(Indira Banerjee and V. Ramasubramanian, JJ.)
Vivekanand Mishra _______________________________ Appellant;
v.
State of UP and Another _________________________ Respondent(s).
Criminal Appeal No. 1096 of 2022 (Arising out of SLP (Crl.) No. 6166 of 2022), decided on July 29, 2022
The Judgment of the Court was delivered by
Indira Banerjee, J.:—
1. Leave granted.
2. This appeal is against an order dated 27th May 2022 passed by the High Court of Judicature at Allahabad allowing the application being Cr.P.C. No. 3340 of 2022 filed by the Respondent No. 2 for Anticipatory Bail under Section 438 of the Code of Criminal Procedure (Cr.P.C.) in relation to Case Crime No. 100 of 2022 filed against the Appellant, inter alia, under Sections 147, 148, 149, 352, 323, 306, 504 and 506 of the Indian Penal Code (IPC).
3. It is the case of the prosecution that the Respondent No. 2 along with other accused persons killed the deceased, sister of the Appellant-Complainant, by pouring kerosene oil on her and setting her on fire. The incident took place on 11th February 2022. She died on 18th February 2022 while undergoing medical treatment at the hospital in Gorakhpur, Uttar Pradesh. The First Information Report lodged by the Complainant on 11th February 2022, reads :—
“There was a dispute going on with my neighbour Vijaynath Mishra regarding ancestral land Deeh Abadi. In this regard, a case is pending before the Ld. Civil Judge Sr. Div., Basti Court despite this, today, on 11.02.2022, during day time, the opposite party Shri Vijaynath Mishra was getting a balcony constructed so I went at the spot and told to stop the work upon this they did not stop the work and instead started beating and the opposite party Vijaynath Mishra S/o Late Ramdev Mishra and Pawan Kumar Mishra, Prabhat Kumar Mishra/S/o vijaynath Mishra and Virendra Mishra, Sushil Kumar Mishra S/o Vishwanath Mishra, the said opposite party while abusing me of mother-sister around 11 am started beating me with stick, iron rod, knife, hammer due to which I was ample injured and Krishnawati W/o vijaynath Mishra and her daughter Reeta Mishra were challenging from distance for beating. After seeing me injured, my sister Kanya Kumari came to save me, while screaming, when the said opposite parties left me and started beating my sister and burned her. After hearing shout noise, the people in neighbourhood came at the spot to intervene and save. Thereafter, we took our sister to District hospital in my vehicle and after seeing her condition, she was referred to BRD Medical College, Gorakhpur and I was primarily treated. Thus, Sir, you are requested to register a case and take action.”
4. It appears that on 12th February 2022, the deceased gave a dying declaration at the Nehru Hospital BRD Medical College, Gorakhpur stating that the persons named including the Respondent No. 2, hereinafter referred to as the Accused-Respondent, had poured oil on the deceased and set the deceased on fire.
5. The Accused-Respondent filed an application for Anticipatory Bail being Anticipatory Bail No. 337 of 2022 in the Court of the Additional Sessions Court No. 5/Special Judge (Gangster Act), Basti which was dismissed. The Additional Sessions observed and held :—
“5. The Ld. Addl. District State Counsel (Criminal), Basti has opposed anticipatory bail application of the applicants and submitted that the accused persons/applicants alongwith other co-accused persons have committed as crime of beating the complainant while abusing him and with stick, iron rod, knife and hammer and complainant’s sister Kanya Kumari who came to save him, was burned due to which she died. It was prayed to reject anticipatory bail application of the accused persons/applicants.
6. From the perusal of case diary, it is clear that there is a case of the accused persons/applicants that they alongwith other co-accused persons that while abusing the complainant had beater him with stick, iron rod, knife and hammer and when the sister of the complainant Kanya Kumari came to save him then she was burned due to which she died. If the accused persons/applicants are granted anticipatory bail in the instant case they can influence the witnesses and there is likelihood of them absconding. The investigation is pending in the case. Considering the facts and circumstances of the above case, there is no ground for granting anticipatory bail application to the accused persons/applicants. In these circumstances, the anticipatory bail application filed by the accused persons/applicants Virendra Mishra and Sushil Kumar Mishra is liable to be rejected.”
6. In our view, the Additional Sessions Court rightly rejected the prayer of the Accused-Respondent for Anticipatory Bail. Having regard to the contemporaneous allegations in the FIR lodged on 11th February 2022 and the death of the deceased on 18th February 2022 in hospital, it is not understood why the accused were not charged under Section 302 of the IPC or even under the second part of Section 300 of the IPC. After the death of the deceased, charge under Section 306 of the IPC of abetment to suicide was added. Be that as it may, the respondent No. 2 filed a second application for Anticipatory Bail under Section 438 of the CrPC being CR.P.C. No. 3340 of 2022 in the Allahabad High Court which was allowed and disposed of by the impugned order. The High Court held :—
“The main substratum of argument of learned counsel for the applicant is that in the F.I.R., it is the case of the informant who is an eye witness of the incident and brother of the deceased that her sister has been burned by the accused persons, whereas, during the course of investigation, mother of the deceased has provided a CCTV footage to the Investigating Officer. Perusal of the same, it is very much clear that the deceased herself poured kerosene oil on her body and thereafter she set herself on fire, therefore, allegation of the prosecution against the applicant is against the evidence available on record. It is also submitted that the said CCTV footage is also available with him in a pen-drive and he can produce the same before this Court. Applicant has no criminal history to his credit. He has apprehension of imminent arrest. Lastly, it is submitted that in case, applicant is granted anticipatory bail, he would not misuse the liberty and would cooperate with the investigation.
