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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1272 OF 2015 (@ SLP(Crl) No. 1596 OF 2015)

Neeru Yadav ... Appellant

                               Versus

State of U.P. and Anr. ... Respondents

J U D G M E N T

Dipak Misra, J.

The present appeal,  by special  leave,  on a summary

glance may appear that a victim who might have an axe to

grind against the accused, the respondent no.2 herein, and

further to wreck his vengeance has approached this Court

seeking cancellation of his bail, possibly being emboldened

by the inaction of the State authorities who have chosen to

maintain  sphinx  like  silence  or  decided  to  assume  the

stagnated  posture  of  a  splendid  sculpture  of  Rome,  and

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invigorated by the thought that he can singularly carry the

crusade,  without  any  support,  for  he  has  a  cause  to

vindicate by valiantly exposing the legal  infirmities in the

order  passed  by  the  High  Court  admitting  the  2nd

respondent  to  bail  and  also  unconceal  the  lackadaisical

attitude of  the State,  but on a keener scrutiny the initial

impression  melts  away  and  the  perversity  of  the  order

impugned gets unrolled.  Be it stated, at a narrow level it

may look like a combat between two individuals, but when

analytical  scrutiny is  done and the State  is  compelled to

wake up from its slumber, the unveiling of facts reveal the

contestation between the accord and the discord, the scuffle

betwixt  the  sacrosanctity  and  the  majesty  of  law on one

hand and the maladroit ingenious efforts to get the benefit

by the abuse of  process of  the Court on the other.   The

analysis  has  to  be  made,  that  being  an  imperative

command,  between  the  honest  nidification  and  the

surreptitious edifice.  

2. Mr.  Pradeep  Kumar  Yadav,  learned  counsel  for  the

appellant, with all the distress and the intellectual agony  at

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his command, has submitted that the High Court without

appropriate analysis and even without being fully apprised

of the fact situation, solely on the basis of parity, as if it is

the only foundation or for that matter, the comet that has

come off to shine, has enlarged the respondent no.2 on bail

totally being oblivious that no accused, however influential

he may be or clever he thinks to be, cannot be allowed to

nullify the sanctity and purity of law and jettison the age old

values “truth in action” and “the firm and continuous desire

to render to every one which is due”, the two fundamental

pillars of justice.   The plea, submits Mr. Yadav, apart from

cleverness also shows an attempt of the nonchalant mind of

the  respondent  No  2  to  engage  in  fertile  imagination

possibly  thinking  that  the  ground  of  parity  is  the  real

structure  of  palladium  to  bring  the  nemesis  of  the

prosecution  and  put  the  Court  in  a  situation  to  choose

between Scylla and Charybdis.  And, at this juncture, we

must state that both the appellant and the State (though at

a later  stage)  have become Argus-eyed and destroyed the

ingenious foundation so astutely built by the accused.

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3. Keeping  in  view the  aforesaid  submissions,  we shall

proceed  to  adumbrate  the  requisite  factual  score.   One

Salek  Chand  s/o.  Satpal  Singh  lodged  an  FIR  at  P.S.

Kavinagar,  Ghaziabad  on  25.02.2013  about  11.45  a.m.

against certain persons relating to the murder of his elder

brother, Yashvir Yadav.  On the basis of the lodging of the

FIR,  the  criminal  law  was  set  in  motion  and  eventually

chargesheet was filed which formed the subject matter of

Case  Crime No.  237 of  2013 for  the  offences  punishable

under  Sections 147,  148,  149,  302,  307,  394,  411,  454,

506, 120B read with Section 34 IPC.  After the application

for bail was rejected by the learned trial Judge, the accused

person, respondent no.2, moved the High Court in Criminal

Misc. Bail Application No. 25466 of 2014.  It was contended

before  the  High  Court  that  an  omnibus  role  had  been

ascribed to him and the other accused persons that they

had indulged in general firing as a consequence of  which

one person had died,  for  he had received three gun shot

injuries.  It was also contended that there was no credible

evidence against  the accused persons.   The real  plank of

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submission before  the  High Court,  as  is  perceptible,  was

that  prayer  for  bail  in  respect  of  11  accused  persons

including  Mitthan  Yadav  had  already  been  allowed,  and

there was no justification to deny him the said benefit as he

was similarly placed.  

