{"id":193892,"date":"2006-09-18T00:00:00","date_gmt":"2006-09-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gajanand-agarwal-vs-state-of-orissa-ors-on-18-september-2006"},"modified":"2015-05-22T14:34:55","modified_gmt":"2015-05-22T09:04:55","slug":"gajanand-agarwal-vs-state-of-orissa-ors-on-18-september-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gajanand-agarwal-vs-state-of-orissa-ors-on-18-september-2006","title":{"rendered":"Gajanand Agarwal vs State Of Orissa & Ors on 18 September, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Gajanand Agarwal vs State Of Orissa & Ors on 18 September, 2006<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Arijit Pasayat, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (crl.)  972 of 2006\n\nPETITIONER:\nGajanand Agarwal\n\nRESPONDENT:\nState of Orissa & Ors\n\nDATE OF JUDGMENT: 18\/09\/2006\n\nBENCH:\nARIJIT PASAYAT & LOKESHWAR SINGH PANTA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of SLP (Crl.) No. 3745 of 2006)
\n[With Criminal Appeal No 973 of 2006 (Arising out of SLP (Crl.) No.3746 of 2006]<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tChallenge in these appeals is to the order of the learned
\nSingle Judge of the Orissa High Court granting bail to the
\nrespondent no.2 in each case. In criminal Appeal relating to
\nSLP (Criminal) 3745 of 2006 respondent no.2 is Bimal Kumar
\nKhetan whereas in the criminal appeal relating to SLP
\n(Criminal) 3746 of 2006, the respondent no.2 is Sunil Kumar
\nKhetan.  The primary stand of the appellant is that the bail
\nwas granted without application of mind, as no reason was
\nindicated as to why respondent no.2 (hereinafter referred to as
\nthe ‘accused’) was entitled to bail.  It is pointed out that earlier
\nseveral petitions were rejected by leaned Additional Sessions
\nJudge and the High Court.\n<\/p>\n
It is unnecessary to elaborately state the factual position
\nas stated by the appellant.\n<\/p>\n
\tBimal was married to the daughter of the appellant i.e.
\nManisha (hereinafter referred to as ‘deceased’). The marriage
\nbetween the deceased and the said accused took place on
\n9.5.2005. Within five months of marriage, the deceased was
\nfound dead on 1.10.2005. The appellant lodged FIR at the
\nJharsuguda police station and on the basis case was
\nregistered and investigation was undertaken. The offences
\nindicated were under Sections 498A, 304B read with Section
\n34 of the Indian Penal Code, 1860 (in short the ‘IPC’) and
\nSection 4 of the Dowry Prohibition Act, (in short ‘the Act’)
\nRespondent no.2-Bimal  was arrested on 3.10.2005. Rest of
\nthe accused persons were found to be absconding and police
\nhaving failed to arrest them in spite of issuance of non-
\nbailable warrants of arrest made an application in terms of
\nSections 82 and 83 of the Code of Criminal Procedure, 1973
\n(in short ‘Cr.P.C.’) was filed.  On 16.12.2005 father-in-law of
\nthe deceased Kailash Khetan and mother-in-law Kanta Khetan
\nfiled application in terms of Section 438 Cr.P.C. before the
\nHigh Court which was rejected.  Process under Section 82 of
\nthe Cr.P.C. was issued by the learned ADJM on 19.12.2005.
