BRIJMANI DEVI v. PAPPU KUMAR & Anr.

From the Judgment and Order dated 22.07.2021 of the High Court of Judicature at Patna in Criminal Miscellaneous No.11683 of 2021. With Criminal Appeal No.1664 of 2021. Smarhar Singh, Ms. Shweta Kumari, Nagendra Sharma, Ramakant Kumar, Advs. for the Appellant. R. Basant, Sr. Adv., Yogesh Ahirraj, Ajit Pravin Wagh, Ms. Astha Prasad, A. Karthik, Arsh Khan, Saket Singh, Ms. Niranjana Singh, Manish Kumar, Advs. for the Respondents. The Order of the Court was passed by NAGARATHNA J. Leave granted.

#2. These appeals have been preferred by the informant - appellant assailing the orders dated 22.07.2021 and 13.09.2021 passed by the High Court of Judicature at Patna in Criminal Miscellaneous Nos.11683 of 2021 and 26463 of 2021 respectively whereby bail has been granted to the accused who is the common respondent in the appeals, in connection with Naubatpur P.S. Case No.93 of 2020 and Parsa Bazar P.S. Case No.316 of 2017 respectively.

#3. The facts in a nutshell are that the appellant is the mother of the deceased Rupesh Kumar. She is stated to be an eyewitness to the killing of her son and also the person who lodged the First Information Report being FIR No.93 of 2020 for offence of murder of her son under section 302 read with section 34 of the Indian Penal Code (for short, the ‘IPC’) and section 27 of the Arms Act against common respondent- accused herein viz., Pappu Kumar and one other person named Deepak Kumar.

#4. That FIR No.93/2020 dated 19.02.2020 is stated to have been filed by the appellant herein between 2.30 hrs and 3.00 hrs in the night stating that her son Rupesh Kumar aged about 35 years was sleeping in the room constructed on the roof top of her house. A relative, Deepak Kumar was also sleeping there. She was sleeping in another room which B C D E F G H 536 SUPREME COURT REPORTS [2021] 9 S.C.R. A B C D E F G is beside the aforesaid room. She has further stated that she heard the sound of a person walking and also talking and then she saw that respondent–accused was present and he had a pistol in his hand and when he saw her, he caught her and forcefully tied her mouth with his Gamchha (towel) and he shot her son on the head from his pistol in front of her and Deepak Kumar too shot once at her son’s head. As a result, her son died. Other family members reached the spot upon hearing the firing sound. But the accused ran away waiving their pistols.

#5. Earlier, FIR No.316 of 2017 was lodged at Police Station Parsa Bazar by appellant’s deceased son himself viz., Rupesh Kumar for causing serious bullet injury to him, under sections 341, 307 read with section 34 of IPC and section 27 of the Arms Act, by giving a ferdbeyan against the very same respondent-accused herein and his two acquaintances to K.K. Verma, ASI, Shashtri Nagar PS, District Patna, on 28.12.2017 at 7.57 pm at Emergency Ward, Paras Hospital, Patna. This ferdbeyan was given in respect of an incident which occurred on the previous day i.e. 27.12.2017 when he had gone to meet his friend Shailendra at Sipara. While Rupesh Kumar was returning from his friend’s house, the respondent-accused along with his two acquaintances caught him and respondent-accused fired and caused bullet injury to him. When Rupesh Kumar ran and reached a farmer’s house in the nearby village and narrated the entire story to him, he was taken to the police station on a motorcycle and had lodged FIR No.316/2017.

#6. According to the appellant, the respondent-accused herein had attempted to kill her son viz., Rupesh Kumar in the year 2017 by firing at him and an FIR was lodged being FIR No.316 of 2017. But after lodging FIR No. 93 of 2020, the respondent-accused had absconded for about seven months. He had also threatened the appellant herein and exerted pressure on the appellant-informant and her family to withdraw the complaint, failing which he would eliminate the entire family. That a written complaint of the appellant dated 30.09.2020 was filed to the police, in pursuance of which complaint the respondent-accused was nabbed in connection with murder of Rupesh Kumar.

#7. While on the run respondent-accused was arrested on 30.09.2020. The respondent-accused has been in judicial custody for a period of nine months till he was granted bail by the High Court.

