Mr. Bhushan has relied upon a decision of this Court in
Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav and
Another, (2004) 7 SCC 528, wherein it was held in para 11 as
follows:
“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 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.”
11) This Court in Rajesh Ranjan Yadav @ Pappu Yadav vs.
CBI through its Director (2007) 1 SCC 70 balanced the
fundamental right to individual liberty with the interest of
the society in the following terms in paragraph 16 thereof:
“We are of the opinion that while it is true that
Article 21 is of great importance because it
enshrines the fundamental right to individual
liberty, but at the same time a balance has to be
struck between the right to individual liberty and
the interest of society. No right can be
absolute, and reasonable restrictions can be
placed on them. While it is true that one of the
considerations in deciding whether to grant bail
to an accused or not is whether he has been in
jail for a long time, the court has also to take
into consideration other facts and circumstances,
such as the interest of the society.” 7
12) In Ash Mohammad vs. Shiv Raj Singh @ Lalla Babu and
another (2012) 9 SCC 446, this Court in the same vein had
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.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 932 OF 2016
(Arising out SLP (Crl.) No. 7284 of 2016)
CHANDRAKESHWAR PRASAD @ CHANDU BABU
V
STATE OF BIHAR AND ANR.
Citation:(2016) 9 SCC443
2) Challenging the order passed by the High Court
granting bail to the respondent-accused (Md. Shahabuddin) in
connection with Siwan Town P.S. Case No. 220 of 2014, Siwan
under Sections 302/34, 120-B IPC on the ground that there is
no progress in the trial and further considering the period
of his detention, on execution of bail bonds of Rs.10,000/-
with two sureties of the like amount each to the satisfaction
of the learned Chief Judicial Magistrate, Siwan subject to
the other conditions as laid down by the High Court, the 2
complainant and the State of Bihar have preferred these
appeals, by way of special leave, inter alia, on several
pleas, amongst others, that the respondent-accused has an
infamous criminal history/antecedents of about 60 odd cases
pending against him at various stages of trial and appeal on
his conviction before the various courts in Bihar as well as
in the High Court.
3) We have heard Mr. Prashant Bhushan, learned Counsel
appearing for the Complainant, Mr. Dinesh Dwivedi, learned
senior counsel appearing for the State of Bihar and Mr.
Shekhar Naphade, learned senior counsel appearing for the
accused-respondent No.2.
4) Mr. Prashant Bhushan, learned counsel appearing for
the complainant contended that the High Court committed a
gross error in granting bail to the respondent-accused and
did not consider the contents of the F.I.R. as well as the
fact that he is a habitual offender, and that he has in the
meantime been awarded two sentences of life imprisonment and
also named in several criminal cases. The learned counsel
further urged that the respondent-accused is a category-A
history sheeter in view of his persistent criminal
antecedents and as in the case in hand, he has been charged
with the offence of facilitating murder of a witness in a
case in which he was being tried, he ought not to have been 3
granted bail in any view of the matter.
5) Mr. Dinesh Dwivedi, learned senior counsel appearing
for the State of Bihar, submitted that the Court must take
into account the antecedents of the accused before granting
bail in these type of cases and, in support of his
contention, referred to Section 437 of the Cr.P.C. He
further submitted a chart of several cases pending against
the respondent-accused where he has been convicted/charged,
amongst others, under various Sections i.e. 302, 307/34, 324,
353, 364, 147, 148, 149 of the IPC and Sections 25(14), 35 &
27 of the Arms Act.
6) Mr. Shekhar Napahde, learned senior counsel appearing
for the respondent-accused submitted that the High Court
granted bail on the ground that the trial could not be
completed within a period of nine months, as directed by the
High Court vide order dated 03.02.2016 while rejecting his
earlier prayer for bail in the same case. He further
submitted that as it would appear from the records, the
prosecution is deliberately delaying the trial so as to
protract his detention. He also pointed out that this design
of the State would be evident from the fact that he has been
transferred from Siwan Jail to Bhagalpur Central Jail,
without following the procedure prescribed by law.4
7) Mr. Naphade, learned senior counsel further contended
that in the earlier case in which the respondent-accused had
faced trial under Sections 302/364A/201 and 120B IPC and had
been convicted thereunder and against which appeal is
presently pending before the High Court, the police witnesses
had on oath stated that on the date of the incident, he was
in jail custody.