\nOn 16.1.2006 respondent no.2 Bimal filed application for bail
\nwhich was rejected on the ground that investigation was still
\nin progress.  Liberty was granted to the accused to move the
\nSessions Judge for bail after completion of investigation and
\nsubmission of final form.  On 24.1.2006 application in terms
\nof Section 438 was filed by Sunil Kumar (respondent no.2 in
\nthe connected appeals) and Sujata Khetan.  The same were
\nrejected by order dated 24.1.2006.  An application under
\nSection 438 Cr.P.C. was filed by Kailash and Kanta.  The same
\nwas again rejected by the High Court.  On 27.1.2006 the Trial
\nCourt issued orders in terms of Section 83 Cr.P.C. to attach
\nthe moveable properties of the accused.  On 30.1.2006 the
\ninvestigating officer submitted the charge-sheet\/final report
\nbefore the learned SDJM indicating that a prima facie case has
\nbeen made against the respondent No.2-Bimal Kumar
\nKailashnath (father-in-law), Kanta Devi (mother-in-law), Sunil
\n(brother-in-law) the respondent no.2 in the connected appeal
\nunder Sections 498A, 304B, 302, 406 read with Section 34
\nIPC and Section 4 of the D.P. Act. The prosecution made a
\nfurther prayer to permit investigation in terms of Section
\n173(8) Cr.P.C. since some of the accused persons were still
\nabsconding and were not arrested. After surrendering, Kanta
\nKhetan and Sujata Devi filed application for bail.  The same
\nwas rejected by learned SDJM.  Learned Sessions Judge also
\nrejected the bail application. The applications filed by
\nKailashnath and Sunil were also subsequently rejected.  On
\n13.2.2006, respondent no.2 Bimal filed fresh bail application
\nbefore the Sessions Court, which was rejected.  The learned
\nAdditional Sessions Judge took note of factual position which
\naccording to him were relevant for the purpose of rejecting the
\nbail application. It was noted that strong case under Section
\n302\/304B IPC was made out. Sujata Devi filed bail petition
\nbefore the High Court after rejection of bail application by the
\nSessions Judge.  The High Court by order dated 6.3.2006
\ngranted bail to her.\n<\/p>\n
Interestingly, it was noted that the order was not to be
\ntreated as a precedent so far as other accused persons are
\nconcerned.  The correctness of such a direction shall be dealt
\nwith later.  It is to be noted that on 22.3.2006 Kanta Devi
\nmoved the High Court for bail.  The High Court granted the
\nbail imposing condition similar to those which were stipulated
\nin case of Sujata Devi.  Accused Sunil Kumar moved the High
\nCourt for regular bail. By order dated 7.4.2006 the prayer was
\nrejected but liberty was granted to renew his prayer for bail
\nafter the case was committed to the Court of Sessions.  On
\n21.4.2006 the High Court granted bail to Kailashnath on the
\nground that he was aged and was sick.  Here again, the High
\nCourt passed an order to the effect that same was not to be
\ntreated as a precedent so far as other accused persons are
\nconcerned. On 3.5.2006 accused Sunil Kumar moved the
\nSessions Court for bail on the ground that his father requires
\nfurther treatment at Apollo Hospital and there was no male
\nmember to accompany him.  The learned Sessions Judge
\nrejected the prayer of bail by order dated 3.5.2006 suspecting
\ngenuineness of the documents filed.  It was noted that report
\nwas dated 30.6.2006 i.e. date put on the advisory report, while
\nthe application was made earlier.  Because of this suspicious
\ndocument, the application for bail was rejected.\n<\/p>\n
On 10.5.2006 another application for bail was moved by
\nrespondent no.2 Bimal Kumar after case was committed to the
\nCourt of Sessions. Learned Additional Sessions Judge rejected
\nthe prayer in view of the fact that no changed circumstances
\nhave been shown.  On 18.5.2006 accused Sunil moved the
\nHigh Court for bail.  The order granting bail to him is the
\nsubject-matter of challenge in one of the appeals.\n<\/p>\n
The date for framing of charge was fixed to 6.6.2006.
\nAccused Bimal filed bail application before the High Court.  By
\norder dated 22.6.2006 bail has been granted.  The orders
\npassed in the cases of Bimal and Sunil read as follows:\n<\/p>\n
\t\tBimal’s case<\/p>\n
“Heard learned counsel for the petitioner
\nand learned counsel for the State.\n<\/p>\n
Mr. Dhal, learned counsel for the
\npetitioner submits that the cause of death
\nwas not known and the other accused
\npersons have been released on bail, so the
\npresent petitioner also be released on bail.\n<\/p>\n
Mr. Naik, learned counsel for the
\ninformant, at the other hand, strongly
\nrepudiates the submissions made by Mr. Dhal
\nand submit that though cause of the death
\nwas not known and causing suspicion, but
\nsome blood stained clothes were found.\n<\/p>\n
Considering the submissions made and
\nperusing the materials available and in the
\npeculiar facts and circumstances of the case,
\nI direct that the petitioner, who is in custody
\nfor ten months, be released on bail on
\nexecuting a bond of Rs.50,000\/- (Rupees Fifty
\nthousand) with two local sureties each for the
\nlike amount to the satisfaction of the learned
\nAddl. Sessions Judge, Jharsuguda in S.T.
\ncase No.24\/2006.  With further conditions
\nthat he shall not threaten or coerce the
\nwitnesses, shall not indulge in any criminal
\nactivity, shall appear in court on each date to
\nwhich the case stands posted for trial and
\nshall cooperate with the investigation.