4. The  prayer  for  bail  was  resisted  by  the  Public

Prosecutor  contending,  inter  alia,  that  there  was

indiscriminate  firing  by  the  accused person causing  fatal

injuries.  The High Court, after hearing both the parties, has

passed following order:-

“In view of above facts, considering the nature of allegation, severity of punishment and period of detention,  without  expressing  any  opinion  on merit, it is a fit case for bail. Let the applicant Budhpal @ Buddhu be enlarged on bail  on his furnishing a personal bond with two heavy sureties each in the like amount to the satisfaction of court concerned in case crime no. 237  of  2013  under  Section 147,148,149,302,307,394,411,454,506, 120B, 34 I.P.C.  Police  Station  Kavi  Nagar,  District Ghaziabad with the following conditions: (i)    The  applicant  will  not  tamper  with  the evidence during the trial. (ii)  The applicant will not pressurize/intimidate the prosecution witness. (iii)   The  applicant  will  appear  before  the  trial court on the date fixed, unless personal presence

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is exempted. In case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail.”

The said order is the subject matter of  assail  in the

present appeal by special leave.

5. At the outset we are obliged to clarify that it is not an

appeal seeking cancellation of bail in the strictest sense.  It

actually calls in question the legal pregnability of the order

passed by the High Court.  The prayer for cancellation of

bail  is  not  sought  on  the  foundation  of  any  kind  of

supervening  circumstances  or  breach  of  any  condition

imposed  by  the  High  Court.   The  basic  assail  is  to  the

manner  in  which  the  High  Court  has  exercised  its

jurisdiction  under  Section  439  CrPC  while  admitting  the

accused  to  bail.   To  clarify,  if  it  has  failed  to  take  into

consideration the relevant material factors, it would make

the order absolutely perverse and totally indefensible.  That

is why there is a difference between cancellation of an order

of  bail  and legal  sustainability  of  an order  granting  bail.

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[See  State  of  U.P.  v.  marmani  Tripathi1,  Puran  v.

Rambilas2,  Narendra K. Amin v. State of Gujarat3, and

Prakash Kadam v. Ramprasad Vishwanah Gupta4.]   

6. Having  cleared  that  maze,  we  may  clarify,  though

seriously  urged  by  Mr.  P.  George  Giri  that  there  is  no

warrant  for  cancellation  of  bail  as  there  has  been  no

supervening  circumstances,  yet  the  said  enthusiastic

submission leaves us unimpressed, as that is not the real

thrust of the matter.   

7. The mystery does not end there.  Mr. P. George Giri,

learned counsel for the respondent on 14.9.2015, in course

of  hearing,  on  instructions  advanced  an  eminently

innocuous,  but  innovative  plea  with  the  potentiality  to

create  immense  confusion  that  the  description  of

respondent no.2 is absolutely erroneous, and, in fact, he is

not the accused in any case.   Mr. Pradeep Kumar Yadav

very fairly stated that there has been a typographical error

in describing the name of the respondent no.2, for his name

1  (2005) 8 SCC 21 2  (2001) 6 SCC 338 3  (2008) 13 SCC 584 4  (2011) 6 SCC 189

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should have been Budhpal @ Buddhu s/o. Sh. Ram and not

Santpal  Yadav.   Mr.  R.K.  Dash,  learned  senior  counsel

appearing  for  the  State  apprised  us  that  the  address  is

correct as stated in the FIR and the chargesheet and the

same is also reflected in the application for grant of bail.

Taking note of the said situation, we permitted the cause

title to be corrected.  However, the issue having been raised

regarding the identity of the respondent no.2, to clear our

conscience, we asked the State to show us the documents

that he is the person who is accused of the offence.  On the

next  occasion,  documents  were  shown  and  we  were

satisfied, and we allowed the ambitious submission to burn

into ashes, or to put it differently, evaporate in the thin air.   

8.  It is interesting to note that learned counsel for the

appellant and the learned counsel for the State submitted

that the respondent no.2 is still in jail despite the order of

bail as he is involved in so many cases.  We will take up the

said issue at a later stage.  It is submitted by Mr. Yadav,

learned counsel for the appellant that despite the factum of

criminal history pointed out before the High Court, it has

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given  it  a  glorious  ignore  which  the  law  does  not

countenance.  The solitary and the singular grievance which

is propounded with solidity that the High Court should have

dwelt upon the same and thereafter decided the matter.  Mr.

