ASH MOHAMMAD Vs SHIV RAJ SINGH @ LALLA BABU
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: Crl.A. No.-001456-001456 / 2012
Diary number: 15580 / 2012
Advocates: ABHA R. SHARMA Vs
ABHISTH KUMAR
Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1456 OF 2012 (Arising out of S.L.P. (Criminal) No. 4083 of 2012)
Ash Mohammad ... Appellants
Versus
Shiv Raj Singh @ Lalla Babu & Anr. ... Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The present appeal by special leave has been preferred
assailing the legal defensibility of the order dated 26.04.2012
passed in Criminal Application No. 28461 of 2011 by the High
Court of Judicature at Allahabad and praying for quashment of the
Page 2
same, and further to cancel the grant of bail to the accused-
respondent (hereinafter referred to as ‘the accused’) in respect of
offences punishable under Sections 365/506 of the Indian Penal
Code (for short ‘the IPC’).
3. The facts material for adjudication of this appeal are that an
FIR was lodged by the present appellant on 29.05.2011 alleging
that while he was going to his in-laws’ place in village Samadia, P.S.
Patwai along with Bihari Lal near canal of Milk Road from Patwai
which leads to Samdia Khurd, two persons came on a motorcycle
and after inquiring about the identity of Bihari Lal told him that
they had been asked by Lalla Babu @ Shiv Raj Singh to compel him
to accompany them. As there was resistance, they threatened to
kill him and eventually made Bihari Lal sit in between them on the
Hero Honda motorcycle and fled towards Patwai. The incident was
witnessed by Munish and Rajbir. In quite promptitude the
appellant went to the Patwai Police Station, District Rampur and
lodged the FIR as a consequence of which crime No. 770 of 2011
was registered for offences punishable under Section 364 and 506
2
Page 3
of the IPC. On the basis of the FIR the criminal law was set in
motion and the accused was arrested and taken into custody.
4. The accused Shiv Raj Singh @ Lalla Babu preferred bail
Application No. 1268 of 2011 which came to be dealt by the learned
Additional Sessions Judge, Rampur who taking note of the
allegations in the FIR and the stand put forth in oppugnation by the
prosecution as well as by the victim observed as follows:-
“I have perused the case diary. While confirming his abduction, victim Bihari Lal has stated under Section 164 Cr.P.C. that the abductors took him to the accused. Applicant- accused and his accomplices kept him confined in a room for about 8 days and they also used to assault him and threaten for life. As per the victim, he escaped from their captivity after about 8 days of abduction under the pretext of nature’s call/time. Munish and Rajbir reported as eye-witnesses in the First Information Report stated before the Investigating Officer that the abductors had stated at the time of abduction that the applicant-accused Lalla Babu has send them to mend you.”
5. Thereafter, taking note of the fact that the accused is a
history-sheeter and involved in number of cases rejected the
application for bail.
3
Page 4
6. Being unsuccessful to secure bail from the court of Session,
the accused preferred a Bail Application No. 28461 of 2011 before
the High Court under Section 439 of the Code. The High Court
though took note of the statement made under Section 164 CrPC
that name of Shiv Raj Singh @ Lalla Babu had figured as allegations
were made against him to that effect that victim Bihari Lal was
taken by the kidnappers to him, yet observed that he only sat there
and offended Bihari Lal. The High Court only mentioned the fact
that the accused has a criminal history and is involved in number
of cases but considering the factum that he has been in custody
since 30.09.2011 directed his enlargement on bail on certain
conditions, namely, the accused shall report at the police station
concerned on the first day of each English Calendar month, shall
not commit any offence similar to the offence which he is accused
of, and 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.
4
Page 5
7. Questioning the justifiability of the impugned order Ms. Abha
R. Sharma, learned counsel for the petitioner has contended that
the High Court has absolutely misdirected itself by not appositely
considering the statement recorded under Section 164 of the Code
of Criminal Procedure, the gravity of the offences and criminal
antecedents of the accused and further the affidavit filed by the
prosecution bringing number of factors as a consequence of which
an illegal order enlarging the appellant on bail has come into
existence. The learned counsel submitted that the non-
consideration of the material facts vitiates the order of the High
Court and annulment of the same is the judicial warrant.