\nDeviation of any of the conditions shall entail
\ncancellation of bail.\n<\/p>\n
The PLAPL is disposed of.”\n<\/p>\n
\t\t(Underlined for emphasis)
\nSunil’s case<\/p>\n
“Perused the case diary and other
\nmaterials available on record.  The petitioner
\nis the brother-in-law. He is in custody for
\nquite some time. In the peculiar facts and
\ncircumstances of the case I direct that the
\npetitioner who is in custody be released on
\nbail on his executing bond for Rs.25,000\/-
\n(Rupees Twenty five thousand) with two local
\nsureties, each for the like amount to the
\nsatisfaction of the Court below, with further
\nconditions that he shall not indulge in any
\ncriminal activity, shall appear before the
\nCourt on each date to which the case will be
\nposted for trial.  Violation of any of the above
\nconditions will entail cancellation of bail.\n<\/p>\n
This order shall however not be treated
\nas precedent so far as husband is concerned.”\n<\/p>\n
\t\t(Underlined for emphasis)<\/p>\n
Learned counsel for the appellant submitted that no
\nreason has been indicated by the High Court for granting bail
\nexcept stating that ” in the peculiar facts and circumstances of
\nthe case” the bail was being grated because the accused is in
\ncustody for ten months”.  Similar is the case of Sunil Kumar.\n<\/p>\n
It is urged that as to what the peculiar facts and
\ncircumstances of the case are, the High Court did not indicate
\neven it did not refer to the various orders passed earlier by the
\nlearned Additional Sessions Jude and by the High Court on
\nthe earlier occasions. Even factually the High Court is not
\ncorrect in stating that the accused was in custody for ten
\nmonths. In fact, he was arrested on 3.10.2005 and the date of
\norder is 22.6.2006.\n<\/p>\n
Learned counsel for respondent no.2 submitted that
\nthough the High Court order’s prima facie does not disclose
\nreasons, the various materials were placed in support of the
\nprayer for bail which were not considered.  According to him
\nHigh Court was justified in granting bail.  The Hon’ble Judge
\nhad earlier dealt with the matter and was, therefore,
\nconversant with the materials on record.  That probably is the
\nreason for holding that peculiar circumstances existed.\n<\/p>\n
This Court had occasion to deal with similar casual
\ndisposal of the bail application.\n<\/p>\n
At this juncture, it would be appropriate to take note of a
\ndecision of this Court in Omar Usman Chamadia v. Abdul and
\nAnr. (JT<\/a> 2004 (2) SC 176). In para 10, it was observed as
\nfollows:\n<\/p>\n
“However, before concluding, we must advert
\nto another aspect of this case which has
\ncaused some concern to us. In the recent past,
\nwe had several occasions to notice that the
\nHigh Courts by recording the concessions
\nshown by the counsel in the criminal
\nproceedings refrain from assigning any reason
\neven in orders by which it reverses the orders
\nof the lower courts. In our opinion, this is not
\nproper if such orders are appealable, be it on
\nthe ground of concession shown by learned
\ncounsel appearing for the parties or on the
\nground that assigning of elaborate reasons
\nmight prejudice the future trial before the
\nlower courts. The High Court should not,
\nunless for very good reasons desist from
\nindicating the grounds on which their orders
\nare based because when the matters are
\nbrought up in appeal, the court of appeal has
\nevery reason  to know the basis on which the
\nimpugned order has been made. It may be that
\nwhile concurring with the lower court’s order,
\nit may not be necessary for the said appellate
\ncourt to assign reasons but that is not so while
\nreversing such orders of the lower courts. It
\nmay be convenient for the said court to pass
\norders without indicating the grounds or basis
\nbut it certainly is not convenient for the court
\nof appeal while considering the correctness of
\nsuch impugned orders. The reasons need not
\nbe very detailed or elaborate, lest it may cause
\nprejudice to the case of the parties, but must
\nbe sufficiently indicative of the process of
\nreasoning leading to the passing of the
\nimpugned order. The need for delivering a
\nreasoned order is a requirement of law which
\nhas to be complied with in all appealable
\norders. This Court in a somewhat similar
\nsituation has deprecated the practice of non-
\nspeaking orders in the case of State of Punjab
\nand Ors. v. Jagdev Singh Talwandi  (AIR<\/a> 1984
\nSC 444)”.\n<\/p>\n
\tThese aspects were recently highlighted in V.D.
