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TMI Blog2022 (4) TMI 1519X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the complainant in FIR No. 219 of 2021, as well as the present Appellants, are close relatives of the farmers who have lost their lives in the incident dated 03.10.2021 - an application seeking a rehearing on the ground that the 'victims' could not participate in the proceedings was also moved but it appears that the same was not considered by the High Court while granting bail to the Respondent-Accused - in the present case, the 'victims' have been denied a fair and effective hearing at the time of granting bail to the Respondent-Accused. Whether the High Court overlooked relevant considerations? - HELD THAT:- Power to grant bail Under Section 439 of Code of Criminal Procedure, is one of wide amplitude. A High Court or a Sessions Court, as the case may be, are bestowed with considerable discretion while deciding an application for bail. But, as has been held by this Court on multiple occasions, this discretion is not unfettered. On the contrary, the High Court or the Sessions Court must grant bail after the application of a judicial mind, following well-established principles, and not in a cryptic or mechanical manner. While a Court may examine prima fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bail application afresh - appeal disposed off. - Criminal Appeal No. 632 of 2022 (Arising out of Special Leave Petition (Crl.) No. 2640 of 2022) - - - Dated:- 18-4-2022 - N.V. RAMANA, C.J.I., SURYA KANT AND HIMA KOHLI, JJ. JUDGMENT Surya Kant, J. 1. Leave Granted. 2. The challenge is laid to an order dated 10.02.2022 passed by the High Court of Judicature at Allahabad, Lucknow bench, whereby Respondent No. 1 (hereinafter- Respondent-Accused ), has been enlarged on bail in a case Under Sections 147, 148, 149, 302, 307, 326 read with Sections 34 and 120-B of the Indian Penal Code, 1860 (hereinafter- IPC ), as well as Sections 3, 25 and 30 of the Arms Act, 1959. FACTS 3. In brief, it is alleged that several farmers had gathered in the Khairaitya village in Lakhimpur Kheri District on 29.09.2021, to celebrate the birth anniversary of Sardar Bhagat Singh and to protest against the Indian Agricultural Acts of 2020. During this gathering, the farmers objected to certain comments made by Mr. Ajay Mishra @ Teni, Union Minister of State for Home. In the course of the meeting, the farmers decided to organise a protest against Mr. Ajay Mishra in his ancest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r farmers, one journalist, the driver of the Thar Vehicle-Hariom, and two others, were killed. Nearly ten farmers suffered major and minor injuries. 8. In the early hours of 04.10.2021, FIR No. 219 of 2021 was registered on the complaint of the Appellant No. 1, i.e., Jagjeet Singh, at Police Station Tikonia against Respondent No. 1 and 15-20 unknown persons, for causing the death of four farmers. It was alleged that Respondent No. 1 along with his accomplices drove into the crowd of protesting farmers and crushed them. It was further alleged that one Sukhvinder Singh died on the spot due to a fire arm injury. Another FIR No. 220 of 2021 was registered Under Sections 147, 323, 324, 336 and 302 of the Indian Penal Code. was registered by Sumit Jaiswal against unknown persons and protesting farmers for having killed four persons, including the journalist Raman Kashyap, the driver of the Thar vehicle-Hariom and two other supporters of the Respondent-Accused. 9. Meanwhile, a PIL was filed in this Court expressing serious concerns regarding the fairness of the investigation into the incidents of 03.10.2021. This Court, on 17.11.2021, reconstituted the SIT and new members were induc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court. Learned Senior Counsel also drew our attention to FIR No. 46 of 2022, which was filed by one Diljot Singh, a witness to the incident of 03.10.2021. The said witness therein claimed that on 10.03.2022, he was threatened and attacked by the supporters of the Respondent-Accused. Alternatively, emphasis was placed on judgment of this Court in Alister Anthony Pariera v. State of Maharashtra (2012) 2 SCC 648 p. 47, to highlight that if an act of rash and negligent driving was preceded by real intention on the part of the wrong doer to cause death, then a charge Under Section 302 Indian Penal Code may be attracted. 13. On the other hand, Shri Ranjit Kumar, learned Senior Counsel appearing on behalf of the Respondent No. 1, vigorously defended the judgment of the High Court. It was submitted that given the allegations made in FIR No. 219 of 2021, the High Court was bound to prima facie consider the issue of bullet injuries. He further asserted that the Respondent-Accused was never in the Thar vehicle and was instead at the Dangal venue. Lastly, learned Senior Counsel argued that in the event that this Court was to set aside the impugned order and cancel the bail, the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnition that the ethos of criminal justice dispensation to prevent and punish 'crime' had surreptitiously turned its back on the 'victim', the jurisprudence with respect to the rights of victims to be heard and to participate in criminal proceedings began to positively evolve. 17. Internationally, the UN Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power, 1985, which was adopted vide the United Nations General Assembly Resolution 40/34, was a landmark in boosting the pro-victim movement. The Declaration defined a 'victim' as someone who has suffered harm, physical or mental injury, emotional suffering, economic loss, impairment of fundamental rights through acts or omissions that are in violation of criminal laws operative within a State, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted, and regardless of the familial relationship between the perpetrator and the 'victim'. Other international bodies, such as the European Union, also took great strides in granting and protecting the rights of 'victims' through various Covenants The position of a victim in the framew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o know the status of investigation, and take necessary steps, or to be heard at every crucial stage of the criminal proceedings, including at the time of grant or cancellation of bail, were also duly recognised by the Committee. Repeated judicial intervention, coupled with the recommendations made from time to time as briefly noticed above, prompted the Parliament to bring into force the Code of Criminal Procedure (Amendment) Act, 2008, which not only inserted the definition of a 'victim' Under Section 2(wa) but also statutorily recognised various rights of such victims at different stages of trial. 