REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 569 OF 2018 [ARISING OUT OF SLP (CRL.) NO. 5611 OF 2017]

SEEMA SINGH .....APPELLANT(S)

VERSUS

CENTRAL BUREAU OF INVESTIGATION & ANR.

.....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NO. 570 OF 2018 (ARISING OUT OF SLP (CRL.) NO. 3511 OF 2018

ARISING OUT OF DIARY NO. 26339 OF 2017)

J U D G M E N T

A.K. SIKRI, J.

Delay condoned in Diary No. 26339 of 2017.   

2) Leave granted.

3) In the Criminal Appeal arising out of Special Leave Petition (Crl.)

No.  5611 of  2017,  the appellant,  on  whose complaint  case is

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registered against respondent No.2 herein under Sections  498-A,

302 and 120-B IPC, has challenged order dated March 09, 2017

passed by the High Court of  Judicature at Allahabad, whereby

respondent  No.  2  has  been  enlarged  on  bail  subject  to  the

following conditions:

“(a)  The applicant shall not tamper with the prosecution evidence.

(b)   The  applicant  shall  not  pressurize  the  prosecution witnesses.

(c)  The applicant shall appear on the date fixed by the trial court.

(d)  The applicant shall not commit an offence similar to the offence of which he is accused, or suspected of the commission, of which he is suspected.

(e)  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 or tamper with the evidence.   

In  case  of  default  of  any  of  the  conditions enumerated above, it would be open to the opposite party to approach the Court concerned for cancellation of bail.

However,  it  is  directed  that  the  aforesaid  case pending before the court below be decided expeditiously, if possible within a period of one year strictly, on day to day basis in accordance with Section 309 Cr.P.C. and also in view  of  principle  as  has  been  laid  down  in  the  recent judgment of the Hon’ble Apex Court in the case of Vinod Kumar v. State of Punjab; 2015 (3) SCC 220 if there is no legal impediment.

It is made clear that in case, the witnesses are not appearing  before  the  court  concerned,  liberty  is  being

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given to the concerned court to take necessary coercive measures  in  accordance  with  law  for  ensuring  the presence of the witnesses.   

Apart  from  the  aforesaid  conditions,  it  is  further provided  that  the  applicant  shall  surrender  his  passport within a period of two weeks’ from the date of his release before the concerned court and shall co-operate with the investigation.  It is further provided that the applicant shall present himself before the court concerned on each and every date and will not seek any adjournment whatsoever and in case any adjournment is sought on any exceptional circumstances,  the  court  concerned  shall  specify  the reasons  in  the  order  itself  while  granting  such adjournment.  It is also provided that in case, there is any change of  address,  the concerned S.S.P. and the Court shall be immediately informed.

Liberty is also being given to the learned counsel for the  complainant  to  file  a  bail  cancellation  application before  the  court  concerned  itself,  in  case,  there  is  any violation  on  the  part  of  the  applicant  of  the  aforesaid conditions.”

4) Other appeal is preferred by the Central Bureau of Investigation

(CBI) for the same relief as CBI also feels aggrieved by the same

very order granting bail to respondent No. 2, who is facing trial in

the aforesaid case.   

  5) The gravamen of the charge against respondent No. 2 is that he

has murdered his wife Smt. Sara Singh.  The allegations in the

chargesheet  are  that  respondent  No.  2  got  married  to  the

deceased  at  Arya  Samaj  Mandir,  Lucknow  on  July  27,  2013

where after the deceased went to live at her mother’s place due

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to  the  social  non-acceptance  of  their  marriage  by  the  family

members of respondent No. 2.  She used to live at her mother’s

place when suddenly respondent No. 2 started behaving cordially

with his wife and planned a trip in July, 2015 along with her to

New Delhi/Leh.   During the course of  their  journey,  the Maruti

Swift Car allegedly met with an accident on July 09, 2015 near

Sirsaganj, District Firozabad.  It was not an accident but a pre-

planned plot to get rid of the deceased and subsequently a FIR

dated July 18, 2015 was registered by the appellant herein who is

the mother of the deceased.  Consequently the Case Crime No.

387 of 2015 under Sections 498-A, 302 and 120-B IPC, Police

Station Sirsaganj, District Firozabad was registered.  The State

Government  transferred  the  case  to  the  CBI  vide  notification

issued on July 24, 2015 and another notification was issued by

the Department of  Personnel  & Training,  Government of  India,

New Delhi  on  October  14,  2015.   In  pursuance  of  the  above

notifications,  the  CBI  registered  a  case  bearing  No.  RC  No.

