Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 1906

SUPREME COURT OF INDIA
Indira Banerjee, V. Ramasubramanian, JJ.
Vivekanand Mishra – Appellant
Versus
State of U.P. & Anr. – Respondents
Criminal Appeal No. 1096 of 2022 (Arising Out of SLP (Crl.) No. 6166 of 2022)
Decided On : 29-07-2022

Advocates Appeared:
Mr. Shantanu Bansal, Advocate, for the Appellant; Mr. S.R. Singh, Sr. Advocate, Mr. Ajay Yadvocate, Advocate, Mr. Ankur Prakash, Advocate, Mr. R.K. Shukla, Advocate, Mr. Dinesh S.B., Advocate, Mr. Arup Ratan Dutta Choudhary, Advocate, Mr. Ravi Kumar Tomar, Advocate, for the Respondent.

The power to grant bail should be exercised judiciously, taking into consideration the gravity of the offence, the evidence on record, and the likelihood of the accused tampering with evidence or influencing witnesses.

Headnote:
Anticipatory Bail - Criminal Procedure Code (Cr.P.C.) - Sections 438 - The court analyzed the provisions of Section 438 of the Cr.P.C., which provides for the grant of anticipatory bail. The court emphasized that the power to grant bail should be exercised judiciously, taking into consideration the gravity of the offence, the evidence on record, and the likelihood of the accused tampering with evidence or influencing witnesses.
Fact of the Case:
The appellant filed an appeal against the order of the High Court granting anticipatory bail to the respondent accused. The case involved the killing of the appellant's sister by pouring kerosene oil on her and setting her on fire. The appellant argued that the High Court's order was without application of mind and failed to consider the gravity of the offence and the evidence on record, including a dying declaration and eyewitness statements. The Supreme Court held that the High Court erred in granting bail based on a CCTV footage without proper authentication and without considering the prima facie evidence against the accused. The Court emphasized that the power to grant bail should be exercised judiciously and that the seriousness of the offence and the likelihood of the accused tampering with evidence or influencing witnesses should be considered. The Court set aside the High Court's order and allowed the appeal.
Finding of the Court:
The High Court's order granting anticipatory bail to the accused was without application of mind and failed to consider the gravity of the offence and the evidence on record. The Court emphasized that the power to grant bail should be exercised judiciously and that the seriousness of the offence and the likelihood of the accused tampering with evidence or influencing witnesses should be considered.
Ratio Decidendi: The power to grant bail should be exercised judiciously, taking into consideration the gravity of the offence, the evidence on record, and the likelihood of the accused tampering with evidence or influencing witnesses. The High Court's order granting anticipatory bail without proper consideration of these factors was set aside.
Result: The Supreme Court allowed the appeal, set aside the High Court's order granting anticipatory bail, and emphasized the need for proper consideration of the gravity of the offence and the evidence on record when granting bail.

JUDGMENT

Indira Banerjee, J.

Leave granted.

2. This appeal is against an order dated 27th May 2022 passed by the High Court of Judicature at Allahabad allowing the application being Cr.P.C. No. 3340 of 2022 filed by the Respondent No.2 for Anticipatory Bail under Section 438 of the Code of Criminal Procedure (Cr.P.C.) in relation to Case Crime No.100 of 2022 filed against the Appellant, inter alia, under Sections 147, 148, 149, 352, 323, 306, 504 and 506 of the Indian Penal Code (IPC).

3. It is the case of the prosecution that the Respondent No.2 along with other accused persons killed the deceased, sister of the Appellant-Complainant, by pouring kerosene oil on her and setting her on fire. The incident took place on 11th February 2022. She died on 18th February 2022 while undergoing medical treatment at the hospital in Gorakhpur, Uttar Pradesh. The First Information Report lodged by the Complainant on 11th February 2022, reads :-

"There was a dispute going on with my neighbour Vijaynath Mishra regarding ancestral land Deeh Abadi. In this regard, a case is pending before the Ld. Civil Judge Sr. Div., Basti Court despite this, today, on 11.02.2022, during day time, the opposite party Shri Vijaynath Mishra was getting a balcony constructed so I went at the spot and told to stop the work upon this they did not stop the work and instead started beating and the opposite party Vijaynath Mishra S/o Late Ramdev Mishra and Pawan Kumar Mishra, Prabhat Kumar Mishra/ S/o vijaynath Mishra and Virendra Mishra, Sushil Kumar Mishra S/o Vishwanath Mishra, the said opposite party while abusing me of mother-sister around 11 am started beating me with stick, iron rod, knife, hammer due to which I was ample injured and Krishnawati W/o vijaynath Mishra and her daughter Reeta Mishra were challenging from distance for beating. After seeing me injured, my sister Kanya Kumari came to save me, while screaming, when the said opposite parties left me and started beating my sister and burned her. After hearing shout noise, the people in neighbourhood came at the spot to intervene and save. Thereafter, we took our sister to District hospital in my vehicle and after seeing her condition, she was referred to BRD Medical College, Gorakhpur and I was primarily treated. Thus, Sir, you are requested to register a case and take action."

4. It appears that on 12th February 2022, the deceased gave a dying declaration at the Nehru Hospital BRD Medical College, Gorakhpur stating that the persons named including the Respondent No. 2, hereinafter referred to as the Accused-Respondent, had poured oil on the deceased and set the deceased on fire.

5. The Accused-Respondent filed an application for Anticipatory Bail being Anticipatory Bail No. 337 of 2022 in the Court of the Additional Sessions Court No.5/Special Judge (Gangster Act), Basti which was dismissed. The Additional Sessions observed and held :-

"5. The Ld. Addl. District State Counsel (Criminal), Basti has opposed anticipatory bail application of the applicants and submitted that the accused persons/applicants alongwith other co-accused persons have committed as crime of beating the complainant while abusing him and with stick, iron rod, knife and hammer and complainant's sister Kanya Kumari who came to save him, was burned due to which she died. It was prayed to reject anticipatory bail application of the accused persons/applicants.

6. From the perusal of case diary, it is clear that there is a case o the accused persons/applicants that they alongwith other co-accused persons that while abusing the complainant had beater him with stick, iron rod, knife and hammer and when the sister of the complainant Kanya Kumari came to save him then she was burned due to which she died. If the accused persons/applicants are granted anticipatory bail in the instant case they can influence the witnesses and there is likelihood of them absconding. The investigation is pending in the case. Considering the facts and circumstances of the ab