#8. In fact, the Court of Additional Chief Judicial Magistrate at Patna, took cognizance of the offences and issued summons to the H BRIJMANI DEVI v. PAPPU KUMAR & ANR. [B. V. NAGARATHNA J. ] 537 respondent-accused herein in connection with FIR No.316/2017. An order of remand to judicial custody was passed in connection with Naubatpur P.S. Case No.316/2017 under section 307 of IPC on 06.01.2021.

#9. That the accused made an application seeking bail before the Sessions Court, which was rejected by the Additional Sessions Judge-I, Danapur by Order dated 08.12.2020. Thereafter, the respondent-accused filed an application for grant of bail by suppressing his criminal antecedents and by the impugned order dated 22.07.2021, the High Court granted him bail in connection with the case being FIR No.93/2020 registered at Naubatpur P.S. for offence under section 302 read with section 34 of IPC and section 27 of the Arms Act, subject to certain conditions.

#10. Subsequently, the High Court, vide order dated 13.09.2021, also granted bail to respondent-accused in connection with the other case being FIR No.316/2017 registered at Parsa Bazar P.S. for offences under sections 341, 307 read with section 34 of IPC and section 25 of the Arms Act. Being aggrieved, the appellant has preferred these appeals before this Court.

#11. We have heard Sri Smarhar Singh, learned counsel for the appellant and Sri R. Basant, learned Senior Counsel for respondent- accused and perused the material on record.

#12. Learned counsel for the appellant submitted that the respondent-accused has been named in eight cases. Even though, the said accused may have been acquitted in a few cases, there are still three cases pending against him. He had attempted unsuccessfully to kill the deceased Rupesh Kumar in the year 2017. Later in the year 2020, he killed the deceased and absconded for about seven months. The mother of the deceased appellant herein, is the informant and she has been threatened by respondent. He was in judicial custody only for a period of nine months as he had earlier absconded but has now been granted bail by the High Court contrary to the settled principles of law and the judgments of this Court.

#13. Further it is urged that the High Court has not assigned reasons for grant of bail in the instant cases whereas the respondent-accused is alleged to have committed heinous crimes which could result in life imprisonment or even death penalty. Respondent-accused, being a habitual offender, could not have been granted bail by the High Court. According to the learned counsel for the appellant, the High Court in a A B C D E F G H 538 SUPREME COURT REPORTS [2021] 9 S.C.R. A B C D E F G H very cryptic order de hors any reasoning has granted bail to the respondent-accused. It is the submission of learned counsel for the appellant, who is mother of the deceased, to allow these appeals by setting aside the impugned orders. In support of his submission, reliance has been placed on certain decisions of this Court which shall be referred to later.

#14. Per contra, Sri Basant, learned Senior Counsel for the respondent-accused, supported the impugned orders and contended that accused no.2 in the case is the brother-in-law of the deceased and both of them were accused in another case in which the respondent-accused herein has been enlisted as a witness. The deceased and Deepak Kumar – accused no.2 were living together in the same house. He may have fired at the deceased but not the respondent-accused herein. This is a case of false implication of the respondent-accused by the informant.

#15. That the gun was recovered from accused no.2 and there has been no recovery made from respondent-accused. There have been several cases against the deceased and accused no.2 also.

#16. Learned Senior Counsel for the respondent-accused further contended that respondent-accused was 350 kms away on the intervening night of 18th and 19th February, 2020. He was not at the spot of the crime at all. This is evident from the mobile phone details. Therefore, the High Court was justified in considering these aspects and granting bail to the respondent-accused.

#17. In support of his submission, Sri Basant, learned Senior Counsel, placed reliance on Gudikanti Narsimhulu & Ors. vs. Public Prosecutor, High Court of Andhra Pradesh - (1978) 1 SCC 240, which prescribes the approach of a Court while granting bail. The Court considering an application seeking bail cannot enter into an in-depth analysis of the case so as to hold a mini trial of the case. It is also unnecessary to give lengthy reasons at the time of granting bail. It was contended that bail is the norm and jail is the exception. Once bail has been granted by a Court, it is only in very rare cases that there is interference as it would have the effect of cancellation of bail. That the liberty of a person cannot be interfered with unless the situation warrants.

