Supreme Court - Daily Orders
Rishipal @ Rishipal Singh Solanki vs Amardeep on 5 March, 2021
Bench: D.Y. Chandrachud, M.R. Shah
Crl.A.271/2021
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No 271 of 2021
(Arising out of SLP (Crl) No 391 of 2021)
Rishipal @ Rishipal Singh Solanki Appellant
Versus
Amardeep and Others Respondents
JUDGMENT
Dr Dhananjaya Y Chandrachud, J 1 Leave granted.
2 This appeal arises from a judgment and order dated 23 November 2020 of a Single Judge of the High Court of Judicature at Allahabad in Criminal Miscellaneous Bail Application No 30360 of 2020, by which the first and second respondents were granted bail. The appellant, who is the original informant, challenges the grant of bail.
3 A First Information Report, being FIR No 116 of 2020, was registered at Police Station Singhwali Ahir in the District of Baghpat on 5 May 2020 at 4.35 pm. Signature Not Verified The FIR which was lodged by the appellant states that at 4 pm on the date of Digitally signed by Chetan Kumar the incident, he had parked his tractor trolley on a public road. Soon Date: 2021.03.09 17:27:10 IST Reason:
Crl.A.271/20212
thereafter, it is alleged that one Manbeer, son of Nain Singh, came there and directed the appellant to remove his tractor trolley from the road. After the appellant told Manbeer that he would do so after the arrival of another tractor trolley, Manbeer is alleged to have gone back to the village. Thereafter, when the appellant and the members of his family were going to the sugarcane field for collecting sugarcane on their bullock cart, Manbeer came to the location together with fourteen persons, including the first and second respondents. It has been stated that the persons who returned with Manbeer were armed with farsas, lathis and cane knives, and attacked the informant and the members of his family. Further, it has been specifically noted that the first respondent was carrying a country-made pistol (katta). As a result of the incident, it has been alleged that seven members of the family of the informant sustained grievous injuries. The father of the informant was declared dead at 4.55 pm, while his uncle died on 9 May 2020 due to the grievous injuries sustained in the incident. Though, initially the FIR was registered, inter alia, under the provisions of Section 307 of the Indian Penal Code, 18601, as a result of the two homicidal deaths, the investigation took place with reference, inter alia, to the provisions of Sections 147, 148, 149, 323 and 302 of the Penal Code and a charge-sheet has, accordingly, been submitted by the police after investigation on 22 July 2020.
4 The first and second respondents, Amardeep and Bhushan, initially applied for the grant of bail before the Sessions Judge, Baghpat, in an application bearing No 966 of 2020. They were denied bail by an order dated 28 July 2020. Thereafter, they applied for the grant of bail before the Allahabad High 1 “Penal Code” Crl.A.271/2021 3 Court in Criminal Miscellaneous Bail Application No 30360 of 2020. A Single Judge of the Allahabad High Court granted bail, adducing the following reasons:
“Looking to the fact that it is not ascertainable as to who had caused the fatal injury out of 15 accused persons, taking into consideration quantum of the punishment, nature of the offence and period of detention in jail, without expressing any opinion on the merits, this case is found to be a fit case for bail.” 5 Aggrieved by the grant of bail, the appellant moved this Court under Article 136 of the Constitution. On 11 January 2021, notice was issued by this Court.
In pursuance of the order issuing notice, the first and second respondents have entered appearance, as has the State of U.P. On behalf of the appellant, it has been submitted that this is a case where two homicidal deaths have taken place. Having regard to the contents of the FIR and the charge-sheet which has been submitted after investigation, it has emerged that a large group of persons, who formed an unlawful assembly, had caused the deaths of the father and the uncle of the appellant. The first and second respondents have been named in the FIR, which was lodged immediately after the incident. Hence, it has been submitted that in view of the invocation of the provisions of Section 149 of the Penal Code, the High Court was not justified in granting bail in a matter involving the commission of a serious offence, only on the ground that it was not ascertainable as to who had caused the fatal injury out of fifteen accused persons. 6 Learned counsel appearing on behalf of the first and second respondents, on the other hand, submits that the allegations in the FIR would prima facie appear to be exaggerated. Counsel submits that if, as alleged, fifteen persons had participated in the incident, the nature of the injuries on the Crl.A.271/2021 4 victims would have been more serious than has emerged from the investigation. Moreover, it has been submitted that Manbeer, one of the accused persons, also suffered an injury in the occipital region, which has not been explained. Therefore, it has been submitted that the incident involves a grave and sudden provocation.