8) Mr. Naphade also urged that, having regard to the
categorical direction issued by the High Court in its order
dated 3.2.2016, while rejecting the prayer for bail of the
respondent-accused, to expedite the commitment of the case
and to complete the trial preferably within nine months
after the receipt of the records in the Sessions Court, the
order impugned is perfectly justified in the facts and
circumstances of the case, more particularly in view of the
indifference of the prosecution to this mandate and the
dilatory tactics adopted by the State in delaying the
conduct of the trial. Learned senior counsel has further
emphasised that though a host of cases has been registered
against the respondent-accused as on date, he has been
granted bail in all of them. He also added that prior to
the grant of his bail by the order impugned, he had been in
judicial custody for approximately eleven years in several
cases.
9) We have cautiously analysed the rival contentions and
the materials available on record. For obvious reasons, more
particularly having regard to the present stage of the case
in which the impugned order has been passed, we consider it
inexpedient to dwell on factual details. The crux of the
charge against the respondent-accused in the case in hand is
that he had entered into an conspiracy and in furtherance
thereof, had eliminated a witness in an earlier case against
him under Sections 302/364A/201 and 120B IPC, days before he
was to finally testify in support of the charge.
10) Although it has to be accepted that the respondentaccused
has already been granted bail by the concerned courts
in other cases, a duty is cast upon the Court in addressing
such a prayer in a case on its own merit, and while applying
its discretion, it must be applied in a judicious manner and
not as a matter of course. In support of this proposition,
Mr. Bhushan has relied upon a decision of this Court in
Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav and
Another, (2004) 7 SCC 528, wherein it was held in para 11 as
follows:
“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 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.”
11) This Court in Rajesh Ranjan Yadav @ Pappu Yadav vs.
CBI through its Director (2007) 1 SCC 70 balanced the
fundamental right to individual liberty with the interest of
the society in the following terms in paragraph 16 thereof:
“We are of the opinion that while it is true that
Article 21 is of great importance because it
enshrines the fundamental right to individual
liberty, but at the same time a balance has to be
struck between the right to individual liberty and
the interest of society. No right can be
absolute, and reasonable restrictions can be
placed on them. While it is true that one of the
considerations in deciding whether to grant bail
to an accused or not is whether he has been in
jail for a long time, the court has also to take
into consideration other facts and circumstances,
such as the interest of the society.” 7
12) In Ash Mohammad vs. Shiv Raj Singh @ Lalla Babu and
another (2012) 9 SCC 446, this Court in the same vein had
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.
13) In the instant case, having regard to the recorded
allegations against the respondent-accused and the overall
factual scenario, we are of the view, having regard in
particular to the present stage of the case in which the
impugned order has been passed, that the High Court was not
justified in granting bail on the considerations recorded.
Qua the assertion that the respondent-accused was in judicial
custody on the date on which the incident of murder in the
earlier case had occurred, the judgment and order of the
trial court convicting him has recorded the version of the
brother of the deceased therein, that he had seen the
respondent-accused participating in the offence. We
refrain from elaborating further on this aspect as the said
judgment and order of the trial court is presently sub judice
in an appeal before the High Court.
14) On a careful perusal of the records of the case and
considering all the aspects of the matter in question and
having regard to the proved charges in the concerned cases,
and the charges pending adjudication against the respondentaccused
and further balancing the considerations of
individual liberty and societal interest as well as the
prescriptions and the perception of law regarding bail, it
appears to us that the High Court has erred in granting bail
to the respondent-accused without taking into consideration
the overall facts otherwise having a bearing on the exercise
of its discretion on the issue.
15) Judged on the entire conspectus of the attendant facts
and circumstances and considering the stage of the present
case before the trial court where charge-sheet has already
been submitted, together with pending proceedings against the
respondent-accused as on date, and his recorded antecedents
in the various decisions of this Court, we are thus unable to
sustain the impugned order of the High Court granting bail to
him.
16) In view of the above, the order passed by the High
Court granting bail to the respondent-accused is set aside
and the State is directed to take all consequential steps, 9
inter alia, for taking him to custody forthwith.
17) The appeals are allowed in the afore-stated terms.
18) However, we make it clear that we have not expressed
any opinion on the merits of the case and direct the State
and the concerned Court to take all steps as contemplated in
law to dispose of the case, as early as possible.
.......................... J.
(PINAKI CHANDRA GHOSE)
.......................... J.
(AMITAVA ROY)
New Delhi;
September 30, 2016.
