DEEPAK YADAV v. STATE OF U.P & Anr.

no.2/accused has been named in the FIR lodged under Sections 302 and 34 IPC and was the main assailant who had a weapon in his hand; that the main role of respondent no.2/accused was that he opened fire at the deceased due to which the bullet hit his right cheek and made its exit through the other side; that the deceased succumbed to his injuries on 14.01.2021; that the respondent no.2/accused had the intention to murder the deceased as there was previous enmity between him and the deceased with regard to some land which accused threatened to grab; that the respondent no.2/accused was clearly been named by the appellant/informant’s mother and the deceased and he was actively involved in opening fire which caused the death of the deceased; that the respondent no.2/accused’s statement was recorded by the then IO under Section 161 Cr.P.C in which he admitted to having committed the offence; and that the respondent no.2/accused has a criminal history and several criminal matters have been lodged against him [Para 36][20-C-H; 21-A-B]

1.7 There is certainly no straight jacket formula which exists for courts to assess an application for grant or rejection of bail but the determination of whether a case is fit for the grant of bail involves balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. This Court does not, normally interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with basic principles laid down. [Para 37][21-D-E]

1.8 It is manifestly incorrect on the part of the High Court to have granted bail to the respondent no.2/accused without taking into consideration the relevant facts and circumstances and appropriate evidence which proves that the respondent no.2/ accused has been charged with a serious offence. [Para 38][21- E-F]

1.9 Grant of bail to the respondent no.2/accused only on the basis of parity shows that the impugned order passed by the 3 A B C D E F G H SUPREME COURT REPORTS [2022] 4 S.C.R. High Court suffers from the vice of non-application of mind rendering it unsustainable. The High Court did not take into consideration the criminal history of the respondent no.2/accused, nature of crime, material evidences available, involvement of respondent no.2/accused in the said crime and recovery of weapon from his possession. The impugned order passed by the High Court is not liable to be sustained and is set aside. [Paras 39, 40][21-F-H] Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana(Koli) & Another (2021) 6 SCC 230; Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Another (2004) 7 SCC 528; Babu Singh & Ors. v. State of U.P. (1978) 1 SCC 579 : [1978] 2 SCR 777; Dataram Singh v. State of Uttar Pradesh and Another (2018) 3 SCC 22 : [2018] 1 SCR 882; Prahlad Singh Bhati v.

NCT of Delhi and Another (2001) 4 SCC 280 : [2001] 2 SCR 684; Prasanta Kumar Sarkar v. Ashish Chatterjee and Another (2010) 14 SCC 496 : [2010] 12 SCR 1165; Ash Mohammad v. Shiv Raj Singh alias Lalla Babu and Another (2012) 9 SCC 446 : [2012] 7 SCR 584; Ranjit Singh v. State of Madhya Pradesh and Others (2013) 16 SCC 797 : [2013] 11 SCR 273; Neeru Yadav v. State of Uttar Pradesh and Another (2014) 16 SCC 508 : [2014] 12 SCR 453; Virupakshappa Gouda and Another v. State of Karnataka and Another (2017) 5 SCC 406 : [2017] 4 SCR 373; State of Orissa v. Mahimananda Mishra (2018) 10 SCC 516; ‘Y’ v. State of Rajasthan & Anr. Criminal Appeal No. 649 of 2022; Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598 : [2002] 2 SCR 526; Kalyan Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav and Another (2004) 7 SCC 528; Mahipal v. Rajesh Kumar Alias Polia and Another (2020) 2 SCC 118 : [2019] 14 SCR 529; Dolat Ram and Others v.

State of Haryana (1995) 1 SCC 349 : [1994] 6 Suppl. SCR 69; Prakash Kadam and Others v. Ram Prasad Vishwanath Gupta and Another (2011) 6 SCC 189 : [2011] 6 SCR 800 – referred to. 4 A B C D E F G H DEEPAK YADAV v. STATE OF U.P. & ANR. Case Law Reference (2021) 6 SCC 230 (2004) 7 SCC 528 [1978] 2 SCR 777 [2018] 1 SCR 882 [2001] 2 SCR 684 referred to referred to referred to referred to referred to [2010] 12 SCR 1165 referred to [2012] 7 SCR 584 referred to [2013] 11 SCR 273 referred to Para 11 Para 11 Para 15 Para 15 Para 20 Para 21 Para 22 Para 22 [2014] 12 SCR 453 referred to Para 22, 32 [2017] 4 SCR 373 referred to (2018) 10 SCC 516 referred to [2002] 2 SCR 526 (2004) 7 SCC 528 referred to referred to [2019] 14 SCR 529 referred to [1994] 6 Suppl. SCR 69 referred to [2011] 6 SCR 800 referred to Para 22 Para 22 Para 24 Para 25 Para 29 Para 30 Para 34 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

861 of 2022. From the Judgment and Order dated 22.10.2021 of the High Court of Judicature at Allahabad, Lucknow Bench in Bail No. 11848 of 2021. Awanish Sinha, Prem Ranjan Kumar, Advs. for the Appellant. Vinod Diwakar, AAG, Siddharth Dave, Sr. Adv., Pushkar Sharma, Devendra Gupta, Abdul Qadir, Aditya Vaibhav Singh, Satish Pandey, Adarsh Upadhyay, Divyanshu Sahay, Advs. for the Respondents. 5 A B C D E F G H 6 A B C D E F G H SUPREME COURT REPORTS [2022] 4 S.C.R. The Judgment of the Court was delivered by KRISHNA MURARI, J.

