DEEPAK YADAV VS STATE OF U.P. & ANR CASE

DEEPAK YADAV VS STATE OF U.P. & ANR CASE

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 861 OF 2022

(arising out of S.L.P (Crl.) No. 9655 of 2021)

DEEPAK YADAV … APPELLANT (S)

VERSUS

STATE OF U.P. & ANR. … RESPONDENT (S)

JUDGMENT

KRISHNA MURARI, J.

Leave granted

2. The present appeal is directed against the judgment and order dated

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 a prayer to release 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 said judgment, the High Court granted bail to

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Respondent No.2/Accused on furnishing a personal bond and two sureties each

in the like amount to the satisfaction of the trial court subject to certain

conditions.

3. Briefly, the facts relevant for the purpose of this appeal are that the

Appellant/Informant Deepak Yadav lodged an FIR being Crime Case No.

16/2021 on 09.01.2021 at PS Para, Lucknow under Section 307 IPC against

Respondent No. 2/Accused Harjeet Yadav, co-accused Sushil Kumar Yadav and

two unknown persons. The allegations against the said accused persons were

that on the night of 08.01.2021, at around 8.30 PM, Appellant’s father Mr.

Virendera Yadav (deceased) was on way to his home from the lawn located near

Jaipuria School and at the same time, the accused persons took position on

Kulhad Katta Bridge and fired at him with the common intention to kill the

deceased. The bullet shot hit his right cheek and made its exit through the other

side leaving him severely injured. In view of his serious condition, the people

present on the spot informed the local police station and admitted him at the

Trauma Centre, Medical College, Lucknow. The Appellant/Informant, on

receiving the information about his injured father rushed to the Trauma Centre

with his mother Smt. Sunita Yadav and elder sister Ms. Jyoti Yadav. The

Appellant’s mother asked her husband about the incident to which he replied

that he was shot by Respondent No.2/Accused Harjeet Yadav and one, Sushil

2

Yadav and that they were accompanied by two other persons as well. The

statement given by the deceased was noted down by Sri Mahesh Kumar

Chaurasia, DSP/ACP Chowk, Lucknow and Sri. Ashok Kumar Singh, SI/First

Investigating Officer.

4. Respondent No. 2/Accused was arrested by the police on 13.01.2021 and

one country made pistol with two live cartages were recovered from him. The

Appellant/Informant’s father passed away on 14.01.2021 on account of which

the case was converted to one under Section 302 IPC. The co-accused, Sushil

Kumar Yadav surrendered before the Judicial Magistrate, Lucknow on

16.01.2021.

5. After completion of investigation and upon finding sufficient evidence,

charge sheet was filed before the trial Court on 06.04.2021 against Respondent

No.2/Accused and co-accused Sushil Kumar Yadav under Sections 302 and 34

IPC. Furthermore, investigation against two unknown accused persons is

pending

6. Respondent No.2/Accused filed Bail Application No. 3340/2021 before

the Sessions Judge, Lucknow and the same was rejected vide order dated

28.06.2021 on the ground that he has been named on the basis of the

3

information provided by the deceased himself and that the same has been

clarified after the perusal of the documents/forms that the bullet was shot by

Respondent No. 2/Accused himself.

7. Respondent No. 2/Accused then moved the High Court for grant of

regular bail vide Bail No. 11848/2021 wherein Counsel for the Respondent

No.2/Accused contended that the co-accused, Sushil Kumar Yadav has been

granted bail by the High Court on 18.10.2021 in Bail No. 8501 of 2021 and that

the case of the Respondent No. 2 stands on identical footing making him

entitled for bail on the ground of parity. The said bail application was allowed

vide impugned judgment/order dated 22.10.2021. The operative portion of the

judgment reads as under : -

“Keeping in view the nature of the offence, arguments

advanced on behalf of the parties, evidence on record

regarding complicity of the accused, larger mandate of the

Article 21 of the Constitution of India and the dictum of Apex

Court in the case of Dataram Singh Vs. State of U.P. & Anr1

and without expressing any opinion on the merits of the case,

the Court is of the view that the applicant has made out a

case for bail. The bail application is allowed.

Let the applicant be released on bail on his furnishing a

personal bond and two sureties each in the like amount to the

satisfaction of the court concerned subject to following

conditions. Further, before issuing the release order, the

sureties be verified.