Print Page
Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav and
Another, (2004) 7 SCC 528, wherein it was held in para 11 as
follows:
“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 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.”
11) This Court in Rajesh Ranjan Yadav @ Pappu Yadav vs.
CBI through its Director (2007) 1 SCC 70 balanced the
fundamental right to individual liberty with the interest of
the society in the following terms in paragraph 16 thereof:
“We are of the opinion that while it is true that
Article 21 is of great importance because it
enshrines the fundamental right to individual
liberty, but at the same time a balance has to be
struck between the right to individual liberty and
the interest of society. No right can be
absolute, and reasonable restrictions can be
placed on them. While it is true that one of the
considerations in deciding whether to grant bail
to an accused or not is whether he has been in
jail for a long time, the court has also to take
into consideration other facts and circumstances,
such as the interest of the society.” 7
12) In Ash Mohammad vs. Shiv Raj Singh @ Lalla Babu and
another (2012) 9 SCC 446, this Court in the same vein had
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.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 932 OF 2016
(Arising out SLP (Crl.) No. 7284 of 2016)
CHANDRAKESHWAR PRASAD @ CHANDU BABU
V
STATE OF BIHAR AND ANR.
Citation:(2016) 9 SCC443
2) Challenging the order passed by the High Court
granting bail to the respondent-accused (Md. Shahabuddin) in
connection with Siwan Town P.S. Case No. 220 of 2014, Siwan
under Sections 302/34, 120-B IPC on the ground that there is
no progress in the trial and further considering the period
of his detention, on execution of bail bonds of Rs.10,000/-
with two sureties of the like amount each to the satisfaction
of the learned Chief Judicial Magistrate, Siwan subject to
the other conditions as laid down by the High Court, the 2
complainant and the State of Bihar have preferred these
appeals, by way of special leave, inter alia, on several
pleas, amongst others, that the respondent-accused has an
infamous criminal history/antecedents of about 60 odd cases
pending against him at various stages of trial and appeal on
his conviction before the various courts in Bihar as well as
in the High Court.
3) We have heard Mr. Prashant Bhushan, learned Counsel
appearing for the Complainant, Mr. Dinesh Dwivedi, learned
senior counsel appearing for the State of Bihar and Mr.
Shekhar Naphade, learned senior counsel appearing for the
accused-respondent No.2.
4) Mr. Prashant Bhushan, learned counsel appearing for
the complainant contended that the High Court committed a
gross error in granting bail to the respondent-accused and
did not consider the contents of the F.I.R. as well as the
fact that he is a habitual offender, and that he has in the
meantime been awarded two sentences of life imprisonment and
also named in several criminal cases. The learned counsel
further urged that the respondent-accused is a category-A
history sheeter in view of his persistent criminal
antecedents and as in the case in hand, he has been charged
with the offence of facilitating murder of a witness in a
case in which he was being tried, he ought not to have been 3
granted bail in any view of the matter.
5) Mr. Dinesh Dwivedi, learned senior counsel appearing
for the State of Bihar, submitted that the Court must take
into account the antecedents of the accused before granting
bail in these type of cases and, in support of his
contention, referred to Section 437 of the Cr.P.C. He
further submitted a chart of several cases pending against
the respondent-accused where he has been convicted/charged,
amongst others, under various Sections i.e. 302, 307/34, 324,
353, 364, 147, 148, 149 of the IPC and Sections 25(14), 35 &
27 of the Arms Act.
6) Mr. Shekhar Napahde, learned senior counsel appearing
for the respondent-accused submitted that the High Court
granted bail on the ground that the trial could not be
completed within a period of nine months, as directed by the
High Court vide order dated 03.02.2016 while rejecting his
earlier prayer for bail in the same case. He further
submitted that as it would appear from the records, the
prosecution is deliberately delaying the trial so as to
protract his detention. He also pointed out that this design
of the State would be evident from the fact that he has been
transferred from Siwan Jail to Bhagalpur Central Jail,
without following the procedure prescribed by law.4
7) Mr. Naphade, learned senior counsel further contended
that in the earlier case in which the respondent-accused had
faced trial under Sections 302/364A/201 and 120B IPC and had
been convicted thereunder and against which appeal is
presently pending before the High Court, the police witnesses
had on oath stated that on the date of the incident, he was
in jail custody.
