi
Nagar, Ghaziabad.
(ix) Case crime No. 1247/2009 u/s 147/323/324/506 IPC P.S. Kavi Nagar,
Ghaziabad.
(x) Case crime No. 116/2011 u/s 307 IPC Police Station Kavi Nagar,
Ghaziabad.
(xi) Case crime No. 170/2011 u/s 25 Arms Act, P.S. Sec-58, Noida,
Gautambudh Nagar.
(xii) Case crime No. 2372013 u/s 247/148/149/302/307/ 394/411/506/120B/34
IPC P.S. Kavi Nagar, Ghaziabad.
(xiii) Case crime No. 330/2013 u/s 60 Excise Act, P.S. Kavi Nagar,
Ghaziabad.
(xiv) Case crime No. 1091/2013 u/s 384/506 IPC P.S. Kavi Nagar, Ghaziabad.
(xv) Case crime No. 1238/2013 u/s 2/3 Gangster Act, P.S. Kavi Nagar,
Ghaziabad.
Note:- The respondent Mitthan has been declared as History Sheetor being
H.S. No. 39-A P.S. Kavi Nagar".
In the reply filed by the respondent no.2 contended, inter alia, that he
has been acquitted in certain case. However, in the course of hearing, we
have been apprised that most of the cases instituted against the respondent
no.2 are still pending and some of them are under Section 302 IPC and other
heinous offences.
In the case at hand the 2nd respondent, as the allegations would show, had
fired at the deceased. Two persons were also injured in the attack. The
occurrence took place in the broad day light. As we find from the FIR and
statement recorded under Section 161 CrPC, the allegations against Ashok
and the 2nd respondent are different. That apart, the number and nature of
crimes registered against the 2nd respondent speaks voluminously about his
antecedents.
The issue that is presented before us is whether this Court can annul the
order passed by the High Court and curtail the liberty of the 2nd
respondent. We are not oblivious of the fact that the liberty is a
priceless treasure for a human being. It is founded on the bed rock of
constitutional right and accentuated further on human rights principle. It
is basically a natural right. In fact, some regard it as the grammar of
life. No one would like to lose his liberty or barter it for all the wealth
of the world. People from centuries have fought for liberty, for absence
of liberty causes sense of emptiness. The sanctity of liberty is the
fulcrum of any civilized society. It is a cardinal value on which the
civilisation rests. It cannot be allowed to be paralysed and immobilized.
Deprivation of liberty of a person has enormous impact on his mind as well
as body. A democratic body polity which is wedded to rule of law,
anxiously guards liberty. But, a pregnant and significant one, the liberty
of an individual is not absolute. The society by its collective wisdom
through process of law can withdraw the liberty that it has sanctioned to
an individual when an individual becomes a danger to the collective and to
the societal order. Accent on individual liberty cannot be pyramided to
that extent which would bring chaos and anarchy to a society. A society
expects responsibility and accountability from the member, and it desires
that the citizens should obey the law, respecting it as a cherished social
norm. No individual can make an attempt to create a concavity in the stem
of social stream. It is impermissible. Therefore, when an individual
behaves in a disharmonious manner ushering in disorderly things which the
society disapproves, the legal consequences are bound to follow. At that
stage, the Court has a duty. It cannot abandon its sacrosanct obligation
and pass an order at its own whim or caprice. It has to be guided by the
established parameters of law.
Coming to the case at hand, it is found that when a stand was taken that
the 2nd respondent was a history sheeter, it was imperative on the part of
the High Court to scrutinize every aspect and not capriciously record that
the 2nd respondent is entitled to be admitted to bail on the ground of
parity. It can be stated with absolute certitude that it was not a case of
parity and, therefore, the impugned order clearly exposes the non-
application of mind. That apart, as a matter of fact it has been brought
on record that the 2nd respondent has been charge sheeted in respect of
number of other heinous offences. The High Court has failed to take note of
the same. Therefore, the order has to pave the path of extinction, for its
approval by this court would tantamount to travesty of justice, and
accordingly we set it aside.
Consequently, the appeal is allowed and the order passed by the High Court
admitting the respondent no.2 on bail is set aside. The respondent no. 2
is commanded to surrender to custody forthwith failing which it shall be
the duty of the Investigating Agency to take him into custody immediately.
We may hasten to clarify that what we have stated here is only to be read
and understood for the purpose of annulling the order of grant of bail and
they would have no bearing on the trial. The learned trial Judge shall
proceed with the trial as per the evidence brought on record.
........................................J.
[DIPAK MISRA]
........................................J.
[UDAY UMESH LALIT]
NEW DELHI
DECEMBER 16, 2014.
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[1] (2002) 3 SCC 598
[2] (2001) 4 SCC 280
[3] (2004) 7 SCC 525
[4] (2010) 14 SCC 496
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