#18. It was further submitted that learned counsel for the appellant was not right in contending that the respondent -accused had absconded. In fact, there was no chargesheet against him. It was only when a protest BRIJMANI DEVI v. PAPPU KUMAR & ANR. [B. V. NAGARATHNA J. ] 539 petition was filed, that a chargesheet was filed against him and he was arrested. A

#19. It was further submitted that the allegations against the respondent-accused are false and hence the impugned orders of the High Court do not call for any interference in these appeals.

#20. Having regard to the contention of Sri Smarhar Singh, learned counsel for the appellant that the impugned orders granting bail to the respondent-accused are bereft of any reasoning and they are cryptic and bail has been granted in a casual manner, we extract those portions of the impugned orders dated 22nd July, 2021 and 13th September, 2021 passed by the High Court, which provides the “reasoning” of the Court for granting bail, as under : “Impugned Order dated 22.7.2021 During course of investigation, it has come that at the time and date of occurrence petitioner was at Araria. Petitioner is in custody since 30.09.2020. Considering the facts and circumstances of the case and the fact that false implication against the petitioner cannot be rule out, the petitioner above-named, is directed to be enlarged on bail on furnishing bail bond of Rs. 10,000/- (Ten thousand) with two sureties of the like amount each to the satisfaction of the learned Additional Chief Judicial Magistrate III, Patna in connection with Naubatpur P.S. Case No.93 of 2020, subject to following conditions: (i) (ii) The petitioner shall co-operate in the trial and shall be properly represented on each and every date fixed by the court and shall remain physically present as directed by the Court and in the event of failure on two consecutive dates without sufficient reasons, his bail bond shall be liable to be cancelled by the court below. If the petitioner tampers with the evidence or the witnesses of the case, in that case, prosecution will be at liberty to move for cancellation of bail of the petitioner.” Impugned Order dated 13.09.2021 “Considering the facts and circumstances of the case and the fact petitioner is in custody since 06.01.2021, let the petitioner, B C D E F G H 540 SUPREME COURT REPORTS [2021] 9 S.C.R. mentioned above, be enlarged on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of learned Sub Judge-VIII, Patna, in connection with Parza Bazar P.S. Case No. 316/2017, subject to the following conditions: (1) Petitioner shall co-operate in the trial and shall be properly represented on each and every date fixed by the Court and shall remain physically present as directed by the Court and on his/her absence on two consecutive dates without sufficient reason, his/ her bail bond shall be cancelled by the Court below. (2) If the petitioner tampers with the evidence or the witnesses, in that case, the prosecution will be at liberty to move for cancellation of bail.”

#21. Before proceeding further, it would be useful to refer to the judgments of this Court in the matter of granting bail to an accused as under: a) In Gudikanti Narasimhulu (supra), Krishna Iyer, J., while elaborating on the content and meaning of Article 21 of the Constitution of India, has also elaborated the factors that have to be considered while granting bail which are extracted as under: “7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue.

#8. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being.

#9. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find A B C D E F G H BRIJMANI DEVI v. PAPPU KUMAR & ANR. [B. V. NAGARATHNA J. ] 541 whether he has a bad record – particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further about the criminal record of a defendant, is therefore not an exercise in irrelevance.” b) Prahlad Singh Bhati vs. NCT of Delhi & ORS – (2001) 4 SCC 280 is a case wherein this Court proceeded to state the following principles which are to be considered while granting bail: “(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” c) This Court in Ram Govind Upadhyay vs. Sudarshan Singh – (2002) 3 SCC 598, speaking through Banerjee, J., observed as under: “3. Grant of bail though being a discretionary order — but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. A B C D E F G H 542 SUPREME COURT REPORTS [2021] 9 S.C.R. A B C D E F G H Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail — more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.” d) In Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav & Anr. – (2004) 7 SCC 528, this Court observed in paragraph 11 as under : “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) b) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. 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. BRIJMANI DEVI v. PAPPU KUMAR & ANR. [B. V. NAGARATHNA J. ] 543