8) Mr. Naphade also urged that, having regard to the
categorical direction issued by the High Court in its order
dated 3.2.2016, while rejecting the prayer for bail of the
respondent-accused, to expedite the commitment of the case
and to complete the trial preferably within nine months
after the receipt of the records in the Sessions Court, the
order impugned is perfectly justified in the facts and
circumstances of the case, more particularly in view of the
indifference of the prosecution to this mandate and the
dilatory tactics adopted by the State in delaying the
conduct of the trial. Learned senior counsel has further
emphasised that though a host of cases has been registered
against the respondent-accused as on date, he has been
granted bail in all of them. He also added that prior to
the grant of his bail by the order impugned, he had been in
judicial custody for approximately eleven years in several
cases.
9) We have cautiously analysed the rival contentions and
the materials available on record. For obvious reasons, more
particularly having regard to the present stage of the case
in which the impugned order has been passed, we consider it
inexpedient to dwell on factual details. The crux of the
charge against the respondent-accused in the case in hand is
that he had entered into an conspiracy and in furtherance
thereof, had eliminated a witness in an earlier case against
him under Sections 302/364A/201 and 120B IPC, days before he
was to finally testify in support of the charge.
10) Although it has to be accepted that the respondentaccused
has already been granted bail by the concerned courts
in other cases, a duty is cast upon the Court in addressing
such a prayer in a case on its own merit, and while applying
its discretion, it must be applied in a judicious manner and
not as a matter of course. In support of this proposition,
Mr. Bhushan has relied upon a decision of this Court in
Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav and
Another, (2004) 7 SCC 528, wherein it was held in para 11 as
follows:
“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 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.”
11) This Court in Rajesh Ranjan Yadav @ Pappu Yadav vs.
CBI through its Director (2007) 1 SCC 70 balanced the
fundamental right to individual liberty with the interest of
the society in the following terms in paragraph 16 thereof:
“We are of the opinion that while it is true that
Article 21 is of great importance because it
enshrines the fundamental right to individual
liberty, but at the same time a balance has to be
struck between the right to individual liberty and
the interest of society. No right can be
absolute, and reasonable restrictions can be
placed on them. While it is true that one of the
considerations in deciding whether to grant bail
to an accused or not is whether he has been in
jail for a long time, the court has also to take
into consideration other facts and circumstances,
such as the interest of the society.” 7
12) In Ash Mohammad vs. Shiv Raj Singh @ Lalla Babu and
another (2012) 9 SCC 446, this Court in the same vein had
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.
13) In the instant case, having regard to the recorded
allegations against the respondent-accused and the overall
factual scenario, we are of the view, having regard in
particular to the present stage of the case in which the
impugned order has been passed, that the High Court was not
justified in granting bail on the considerations recorded.
Qua the assertion that the respondent-accused was in judicial
custody on the date on which the incident of murder in the
earlier case had occurred, the judgment and order of the
trial court convicting him has recorded the version of the
brother of the deceased therein, that he had seen the
respondent-accused participating in the offence. We
refrain from elaborating further on this aspect as the said
judgment and order of the trial court is presently sub judice
in an appeal before the High Court.
14) On a careful perusal of the records of the case and
considering all the aspects of the matter in question and
having regard to the proved charges in the concerned cases,
and the charges pending adjudication against the respondentaccused
and further balancing the considerations of
individual liberty and societal interest as well as the
prescriptions and the perception of law regarding bail, it
appears to us that the High Court has erred in granting bail
to the respondent-accused without taking into consideration
the overall facts otherwise having a bearing on the exercise
of its discretion on the issue.
15) Judged on the entire conspectus of the attendant facts
and circumstances and considering the stage of the present
case before the trial court where charge-sheet has already
been submitted, together with pending proceedings against the
respondent-accused as on date, and his recorded antecedents
in the various decisions of this Court, we are thus unable to
sustain the impugned order of the High Court granting bail to
him.
16) In view of the above, the order passed by the High
Court granting bail to the respondent-accused is set aside
and the State is directed to take all consequential steps, 9
inter alia, for taking him to custody forthwith.
17) The appeals are allowed in the afore-stated terms.
18) However, we make it clear that we have not expressed
any opinion on the merits of the case and direct the State
and the concerned Court to take all steps as contemplated in
law to dispose of the case, as early as possible.
.......................... J.
(PINAKI CHANDRA GHOSE)
.......................... J.
(AMITAVA ROY)
New Delhi;
September 30, 2016.
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