IMPORTANT POINT
Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary.

Headnote:Criminal Procedure Code, 1973—Section 439—Bail—Court dealing with bail application should be satisfied as to whether there was a prima facie case though exhaustive exploration of merits of the case was not necessary—Discretion must be exercised in judicious manner and not as a matter of course—Factors to be taken into consideration—High Court granted bail to respondent No. 2 facing trial on a murder charge only on ground that inspite of adjournments, sole eye witness did not appear—Reasoning was fallacious—Accused absented on date when witness was present and was stated to be in custody in some other case particulars of which, his counsel failed to disclose—Witness was pursuing studies abroad and had come to India for a limited period during vacation—High Court unnecessary emphasized on number of adjournments—Impugned order was liable to be set aside.
       Held : Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course.(Para 10)
       There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:
       1.The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
       2.Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
       3.Prima facie satisfaction of the Court in support of the charge.(Para 11)
       The High Court noted that the first application was rejected as the witnesses was apprehending danger to their lives and the trial was going to commence and therefore, it was not proper to release the applicant on bail. Second application was moved when there was no significant progress and Priyanka Tiwari was not examined. The High Court noted that in spite of adjournments Priyanka Tiwari did not appear. According to the High Court the fact that Priyanka Tiwari was not appearing though her dates of appearance have been fixed entitled the appellant to be released on bail. The reasoning of the High Court is totally fallacious. It is evident from the material on record that the trial court was informed of the fact that Priyanka Tiwari was pursuing her studies abroad and would be available to appear as witness during summer vacation. The fact that the trial court adjourned the matter for a few dates notwithstanding this intimation cannot be a factor to release the respondent No.2 who chose not to appear and made a prayer for exemption on the ground that he was in custody in some other case. The details of theses cases were not furnished to the Court though ample opportunity was granted. The appellant is, therefore, justified in her grievances that there has been misuse of the liberty and that the appellant has unnecessarily prolonged the trial. The evidence of Priyanka Tiwari was of vital importance to the case, but she had to go back to pursue her studies. Therefore, her evidence was not recorded. This is a factor which has been lost sight of. High Court instead has unnecessarily emphasized on the number of adjournments which, as noted above, has no relevance. The order of bail passed by the High Court is not sustainable and is accordingly set aside.(Para 13)

JUDGMENT

Dr. Arijit Pasayat, J.—Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court, Lucknow Bench granting bail to the respondent No.2-Jitendra Pratap Singh (hereinafter referred to as the ‘Accused’).

3. A brief reference to the factual aspect would be necessary. On 14.5.2003 First Information Report (in short the ‘FIR’) was lodged by the appellant alleging murder of her younger brother-Ravish Kumar Pandey (hereinafter referred to as the ‘Deceased’). At the relevant point of time the deceased was pursuing his studies in Era Medical College. In the FIR name of respondent No.2 was indicated to be the sole accused. One of the eye witnesses was stated to be one Priyanka Tiwari. She appeared before the concerned Magistrate and her statement was recorded in terms of Section 164 of the Code of Criminal Procedure, 1973 (in short the ‘Code’). In the statement she specifically stated that murder of the deceased was committed by respondent No.2 in her presence. Charge sheet was filed on 19.11.2004. Cognizance was taken by the concerned Magistrate. Thereafter, the investigation was transferred to C.B.C.I.D. The order of the State Government was challenged by the appellant by filing a writ petition No.5874(M/B) of 2004 before the High Court. By order dated 13.1.2005 the writ petition was allowed and the order transferring investigation to CBCID was quashed by the High Court. Application for bail was filed by respondent No.2 before the High Court which was numbered as Criminal Misc. Case No.869 (B) of 2005. The said bail application was rejected by order dated 15.3.2005 with the observation that if any fresh bail application is filed, the same shall be considered after the statements of the appellant and aforesaid Priyanka Tiwari are recorded by the trial court in the trial proceedings. On 20.6.2005 appellant’s evidence was recorded and she categorically stated that in her presence murder was committed. On 25.8.2005 Priyanka Tiwari who was claimed to an eye-witness was also examined and her evidence was recorded by the trial court. The cross-examination was concluded on 5.9.2005. In January, 2006 the respondent No. 2 filed the second bail application before the High Court which was numbered as Criminal Misc. Case No. 6282 (B) of 2005. The said bail application was rejected reiterating the earlier view that the application for bail can be considered after the evidence of Priyanka Tiwari as recorded or if she failed to appear for the purpose of recording her evidence. A certificate was issued by the Ministry of Health, Ukrain that the summer vacation of Priyanka Tiwari was between 3.7.2006 and 31.8.2006. This certificate was filed before the trial court. In May, 2006 respondent No.2 filed the third bail application which was number as Criminal Misc. Case No.2233(B) of 2006. The High Court by its impugned order dated 22.5.2006 has granted the bail.

4. According to the appellant after commencement of summer vacation when Priyanka Tiwari came to India she knew about the court’s proceeding and appeared on 28.7.2006. But on the said date the respondent No. 2 was not represented. Therefore, the court issued Non-Bailable Warrant (in short ‘NBW’) and the matter was adjourned to 10.8.2006.

5. On 10.8.2006 when the matter was taken up, learned counsel appearing for respondent No.2 submitted before the Court that respondent No.2 had been arrested in some other case and his absence may be exempted. The trial Court rejected the application and adjourned the matter to 21.8.2006.

6. On 21.8.2006 the respondent No.2 again was not present. The court had on the earlier occasion directed the learned counsel appearing for respondent No.2 to indicate the details of the case where he was purportedly arrested but those details were not filed and the matter was further adjourned to 21.9.2006. On 21.9.2006 also respondent No.2 did not appear.

7. In view of the aforesaid scenario it is stated by learn

Click Here to Read the rest of this document

2007 Supreme(SC) 180

Cases Referred (9)

Login now and unlock premium legal research