Dash,  learned  senior  counsel  (though  the  State  has  not

moved  any  application  for  setting  aside  the  order  of  bail

granted  by  the  High  Court  for  the  reasons  which  are

unfathomable) unhesitatingly accepted the said submission.

In the additional affidavit, an independent chart has been

filed by the State and we find that apart from the present

case, there are seven cases pending against the respondent

no.2.  The chart of the said cases is reproduced below:-

“1. FIR No. 664/02 u/s 302 IPC, PS Kavinagar, Ghaziabad. 2. FIR  No.  558/04  u/s.  392,  411  IPC,  PS Kotwali, Dist. Bulandshahar. 3. FIR No. 14/05 u/s. 398, 401, 307 IPC PS Noida, Gautam Budh Nagar. 4. FIR  No.  15/05  u/s.  25,  27  Arms  Act,  PS Sector 49, Noida, Gautam Budh Nagar 5. FIR No. 1614/08 u/s. 364, 302, 201 IPC, PS Sihani Gate, Ghaziabad 6. FIR No. 98/05 u/s. 2/3  Gangster Act, PS Sector 49, Noida, Gautam Budh Nagar 7. FIR No. 451/12 u/s. 60 PS Sector 49 Noida,

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Gautam Budh Nagar”

9. On a perusal of the aforesaid list, it is quite vivid that

the respondent no.2 is a history-sheeter and is involved in

heinous offences.  Having stated the facts and noting the

nature  of  involvement  of  the  accused  in  the  crimes  in

question, there can be no scintilla of doubt to name him a

“history-sheeter”.  The question, therefore, arises whether in

these circumstances, should the High Court have enlarged

him on bail on the foundation of parity.   

10. In  Ram Govind Upadhyay v. Sudarshan Singh5, it

has  been clearly  laid down that  the  grant of  bail  though

involves 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.    The heinous nature of

crimes warrants more caution as there is a greater chance

of  rejection  of  bail  though,  however,  dependent  on  the

factual matrix of the matter.   In the said case, reference

was made to  Prahlad Singh Bhati v. NCT of Delhi6, and

thereafter  the  court  proceeded  to  state  the  following 5  (2002) 3 SCC 598 6  (2001) 4 SCC 280

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principles:-

“(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 evi- dence  establishing the  guilt  of  the accused be- yond reasonable doubt but there ought always to be a prima facie satisfaction of the court in sup- port of the charge. (d) Frivolity in prosecution should always be con- sidered 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 en- titled to an order of bail.”

11. It is a well settled principle of law that while dealing

with an application for grant of bail,  it is the duty of the

Court  to  take  into  consideration certain  factors  and they

basically are, (i) the  nature  of  accusation  and  the

severity of punishment in cases of conviction and the nature

of supporting evidence, (ii) reasonable  apprehension  of

tampering with the witnesses for apprehension of threat to

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the complainant, and (iii) Prima  facie  satisfaction  of  the

court in support of the charge. [See Chaman Lal v. State

of U.P.7)

12. In  Prasanta  Kumar  Sarkar  v.  Ashis  Chatterjee8,

while  dealing  with  the  court’s  role  to  interfere  with  the

power of the High Court to grant bail to the accused, the

Court observed that it is to be seen that the High Court has

exercised this discretion judiciously, cautiously and strictly

in compliance with the basic principles laid down in catena

of  judgments  on  that  point.   The  Court  proceeded  to

enumerate the factors:-

“9.  …  among  other  circumstances,  the  factors [which are] to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had commit- ted the offence; (ii) nature and gravity of the accusation; (iii)  severity  of  the  punishment  in  the  event  of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v)  character,  behaviour,  means,  position  and standing of the accused;

7  (2004) 7 SCC 525 8  (2010) 14 SCC 496

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(vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses be- ing influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.”