7 In Mahipal vs Rajesh Kumar2, a two-judge Bench noted the principles which have to be followed by this Court when an order of a High Court granting bail has been assailed. It was held that while this Court should be circumspect while interfering with such an order, since it touches upon an individual’s liberty, interference is merited when the High Court has granted bail without considering the relevant factors in the case. Speaking through one of us (D Y Chandrachud, J), the Court held as follows:
“13. The principles that guide this Court in assessing the correctness of 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 bail were succinctly laid down by this Court in Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765] . In that case, the accused was facing trial for an offence punishable under Section 302 of the Penal Code.
Several bail applications filed by the accused were dismissed by the Additional Chief Judicial Magistrate. The High Court in turn allowed the bail application filed by the accused. Setting aside the order [Ashish Chatterjee v. State of W.B., CRM No. 272 of 2010, order dated 11-1-2010 (Cal)] of the High Court, D.K. Jain, J., speaking for a two-Judge Bench of this Court, held:
(SCC pp. 499-500, paras 9-10) “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, 2 (2020) 2 SCC 118 Crl.A.271/2021 5 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. 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, Crl.A.271/2021 6 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.
…
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…
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.” 8 The material on record in the present case indicates that as a result of the incident, it has been alleged that two homicidal deaths were caused, involving the father and the uncle of the appellant. The incident is alleged to have taken place at 4 pm; the FIR was registered at 4.35 pm; and the death of the father of the appellant is alleged to have taken place at 4.55 pm on the date of the incident, namely 5 May 2020. The uncle of the appellant is alleged to have then died on 9 May 2020, as a result of the grievous injuries he suffered during the incident. The issue as to whether there was a grave and sudden provocation is a matter of trial. The first and second respondents have been specifically named in the FIR, which was lodged shortly after the incident. Having regard to the specific allegations in the FIR and the contents Crl.A.271/2021 7 of the charge-sheet, it is clear that the High Court was not justified in granting bail only on the ground that it was not ascertainable as to who had caused the fatal injury out of the fifteen accused persons. The provisions of Section 149 of the Penal Code having been invoked, the High Court has misapplied itself, both to the facts and in law while granting bail in a criminal case involving a serious offence where two murders have resulted in the incident. We accordingly hold that since the High Court has misapplied itself in granting bail, the interference of this Court is warranted. 9 We accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 23 November 2020. The order granting bail shall accordingly stand set aside. The first and second respondent shall surrender forthwith as a consequence of the present order. 10 Pending applications, if any, stand disposed of.
….....…...….......………………........J. [Dr Dhananjaya Y Chandrachud] ..…....…........……………….…........J. [M R Shah] New Delhi;
March 5, 2021
CKB
Crl.A.271/2021
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ITEM NO.26 Court 6 (Video Conferencing) SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No.391/2021 (Arising out of impugned final judgment and order dated 23-11-2020 in CRMBA No.30360/2020 passed by the High Court of Judicature at Allahabad) RISHIPAL @ RISHIPAL SINGH SOLANKI Petitioner(s) VERSUS AMARDEEP & ORS. Respondent(s) (With appln.(s) for IA No. 131283/2020 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT, IA No. 23802/2021 - EXEMPTION FROM FILING O.T. and IA No. 131287/2020 - EXEMPTION FROM FILING O.T.) Date : 05-03-2021 These matters were called on for hearing today. CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE M.R. SHAH For Petitioner(s) Mr. Anupam Dwivedi, Adv.
Mr. Raghvendra Upadhyay, Adv.
Mr. Sandeep Kumar Dwivedi, Adv.
Mr. Amit Upreti, Adv.
Mr. Alok Kumar Pandey, Adv.
Mr. Atul Khaneja, Adv.
Ms. Madhubala, Adv.
Mr. Rakesh Mishra, AOR For Respondent(s) Mr. Sanjeev Bhatnagar, Adv.
Mr. Sounak S Das, Adv.
Mr. Ram Nath, Adv.
Mr. Sandiv Kalia, Adv.
Mr. Shivam Kalia, Adv.
Dr. Sushil Balwada, AOR Crl.A.271/2021 9 Mr. Sarvesh Singh Baghel, AOR Ms. Shivranjani Ralawata, Adv.
UPON hearing the counsel the Court made the following O R D E R 1 Leave granted.
2 The appeal is allowed in terms of the signed reportable judgment. 3 Pending applications, if any, stand disposed of.
(CHETAN KUMAR) (SAROJ KUMARI GAUR)
A.R.-cum-P.S. Court Master
(Signed Reportable Judgment is placed on the file)