1

 (2018) 3 SCC 22

4

1. The applicant shall not tamper with the prosecution

evidence by intimidating/ pressurizing the witnesses, during

the investigation or trial;

2. The applicant shall cooperate in the trial sincerely without

seeking any adjournment;

3. The applicant shall not indulge in any criminal activity or

commission of any crime after being released on bail;

4. That 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;

5. The applicant shall file an undertaking to the effect that he

shall not seek any adjournment on the dates fixed for

evidence and the witnesses are present in court. In case of

default of this condition, it shall be open for the trial court to

treat it as abuse of liberty of bail and pass orders in

accordance with law to ensure presence of the applicant;

6. The applicant shall remain present, in person, before the

trial court on the dates fixed for (i) opening of the case, (ii)

framing of charge and (iii) recording of statement under

Section 313 Cr.P.C. If in the opinion of the trial court, default

of this condition is deliberate or without sufficient cause,

then it shall be open for the trial court to treat such default

as abuse of liberty of his bail and proceed against him in

accordance with law;

7. The party shall file computer generated copy of such order

downloaded from the official website of High Court

Allahabad;

8. The concerned court/authority/official shall verify the

authenticity of such computerized copy of the order from the

official website of High Court Allahabad and shall make a

declaration of such verification in writing.

In case of breach of any of the above conditions, it shall be a

ground for cancellation of bail.”

5

8. We have heard Mr. Awanish Sinha, learned counsel appearing for the

Appellant and Mr. Siddharth Dave, learned Senior Counsel appearing for

Respondent No. 2.

9. Mr. Awanish Sinha, learned counsel appearing for the Appellant

vehemently submitted that the High Court has granted bail to the Respondent

No. 2/Accused, who is a known criminal with criminal antecedents in a very

casual manner only on the ground of parity without any focus on the role of the

accused. It was further submitted that the arrest of the Respondent

No.2/Accused was made on the statement of the deceased made to his wife in

the presence of IO. It was further pointed out that the Respondent No.2/Accused

has been named in the FIR as the person who had fired at the deceased leading

to his untimely death and on commission of such a heinous crime, bail cannot

be granted.

10. It was further submitted that the High Court has erred in granting bail to

the Respondent No. 2/Accused on the very first day of being listed without

granting any opportunity to the Appellant/Informant or the State to respond and

that the State was not even given any opportunity to file a counter or even the

present status of the case.

6

11. Heavy reliance was placed on the decisions of this Court in Ramesh

Bhavan Rathod Vs. Vishanbhai Hirabhai Makwana(Koli) & Another2

,

Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another3

.

12. Mr. Siddharth Dave, learned Senior Counsel appearing on behalf of the

Respondent No.2/Accused submitted that the Respondent No.2/Accused was a

young student, pursuing the course of D.Pharma from Himalayan Garhwal

University, Uttarakhand having no criminal antecedents and the case registered

against him under Sections 3 and 25 of the Arms Act, 1959 is an off-shoot of the

instant case and has been lodged on the basis of erroneous recovery in the

instant case.

13. It was further submitted that no particular role has been attributed to the

Respondent No.2/Accused, nor has he been expressly mentioned by the

deceased in his statement, which simply states that Ratilal’s younger son shot

the deceased. Furthermore, granting bail on the first day of hearing does not

violate any established legal concept, statutory requirement or precedent.

14. It was further submitted that while granting bail to the Respondent

No.2/Accused, the High Court has weighed all relevant factors, including the

2 (2021) 6 SCC 230

3 (2004) 7 SCC 528

7

nature of the charge, the gravity of the offence and penalty, the nature of

evidence and the criminal history of the accused.

15. Heavy reliance was placed on the decisions of this Court in Babu Singh

& Ors. Vs. State of U.P.4

 and Dataram Singh Vs. State of Uttar Pradesh and

Another5

.

16. We have carefully considered the submissions made at the Bar and

perused the materials placed on record.