Leave granted

The present appeal is directed against the judgment and order dated 22.10.2021 passed by the High Court of Judicature at Allahabad, Lucknow Bench (hereinafter referred to as “High Court”) in Bail No. 11848 of 2021 filed by Respondent No.2 - Accused with a prayer to release him on bail in Case Crime No. 16 of 2021 registered at PS Para, Lucknow under Sections 302 and 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) during pendency of trial. By the said judgment, the High Court granted bail to Respondent No.2/Accused on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the trial court subject to certain conditions.

Briefly, the facts relevant for the purpose of this appeal are that the Appellant/Informant Deepak Yadav lodged an FIR being Crime Case No. 16/2021 on 09.01.2021 at PS Para, Lucknow under Section 307 IPC against Respondent No. 2/Accused Harjeet Yadav, co-accused Sushil Kumar Yadav and two unknown persons. The allegations against the said accused persons were that on the night of 08.01.2021, at around 8.30 PM, Appellant’s father Mr. Virendera Yadav (deceased) was on way to his home from the lawn located near Jaipuria School and at the same time, the accused persons took position on Kulhad Katta Bridge and fired at him with the common intention to kill the deceased. The bullet shot hit his right cheek and made its exit through the other side leaving him severely injured. In view of his serious condition, the people present on the spot informed the local police station and admitted him at the Trauma Centre, Medical College, Lucknow. The Appellant/Informant, on receiving the information about his injured father rushed to the Trauma Centre with his mother Smt. Sunita Yadav and elder sister Ms. Jyoti Yadav. The Appellant’s mother asked her husband about the incident to which he replied that he was shot by Respondent No.2/Accused Harjeet Yadav and one, Sushil Yadav and that they were accompanied by two other persons as well. The statement given by the deceased was noted down by Sri Mahesh Kumar Chaurasia, DSP/ACP Chowk, Lucknow and Sri. Ashok Kumar Singh, SI/First Investigating Officer.

Respondent No. 2/Accused was arrested by the police on 13.01.2021 and one country made pistol with two live cartages were DEEPAK YADAV v. STATE OF U.P. & ANR. [KRISHNA MURARI, J.] recovered from him. The Appellant/Informant’s father passed away on 14.01.2021 on account of which the case was converted to one under Section 302 IPC. The co-accused, Sushil Kumar Yadav surrendered before the Judicial Magistrate, Lucknow on 16.01.2021.

After completion of investigation and upon finding sufficient evidence, charge sheet was filed before the trial Court on 06.04.2021 against Respondent No.2/Accused and co-accused Sushil Kumar Yadav under Sections 302 and 34 IPC. Furthermore, investigation against two unknown accused persons is pending

Respondent No.2/Accused filed Bail Application No. 3340/2021 before the Sessions Judge, Lucknow and the same was rejected vide order dated 28.06.2021 on the ground that he has been named on the basis of the information provided by the deceased himself and that the same has been clarified after the perusal of the documents/forms that the bullet was shot by Respondent No. 2/Accused himself.

Respondent No. 2/Accused then moved the High Court for grant of regular bail vide Bail No. 11848/2021 wherein Counsel for the Respondent No.2/Accused contended that the co-accused, Sushil Kumar Yadav has been granted bail by the High Court on 18.10.2021 in Bail No. 8501 of 2021 and that the case of the Respondent No. 2 stands on identical footing making him entitled for bail on the ground of parity. The said bail application was allowed vide impugned judgment/order dated 22.10.2021. The operative portion of the judgment reads as under : - “Keeping in view the nature of the offence, arguments advanced on behalf of the parties, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. & Anr1 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. Let the applicant be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. 1 (2018) 3 SCC 22 7 A B C D E F G H SUPREME COURT REPORTS [2022] 4 S.C.R.

1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial;

2. The applicant shall cooperate in the trial sincerely without seeking any adjournment;

3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail;

4. That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

5. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant;

6. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law;

7. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad;

The concerned court/authority/official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.” 8 A B C D E F G H DEEPAK YADAV v. STATE OF U.P. & ANR.

[KRISHNA MURARI, J.]

8. We have heard Mr. Awanish Sinha, learned counsel appearing for the Appellant and Mr. Siddharth Dave, learned Senior Counsel appearing for Respondent No. 2.

Mr. Awanish Sinha, learned counsel appearing for the Appellant vehemently submitted that the High Court has granted bail to the Respondent No. 2/Accused, who is a known criminal with criminal antecedents in a very casual manner only on the ground of parity without any focus on the role of the accused. It was further submitted that the arrest of the Respondent No.2/Accused was made on the statement of the deceased made to his wife in the presence of IO. It was further pointed out that the Respondent No.2/Accused has been named in the FIR as the person who had fired at the deceased leading to his untimely death and on commission of such a heinous crime, bail cannot be granted.

It was further submitted that the High Court has erred in granting bail to the Respondent No. 2/Accused on the very first day of being listed without granting any opportunity to the Appellant/Informant or the State to respond and that the State was not even given any opportunity to file a counter or even the present status of the case.

Heavy reliance was placed on the decisions of this Court in Ramesh Bhavan Rathod Vs. Vishanbhai Hirabhai Makwana(Koli) & Another2, Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another3.

Mr. Siddharth Dave, learned Senior Counsel appearing on behalf of the Respondent No.2/Accused submitted that the Respondent No.2/Accused was a young student, pursuing the course of D.Pharma from Himalayan Garhwal University, Uttarakhand having no criminal antecedents and the case registered against him under Sections 3 and 25 of the Arms Act, 1959 is an off-shoot of the instant case and has been lodged on the basis of erroneous recovery in the instant case.

It was further submitted that no particular role has been attributed to the Respondent No.2/Accused, nor has he been expressly mentioned by the deceased in his statement, which simply states that Ratilal’s younger son shot the deceased. Furthermore, granting bail on the first day of hearing does not violate any established legal concept, statutory requirement or precedent.