13. We will be failing in our duty if we do not take note of

the concept of liberty and its curtailment by law.  It is an

established fact that a crime though committed against an

individual,  in  all  cases  it  does  not  retain  an  individual

character.   It,  on  occasions  and  in  certain  offences,

accentuates and causes harm to the society. The victim may

be an individual,  but  in the ultimate  eventuate,  it  is  the

society  which  is  the  victim.   A  crime,  as  is  understood,

creates a dent in the law and order situation.  In a civilised

society, a crime disturbs orderliness.  It affects the peaceful

life of the society.  An individual can enjoy his liberty which

is definitely of paramount value but he cannot be a law unto

himself.  He cannot cause harm to others.  He cannot be a

nuisance  to  the  collective.   He cannot  be a terror  to  the

society; and that is why Edmund Burke, the great English

thinker, almost two centuries and a decade back eloquently

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spoke thus:-

“Men are qualified for civil liberty, in exact pro- portion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above their rapacity; in propor- tion as their  soundness and sobriety  of  under- standing is above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist un- less a controlling power upon will and appetite be placed  somewhere  and  the  less  of  it  there  is within, the more there must be without. It is or- dained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters9.

14. E.  Barrett  Prettyman,  a  retired  Chief  Judge  of  US

Court of Appeals had to state thus:-

“In an ordered society of  mankind there is  no such thing as unrestricted liberty, either of  na- tions or of individuals. Liberty itself is the prod- uct of restraints; it is inherently a composite of restraints; it dies when restraints are withdrawn. Freedom, I say, is not an absence of restraints; it is a composite of  restraints.  There is no liberty without order. There is no order without systema- tised restraint. Restraints are the substance with- out  which  liberty  does  not  exist.  They  are  the essence of liberty. The great problem of the demo- cratic  process  is  not  to  strip  men of  restraints merely  because  they  are  restraints.  The  great problem is to design a system of restraints which will nurture the maximum development of man’s

9  Alfred Howard, The Beauties of Burke (T. Davison, London) 109

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capabilities, not in a massive globe of faceless an- imations but as a perfect realisation, of each sep- arate human mind, soul and body; not in mute, motionless meditation but in flashing, thrashing activity.10”

15. This being the position of law, it is clear as cloudless

sky that  the  High Court  has  totally  ignored the  criminal

antecedents  of  the  accused.   What has weighed with the

High  Court  is  the  doctrine  of  parity.   A  history-sheeter

involved in the nature of crimes which we have reproduced

hereinabove, are not minor offences so that he is not to be

retained in custody, but the crimes are of heinous nature

and  such  crimes,  by  no  stretch  of  imagination,  can  be

regarded as jejune.  Such cases do create a thunder and

lightening having the effect potentiality of torrential rain in

an analytical mind.  The law expects the judiciary to be alert

while admitting these kind of accused persons to be at large

and,  therefore,  the  emphasis  is  on  exercise  of  discretion

judiciously and not in a whimsical manner.  

16. In  this  regard,  we  may  profitably  reproduce  a  few

significant lines from Benjamin Disraeli:-

10  Speech at Law Day Observances (Pentagon, 1962) as quoted in Case and Comment, Mar-Apr 1963

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“I repeat……… that all power is a trust-that we are  accountable  for  its  exercise-  that,  from the people  and  for  the  people,  all  springs,  and  all must exist.”

17. That apart, it has to be remembered that justice in its

conceptual eventuality and connotative expanse engulfs the

magnanimity  of  the  sun,  the  sternness  of  mountain,  the

complexity of creation, the simplicity and humility of a saint

and  the  austerity  of  a  Spartan,  but  it  always  remains

wedded  to  rule  of  law  absolutely  unshaken,  unterrified,

unperturbed and loyal.  

18. Before parting with the case, we may repeat with profit

that  it  is  not  an  appeal  for  cancellation  of  bail  as  the

cancellation  is  not  sought  because  of  supervening

circumstances.  The annulment of the order passed by the

High  Court  is  sought  as  many  relevant  factors  have  not

been taken into consideration which includes the criminal

antecedents  of  the  accused  and  that  makes  the  order  a

deviant  one.   Therefore,  the  inevitable  result  is  the

lancination of the impugned order

19. Resultantly, the appeal is allowed and the order passed

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by the High Court is set aside.  If the respondent no.2 is at

large, he shall be taken into custody forthwith; and if he is

still in custody because of certain other cases, he shall not

be admitted to bail in connection with the present case.  We

make it clear that we have not expressed any opinion with

regard to  other  cases and simultaneously  we also  clearly

state that our observations in this case are only meant for

purpose of setting aside the order granting bail and would

have no impact or effect during the trial.  

.............................J. [Dipak Misra]

..........................., J. [Prafulla C. Pant]

New Delhi September 29, 2015