17. The main issue arising in this appeal for our consideration is whether the

High Court was justified in exercising jurisdiction under Section 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 to understand the

extent of the power of the High Court to grant bail and the factors determining

nature and gravity of the crime in order to grant bail to accuse concerned. As

rightly stated by Justice V.R. Krishna Iyer “the issue of bail is one of liberty,

justice, public safety and burden of the public treasury, all of which insist that a

4 (1978) 1 SCC 579

5 (2018) 3 SCC 22

8

developed jurisprudence of bail is integral to a socially sensitized judicial

process”.

ANALYSIS

A. Principles governing grant of bail

19. Section 439 of the Cr.P.C is the guiding principle for adjudicating a

Regular Bail Application wherein Court takes into consideration several aspects.

The jurisdiction to grant bail has to be exercised cautiously on the basis of wellsettled principles having regard to the facts and circumstances of each case.

20. In Prahlad Singh Bhati Vs. NCT of Delhi And Another6

, a two-Judge

Bench of this Court stated the principles which are to be considered while

granting bail which are as follows : -

“8. The jurisdiction to grant bail has to be exercised on the

basis of well-settled principles having regard to the

circumstances of each case and not in an arbitrary manner.

While granting the bail, the court has to keep in mind the

nature of accusations, the nature of evidence in support

thereof, the severity of the punishment which conviction will

entail, the character, behaviour, means and standing of the

accused, circumstances which are peculiar to the accused,

reasonable possibility of securing the presence of the

accused at the trial, reasonable apprehension of the

witnesses being tampered with, the larger interests of the

public or State and similar other considerations. It has also

to be kept in mind that for the purposes of granting the bail

6 (2001) 4 SCC 280

9

the Legislature has used the words "reasonable grounds for

believing" instead of "the evidence" which means the court

dealing with the grant of bail can only satisfy it as to whether

there is a genuine case against the accused and that the

prosecution will be able to produce prima facie evidence in

support of the charge. It is not excepted, at this stage, to have

the evidence establishing the guilt of the accused beyond

reasonable doubt.”

21. As reiterated by the two-Judge Bench of this Court in Prasanta Kumar

Sarkar Vs. Ashish Chatterjee And Another7

, it is well-settled that the factors 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 conviction;

(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.

22. The decision in Prasanta(Supra) has been consistently followed by this

Court in Ash Mohammad Vs. Shiv Raj Singh alias Lalla Babu And

7 (2010) 14 SCC 496

10

Another8

, Ranjit Singh Vs. State of Madhya Pradesh And Others9

, Neeru

Yadav Vs. State of Uttar Pradesh And Another10

, Virupakshappa Gouda

And Another Vs. State of Karnataka And Another11, State of Orissa Vs.

Mahimananda Mishra12

.

23. In a 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 :-

“22. The impugned order passed by the High Court is

cryptic, and does not suggest any application of mind.

There is a recent trend of passing such orders granting or

refusing to grant bail, where the Courts make a general

observation that “the facts and the circumstances” have

been considered. No specific reasons are indicated which

precipitated the passing of the order by the Court.

23. Such a situation continues despite various judgments

of this Court wherein this Court has disapproved of such a

practice. In the case of Mahipal (Supra), this Court

observed as follows:-

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

8 (2012) 9 SCC 446

9 (2013) 16 SCC 797

10 (2014) 16 SCC 508

11 (2017) 5 SCC 406

12 (2018) 10 SCC 516

13 Criminal Appeal No. 649 of 2022 decided on 19.04.2022

11

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

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.”

(emphasis supplied)

24. For grant or denial of bail, the “nature of crime” has a huge relevancy.

The key consideration which govern the grant of bail were elucidated in the

judgment of this Court in Ram Govind Upadhyay Vs. Sudarshan Singh14

,

wherein it has been observed as under: -

“4. Apart from the above, certain other which may be

attributed to be relevant considerations may also be noticed

at this juncture, though however, the same are only

illustrative and not exhaustive, neither there can be any. The

considerations being:

(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.

14 (2002) 3 SCC 598

12

(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.

(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.”