\nChaudhary v. State of Uttar Pradesh and Anr. (2005 (7) SCALE\n<\/p>\n
68).\n<\/p>\n
Even on a cursory perusal the High Court’s order shows
\ncomplete non-application of mind. Though detailed
\nexamination of the evidence and elaborate documentation of
\nthe merits of the case is to be avoided by the Court while
\npassing orders on bail applications, yet a court dealing with
\nthe bail application should be satisfied as to whether there is a
\nprima facie case, but exhaustive exploration of the merits of
\nthe case is not necessary.  The court dealing with the
\napplication for bail is required to exercise its discretion in a
\njudicious manner and not as a matter of course.\n<\/p>\n
There is a need to indicate in the order, reasons for prima
\nfacie concluding why bail was being granted particularly where
\nan accused was charged of having committed a serious
\noffence.  It is necessary for the courts dealing with application
\nfor bail to consider among other circumstances, the following
\nfactors also before granting bail, they are:\n<\/p>\n
1.\tThe nature of accusation and the severity
\nof punishment in case of conviction and the
\nnature of supporting evidence;\n<\/p>\n
2.\tReasonable apprehension of tampering of
\nthe witness or apprehension of threat to the
\ncomplainant;\n<\/p>\n
3.\tPrima facie satisfaction of the Court in
\nsupport of the charge.\n<\/p>\n
Any order dehors of such reasons suffers from non-
\napplication of mind as was noted by this Court, in Ram
\nGovind Upadhyay  v. Sudarshan Singh and Ors.<\/a>  [(2002) 3
\nSCC 598], Puran etc. v. Rambilas and Anr. etc. [(2001) 6 SCC\n<\/p>\n
338)] and in Kalyan Chandra Sarkar  v.  Rajesh Ranjan<\/a> alias
\nPappu Yadav & Anr. [JT 2004 (3) SC 442].\n<\/p>\n
The above position was highlighted by this Court in
\nChaman Lal v. State of U.P. and Anr. (JT<\/a> 2004 (6) SC 540), and
\nin Kamaljit Singh v. State of Punjab and Anr.<\/a> (2005 (7) SCC\n<\/p>\n
326).\n<\/p>\n
In the case of Sunil the order is still more queer. Bail was
\ngranted to him as he was the brother-in-law and has been in
\ncustody for quite some time.\n<\/p>\n
The least that the High Court could have done is to refer
\nto the earlier orders and, in fact, as to how the scenario had
\nchanged to warrant a departure from the earlier view
\nexpressed.  That apparently has not been done.  In case of
\nSunil, learned Additional Sessions Judge, had observed as to
\nhow the non-genuine documents were pressed into service
\nwhile applying for bail.  That aspect has not been even noted
\nby the High Court.\n<\/p>\n
Nothing more is needed at this stage to set aside the
\nimpugned order of the High Court.\n<\/p>\n
What is more baffling is that in the impugned orders
\nthere is no mention about the States’ stand.  Was it a silent
\nspectator before the High Court?  Similar callousness was
\ndeprecated by this Court in Salim Khan v. Sanjai Singh and
\nAnr.<\/a> (2002 (9) SCC 670).\n<\/p>\n
While allowing these appeals we direct reconsideration of
\nthe applications for bail by the High Court in accordance with
\nlaw keeping in view the principles set out above.\n<\/p>\n
Before parting the appeals we would take note of the
\ndirection by the High Court that its order is not to be treated
\nas a precedent. In fairly well settled that orders of bail are not
\nnecessarily orders of any precedent value.  Apart from that the
\ncorrecting of orders stating that they shall not be treated as a
\nprecedent has been dealt by this Court.\n<\/p>\n
In State of Punjab and Anr. v. Rajesh Syal  [2002 (8) SCC
\n158] it was observed as follows:\n<\/p>\n
“Before concluding, we would like to
\nobserve, with respect, that by directing that
\nthe order which was passed in V.K. Sharma
\ncase [(2000) 9 SCC 449] should not be treated
\nas a precedent implies that the said order is
\notherwise not in accordance with law and
\ntherefore should not be regarded as a
\nprecedent.  This Court has ample jurisdiction
\nto pass orders under Article 142(1) of the
\nConstitution which may be necessary for
\ndoing complete justice in any case or matter.
\nBut even in exercising this power, it is more
\nthan doubtful that an order can be passed
\ncontrary to law.  In V.K. Sharma case this
\nCourt did not purport to exercise any
\njurisdiction under Article 142.  The decision
\nto direct the applicant to file applications to
\nbe moved for consolidation of the cases
\npending in different courts for different
\noffences to be tried in a single court was not
\nin accordance with law, and the said decision
\nin V.K. Sharma and that of P.K. Sharma (WP
\n(Crl.) Nos. 72-75 of 2000, dated 5.5.2000 (SC)
\nare overruled.”\n<\/p>\n
The appeals are accordingly allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Gajanand Agarwal vs State Of Orissa & Ors on 18 September, 2006 Author: A Pasayat Bench: Arijit Pasayat, Lokeshwar Singh Panta CASE NO.: Appeal (crl.) 972 of 2006 PETITIONER: Gajanand Agarwal RESPONDENT: State of Orissa & Ors DATE OF JUDGMENT: 18\/09\/2006 BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA JUDGMENT: J U […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-193892","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGajanand Agarwal vs State Of Orissa & Ors on 18 September, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gajanand-agarwal-vs-state-of-orissa-ors-on-18-september-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gajanand Agarwal vs State Of Orissa & Ors on 18 September, 2006 - 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