21. It is pertinent to mention that the legislature has thoughtfully given a wide and expansive meaning to the expression 'victim' which means a person who has suffered any loss or injury caused by reason of the act or omission for which the Accused person has been charged and the expression victim includes his or her guardian or legal heir 22. This Court, in Mallikarjun Kodagali (Dead) v. State of Karnataka and Ors. (2019) 2 SCC 752, p. 3 8, while dealing with questions regarding a victim's right to file an appeal Under Section 372 of Code of Criminal Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal Procedure cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings. He/She has a legally vested right to be heard at every step post the occurrence of an offence. Such a 'victim' has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision. We may hasten to clarify that 'victim' and 'complainant/informant' are two distinct connotations in criminal jurisprudence. It is not always necessary that the complainant/informant is also a 'victim', for even a stranger to the act of crime can be an 'informant', and similarly, a 'victim' need not be the complainant or informant of a felony. 25. The above stated enunciations are not to be conflated with certain statutory provisions, such as those present in Special Acts like the Scheduled Cast and Scheduled Tribes (Prevention of Atrocities) Act, 1989, where there is a legal obligation to hear the victim at the time of granting bail. Instead, what must be taken note of is that; First, the Indian jurisprudence is constantly evolving, whereby, the right of victims to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -established principles, and not in a cryptic or mechanical manner. 29. Ordinarily, this Court would be slow in interfering with any order wherein bail has been granted by the Court below. However, if it is found that such an order is illegal or perverse Puran v. Rambilas and Anr., (2001) 6 SCC 338, p. 10, or is founded upon irrelevant materials adding vulnerability to the order granting bail Narendra K. Amin (Dr.) v. State of Gujarat and Anr., (2008) 13 SCC 584, p. 25, an appellate Court will be well within its ambit in setting aside the same and cancelling the bail. This position of law has been consistently reiterated, including in the case of Kanwar Singh Meena v. State of Rajasthan (2012) 12 SCC 180, p. 10, wherein this Court set aside the bail granted to the Accused on the premise that relevant considerations and prima facie material against the Accused were ignored. It was held that: 10....Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the Accused. The court must not unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nviction; (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. (Emphasis Supplied) 31. The Court in Prasanta Kumar Sarkar went on to note: 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. In Masroor [(2009) 14 SCC 286: (2010) 1 SCC (Cri.) 1368], a Division Bench of this Court, of which one of us (D.K. Jain, J.) was a member, observed as follows: (SCC p. 290, para 13) 13. ... Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the Accused, should be avoided, but there is a need to indicate in such order reasons for prima facie concluding why bail was being granted particularly where the Accused is charged of havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt's discretion when deciding the question whether or not to grant bail. Instead of looking into aspects such as the nature and gravity of the offence; severity of the punishment in the event of conviction; circumstances which are peculiar to the Accused or victims; likelihood of the Accused fleeing; likelihood of tampering with the evidence and witnesses and the impact that his release may have on the trial and the society at large; the High Court has adopted a myopic view of the evidence on the record and proceeded to decide the case on merits. 36. The High Court has taken into account several irrelevant considerations, whilst simultaneously ignoring judicial precedents and established parameters for grant of bail. It has been ruled on numerous occasions that a F.I.R. cannot be treated as an encyclopaedia of events. While the allegations in the F.I.R., that the Accused used his firearm and the subsequent post mortem and injury reports may have some limited bearing, there was no legal necessity to give undue weightage to the same. Moreover, the observations on merits of a case when the trial has yet to commence, are likely to have an impact on the outcome of the trial pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Senior Counsel for the Respondent-Accused that the cancellation of bail by this Court shall amount to denial bail to the Respondent-Accused till conclusion of the trial. 43. This Court is tasked with ensuring that neither the right of an Accused to seek bail pending trial is expropriated, nor the 'victim' or the State are denuded of their right to oppose such a prayer. In a situation like this, and with a view to balance the competing rights, this Court has been invariably remanding the matter(s) back to the High Court for a fresh consideration. 5Naresh Pal Singh v. Raj Karan and Anr., (1999) 9 SCC 104, p. 2; Brij Nandan Jaiswal v. Munna alias Munna Jaiswal and Anr., (2009) 1 SCC 678, p. 12 13; Hari Om Yadav v. Dinesh Singh Jaat and Anr., p. 6. We are also of the considered view that ends of justice would be adequately met by remitting this case to the High Court for a fresh adjudication of the bail application of the Respondent-Accused, in a fair, impartial and dispassionate manner, and keeping in view the settled parameters which have been elaborated in paragraphs 30 31 of this order. 44. Needless to say that the bail application shall be decided on merits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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