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2014 DIGILAW 1385 (SC)

Singashan Singh v. State of Bihar

2014-12-15

A.K.SIKRI, H.L.DATTU, R.K.AGRAWAL

body2014
ORDER : 1. Leave granted. 2. This appeal is directed against the judgment and order passed by the High Court of Judicature at Patna in Criminal Miscellaneous No. 54444 of 2013, dated 20.03.2014, whereby and whereunder, the High Court has allowed the petition of accused persons and granted their request for anticipatory bail. 3. The facts in nutshell are: the First Information Report (for short "the FIR"), dated 29.07.2012, in P.S. Case No. 158 of 2012 was registered under Sections 302, 301 read with 34 of the Indian Penal Code (for short "the IPC") on the basis of the statement made by the complainant/appellant in respect of the death of his brother and uncle in an agricultural field near the railway tracks. The complainant had also stated that the two deceased persons were last seen at the said agricultural field on the previous night of 29.07.2012 at 10:30 P.M. and that the next morning at 5:00 A.M. their dead bodies were recovered from the railway tracks. The case was investigated into by the investigating agency and a final report was submitted concluding that the death of the two deceased persons was caused by a train accident, dated 31.08.2012. 4. Subsequently, the complainant had preferred a protest-cum-complaint, Complaint Case No. 260-C of 2013 alleging that the death of the two deceased persons was not by way of accident but caused by 14 persons, including 9 accused persons before the High Court, by means of lathi, bhala and firearms in and thereafter, throwing their dead bodies on the railway tracks in vengeance for an election dispute between the two parties. The Judicial Magistrate, First Class, Bhojpur at Ara took cognizance of the offences alleged in the said complaint against the 9 accused persons and issued summons against them, by order dated 30.07.2013. 5. Aggrieved by the said cognizance of offence by the learned Magistrate, the accused persons had preferred LCR and ABP No. 1294 of 2013 before the Sessions Court and sought for the grant of anticipatory bail. The Sessions Court had rejected the said application and directed the accused persons to appear before the learned Magistrate, by order dated 04.12.2013. 6. In light of the non compliance of the aforesaid order of the Sessions Court by the accused persons, learned Magistrate had issued warrants against the accused persons to secure their appearance, dated 20.03.2014. 7. The Sessions Court had rejected the said application and directed the accused persons to appear before the learned Magistrate, by order dated 04.12.2013. 6. In light of the non compliance of the aforesaid order of the Sessions Court by the accused persons, learned Magistrate had issued warrants against the accused persons to secure their appearance, dated 20.03.2014. 7. The accused persons, aggrieved by the aforesaid order, approached the High Court for grant of anticipatory bail. The High Court, by judgment and order dated 20.03.2014, has granted anticipatory bail to the nine accused persons under Section 438 of the Code of Criminal Procedure, 1973 (for short, "the Code"). 8. Aggrieved by the aforesaid judgment and order, the complainant/appellant is before us in this appeal, inter alia, questioning the grant of anticipatory bail by the High Court to the nine accused persons in Complaint Case No.260-C of 2013. 9. We have heard the learned counsel appearing for the parties to the lis and also perused the judgment(s) and order(s) passed by the Courts below. 10. The provisions of Section 438 of the Code lays down the comprehensive guidelines for consideration of the Court while granting or refusing anticipatory bail. The said provision reads as under: "438. Direction for grant of bail to person apprehending arrest. (1) Where any person has reason to believe that he may be arrested on [an] accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail" 11. The aforesaid provision mandates that it is on the Court considering an application for grant of anticipatory bail to ensure compliance with the prerequisite conditions enlisted therein for grant of such bail including the nature and gravity of the accusation. 12. In Pokar Ram v. State of Rajasthan and Ors., (1985) 2 SCC 597 , this Court considered the correctness of the order granting anticipatory bail. The accused therein was charged with the offence originally under Section 307 of the IPC, and on a later date, due to the death of the victim, a charge under Section 302 of the IPC was added. After duly considering the precedents regarding anticipatory bail, including the Constitution Bench decision of this Court in Gurbaksh Singh Sibbia and Ors. v. State of Punjab, 1980 Cri.L.J. 1125 (SC), the anticipatory bail was cancelled. This Court observed as under: "11. ...Let it be made distinctly clear that status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail. Anticipatory bail to some extent intrudes is the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature. ... 