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TMI Blog2021 (12) TMI 1500X X X X Extracts X X X X X X X X Extracts X X X X ..... P.S. Case No. 316 of 2017 respectively. 3. The facts in a nutshell are that the Appellant is the mother of the deceased Rupesh Kumar. She is stated to be an eyewitness to the killing of her son and also the person who lodged the First Information Report being FIR No. 93 of 2020 for offence of murder of her son Under Section 302 read with Section 34 of the Indian Penal Code (for short, the 'IPC') and Section 27 of the Arms Act against common Respondent-Accused herein viz., Pappu Kumar and one other person named Deepak Kumar. 4. That FIR No. 93/2020 dated 19.02.2020 is stated to have been filed by the Appellant herein between 2.30 hrs and 3.00 hrs in the night stating that her son Rupesh Kumar aged about 35 years was sleeping in the room constructed on the roof top of her house. A relative, Deepak Kumar was also sleeping there. She was sleeping in another room which is beside the aforesaid room. She has further stated that she heard the sound of a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with Naubatpur P.S. Case No. 316/2017 Under Section 307 of Indian Penal Code on 06.01.2021. 9. That the Accused made an application seeking bail before the Sessions Court, which was rejected by the Additional Sessions Judge-I, Danapur by Order dated 08.12.2020. Thereafter, the Respondent-Accused filed an application for grant of bail by suppressing his criminal antecedents and by the impugned order dated 22.07.2021, the High Court granted him bail in connection with the case being FIR No. 93/2020 registered at Naubatpur P.S. for offence Under Section 302 read with Section 34 of Indian Penal Code and Section 27 of the Arms Act, subject to certain conditions. 10. Subsequently, the High Court, vide order dated 13.09.2021, also granted bail to Respondent-Accused in connection with the other case being FIR No. 316/2017 registered at Parsa Bazar P.S. for offences Under Sections 341, 307 read with Section 34 of Indian Penal Code and Section 25 of the Arms Act. Being 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19th February, 2020. He was not at the spot of the crime at all. This is evident from the mobile phone details. Therefore, the High Court was justified in considering these aspects and granting bail to the Respondent-Accused. 17. In support of his submission, Sri Basant, learned Senior Counsel, placed reliance on Gudikanti Narsimhulu and Ors. v. Public Prosecutor, High Court of Andhra Pradesh - (1978) 1 SCC 240, which prescribes the approach of a Court while granting bail. The Court considering an application seeking bail cannot enter into an in-depth analysis of the case so as to hold a mini trial of the case. It is also unnecessary to give lengthy reasons at the time of granting bail. It was contended that bail is the norm and jail is the exception. Once bail has been granted by a Court, it is only in very rare cases that there is interference as it would have the effect of cancellation of bail. That the liberty of a person cannot be interfered with unless the situation 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be properly represented on each and every date fixed by the Court and shall remain physically present as directed by the Court and on his/her absence on two consecutive dates without sufficient reason, his/her bail bond shall be cancelled by the Court below. (2) If the Petitioner tampers with the evidence or the witnesses, in that case, the prosecution will be at liberty to move for cancellation of bail. 21. Before proceeding further, it would be useful to refer to the judgments of this Court in the matter of granting bail to an Accused as under: a) In Gudikanti Narasimhulu (supra), Krishna Iyer, J., while elaborating on the content and meaning of Article 21 of the Constitution of India, has also elaborated the factors that have to be considered while granting bail which are extracted as under: 7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, 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. d) In Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr. - (2004) 7 SCC 528, this Court observed in paragraph 11 as under: 11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der therein the findings recorded touched upon the merits of the case and the learned Judge had proceeded as if an order of acquittal was being passed, contrary to what had been said in Amarmani Tripathi which is that only a brief examination has to be made to satisfy about the facts and circumstances or a prima facie case. f) This Court in Ash Mohammad v. Shiv Raj Singh @ Lalla Bahu and Anr. - (2012) 9 SCC 446, observed that though the period of custody is a relevant factor, the same has to be weighed simultaneously with the totality of the circumstances and the criminal antecedents. That these are to be weighed in the scale of collective cry and desire and that societal concern has to be kept in view in juxtaposition to individual liberty, was underlined. g) In Neeru Yadav v. State of UP and Anr. - (2016) 15 SCC 422, after referring to a catena of judgments of this Court on the consideration of factors for grant of bail observed through Dipak Misra, J. (as His Lordship then was) in paragraphs 15 and 18 as under: 15. This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the Accused. What has weighed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 22. On the aspect of the duty to accord reasons for a decision arrived at by a court, or for that matter, even a quasi-judicial authority, it would be useful to refer to a judgment of this Court in Kranti Associates Private Limited and Anr. v. Masood Ahmed Khan and Ors. - (2010) 9 SCC 496, wherein after referring to a number of judgments this Court summarised at paragraph 47 the law on the point. The relevant principles for the purpose of this case are extracted as under: (a) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the National Consumer Disputes Redressal Commission, reliance could be placed on the said judgment on the need to give reasons while deciding a matter. 24. The Latin maxim "cessante ratione legis cessat ipsa lex" meaning "reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself", is also apposite. 25. While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail Courts cannot lose sight of the serious nature of the accusations against an Accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious 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 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian Penal Code and Section 27 of the Arms Act in respect of FIR No. 316 of 2017 lodged at Police Station Parsa Bazar which is with regard to attempt to murder Rupesh Kumar the injured, who had himself given the Ferdbayan against the Respondent - Accused herein. The other case, namely, FIR No. 93 of 2020 is with regard to the offence of murder of Appellant's son Rupesh Kumar Under Section 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act against Respondent-Accused herein and Accused No. 2 Deepak Kumar. Thus, offences alleged against Respondent-Accused herein are serious offences vis-a-vis the very same Rupesh Kumar at two points of time, namely, in 2017 when attempt to murder him is alleged and in 2020 allegation of murder has been cast by the Appellant, mother of the deceased who is stated to be an eyewitness. Thus, the allegations against the Respondent - Accused visa-vis the same person, namely, the informant Rupesh Kumar in both the cases. b) According to the Respondent-Accused, there has been a history of enmity between the Accused and the deceased. c) The accusation against the Respondent-Accused is that he shot Rupesh Kumar with a fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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