Judge, we find that he has been swayed by the factum that
when a charge-sheet is filed it amounts to change of
circumstance. Needless to say, filing of the charge-sheet does
not in any manner lessen the allegations made by the
prosecution. On the contrary, filing of the charge-sheet
establishes that after due investigation the investigating agency,
having found materials, has placed the charge-sheet for trial of
the accused persons. As is further demonstrable, the learned
trial Judge has remained absolutely oblivious of the fact that the
appellants had moved the special leave petition before this
Court for grant of bail and the same was not entertained. Be it
noted, the second bail application was filed before the Principal
Sessions Judge after filing of the charge-sheet which was
challenged in the High Court and that had travelled to this
Court. These facts, unfortunately, have not been taken note of
by the learned trial Judge. He has been swayed by the
observations made in Siddharam Satlingappa Mhetre (supra),
especially in paragraph 86, the relevant part of which reads
thus:-
“The courts considering the bail application should
try to maintain fine balance between the societal
interest vis-a-vis personal liberty while adhering to
the fundamental principle of criminal
jurisprudence that the accused is presumed to be
innocent till he is found guilty by the competent
court.”
14. The proposition expounded above, has to be accepted,
but that has to be applied appositely to the facts of each case. A
bail application cannot be allowed solely or exclusively on the
ground that the fundamental principle of criminal jurisprudence
is that the accused is presumed to be innocent till he is found
guilty by the competent court.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 601 OF 2017
VIRUPAKSHAPPA GOUDA
V
THE STATE OF KARNATAKA
Dated:March 28, 2017.
Citation: AIR 2017 SC 1685
2. The appellants, who have been arraigned as accused in
sessions case being S.C. No.90 of 2015 arising out of Crime
No.118 of 2015, registered at Raichur Rural Police Station for
the offences punishable under Sections 143, 147, 148, 323,
302, 504, 114 read with Section 149 of the Indian Penal Code
(IPC) after being taken into custody, in the course of
investigation being aspirant for obtaining liberty, preferred an
application under Section 439 of the Code of Criminal Procedure
(Cr.P.C.), that is, Criminal Misc. No. 457 of 2015 in the court of
Principal Sessions Judge at Raichur, which stood dismissed.
3. Being grieved by the aforesaid order of rejection for
grant of bail, the accused-appellants moved the High Court of
Karnataka at Kalaburagi Bench in Criminal Petition No. 200629
of 2015. The High Court adverted to the deadly weapons that
were carried by the accused persons, the nature of injuries
sustained on the vital parts by the deceased and the allegation
of specific overt acts, and rejected the application.
4. Thereafter, a second application for grant of bail was
moved by the appellants before the Principal Sessions Judge at
Raichur, that is, Criminal Misc. No. 791 of 2015. It was
contended before the learned trial Judge that as, in the
meantime, the investigation had been completed and the
charge-sheet had been filed, there had been a change ofPage 3
3
circumstance and hence, they were entitled to be admitted to
bail. That apart, certain grounds pertaining to ailment of some
of the accused persons were highlighted. The learned trial
Judge, as is evident, referred to the allegations made in the
F.I.R., the materials that had come on record during the
investigation and the postmortem report and considering all
other relevant aspects, declined to enlarge the appellants on
bail. It is worthy to note here that though a ground of parity
was urged on the base that the accused Nos. 4 to 7 had been
released on anticipatory bail, the same did not impress the court
and accordingly the inevitable result, the dismissal, followed.
5. The aforesaid order of dismissal constrained the
appellants to move the High Court in Criminal Petition No.
200944 of 2015. The High Court vide its order dated 23rd
September, 2015, after referring to the nature of alleged assault
by the accused persons, the type of injury sustained by the
deceased and considering the pertinent facts did not accede to
the prayer for grant of bail.
6. Being grieved by the aforesaid order, the appellants
preferred Special Leave Petition (Criminal) No. 9858 of 2015,
which was dismissed vide order dated 27th November, 2015.
7. The aforesaid narration of facts would give one the
impression that the attempt of the appellants to be enlarged on
bail was over unless some extraordinary circumstance could
usher in which could be considered as change of circumstance,
but as the chronology of events would show the indefatigable
spirit of the appellants forced them to remain embedded in their
stance for putting any stand as a change of circumstance for the
purpose of grant of bail. We do not intend to mean even for a
moment that the accused cannot move successive application
for grant of bail. That is his right in law. Our emphasis is on
the delineation by the Court. The said right invigorated with
adroit efforts, resulted in filing of an application in S.C. No. 90
of 2015. As is evident from the record, the earlier bail
applications were rejected by the Principal Sessions Judge,
Raichur, but the third application was taken up by the learned
Additional Sessions Judge, Raichur. As the order would reveal,
the learned trial Judge has thought it apposite to deal with the
application as if he was dealing with the first application and
copiously referred to the materials brought on record, referred to
pronouncements in Sanjay Chandra vs. Central Bureau of
Investigation1 and Siddharam Satlingappa Mhetre vs. State
of Maharashtra and others2 and commented on the delay in
trial and, eventually, released the appellants on bail on certain
conditions.