13. Before we conclude this judgment, it must be made distinctly clear that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that to when the investigation is in progress. In fact, the Investigating Officer did not even attempt to arrest the appellant though the initial accusation was under Section 307 IPC punishable with imprisonment for life. And as soon as the victim of the assault succumbed to his injuries and an offence under Section 302 was registered, promptly an application for anticipatory bail was made and granted. If such an order is allowed to stand, faith of public in administration of justice is likely to be considerably shaken. Therefore, we have no option but to cancel the order granting anticipatory bail." 13. In Jai Prakash Singh v. State of Bihar, (2012) 5 SCC 690 , this Court, on a perusal of Section 438 of the Code, took note of the pre-conditions to granting anticipatory bail and laid emphasis on the `nature and gravity of the accusation. "18. Therefore, we have no option but to cancel the order granting anticipatory bail." 13. In Jai Prakash Singh v. State of Bihar, (2012) 5 SCC 690 , this Court, on a perusal of Section 438 of the Code, took note of the pre-conditions to granting anticipatory bail and laid emphasis on the `nature and gravity of the accusation. "18. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See: D.K. Ganesh Babu v. P.T. Manokaran and Ors., (2007) 4 SCC 434 ; State of Maharashtra and Anr. v. Mohd. Sajid Husain Mohd. S. Husain and Ors., (2008) 1 SCC 213 ; and Union of India v. Padam Narain Aggarwal and Ors., (2008) 13 SCC 305 )." 14. In the case of Ranjit Singh v. State of Madhya Pradesh, 2013 (12) SCALE 190, the appellant therein was charged with the offences, inter alia, under Section 34 and Section 302 of the IPC. While discussing the power to grant bail by the Court, this Court stated that: " ...It is well settled in law that grant of bail though involves exercise of discretionary power of the court, yet the said exercise has to be made in a judicious manner and not as a matter of course." Furthermore, this Court, in the aforesaid case, took notice of Chaman Lal v. State of U.P., (2004) 7 SCC 525 ; Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 ; Ash Mohammad v. Shiv Raj Singh and Anr., (2012) 9 SCC 446 ; and Central Bureau of Investigation v. V. Vijay Sai Reddy, 2013 (7) SCALE 15 to show that, inter alia, the nature and gravity of the accusation is one of the primary factors to be borne in mind while considering any application for bail. 15. This Court has time and again held that neither anticipatory bail nor regular bail can be granted as a matter of rule. Sections 438 and 439 of the Code substantially embody the same principle so far as appreciation of the case as to whether or not a bail is to be granted. 15. This Court has time and again held that neither anticipatory bail nor regular bail can be granted as a matter of rule. Sections 438 and 439 of the Code substantially embody the same principle so far as appreciation of the case as to whether or not a bail is to be granted. The judicial discretion vested in the Court requires to be appropriately exercised with proper application of mind in determining whether a case is a fit case for grant of anticipatory bail or not. The 41st Report of the Law Commission of India recommended the introduction of a provision for grant of anticipatory bail has observed that "power to grant anticipatory bail should be exercised in very exceptional cases". It should only be exercised in exceptional cases when the court is satisfied that the person to be enlarged on anticipatory bail would not misuse his liberty 16. It is trite that in crimes of heinous nature, unless the Court is prima facie satisfied, based on the material available on record, that an exceptional case is made out by the accused person so as to conclude that he would not interfere with the process of law, the Court may consider granting anticipatory bail. 17. In the instant case, the offence alleged against the respondents-herein is heinous in nature punishable under Section 302 read with Section 34 of the IPC. The allegations trace the act of respondents to an election dispute between the deceased persons and the said respondents and have been supported by the testimonies of witnesses before the learned Magistrate. The learned Sessions Court, considering the aforesaid, had rejected the application of respondents herein for grant of anticipatory bail. 18. The High Court, however, without appreciating the nature of offence and gravity of the accusations against the respondents herein has enlarged the respondents on anticipatory bail. In the circumstances herein, the High Court ought not to have granted the anticipatory bail at the stage of cognizance of offence, especially when the veracity of the same had not been investigated into by the investigating agency. Further, the High Court should have considered the conduct of the respondents in failing to appear before the learned Magistrate despite the direction by Sessions Court to that effect. Further, the High Court should have considered the conduct of the respondents in failing to appear before the learned Magistrate despite the direction by Sessions Court to that effect. Such conduct of the respondents creates reasonable apprehension in the mind of Court in respect of the bona fides of respondents and indicates their non-cooperation in the process of law. The aforesaid circumstances being writ large from the facts on record, the High Court could have directed the investigating agency to investigate into the protest-cum-complaint filed by the complainant and also, the private respondents to seek for a regular bail before the competent Court. Since that has not been done in this case, we take exception to the order passed by the High Court. 19. In view of the above, we set aside the order passed by the High Court and permit the accused persons/respondents to approach the Sessions Court for grant of regular bail within two weeks' time from today. 20. If such an application(s) is/are filed within the time granted, the Court will consider the application(s) in accordance with law, without being influenced by the observations made by the High Court. 21. The Criminal Appeal is disposed of accordingly.