25. Similarly, the parameters to be taken into consideration for grant of bail

by the courts has been described in Kalyan Chandra Sarkar Vs. Rajesh Ranjan

alias Pappu Yadav And Another15 as under : -

“11. The law in regard to grant or refusal of bail is very

well-settled. The Court granting bail should exercise its

discretion in a judicious manner and not as a matter of

course. Though at the stage of granting bail a detailed

examination of evidence and elaborate documentation of the

merit of the case need not be undertaken, there is a need to

indicate in such orders reasons for prima facie concluding

why bail was being granted particularly where the accused

is charged of having committed a serious offence. Any order

devoid of such reasons would suffer from non-application of

mind. It is also necessary for the court granting bail to

consider among other circumstances, the following factors

also before granting bail; they are:

15 (2004) 7 SCC 528

13

(a) the nature of accusation and the severity of punishment

in case of conviction and the nature of supporting evidence.

(b) reasonable apprehension of tampering with the witness

or apprehension of threat to the complainant.

(c) prima facie satisfaction of the court in support of the

charge.”

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

Sessions Court

26. The importance of assigning reasoning for grant or denial of bail can

never be undermined. There is prima facie need to indicate reasons particularly

in cases of grant or denial of bail where the accused is charged with a serious

offence. The sound reasoning in a particular case is a reassurance that discretion

has been exercised by the decision maker after considering all the relevant

grounds and by disregarding extraneous considerations.

27. A two-Judge Bench of this Court in Ramesh Bhavan Rathod (Supra)

held that the duty to record reasons is a significant safeguard which ensures that

the discretion which is entrusted to the court, is exercised in a judicious manner.

The operative portion of the judgment reads as under : -

“35. We disapprove of the observations of the High Court

in a succession of orders in the present case recording that

the Counsel for the parties “do not press for a further

reasoned order”. The grant of bail is a matter which

14

implicates the liberty of the accused, the interest of the

State and the victims of crime in the proper administration

of criminal justice. It is a well-settled principle that in

determining as to whether bail should be granted, the High

Court, or for that matter, the Sessions Court deciding an

application under Section 439 of Cr.P.C would not launch

upon a detailed evaluation of the facts on merits since a

criminal trial is still to take place. These observations while

adjudicating upon bail would also not be binding on the

outcome of the trial. But the Court granting bail cannot

obviate its duty to apply a judicial mind and to record

reasons, brief as they may be, for the purpose of deciding

whether or not to grant bail. The consent of parties cannot

obviate the duty of the High Court to indicate its reasons

why it has either granted or refused bail. This is for the

reason that the outcome of the application has a significant

bearing on the liberty of the accused on one hand as well

as the public interest in the due enforcement of criminal

justice on the other. The rights of the victims and their

families are at stake as well. These are not matters

involving the private rights of two individual parties, as in

a civil proceeding. The proper enforcement of criminal law

is a matter of public interest. We must, therefore,

disapprove of the manner in which a succession of orders in

the present batch of cases has recorded that counsel for the

"respective parties do not press for further reasoned order".

If this is a euphemism for not recording adequate reasons,

this kind of a formula cannot shield the order from judicial

scrutiny.

36. Grant of bail under Section 439 of the Cr.P.C is a

matter involving the exercise of judicial discretion.

Judicial discretion in granting or refusing bail – as in the

case of any other discretion which is vested in a court as a

judicial institution – is not unstructured. The duty to record

reasons is a significant safeguard which ensures that the

discretion which is entrusted to the court is exercised in a

judicious manner. The recording of reasons in a judicial

order ensures that the thought process underlying the order

15

is subject to scrutiny and that it meets objective standards

of reason and justice.”

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

“3. Grant of bail though being a discretionary order but,

however, calls for exercise of such a discretion in a

judicious manner and not as a matter of course. Order for

Bail bereft of any cogent reason cannot be sustained.

Needless to record, however, that the grant of bail is

dependent upon the contextual facts of the matter being

dealt with by the Court and facts however do always vary

from case to case. While placement of the accused in the

society, though may be considered but that by itself cannot

be a guiding factor in the matter of grant of bail and the

same should and ought always be coupled with other

circumstances warranting the grant of bail. The nature of

the offence is one of the basic consideration for the grant of

bail more heinous is a crime, the greater is the chance of

rejection of the bail, though, however, dependent on the

factual matrix of the matter.”