8. The enlargement of bail to the accused persons, as it
seems, did not affect the prosecution. The State of Karnataka
chose to maintain silence and did not think it appropriate to
assail the order.
9. The informant, who has crossed six scores and five,
lost his son in an unfortunate and brutal circumstance, moved
the High Court in Criminal Petition No. 200768 of 2016 under
Section 439(2) Cr.P.C. seeking cancellation of bail. The High
Court while dealing with the application, adverted to the
allegations in the F.I.R. The nature of allegations, being
significant, deserves to be adverted by us. It is alleged in the
F.I.R. that the accused-appellant No.1, had a daughter named
1(2012) 1 SCC 40
2(2011) 1 SCC 694
Basavarajeshwari who fell in love with the deceased Anand
Sagar, the son of the informant, who belongs to “Uppar”
community and the accused belongs to “Lingayat” community.
The deceased, Anand Sagar, had eloped with the daughter of the
accused No.1 in the year 2014 and at that juncture, an F.I.R.
was registered filed by the accused to that effect. As the
narration would further unroll, the couple left the village,
entered into wedlock and thereafter started residing at
Bengaluru and later on at Bellary. On 17th May, 2015, the
deceased, Anand Sagar, had come to his native place Yeramarus
and had gone to Raichur on the motorbike of his father. When
he returned to Yeramarus at 9.30 p.m. and reached near the
bus stop, the accused persons assaulted him with weapons and
he breathed his last on the spot. After noting the facts and the
injuries sustained by the deceased, the High Court also adverted
to the attempts made by the accused persons to obtain liberty
despite the same having been declined by this Court. It also
came to hold that the spark of life of the deceased had been
extinguished because he had dared to fall in love and get
married to the daughter of the accused No.1, and ultimately
opined that delineation by the learned trial Judge with regard to
grant of order of bail, was absolutely perverse and, founded on
irrelevant aspects. In view of the aforesaid premises, it allowed
the application for cancellation of bail and set aside the order
passed by the learned Additional Sessions Judge, admitting the
appellants to bail.
10. We have heard Mr. Basava Prabhu S. Patil, learned
senior counsel along with Mr. Anirudh Sanganeria, learned
counsel for the appellants and Mr. V.N. Raghupathy, learned
counsel for the respondent-State. Despite service of notice, no
one has entered appearance on behalf of the informant.
11. It is submitted by Mr. Patil, learned senior counsel for
the appellants that the High Court has erred in cancelling the
order of bail as the appellants, after being enlarged on bail, had
neither abused the freedom nor have they violated the terms
and conditions of the bail order. It is urged by him that there is
no allegation of tampering with the evidence or influencing any
witnesses and therefore, there was no justification for
cancellation of the order of granting bail. Learned senior
counsel would further contend that the analysis made by the
learned trial Judge for the purpose of grant of bail cannot be
regarded as perverse and he has correctly relied upon the
pronouncements as is noticeable from his order. It is put forth
by Mr. Patil that at such distance of time not to admit the
appellants on bail and give the stamp of approval to the order
cancelling the bail by the High Court, would not sub-serve the
cause of justice.
12. Mr. Raghupathy, learned counsel appearing for the
State, per contra, would submit that the learned trial Judge
should not have entertained the prayer for bail after this Court
has special leave petition for the same relief. It is his
submission that the High Court has correctly opined that there
is perversity in the approach by the learned trial Judge while
dealing with the application under Section 439 Cr.P.C. and
hence, it deserved to be set aside.
13. On a perusal of the order passed by the learned trial
Judge, we find that he has been swayed by the factum that
when a charge-sheet is filed it amounts to change of
circumstance. Needless to say, filing of the charge-sheet does
not in any manner lessen the allegations made by the
prosecution. On the contrary, filing of the charge-sheet
establishes that after due investigation the investigating agency,
having found materials, has placed the charge-sheet for trial of
the accused persons. As is further demonstrable, the learned
trial Judge has remained absolutely oblivious of the fact that the
appellants had moved the special leave petition before this
Court for grant of bail and the same was not entertained. Be it
noted, the second bail application was filed before the Principal
Sessions Judge after filing of the charge-sheet which was
challenged in the High Court and that had travelled to this
Court. These facts, unfortunately, have not been taken note of
by the learned trial Judge. He has been swayed by the
observations made in Siddharam Satlingappa Mhetre (supra),
especially in paragraph 86, the relevant part of which reads
thus:-
“The courts considering the bail application should
try to maintain fine balance between the societal
interest vis-a-vis personal liberty while adhering to
the fundamental principle of criminal
jurisprudence that the accused is presumed to be
innocent till he is found guilty by the competent
court.”
