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
1
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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