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Khilari vs State Of U.P. And Anr on 13 March, 2008

Supreme Court of India
Khilari vs State Of U.P. And Anr on 13 March, 2008
Author: . A Pasayat
Bench: Dr. Arijit Pasayat, P. Sathasivam
           CASE NO.:
Appeal (crl.)  481 of 2008

PETITIONER:
Khilari

RESPONDENT:
State of U.P. and Anr

DATE OF JUDGMENT: 13/03/2008

BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT:

J U D G M E N T

CRIMINAL APPEAL NO 481 OF 2008
(Arising out of SLP (Crl.) No.960 of 2007)

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a
Division Bench of the Allahabad High Court allowing the
prayer for bail made by respondent no.2 during the pendency
of Criminal Appeal no.6724 of 2006. Challenge before the
High Court was to the conviction recorded by learned Sessions
Judge, Bagpat, in Sessions Trial no.299 of 2000. Respondent
no.2 was convicted for offences punishable under Section 302
and Section 506 of the Indian Penal Code, 1860 (in short ‘IPC’)
and was sentenced to undergo imprisonment for life and one
year for the offences respectively. He and his two sons were
also convicted allegedly for committing murder of Shiv Kumar.
Challenging the conviction appeal has been filed and
simultaneously prayer for being released on bail during the
pendency of the appeal was filed. By the impugned order the
Division Bench accepted the prayer and granted bail to the
respondent no.2. The High Court noted that the allegation
was that the incident took place on 9.3.2000 at about 8.30
p.m. and accused no.2 and his two sons assaulted Shiv
Kumar (hereinafter referred to as the ‘deceased’) mercilessly
with iron rods and he succumbed to the injuries.

3. The only stand taken was that the ante mortem injuries
on the body of the deceased included three contusions, one
abraded contusion and four lacerated wounds of different
dimensions on various parts of the body which could not have
been caused by iron rods. It was their stand that some
unknown assailants caused the injuries to the deceased.

4. The prosecution and the present appellant opposed the
prayer for grant of bail and PWs 1 and 2 and the informant
had seen the attacks and were eye witnesses to the occurrence
and PW 3 is an independent witness. Their evidence has been
analysed in great detail by the trial Court who found that
credible and cogent. So far as the possibility of injuries is
concerned, that aspect was also examined by the trial Court.

5. After noticing the rival stands the High Court by the
impugned order granted the bail with the following
conclusions:

“Looking to all facts and circumstances of the
case and particularly the antemortem injuries
and after consideration the submissions made
on behalf of the parties we find it appropriate
to release appellant on bail during pendency of
the appeal.”

6. Learned counsel for the informant appellant submitted
that the approach of the High Court is clearly erroneous. After
the conviction has been recorded by believing three eye
witnesses and also discarding the stand that it was not
possible by iron rods, the High Court should not have by a
cryptic order directed grant of bail. It was, therefore,
submitted that the impugned order is unsustainable.

7. Learned counsel for the State supported the stand of the
informant.

8. Learned counsel for the appellant no.2 accused
submitted that it is common knowledge that appeals in the
High Court take long time for disposal. The balance has to be
struck between the right to speedy trial and the need for the
accused being in custody. The High Court has taken note of
relevant factors and has granted bail.

9. The parameters to be adopted while dealing with the
application for bail by suspension of sentence during the
pendency of the appeal has been examined by this Court in
several cases. In Kishori Lal v. Rupa and Ors. (2004 (7) SCC

638) it was noted as follows:

“4. Section 389 of the Code deals with
suspension of execution of sentence pending
the appeal and release of the appellant on bail.
There is a distinction between bail and
suspension of sentence. One of the essential
ingredients of Section 389 is the requirement
for the appellate court to record reasons in
writing for ordering suspension of execution of
the sentence or order appealed against. If he is
in confinement, the said court can direct that
he be released on bail or on his own bond. The
requirement of recording reasons in writing
clearly indicates that there has to be careful
consideration of the relevant aspects and the
order directing suspension of sentence and
grant of bail should not be passed as a matter
of routine.

5. The appellate court is duty-bound to
objectively assess the matter and to record
reasons for the conclusion that the case
warrants suspension of execution of sentence
and grant of bail. In the instant case, the only
factor which seems to have weighed with the
High Court for directing suspension of
sentence and grant of bail is the absence of
allegation of misuse of liberty during the
earlier period when the accused-respondents
were on bail.”

10. In Anwari Begum v. Sher Mohammad and Anr. (2005 (7)
SCC 326) it was, inter-alia, observed as follows:
“7. Even on a cursory perusal the High
Court’s order shows complete non-application
of mind. Though detailed examination of the
evidence and elaborate documentation of the
merits of the case is to be avoided by the Court
while passing orders on bail applications, yet a
court dealing with the bail application should
be satisfied as to whether there is a prima facie
case, but exhaustive exploration of the merits
of the case is not necessary. The court dealing
with the application for bail is required to
exercise its discretion in a judicious manner
and not as a matter of course.

8. There is a need to indicate in the order,
reasons for prima facie concluding why bail
was being granted particularly where an
accused was charged of having committed a
serious offence. It is necessary for the courts
dealing with application for bail to consider
among other circumstances, the following
factors also before granting bail, they are:

1. The nature of accusation and
the severity of punishment in case
of conviction and the nature of
supporting evidence;

2. Reasonable apprehension of
tampering of the witness or
apprehension of threat to the
complainant;

3. Prima facie satisfaction of the
Court in support of the charge.

Any order dehors of such reasons suffers from
non-application of mind as was noted by this
Court, in Ram Govind Upadhyay v.

Sudarshan Singh and Ors. [(2002) 3 SCC
598], Puran etc. v. Rambilas and Anr. etc.
[(2001) 6 SCC 338)] and in Kalyan Chandra
Sarkar v. Rajesh Ranjan
alias Pappu Yadav &
Anr. [JT 2004 (3) SC 442].”

11. As the extracted portion and the High Court’s order goes
to show there was complete non-application of mind and non-
consideration of the relevant aspects.

12. The impugned order, therefore, is not sustainable and is
dismissed. The bail granted to the respondent no.2 is
cancelled. The matter is remitted to the High Court for fresh
consideration in accordance with law.

13. The appeal is allowed to the aforesaid extent.

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