14. The proposition expounded above, has to be accepted,
but that has to be applied appositely to the facts of each case. A
bail application cannot be allowed solely or exclusively on the
ground that the fundamental principle of criminal jurisprudence
is that the accused is presumed to be innocent till he is found
guilty by the competent court. The learned trial Judge has also
referred to the decision in Sanjay Chandra (supra), wherein a
two-Judge Bench while dealing with bail applications, observed
thus:-
“21. In bail applications, generally, it has been
laid down from the earliest times that the object of
bail is to secure the appearance of the accused
person at his trial by reasonable amount of bail.
The object of bail is neither punitive nor
preventative. Deprivation of liberty must be
considered a punishment, unless it can be required
to ensure that an accused person will stand his
trial when called upon. The courts owe more than
verbal respect to the principle that punishment
begins after conviction, and that every man is
deemed to be innocent until duly tried and duly
found guilty.
22. From the earliest times, it was appreciated
that detention in custody pending completion of
trial could be a cause of great hardship. From time
to time, necessity demands that some un-convicted
persons should be held in custody pending trial to
secure their attendance at the trial but in such
cases, ‘necessity’ is the operative test. In this
country, it would be quite contrary to the concept
of personal liberty enshrined in the Constitution
that any person should be punished in respect of
any matter, upon which, he has not been convicted
or that in any circumstances, he should be
deprived of his liberty upon only the belief that he
will tamper with the witnesses if left at liberty, save
in the most extraordinary circumstances.
23. Apart from the question of prevention being
the object of a refusal of bail, one must not lose
sight of the fact that any imprisonment before
conviction has a substantial punitive content and it
would be improper for any Court to refuse bail as a
mark of disapproval of former conduct whether the
accused has been convicted for it or not or to
refuse bail to an unconvicted person for the
purpose of giving him a taste of imprisonment as a
lesson.”
15. Be it noted, though the aforesaid passages have their
relevance but the same cannot be made applicable in each and
every case for grant of bail. In the said case, the
accused-appellant was facing trial for the offences under
Sections 420-B, 468, 471 and 109 of the IPC and Section 13(2)
read with Section 13(1)(d) of the Prevention of Corruption Act,
1988. Thus, the factual matrix was quite different. That apart, it
depends upon the nature of the crime and the manner in which
it is committed. A bail application is not to be entertained on the
basis of certain observations made in a different context. There
has to be application of mind and appreciation of the factual
score and understanding of the pronouncements in the field.
16. The court has to keep in mind what has been stated in
Chaman Lal vs. State of U.P. and another3
. The requisite
factors are: (i) the nature of accusation and the severity of
punishment in case of conviction and the nature of supporting
evidence; (ii) reasonable apprehension of tampering with the
witness or apprehension of threat to the complainant; and (iii)
prima facie satisfaction of the court in support of the charge. In
Prasanta Kumar Sarkar vs. Ashis Chatterjee and another4
,
it has been opined that while exercising the power for grant of
bail, the court has to keep in mind certain circumstances and
factors. We may usefully reproduce the said passage:-
“9....among other circumstances, the factors which
are to be borne in mind while considering an
application for bail are:
(i) whether there is any prima facie or
reasonable ground to be believed that the
accused had committed the offence.
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
3 (2004) 7 SCC 525
4 (2010) 14 SCC 496
(iv) danger of the accused absconding or
fleeing, if released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses
being influenced; and
(viii) danger, of course, of justice being thwarted
by grant of bail.”
17. In Central Bureau of Investigation vs. V. Vijay Sai
Reddy5
, the Court had reiterated the principle by observing
thus:-
“While granting bail, the court has to keep in
mind the nature of accusation, the nature of
evidence in support thereof, the severity of the
punishment which conviction will entail, the
character of the accused, circumstances which are
peculiar to the accused, reasonable possibility of
securing the presence of the accused at the trial,
reasonable apprehension of the witnesses being
tampered with, the larger interests of the
public/State and other similar considerations. It
has also to be kept in mind that for the purpose of
granting bail, the legislature has used the words
reasonable grounds for believing instead of the
evidence which means the court dealing with the
grant of bail can only satisfy itself as to whether
there is a genuine case against the accused and
that the prosecution will be able to produce prima
5 (2013) 7 SCC 452Page 14
14
facie evidence in support of the charge. It is not
expected, at this stage, to have the evidence
establishing the guilt of the accused beyond
reasonable doubt.”