8. Per contra, Mr. Irshad Ahmed, learned counsel appearing for
the accused contended that the prosecution case is a fabricated,
false and malicious one and it has been foisted because of political
vendetta. It is urged by him that there is discrepancy between
statements recorded under Section 161 Cr.P.C and 164 Cr.P.C and,
therefore, the order passed by the High Court cannot be found fault
with. It is his further submission that though the accused has
been released on bail, yet he has conducted himself and in the
5
Page 6
absence of any supervening circumstances it would be undesirable
to cancel the order granting bail as the sanctity of liberty should be
treated with paramount importance. It is also argued that the High
Court was absolutely conscious of the cases pending against
accused but because of election disputes and constant animosity of
the administration which was stand of the accused they were not
dwelled upon in detail and an order admitting the accused to bail
was passed on imposing stringent conditions. That apart, it is put
forth that in the absence of any failure on his part to respect the
conditions his liberty should not be put to any jeopardy at the
instance of an interested party who is bent upon to harass him.
9. The centripodal issue that emerges for consideration is
whether the order passed by the High Court is legitimately
acceptable and legally sustainable within the ambit and sweep of
the principles laid down by this Court for grant of regular bail
under Section 439 of the Code.
10. In Ram Govind Upadhyay v. Sudarshan Singh and
Others1, it has been opined that the grant of bail though involves
1 (2002) 3 SCC 598
6
Page 7
exercise of discretionary power of the Court, such exercise of
discretion has to be made in a judicious manner and not as a
matter of course. Heinous nature of the crime warrants more
caution and there is greater chance of rejection of bail, though,
however dependent on the factual matrix of the matter. In the said
case the learned Judges referred to the decision in Prahlad Singh
Bhati v. NCT, Delhi and Another2 and stated as follows:-
“(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
2 (2001) 4 SCC 280
7
Page 8
genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. ”
11. In Chaman Lal v. State of U. P. and Another3 this Court
while dealing with an application for bail has stated that certain
factors are to be considered for grant of bail, they are; (i) the nature
of accusation and the severity of punishment in case of conviction
and the nature of supporting evidence; (ii) reasonable apprehension
of tampering with the witness or apprehension of threat to the
complainant; and (iii) prima facie satisfaction of the court in
support of the charge.
12. In Masroor v. State of Uttar Pradesh and another4, while
giving emphasis for ascribing reasons for granting of bail, however,
brief it may be, a two-Judge Bench observed that there is no
denying the fact that the liberty of an individual is precious and is
to be zealously protected by the courts. Nonetheless, such a
protection cannot be absolute in every situation. The valuable right
of liberty of an individual and the interest of the society in general
3 (2004) 7 SCC 525 4 (2009) 14 SCC 286
8
Page 9
has to be balanced. Liberty of a person accused of an offence would
depend upon the exigencies of the case.
13. In Prasanta Kumar Sarkar v. Ashis Chatterjee and
another5 it has been observed that normally this Court does not
interfere with an order passed by the High Court granting or
rejecting the bail of the accused, however, it is equally incumbent
upon the High Court to exercise its discretion judiciously,
cautiously and strictly in compliance with the basic principles laid
down in a plethora of decisions of this Court on the point. Among
other circumstances the factors which are to be borne in mind
while considering an application for bail are whether there is any
prima facie or reasonable ground to believe that the accused had
committed the offence; nature and gravity of the accusation;
severity of the punishment in the event of conviction; danger of the
accused absconding or fleeing, if released on bail; character,
behavior, means, position and standing of the accused; likelihood of
the offence being repeated; reasonable apprehension of the
witnesses being influenced; and danger, of course, of justice being
thwarted by grant of bail. 5 (2010) 14 SCC 496
9
Page 10
14. In State of U.P. through CBI v. Amarmani Tripathi6 it has
been ruled that in an appeal against grant of bail all aspects that
were relevant under Section 439 read with Section 437 continue to
be relevant.
15. In Puran v. Rambilas and another7 it has been noted that
the concept of setting aside an unjustified, illegal or perverse order
is totally different from the cancelling an order of bail on the ground
that the accused had misconducted himself or because of some
supervening circumstances warranting such cancellation.
16. In Dr. Narendra K. Amin v. State of Gujarat and another8,
a three-Judge Bench has observed that when irrelevant materials
have been taken into consideration the same makes the order
granting bail vulnerable. If the order is perverse, the same can be
set at naught by the superior court.
17. In Prakash Kadam and others v. Ramprasad Vishwanath
Gupta and another9, while making a distinction between
6 (2005) 8 SCC 21 7 (2001) 6 SCC 338 8 2008 (6) SCALE 415 9 (2011) 6 SCC 189
1
Page 11
cancellation of bail and consideration for grant of bail, this Court
opined thus: -
“18. In considering whether to cancel the bail the court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him. Moreover, the above principle applies when the same court which granted bail is approached for cancelling the bail. It will not apply when the order granting bail is appealed against before an appellate/Revisional Court.
19. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail.”
18. We have referred to the above authorities solely for the
purpose of reiterating two conceptual principles, namely, factors
that are to be taken into consideration while exercising power of
admitting an accused to bail when offences are of serious nature,
and the distinction between cancellation of bail because of
supervening circumstances and exercise of jurisdiction in nullifying
an order granting bail in an appeal when the bail order is assailed
1
Page 12
on the ground that the same is perverse or based on irrelevant
considerations or founded on non-consideration of the factors
which are relevant.
19. We are absolutely conscious that liberty of a person should
not be lightly dealt with, for deprivation of liberty of a person has
immense impact on the mind of a person. Incarceration creates a
concavity in the personality of an individual. Sometimes it causes a
sense of vacuum. Needless to emphasize, the sacrosanctity of
liberty is paramount in a civilized society. However, in a democratic
body polity which is wedded to Rule of Law an individual is
expected to grow within the social restrictions sanctioned by law.
The individual liberty is restricted by larger social interest and its
deprivation must have due sanction of law. In an orderly society an
individual is expected to live with dignity having respect for law and
also giving due respect to others’ rights. It is a well accepted
principle that the concept of liberty is not in the realm of
absolutism but is a restricted one. The cry of the collective for
justice, its desire for peace and harmony and its necessity for
security cannot be allowed to be trivialized. The life of an individual
1
Page 13
living in a society governed by Rule of Law has to be regulated and
such regulations which are the source in law subserve the social
balance and function as a significant instrument for protection of
human rights and security of the collective. It is because
fundamentally laws are made for their obedience so that every
member of the society lives peacefully in a society to achieve his
individual as well as social interest. That is why Edmond Burke
while discussing about liberty opined, “it is regulated freedom”.
20. It is also to be kept in mind that individual liberty cannot be
accentuated to such an extent or elevated to such a high pedestal
which would bring in anarchy or disorder in the society. The
prospect of greater justice requires that law and order should
prevail in a civilized milieu. True it is, there can be no arithmetical
formula for fixing the parameters in precise exactitude but the
adjudication should express not only application of mind but also
exercise of jurisdiction on accepted and established norms. Law
and order in a society protect the established precepts and see to it
that contagious crimes do not become epidemic. In an organized
society the concept of liberty basically requires citizens to be
1
Page 14
responsible and not to disturb the tranquility and safety which
every well-meaning person desires. Not for nothing J. Oerter
stated:
“Personal liberty is the right to act without interference within the limits of the law.”
21. Thus analyzed, it is clear that though liberty is a greatly
cherished value in the life of an individual, it is a controlled and
restricted one and no element in the society can act in a manner by
consequence of which the life or liberty of others is jeopardized, for
the rational collective does not countenance an anti-social or anti-
collective act.
22. Having said about the sanctity of liberty and the restrictions
imposed by law and the necessity of collective security, we may
proceed to state as to what is the connotative concept of bail. In
Halsbury’s Laws of England10 it has been stated thus: -
“The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him
10 Halsbury’s Laws of England, 4th Edn., Vol. 11, para 166
1
Page 15
over to the custody of law and he will then be imprisoned.”
23. In Sunil Fulchand Shah v. Union of India and others11 Dr.
A.S. Anand, learned Chief Justice, in his concurring opinion,
observed: -
“Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word “bail” is surety.”
24. As grant of bail as a legal phenomenon arises when a crime is
committed it is profitable to refer to certain authorities as to how
this Court has understood the concept of crime in the context of
society. In P.S.R. Sadhanantham v. Arunachalam and
another12, R.S. Pathak, J. (as his Lordship then was), speaking for
himself and A.D. Kaushal, J, referred to Mogul Steamship Co. v.
11 (2000) 3 SCC 409 12 AIR 1980 SC 856
1
Page 16
McGregor Gow & Co. (1989) 23 QBD 598, 606 and the definition
given by Blackstone and opined thus: -
“A crime, therefore, is an act deemed by law to be harmful to society in general, even though its immediate victim is an individual.”
25. In Mrs. Harpreet Kaur Harvinder Singh Bedi v. State of
Maharashtra and another13 a two-Judge Bench, though in a
different context, has observed: -
“Crime is a revolt against the whole society and an attack on the civilization of the day. Order is the basic need of any organized civilized society and any attempt to disturb that order affects the society and the community.”