29. A two-Judge Bench of this Court in Mahipal Vs. Rajesh Kumar Alias

Polia And Another16 observed :-

“14. The provision for an accused to be released on bail

touches upon the liberty of an individual. It is for this

reason that this Court does not ordinarily interfere with an

order of the High Court granting bail. However, where the

discretion of the High Court to grant bail has been

exercised without the due application of mind or in

contravention of the directions of this Court, such an order

granting bail is liable to be set aside. The Court is required

to factor, amongst other things, a prima facie view that the

accused had committed the offence, the nature and gravity

of the offence and the likelihood of the accused obstructing

16 (2020) 2 SCC 118

16

the proceedings of the trial in any manner or evading the

course of justice. The provision for being released on bail

draws an appropriate balance between public interest in

the administration of justice and the protection of

individual liberty pending adjudication of the case.

However, the grant of bail is to be secured within the

bounds of the law and in compliance with the conditions

laid down by this Court. It is for this reason that a court

must balance numerous factors that guide the exercise of

the discretionary power to grant bail on a case by case

basis. Inherent in this determination is whether, on an

analysis of the record, it appears that there is a prima facie

or reasonable cause to believe that the accused had

committed the crime. It is not relevant at this stage for the

court to examine in detail the evidence on record to come to

a conclusive finding.”

C. Cancellation of Bail

30. This Court has reiterated in several instances that bail once granted,

should not be cancelled in a mechanical manner without considering whether

any supervening circumstances have rendered it no longer conducive to a fair

trial to allow the accused to retain his freedom by enjoying the concession of

bail during trial. Having said that, in case of cancellation of bail, very cogent

and overwhelming circumstances are necessary for an order directing

cancellation of bail (which was already granted). A two-Judge Bench of this

Court in Dolat Ram And Others Vs. State of Haryana17 laid down the grounds

for cancellation of bail which are :-

17 (1995) 1 SCC 349

17

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

administration of Justice

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

(iii) abuse of the concession granted to the accused in any manner

(iv) Possibility of accused absconding

(v) Likelihood of/actual misuse of bail

(vi) Likelihood of the accused tampering with the evidence or

threatening witnesses.

31. It is no doubt true that cancellation of bail cannot be limited to the

occurrence of supervening circumstances. This Court certainly has the inherent

powers and discretion to cancel the bail of an accused even in the absence of

supervening circumstances. Following are the illustrative circumstances where

the bail can be cancelled :-

a) Where the court granting bail takes into account irrelevant material of

substantial nature and not trivial nature while ignoring relevant material

on record.

b) Where the court granting bail overlooks the influential position of the

accused in comparison to the victim of abuse or the witnesses especially

when there is prima facie misuse of position and power over the victim.

18

c) Where the past criminal record and conduct of the accused is completely

ignored while granting bail.

d) Where bail has been granted on untenable grounds.

e) Where serious discrepancies are found in the order granting bail thereby

causing prejudice to justice.

f) Where the grant of bail was not appropriate in the first place given the

very serious nature of the charges against the accused which disentitles

him for bail and thus cannot be justified.

g) When the order granting bail is apparently whimsical, capricious and

perverse in the facts of the given case.

32. In Neeru Yadav Vs. State of Uttar Pradesh And Another18, the accused

was granted bail by the High Court. In an appeal against the order of the High

Court, a two-Judge Bench of this Court examined the precedents on the

principles that guide grant of bail and observed as under :-

“12…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

18 (2014) 16 SCC 508

19

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”

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

“17. Where a court considering an application for bail fails

to consider relevant factors, an appellate court may

justifiably set aside the order granting bail. An appellate

court is thus required to consider whether the order

granting bail suffers from a non-application of mind or is

not borne out from a prima facie view of the evidence on

record. It is thus necessary for this Court to assess whether,

on the basis of the evidentiary record, there existed a prima

facie or reasonable ground to believe that the accused had

committed the crime, also taking into account the

seriousness of the crime and the severity of the

punishment.”

34. A two-Judge Bench of this Court in Prakash Kadam And Others Vs.

Ram Prasad Vishwanath Gupta And Another19 held that:-

“18. In considering whether to cancel the bail, the court has

also to consider the gravity and nature of the offence, prima

facie case against the accused, the position and standing of

the accused, etc. if there are serious allegations against the

accused, his bail may be cancelled even if he has not

misused the bail granted to him.

19 (2011) 6 SCC 189

20

19. In our opinion, there is no absolute rule that once bail

is granted to the accused then it can only be cancelled if

there is likelihood of misuse of bail. that factor, though no

doubt important, is not the only factor. There are several

other factors also which may be seen while deciding to

cancel the bail.”