Learned Additional Government Advocate, who has accepted notice of this case on behalf of State of U.P. on 07.04.2022 as well as learned counsel appearing on behalf of first informant have opposed the prayer for granting anticipatory bail to the applicant by contending that the applicant is named in the F.I.R. and there is dying declaration of the deceased in which she has named the applicant and the co-accused persons and has stated that they have poured kerosene oil on her and set her on fire.
On giving permission, said CCTV footage was produced by the counsel for the applicant before the Court and same was displayed in presence of the counsel for the complainant and A.G.A., but they could not dispute the submission of learned counsel for the applicant in this regard.
Looking to the facts of the case, reasonable apprehension of arrest, taking into consideration the gravity and nature of accusation, there being no criminal antecedents of the applicant and there being no possibility of fleeing from justice, the applicant is entitled to be released on anticipatory bail in this case.”
7. With the greatest of respect, the order of the High Court is without application of mind. The High Court mechanically recorded, “looking to the facts of the case, reasonable apprehension of arrest, taking into consideration the gravity and nature of accusation, there being no criminal antecedents of the applicant and there being no possibility of fleeing from justice, the applicant is entitled to be released on Anticipatory Bail in this case.”
8. If accusation of assaulting the deceased, pouring kerosene oil on her and then setting her on fire is not an accusation grave in nature, one is left wondering what could be a grave offence. In our considered view, the High Court fell in error in looking into a CCTV footage produced by learned counsel for the Respondent No. 2 at the stage of consideration of an application for Anticipatory Bail, and that too ignoring a “Dying Declaration”, and that too without examining whether the CCTV footage presented on behalf of the Respondent No. 2 was tampered with, forged or fabricated.
9. The CCTV footage does not appear to have been in compliance of Section 65B (4) of the Indian Evidence Act. There was apparently no occasion for examination of the CCTV footage by any technical expert. Neither the Accused-Respondent nor his mother gave any explanation as to how the CCTV footage was obtained or how the CCTV footage was transferred to a pen-drive.
10. In this case, the impugned order of the High Court is flawed. The High Court did not, in fact, consider the gravity of the offence. Nor did the High Court apply its mind to the severity of the punishment in the event of conviction, or the fact that the accused-Respondent had been absconding after the incident.
11. Significantly the impugned order of the High Court does not advert to any error in the reasoning of the Sessions Court in rejecting the prayer of the Accused-Respondent for Anticipatory bail. The High Court, in our opinion, fell in error in not even examining, even prima facie, whether there was possibility of the respondent accused tampering with evidence or influencing witnesses. The nature of the allegations against the appellant gives rise to serious apprehension as expressed by the Public Prosecutor in the High Court, that the respondent-accused might deter witnesses from freely deposing in the investigation and/or in Court.
12. The power to grant bail under Section 438 of the Cr.P.C may be discretionary. However, discretion to grant bail has to be exercised judiciously, as held by this Court in Ram Govind Upadhyay v. Sudarshan Singh reported in (2002) 3 SCC 598. speaking for the Court, Umesh Chandra Banerjee, J. said:—
“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 to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail — more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.
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.
(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.”
13. In Prasanta Kumar Sarkar v. Ashis Chatterjee reported in (2010) 14 SCC 496, D.K. Jain, J., speaking for a two-Judge Bench of this Court laid down the principles for examining the correctness of orders granting bail to an accused. This Court held:—
“9. …It is trite that this Court does not, normally, interfere with an order [Ashish Chatterjee v. State of W.B., CRM No. 272 of 2010, order dated 11-1-2010 (Cal)] 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 the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, 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.
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10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal.”
14. In Mahipal v. Rajesh Kumar reported in (2020) 2 SCC 118, this Court held:—
“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 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.”
15. In Sanjay Chandra v. Central Bureau of Investigation reported in (2012) 1 SCC 40, this Court held:—
“24. In the instant case, we have already noticed that the “pointing finger of accusation” against the appellants is “the seriousness of the charge”. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather “recalibrating the scales of justice”.
25. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. …….”
16. In Siddharam Satlingappa Mhetra v. State of Maharashtra reported in (2011) 1 SCC 694) rendered in the context of the discretion to grant Anticipatory Bail under Section 438, this Court advocated the need to balance individual personal liberty with societal interest. This Court held:—
“84. Just as liberty is precious to an individual, so is the society’s interest in maintenance of peace, law and order. Both are equally important.”