26. In T.K. Gopal alias Gopi v. State of Karnataka14 it has
been held that crime can be defined as an act that subjects the doer
to legal punishment. It may also be defined as commission of an
act specifically forbidden by law; it may be an offence against
morality or social order.
27. Keeping in mind the aforesaid aspects, namely, the factors
which are to be borne in mind while dealing with an application
preferred under Section 439 of the Code of Criminal Procedure in 13 AIR 1992 SC 979 14 AIR 2000 SC 1669
1
Page 17
respect of serious offences, the distinction between a perverse or
illegal order and cancellation of order granting bail, the individual
liberty and social security, the concept of bail, the definition of
crime and the duty of the court, we may proceed to deal as to how
in the case at hand the bail application has been dealt with by the
High Court.
28. On a perusal of the order passed by the High Court it will be
difficult to say that the High Court has passed a totally cryptic or
unreasoned order. The spinal question is whether it has ignored
the relevant factors which were brought to its notice at the time of
extending the benefit of enlargement of bail to the accused. The
prosecution by way of an affidavit had brought to the notice of the
High Court about the cases pending against the accused. The High
Court recorded the submission of the complainant that the accused
was involved in 52 cases. On a perusal of the counter-affidavit filed
before the High Court it is perceptible that it was categorically
stated that the accused was a history-sheeter; that he was the
pivotal force in getting the kidnapping done; that the victim Bihari
Lal was in captivity for eight days; and that he escaped under the
1
Page 18
pretext that he was going to attend the call of nature. The High
Court has only made a passing reference to the same and took note
of period of custody of seven months and held, “considering the
facts and circumstances of the case but without expressing any
opinion on the merits of the case, the applicant is entitled to be
released on bail”.
29. It is worthy to note that the fact relating to involvement of the
accused in various crimes was brought to the notice of the High
Court by virtue of an affidavit filed by the competent authority of
the prosecution. As per the Inspector-in-charge of the concerned
police station the following cases were pending against the accused:
S. No.
Crime No. Sections Police Station
District
1. 270/86 25 Arms Act Shahabad Rampur 2. 271/86 395/397/307/332/
337/225/427 Shahabad Rampur
3. 137/88 3(1) Gangster Act Shahabad Rampur 4. 209/92 147/148/149/302 Shahabad Rampur 5. 189/95 323/342/35/504/
506 Shahabad Rampur
6. 184/96 3/4 U.P. Gunda Act Shahabad Rampur 7. 185/96 147/148/149/307/
225 Shahabad Rampur
8. 485/98 323/504/506/3(1) 10 S.C./S.T. Act
Shahabad Rampur
9. 493/98 420/506/467/468/ 47
Shahabad Rampur
1
Page 19
10. 281/99 3/4 U.P. Gunda Act Shahabad Rampur 11. 626/05 347/504/506 Shahabad Rampur 12. 628A/05 452/352/504/506 Shahabad Rampur 13. 363/06 3(1) Prevention of
damage to Public Property Act, 1984
Shahabad Rampur
14. 2171/08 147/143/283/341 and 6 United Province Special Power Act, 1936 and Section 7 of Criminal Law Amendment Act.
Shahabad Rampur
15. 670/09 3(1) Gangster Act Shahabad Rampur 16. 1207/09 448/380 Shahabad Rampur 17. 939/10 323/324/307/302 Shahabad Rampur 18. 507/11 147/506 Shahabad Rampur 19. 537/11 147/148/149/307 Shahabad Rampur 20. 538/11 147/148/149/307/
353/354 and Section 7 of Criminal Law Amendment Act
Shahabad Rampur
21. 313/91 447/323/504/506 & 3(1) 10 S.C./S.T. Act
Shahabad Rampur
22. 391/92 348/379/504/506 & 3(4) 10 S.C./S.T. Act
Shahabad Rampur
23. 99/09 147/148/307/323/ 504/506 & 3(2) 10 S.C./S.T. Act
Milk Rampur
24. 2007/08 147/504/506/307/ 427 & 3(1) 10 S.C./ S.T. Act
Milk Rampur
25. 770/11 364/506 Patwai Rampur 26. 575/93 302/392/412 IPC Islam
Nagar Badayun
27. 441/94 25 Arms Act Civil Line Moradabad 28. 17/01 364 IPC (The court
issued non-bailable warrants but absconding)
Faizganj Behta
Badayun
29. 269/02 420 IPC Kasganj Eta 30. 270/02 25 Arms Act Kasganj Eta
1
Page 20
In this Court also the same list has been filed. Thus, there is no
doubt that the accused is a history-sheeter.