18. From the aforesaid principles, it is quite clear that an
order of bail cannot be granted in an arbitrary or fanciful
manner. In this context, we may, with profit, reproduce a
passage from Neeru Yadav vs. State of Uttar Pradesh and
another6
, wherein the Court setting aside an order granting bail
observed:-
“The issue that is presented before us is whether
this Court can annul the order passed by the High
Court and curtail the liberty of the 2nd respondent.
We are not oblivious of the fact that the liberty is a
priceless treasure for a human being. It is founded
on the bed rock of constitutional right and
accentuated further on human rights principle. It
is basically a natural right. In fact, some regard it
as the grammar of life. No one would like to lose
his liberty or barter it for all the wealth of the
world. People from centuries have fought for
liberty, for absence of liberty causes sense of
emptiness. The sanctity of liberty is the fulcrum of
any civilized society. It is a cardinal value on which
the civilisation rests. It cannot be allowed to be
paralysed and immobilized. Deprivation of liberty of
a person has enormous impact on his mind as well
as body. A democratic body polity which is wedded
to rule of law, anxiously guards liberty. But, a
pregnant and significant one, the liberty of an
individual is not absolute. The society by its
6 (2014) 16 SCC 508
collective wisdom through process of law can
withdraw the liberty that it has sanctioned to an
individual when an individual becomes a danger to
the collective and to the societal order. Accent on
individual liberty cannot be pyramided to that
extent which would bring chaos and anarchy to a
society. A society expects responsibility and
accountability from the member, and it desires that
the citizens should obey the law, respecting it as a
cherished social norm. No individual can make an
attempt to create a concavity in the stem of social
stream. It is impermissible. Therefore, when an
individual behaves in a disharmonious manner
ushering in disorderly things which the society
disapproves, the legal consequences are bound to
follow. At that stage, the Court has a duty. It
cannot abandon its sacrosanct obligation and pass
an order at its own whim or caprice. It has to be
guided by the established parameters of law.”
19. In this context what has been stated by a three-Judge
bench in Dinesh M.N. (S.P.) v. State of Gujarat7
is quite
instructive. In the said case, the Court has held that where the
Court admits the accused to bail by taking into consideration
irrelevant materials and keeping out of consideration the
relevant materials the order becomes vulnerable and such
vulnerability warrants annulment of the order.
20. In the instant case, as is demonstrable, the learned
trial Judge has not been guided by the established parameters
7 (2008) 5 SCC 66
for grant of bail. He has not kept himself alive to the fact that
twice the bail applications had been rejected and the matter had
travelled to this Court. Once this Court has declined to enlarge
the appellants on bail, endevours to project same factual score
should not have been allowed. It is absolute impropriety and
that impropriety call for axing of the order.
21. That apart, as we find from the narration of allegations
from the order of the High Court, it is not a case where the trial
court could have entertained a bail application by elaborate
dissection of facts and appreciation of statements recorded
under Section 161 Cr.P.C. The gravity of the crime should have
been taken note of by the learned trial Judge. The deceased and
his wife (the daughter of the accused-appellant No.1) were
staying in peace away from the acrimonious community, but
due to some kind of “misconceived class honour”, the vengeance
reigned and awe for law went on a holiday. They thought that
their perception mattered and as alleged, they put an end to the
life spark of the young man. The choice of the daughter was
allowed no space. Her identity was crushed and her thinking
was crucified by parental dominance which has roots in an
unfathomable sense of community honour. Though the lovers
became fugitive, the anger founded on anachronistic values
prompted the accused persons to annihilate the life of a young
man. In such a situation, the factors that have been highlighted
by this Court from time to time were required to be adverted to
and the accused persons should not have been granted liberty
on the grounds that have been thought appropriate by the
learned trial Judge. The perversity of approach by the learned
Additional Sessions Judge, who has enlarged the appellants on
bail, is totally unacceptable. It is reflective of sanctuary of
errors. In such a situation, we are obligated to say that the
High Court has performed its legal duty by lancinating the order
passed by the learned trial Judge.
22. Consequently, the appeal, being sans merit, stands
dismissed. As we have dismissed the appeal, the appellants
shall surrender to custody forthwith and it will be the duty of
the trial Judge to see that they are taken into custody. Needless
to say, whatever we have stated in the present judgment, is only
confined to the defensibility of the order passed by the High
Court cancelling the bail granted by the learned Additional
Sessions Judge and shall not weigh in the mind of the learned
trial Judge for the purpose of the trial as that shall depend upon
evidence to be adduced during the trial.
..............................J.
(Dipak Misra)
...............................J.
(A.M. Khanwilkar)
New Delhi
March 28, 2017.
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