17. There is no straight jacket formula for grant or refusal of bail. Seriousness of the charge is undoubtedly one of the relevant considerations while considering bail applications. All the relevant factors have to be weighed by the Court considering an application for bail, including the gravity of the offence, the evidence and material which prima facie show the involvement of applicant for bail in the offence alleged, the extent of involvement of the applicant for bail, in the offence alleged, possibility of the applicant accused absconding or otherwise defeating or delaying the course of justice, reasonable apprehension of witnesses being threatened or influenced or of evidence being tampered with, and danger to the safety of the victim (if alive), the complainant, their relatives, friends or other witnesses.
18. This Court does not ordinarily, in exercise of its discretion under Article 136, entertain petition for Special Leave to Appeal against orders granting or refusing or cancelling bail or Anticipatory Bail in exercise of its power under Article 136 of the Constitution. However, the practice of not interfering with orders granting and/or refusing bail is not unexceptionable. An order granting or refusing bail without application of mind and in disregard of relevant factors, cannot be allowed to stand.
19. On behalf of the Respondent-accused, it was submitted that the Accused-Respondent had not breached any condition on which Anticipatory Bail had been granted to him. It was argued that this Court should not deprive the accused Respondent of his personal liberty, when the High Court had granted him bail, without considering whether there were any supervening circumstances which had rendered the freedom of the Respondent Accused on bail, inexpedient for fair trial.
20. In Dolat Ram (supra), this Court held:—
“4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, 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 the trial.”
21. In this Appeal the correctness of the impugned order of the High Court, in granting bail to the Respondent Accused is in question. The exercise of appellate jurisdiction to adjudge correctness of a bail order is not restricted by the principles for cancellation of bail. As held by this Court, speaking through Dr. D.Y. Chandrachud J. in Mahipal v. Rajesh Kumar (supra):—
“16. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527], the accused was granted bail by the High Court [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031]. In an appeal against the order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] of the High Court, a two-Judge Bench of this Court surveyed the precedent on the principles that guide the grant of bail. Dipak Misra, J. (as the learned Chief Justice then was) held: (Neeru Yadav case [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527], SCC p. 513, para 12)
“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 have not been taken note of, or bail 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.”
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.”
22. In Prabhakar Tewari v. State of U.P. reported in (2020) 11 SCC 648 this Court, speaking through Aniruddha Bose J. has discussed the scope of appellate interference to set aside an order granting bail. In Prabhakar Tewari (supra), this Court held:—
“6. In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, a coordinate Bench of this Court has discussed the scope of jurisdiction of the appellate court in setting aside an order of granting bail. The two key factors for interfering with such an order are non-application of mind on the part of the court granting bail or the opinion of the court in granting bail is not borne out from a prima facie view of the evidence on record. In Mohd. Amir Rashadi v. State of U.P. (2012) 2 SCC 382, a two-Judge Bench of this Court declined to interfere with an order [Rama Kant Yadav v. State of U.P., 2010 SCC OnLine All 3388] of the High Court granting bail to an accused having considered the factual features of that case.”
23. In P. Chidambaram (supra) reported in (2020) 13 SCC 791, A.S. Bopanna, J. speaking for a three judge Bench held:—
“23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of “grave offence” and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provide so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case-to-case basis on the facts involved therein and securing the presence of the accused to stand trial.”
24. In P. Chidambaram (supra), this Court allowed the appeal from the order of the High Court, and allowed the prayer of the Appellant for bail, having regard to the facts and circumstances of the case noted by this Court, which are extracted hereinbelow:—
“28. Therefore, at this stage while considering the bail application of the appellant herein what is to be taken note of is that, at a stage when the appellant was before this Court in an application seeking for interim protection/anticipatory bail, this Court while considering the matter in Criminal Appeal No. 1340 of 2019 had in that regard held that in a matter of present nature wherein grave economic offence is alleged, custodial interrogation as contended would be necessary and in that circumstance the anticipatory bail was rejected. Subsequently, the appellant has been taken into custody and has been interrogated and for the said purpose the appellant was available in custody in this case from 16-10-2019 onwards. It is, however, contended on behalf of the respondent that the witnesses will have to be confronted and as such custody is required for that purpose.
29. As noted, the appellant has not been named as one of the accused in the ECIR but the allegation while being made against the co-accused it is indicated the appellant who was the Finance Minister at that point, has aided the illegal transactions since one of the co-accused is the son of the appellant. In this context, even if the statements on record and materials gathered are taken note of, the complicity of the appellant will have to be established in the trial and if convicted, the appellant will undergo sentence. For the present, as taken note of, the anticipatory bail had been declined earlier and the appellant was available for custodial interrogation for more than 45 days. In addition to the custodial interrogation if further investigation is to be made, the appellant would be bound to participate in such investigation as is required by the respondent.”
25. It is a basic principle of criminal law, that bail is the rule and jail an exception. At the same time the non negotiable right of an individual to liberty must be juxtaposed with societal interest. Grant of Anticipatory Bail in a heinous case like this, on the basis of a CCTV footage produced by the Accused-Respondent, without any kind of certification and/or authentication, ignoring the materials on record including a dying declaration made by the deceased in hospital before the Tehsildar and statements of an eye-witness, can in no circumstances be justified.
26. For the reasons discussed above, the appeal is allowed. The impugned judgment and order is set aside.
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