Important point Order granting bail in exercise of power under Section 389 Cr.P.C. by High Court during pendency of appeal in a murder conviction without considering gravity of crime, apprehension of tampering with evidence and threats to life of complainant would not be a judicious exercise of discretion and would be unsustainable.

Headnote:Criminal Procedure Code, 1973—Section 389—Grant of bail by High Court during pendency of appeal—Appeal by complainant for cancellation of bail order—Respondent/accused armed with guns and country made pistol surrounded complainant and his brothers and fired shot wherein two brothers of complainant, an Advocate and a Lecturer were dead and complainant sustained injuries—PW1 complainant, PWs 2, 4 and 5 were examined eye witnesses and accused were convicted under Sections 148, 302/34, 307/34 IPC and Section 27 Arms Act—High Court admitting appeal allowed bail to convict appellants by non-speaking order—Appeal—Impugned order showed total non application of mind to the gravity of crime, apprehension of tampering with evidence and threats to life of complainant and witnesses at the hands of accused—It was incumbent upon High Court to give proper weight to the serious apprehension of complainant which was urged in resisting the bail—Discretion exercised by the High Court in granting bail was liable to be cancelled.
Held : A reading of the above non-speaking order would only show the total non-application of mind by the Court to the gravity of the crime, the apprehension of tampering with the evidence and threats to the life of the complainant and other witnesses given by the accused. The High Court passed the impugned order in a mechanical fashion without proper application of mind and without going into the merits and evidence on record against the accused persons. The High Court failed to see and appreciate that the respondents herein who are the main accused Nos. 1 to 3 are the master minds behind the crime committed. The High Court has not considered the material evidence available on record against the accused which prima facie establish the criminal liability of the respondents. The High Court also failed to see that the learned Sessions Judge, after taking into consideration, the seriousness and the gravity of the crime convicted the accused for the crime. This apart, three other vital factors have also been not taken note of by the High Court. They are the evidence of PW-1, 2, 4 and 5 who are the eye witnesses and whose testimony was amply corroborated with each other. Secondly, the identity of the accused persons during the cross examination was also established. Thirdly, the direct evidence of the eye witnesses was corroborated by the medical evidence and the motive of the crime was also established. The trial Court has held that there is satisfactory evidence that Digambar Mishra instigated to commit the murder and at that point of time and in pursuance of that common intention of the accused they fired at the two accused. The High Court also has not taken into account the several complaints and information reports before the trial and to the Police Authorities stating that the accused have killed his two sons out of six, the three accused were arrested and remanded to jail and other accused are absconding and evading their attest and that one of the accused Digambar Mishra who is on bail has confirmed the group of criminals and comes to the house of the appellant and gives threatening to the eye witnesses of the said order in order to pressurize them not to pursue the criminal case against them and that whenever these accused persons visit the house of the appellant, they are always armed with their guns. (Para 11)
Looking into the gravity of the crime, apprehension of tampering with the evidence and threats to the life of the Complainant and other witnesses given by the accused, we are of the opinion that the High Court did not take into proper account the grave apprehension of the prosecution that there was a likelihood of the accused persons tampering with the prosecution witnesses. In the peculiar nature of the case revealed from the allegations and the position of the accused in relation to the eye witnesses it was incumbent upon the High Court to give proper weight to the serious apprehension of the complainant which was urged before him in resisting the application for bail. The High Court, in our opinion, had failed to properly appreciate the entire position. Therefore, this Court will be justified under Article 136 of the Constitution of India in interfering with the discretion exercised by the High Court in granting the bail of the accused persons. (Para 18)

Judgment

Dr. AR. Lakshmanan, J.—Leave granted in both the Special Leave Petitions.

2. Two Special Leave Petitions being Nos. 3315 and 3316 of 2004 were filed against the impugned non-speaking orders passed by the High Court of Patna in Criminal Appeal Nos. 50 of 2004 and 62 of 2004 granting the bail to accused Nos. 1 to 3 without considering the criminal history of the accused, the evidence available against them, the threats to the life of the complainant/appellant and his family members and likelihood to abscond from the criminal courts of justice and rendering the fair trial impossible. There are six accused in this case. They are :

1. Mahendra Mishra (no bail granted);

2 & 3. Rajendra Mishra and Jitendra Mishra (bail granted);

4. Digambar Mishra (bail granted);

5 & 6. Nagendra Mishra & Gopal Mishra (absconding/not on trial).

3. All the above accused persons have been charged for being members of an unlawful assembly and committing murder of Sunil Kumar Mishra and Chandra Shekhar Mishra and attempt to commit murder of Manoj Kumar Mishra, Anil Kumar Mishra and Panchanan Mishra. The accused were armed with the guns and they surrounded the brothers and the complainant/appellant. Digambar Mishra fired from his licensed gun at Sunil Kumar Mishra who fell down. Mahendra Mishra fired at Chandra Shekhar Mishra who also fell down. Gopal Mishra fired three shots from his country made pistol on the complainant/appellant and the complainant managed to run towards his house raising an alarm. The complainant brought the two injured sons on a thela to Sardar Hospital, Munger but they died before any medical help could be given to them and they were declared dead. One of the deceased was an advocate, another was lecturer and one was appointed auditor.

4. The motive of the murder was on account of the occurrence which took place that the complainant/appellant had sold a land to Ramachandra Yadav and the accused persons felt annoyed at it and tried to grab those lands on the strength of their muscle power and there is also a litigation pending between the parties. Anil Mishra was also injured.

5. The accused Digambar Mishra, Rajendra Mishra, Jitendra Mishra and Mahendra Mishra were sent for trial and two accused, namely, Gopal Mishra and Nagendra Mishra were shown as absconded and did not turn up during the whole trial. The proceedings in respect of accused Nagendra Mishra and Gopal Mishra were separated vide order dated 20.11.2002 and the case of the rest of the accused was committed to the court of Sessions.

6. The prosecution examined four eye witnesses PW-1, PW-2, PW-4 and PW-5, who is an independent witness and whose house is adjacent to the house of the complainant. During the trial, it was established that PW-1, 2, 4 and 5 are the natural and probable witnesses and their testimony was amply corroborated with each other. The identity of the accused persons during the cross examination was also established. There is no dispute with reference to the place of occurrence, the time of occurrence and the manner of occurrence. The direct evidence of the eye witnesses was corroborated by the medical evidence and the motive of the crime was also established. The presence of the eye witnesses was also established at the time of occurrence. It was also proved that there was a Satya Narayan Puja at the house of the complainant before the occurrence.

7. The trial Court, on the basis of the evidence available, came to the conclusion that there is satisfactory evidence that Digambar Mishra instigated to commit the murder and at that point of time the common intention was developed and in pursuance of that common intention of the accused they fired at two deceased. They had also common intention to murder other persons available there and they fired on the complainant PW-2 and PW-1.

8. The trial Court convicted and sentenced the accused Mahendra Mishra, Rajendra Mishra and Jitendra Mishra for the offence under Sections 148, 302 read with 34, 307 read with 34 IPC

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2005 Supreme(SC) 85

Cases Referred (4)