2012 (9) TMI 1182 - SC - Indian Laws

Appeal challenging grant of bail to accused (history-sheeter) - the nature of crime it is perceivable that two persons came on a motorcycle and kidnapped Bihari Lal and kept him in confinement for eight days. The role of the accused is clearly stated. the fact that the accused is a history-sheeter and involved in number of cases, rejected the application for bail. Being unsuccessful to secure bail from the court of Session, the accused preferred a Bail Application before the High Court under Section 439 of the Code. The High Court only mentioned the fact that the accused has a criminal history and is involved in number of cases but considering the factum that he has been in custody since 30.09.2011 directed his enlargement on bail on certain conditions. HELD THAT - the order passed by the High Court is set aside and the bail bonds of the accused are cancelled. The accused is directed to surrender to custody forthwith failing which it shall be the duty of the investigating agency to take him to custody immediately. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction of liberty of the accused.

Issues Involved:
1. Legitimacy of the High Court's order granting bail.
2. Consideration of the accused's criminal antecedents.
3. Evaluation of the gravity and nature of the offence.
4. Balancing individual liberty with societal security.
5. Distinction between cancellation of bail and setting aside an order granting bail.

Detailed Analysis:

1. Legitimacy of the High Court's Order Granting Bail:
The Supreme Court scrutinized the High Court's order granting bail to the accused, noting that the High Court had not adequately considered the statement recorded under Section 164 of the Code of Criminal Procedure, the gravity of the offences, and the criminal antecedents of the accused. The High Court's decision was primarily influenced by the fact that the accused had been in custody for seven months, without sufficiently addressing the severity and nature of the crime or the accused's extensive criminal history.

2. Consideration of the Accused's Criminal Antecedents:
The Supreme Court emphasized that the accused was a history-sheeter involved in numerous cases, as detailed in an affidavit by the prosecution. The High Court had made only a passing reference to the accused's criminal history, which included serious charges such as kidnapping, assault, and violations under the Arms Act. The Supreme Court underscored that the accused's criminal background should have been a significant factor in the High Court's decision-making process.

3. Evaluation of the Gravity and Nature of the Offence:
The Supreme Court highlighted the heinous nature of the crime, where the victim, Bihari Lal, was kidnapped, confined for eight days, and tortured. The Court noted the increasing trend of kidnapping crimes and the need for judicial caution in granting bail for such serious offences. The High Court's failure to thoroughly analyze the nature of the crime and the accused's role in it was deemed a critical oversight.

4. Balancing Individual Liberty with Societal Security:
The Supreme Court acknowledged the importance of individual liberty but stressed that it must be balanced against societal security and the collective cry for justice. The Court asserted that the accused's liberty could not be prioritized over the safety and order of society, especially given his criminal antecedents and the serious nature of the crime.

5. Distinction Between Cancellation of Bail and Setting Aside an Order Granting Bail:
The Supreme Court clarified the distinction between cancelling bail due to supervening circumstances and setting aside an order granting bail due to it being perverse or based on irrelevant considerations. The present case was not about cancelling bail due to misconduct but about challenging the High Court's order on the grounds of it being legally unsustainable.

Conclusion:
The Supreme Court set aside the High Court's order granting bail, directing the accused to surrender to custody immediately. The decision underscored that the High Court had failed to consider relevant factors such as the accused's criminal history and the gravity of the offence, making its order perverse. The judgment emphasized the need for judicial discretion to be exercised judiciously, with due regard to both individual liberty and societal security.

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