9911796707
TMI Blog2021 (12) TMI 1500X X X X Extracts X X X X X X X X Extracts X X X X ..... us in nature but are supported by adequate material brought on record so as to enable a Court to arrive at a prima facie conclusion. While considering an application for grant of bail a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the Accused, if any, and the nature of punishment that would follow a conviction vis-vise the offence/s alleged against an Accused. Ultimately, the Court considering an application for bail has to exercise discretion in a judicious manner and in accordance with the settled principles of law having regard to the crime alleged to be committed by the Accused on the one hand and ensuring purity of the trial of the case on the other. Thus, while elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person walking and also talking and then she saw that Respondent-Accused was present and he had a pistol in his hand and when he saw her, he caught her and forcefully tied her mouth with his Gamchha (towel) and he shot her son on the head from his pistol in front of her and Deepak Kumar too shot once at her son's head. As a result, her son died. Other family members reached the spot upon hearing the firing sound. But the Accused ran away waiving their pistols. 5. Earlier, FIR No. 316 of 2017 was lodged at Police Station Parsa Bazar by Appellant's deceased son himself viz., Rupesh Kumar for causing serious bullet injury to him, Under Sections 341, 307 read with Section 34 of Indian Penal Code and Section 27 of the Arms Act, by giving a fardbeyan against the very same Respondent-Accused herein and his two acquaintances to K.K. Verma, ASI, Shashtri Nagar PS, District Patna, on 28.12.2017 at 7.57 pm at Emergency Ward, Paras Hospital, Patna. This fardbeyan was given in respect of an incident which occurred on the previous day i.e. 27.12.2017 when he had gone to meet his friend Shailendra at Sipara. While Rupesh Kumar was returning from his friend's house, the Respondent-Accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g aggrieved, the Appellant has preferred these appeals before this Court. 11. We have heard Sri Smarhar Singh, learned Counsel for the Appellant and Sri R. Basant, learned Senior Counsel for Respondent-Accused and perused the material on record. 12. Learned Counsel for the Appellant submitted that the Respondent-Accused has been named in eight cases. Even though, the said Accused may have been acquitted in a few cases, there are still three cases pending against him. He had attempted unsuccessfully to kill the deceased Rupesh Kumar in the year 2017. Later in the year 2020, he killed the deceased and absconded for about seven months. The mother of the deceased Appellant herein, is the informant and she has been threatened by Respondent. He was in judicial custody only for a period of nine months as he had earlier absconded but has now been granted bail by the High Court contrary to the settled principles of law and the judgments of this Court. 13. Further it is urged that the High Court has not assigned reasons for grant of bail in the instant cases whereas the Respondent-Accused is alleged to have committed heinous crimes which could result in life imprisonment or even death penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion warrants. 18. It was further submitted that learned Counsel for the Appellant was not right in contending that the Respondent -Accused had absconded. In fact, there was no chargesheet against him. It was only when a protest petition was filed, that a chargesheet was filed against him and he was arrested. 19. It was further submitted that the allegations against the Respondent-Accused are false and hence the impugned orders of the High Court do not call for any interference in these appeals. 20. Having regard to the contention of Sri Smarhar Singh, learned Counsel for the Appellant that the impugned orders granting bail to the Respondent-Accused are bereft of any reasoning and they are cryptic and bail has been granted in a casual manner, we extract those portions of the impugned orders dated 22nd July, 2021 and 13th September, 2021 passed by the High Court, which provides the reasoning of the Court for granting bail, as under: Impugned Order dated 22.7.2021 During course of investigation, it has come that at the time and date of occurrence Petitioner was at Araria. Petitioner is in custody since 30.09.2020. Considering the facts and circumstances of the case and the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is confirmed, also bears upon the issue. 8. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. 9. Thus the legal principles and practice validate the Court considering the likelihood of the Applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record - particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further about the criminal record of a Defendant, is therefore not an exercise in irrelevance. b) Prahlad Singh Bhati v. NCT of Delhi and Ors. - (2001) 4 SCC 280 is a case wherein this Court proceeded to state the following principles which are to be considered while granting bail: (a) While granting bail the court has to keep in mind not only the nature of the accusations, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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: 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. (See Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Puran v. Rambilas, (2001) 6 SCC 338. e) Gobarbhai Naranbhai Singala v. State of Gujarat and Ors. etc. etc. - (2008) 3 SCC 775, is a case which concerns cancellation of bail by this Court in a petition filed Under Article 136 of the Constitution of India. In the said case reliance was placed on Panchanan Mishra v. Digambar Mishra - (2005) 3 SCC 143 wherein in para 13 it was observed as under: 13. The object underlying the cancellation of bail is to protect the fair tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the Accused. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of Accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner. x x x 18. Before parting with the case, we may repeat with profit that it is not an appeal for cancellation of bail as the cancellation is not sought because of supervening circumstances. The annulment of the order passed by the High Court is sought as many relevant factors have not been taken into consideration which includes the criminal antecedents of the Accused and that makes the order a deviant one. Therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (b) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (c) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (d) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (e) The ongoing judicial trend in all countries committed to Rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (f) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of crime, the criminal antecedents of the Accused, if any, and the nature of punishment that would follow a conviction vis- -vis the offence/s alleged against an Accused. 26. We have extracted the relevant portions of the impugned orders above. At the outset, we observe that the extracted portions are the only portions forming part of the reasoning of the High court while granting bail. As noted from the aforecited judgments, it is not necessary for a Court to give elaborate reasons while granting bail particularly when the case is at the initial stage and the allegations of the offences by the Accused would not have been crystalised as such. There cannot be elaborate details recorded to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal while passing an order on an application for grant of bail. At the same time, a balance would have to be struck between the nature of the allegations made against the Accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the Accused; tampering of the evidence; the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the Respondent-Accused is that he shot Rupesh Kumar with a fire arm, namely, a pistol on two occasions. d) The Respondent-Accused herein has been named in about eight cases and though he may have been acquitted in a few of them, there are still cases pending against him. Thus, it is inferred that Respondent-Accused has criminal antecedents. e) It has also come on record that the Respondent - Accused had absconded for a period of seven months after the complaint in respect of the second offence was lodged against him. Therefore, his arrest was delayed. f) It is also the case of the Appellant that the Respondent-Accused had threatened the informant mother of the deceased. g) Thus, there is a likelihood of the Respondent-Accused absconding or threatening the witnesses if on bail which would have a vital bearing on the trial of the cases. h) Also, for securing the Respondent-Accused herein for the purpose of commencement of the trial in right earnest in both the cases, as the Accused had earlier absconded, discretion could not have been exercised in favour of the Respondent-Accused in the instant cases. i) In the impugned order dated 13.09.2021, the High Court has noted that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