35. Coming to the present case at hand, the Respondent No.2/Accused was

arrested on 13.01.2021 subsequent to which, he had applied for regular bail

before the Sessions Court which was rejected on the ground that he is named in

the FIR on the basis of the information provided by the deceased himself and

that the same has been clarified after perusal of the documents/forms that the

bullet was shot by the Respondent No. 2/Accused himself. Being aggrieved by

the same, Respondent No.2/Accused filed an application under Section 439

Cr.P.C before the High Court seeking regular bail. The High Court vide its

impugned order granted bail to the Respondent No.2/Accused without

considering the relevant facts and circumstances.

36. A bare perusal of the impugned order reveals that the High Court has

failed to take into consideration the following:-

 Respondent No.2/Accused has been named in the FIR bearing Crime

Case No. 16/2021 lodged under Sections 302 and 34 IPC and was the

main assailant who had a weapon in his hand.

21

 The main role of Respondent No.2/Accused was that he opened fire at the

deceased due to which the bullet hit his right 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 the deceased as

there was previous enmity between him and the deceased with regard to

some land which Respondent No.2 threatened to grab.

 On being asked about the incident by the Appellant/Informant’s mother,

the deceased replied “Ratipal ka dusra number ka ladka aur ram asre ka

putra Sushil Yadav ne pull par gaadi rukwakar goli maar di hai or unke

sath 2 ladke aur the”. On re-clarifying, the deceased replied “Ratipal ka

dusra number ka ladka matlab Harjeet Yadav”.

 Respondent No.2/accused has clearly been named by the deceased and he

was actively involved in opening fire which caused the death of the

deceased.

 Respondent No. 2/Accused’s statement was recorded by the then IO

under Section 161 Cr.P.C in which he admitted to having committed the

offence.

 Respondent No. 2 has a criminal history and several criminal matters

have been lodged against him:

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(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 for courts to

assess an application for grant or rejection of bail but the determination of

whether a case is fit for the grant of bail involves balancing of numerous

factors, among which the nature of the offence, the severity of the punishment

and a prima facie view of the involvement of the accused are important. This

Court does not, normally interfere with an order passed by the High Court

granting or rejecting bail to the accused. However, it is equally incumbent upon

the High Court to exercise its discretion judiciously, cautiously and strictly in

compliance with basic principles laid down in a catena of judgments by this

Court.

38. However having said that, in the case at hand, it is manifestly incorrect on

the part of the High Court to have granted bail to the Respondent No.2/Accused

without taking into consideration the relevant facts and circumstances and

appropriate evidence which proves that the Respondent No.2/Accused has been

charged with a serious offence.

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39. Grant of bail to the Respondent No.2/Accused only on the basis of parity

shows that the impugned order passed by the High Court suffers from the vice

of non-application of mind rendering it unsustainable. The High Court has not

taken into consideration the criminal history of the Respondent No.2/Accused,

nature of crime, material evidences available, involvement of Respondent

No.2/Accused in the said crime and recovery of weapon from his possession.

40. Having considered the aforesaid facts of the present case in juxtaposition

with the judgments referred to above, we are of the opinion that the impugned

order passed by the High Court is not liable to be sustained and is hereby set

aside. The bail bonds of Respondent No.2/Accused stand cancelled and he is

hereby directed to surrender within one week from the date of passing of this

order, failing which, the concerned police authorities shall take him into

custody.

41. It is however clarified that observations made hereinabove are limited to

our consideration of the issue of cancellation of bail, as raised by the appellant.

They shall not come in the way of final adjudication before the trial Court. At

the cost of repetition, it is stated that the trial Court is to consider the matter

pending before it, uninfluenced by any of the observations made, strictly on the

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basis of evidence that shall be brought on record. This order shall also not

preclude the Respondent No. 2/Accused from applying afresh for bail at a later

stage, if any, new circumstances are brought to light.

42. As a result, appeal stands allowed.

….............................CJI.

(N.V. RAMANA)

…....…..........................J.

(KRISHNA MURARI)

….....….........................J.

(HIMA KOHLI)

NEW DELHI;

20th MAY, 2022

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