30. Coming to the nature of crime it is perceivable that two
persons came on a motorcycle and kidnapped Bihari Lal and kept
him in confinement for eight days. The role of the accused is clearly
stated. It is apt to note that a history-sheeter has a recorded past.
The High Court, in toto, has ignored the criminal antecedents of the
accused. What has weighed with the High Court is that the
accused had spent seven months in custody. That may be one of
the factors but that cannot be the whole and the sole factor in every
case. It depends upon the nature of the offence, the manner in
which it is committed and its impact on the society. We may
hasten to add that when we state that the accused is a history-
sheeter we may not be understood to have said that a history-
sheeter is never entitled to bail. But, it is a significant factor to be
taken note of regard being had to the nature of crime in respect of
which he has been booked. In the case at hand, as the prosecution
case unfolds, the accused did not want anyone to speak against his
2
Page 21
activities. He had sent two persons to kidnap Bihari Lal, who
remained in confinement for eight days. The victim was tortured.
Kidnapping, as an offence, is on the increase throughout the
country. Sometimes it is dealt with formidable skill and sometimes
with terror and sometimes with threat or brute force. The crime
relating to kidnapping has taken many a contour. True it is,
sometimes allegations are made that a guardian has kidnapped a
child or a boy in love has kidnapped a girl. They do stand on a
different footing. But kidnapping for ransom or for revenge or to
spread terror or to establish authority are in a different realm
altogether. In the present case the victim had been kidnapped
under threat, confined and abused. The sole reason for kidnapping
is because the victim had shown some courage to speak against the
accused. This may be the purpose for sustaining of authority in the
area by the accused and his criminal antecedents, speak eloquently
in that regard. In his plea for bail the accused had stated that such
offences had been registered because of political motivations but
the range of offence and their alleged years of occurrence do not
lend prima facie acceptance to the same. Thus, in the present case
his criminal antecedents could not have been totally ignored.
2
Page 22
31. Be it noted, a stage has come that in certain States abduction
and kidnapping have been regarded as heroism. A particular crime
changes its colour with efflux of time. The concept of crime in the
contextual sense of kidnapping has really undergone a sea change
and has really shattered the spine of the orderly society. It is
almost nauseating to read almost every day about the criminal
activities relating to kidnapping and particularly by people who call
themselves experts in the said nature of crime.
32. We may usefully state that when the citizens are scared to
lead a peaceful life and this kind of offences usher in an
impediment in establishment of orderly society, the duty of the
court becomes more pronounced and the burden is heavy. There
should have been proper analysis of the criminal antecedents.
Needless to say, imposition of conditions is subsequent to the order
admitting an accused to bail. The question should be posed
whether the accused deserves to be enlarged on bail or not and only
thereafter issue of imposing conditions would arise. We do not
deny for a moment that period of custody is a relevant factor but
simultaneously the totality of circumstances and the criminal
2
Page 23
antecedents are also to be weighed. They are to be weighed in the
scale of collective cry and desire. The societal concern has to be
kept in view in juxtaposition of individual liberty. Regard being had
to the said parameter we are inclined to think that the social
concern in the case at hand deserves to be given priority over lifting
the restriction of liberty of the accused.
33. In the present context the period of custody of seven months,
in our considered opinion, melts into insignificance. We repeat at
the cost of repetition that granting of bail is a matter of discretion
for the High Court and this Court is slow to interfere with such
orders. But regard being had to the antecedents of the accused
which is also a factor to be taken into consideration as per the
pronouncements of this Court and the nature of the crime
committed and the confinement of the victim for eight days, we are
disposed to interfere with the order impugned.
34. We may note with profit that it is not an appeal for
cancellation of bail as cancellation is not sought because of
supervening circumstances. The present one is basically an appeal
challenging grant of bail where the High Court has failed to take
2
Page 24
into consideration the relevant material factors which make the
order perverse.
35. Consequently, the order passed by the High Court is set aside
and the bail bonds of the accused are cancelled. The accused is
directed to surrender to custody forthwith failing which it shall be
the duty of the investigating agency to take him to custody
immediately. We may hasten to clarify that anything that has been
stated here are only to be read and understood for the purpose of
annulment of the order of grant of bail and they would have no
bearing whatsoever on trial.
36. The appeal is, accordingly, allowed.
……………………….J. [K. S. Radhakrishnan]
……………………….J. [Dipak Misra]
New Delhi; September 20, 2012.
2