6(S)/2015/  SCU.V/SC.II/CBI  dated  October  19,  2015  and

accordingly the CBI commenced the investigation of the aforesaid

case  on  October  19,  2015.   Subsequently,  on  the  basis  of

evidence collected by the CBI, respondent No. 2 was arrested on

November 25, 2016.  Thereafter, respondent No. 2 filed his bail

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application  before  the  Special  Judicial  Magistrate,  CBI,

Ghaziabad which was rejected vide order dated December 15,

2016.   Another  bail  application  was  rejected  vide  order  dated

January 13, 2017.  Eventually the bail application was filed before

the High Court of Judicature at Allahabad which has been allowed

vide impugned order dated March 09, 2017 and bail is granted.   

6) It becomes clear from the above that respondent No. 2 maintains

that incident in question was merely an accident in which his wife

died.  On the other hand, the prosecution alleges that in reality,

respondent  No.  2  murdered  his  wife  and  thereafter  stage

managed the said accident in order to project that Sara Singh

died in the said accident.

7) According  to  respondent  No.2,  when  their  car  met  with  an

accident on July 09, 2015 which was being driven by him and his

wife Sara Singh was also sitting therein, she got badly injured and

while  she  was  taken  to  the  hospital,  she  expired  and  was

declared  brought  dead  by  the  District  Hospital,  Ferozabad.

Postmortem of the body was conducted and as per the report, the

cause  of  death  was  due  to  the  injuries  received  in  the  said

accident.   Sara  Singh  was cremated  thereafter.   However,  on

July  18,  2015,  the  FIR  was  lodged  doubting  the  postmortem

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report  and  alleging  that  Sara  Singh  was  murdered.   After  the

investigation  of  the case was transferred  to  the  CBI,  CBI  has

obtained the report from Central Road Research Institute (CRRI),

report of the Medical Board constituted by the All India Institute of

Medical  Sciences  (AIIMS),  New  Delhi,  report  from  Central

Forensic Science Laboratory (CFSL), New Delhi as well as from

Indian Institute of Technology (IIT).  On the basis of these reports

and  further  investigation,  chargesheet  was  prepared  and

submitted to the CBI court, Ferozabad.

8) Respondent No. 2 was arrested on November 25, 2016 and was

granted bail on March 09, 2017.  He, thus, remained in custody

for three and half months.

9) The case set up by respondent No. 2 in support of his plea for bail

in the High Court was that the accused and his wife had planned

a trip  to  Leh and when they reached Ferozabad,  the accused

found that a small school girl was coming on her bicycle from the

other side.  In order to save her, the accused had to apply sudden

brakes on his vehicle which was being driven at a high speed and

diverted the stearing as a  result  of  which the car  went  out  of

control and fell in a ditch alongside road.  The result was that the

car skidded and over-turned.  It was also pleaded that there were

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no eye-witnesses of  the incident  and no  evidence  whatsoever

which could show the participation of respondent No. 2 as per the

role assiged by the CBI.   The prosecution, while opposing the

bail, had drawn the attention to the reports of CRRI, AIIMS, CFSL

and IIT.   On the basis of  these reports,  it  was contended that

there was clear evidence to show that it was not an accident as

narrated by respondent No. 2 and, therefore, it was the result of a

pre-planned murder.  Referring to the report of the AIIMS, it was

argued that Sara Singh was initially strangulated and thereafter

crime  scene  was  created  in  which  the  accident  became  the

culminating point.  It was also emphasised that respondent No. 2

had a criminal history of three cases.

10) The  order  of  the  High  Court  shows  that  in  coming  to  the

conclusion that  respondent  No. 2 was entitled to bail,  pending

trial, following factors weighed with it:

(a) Videography of the postmortem was not done.

(b) After the alleged accident, respondent No. 2 had informed

about  the same to  the family  members of  the deceased.   On

receiving this  information,  mother  of  the deceased had arrived

and  postmortem  was  done  in  her  presence  and  other  family

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members.  At that time, certain doctors who were close and well-

known to the family of the deceased were also present at the spot

and they had taken certain photographs of the body before the

postmortem was done.  At that time, none of these persons raised

any objection with regard to the videography of the postmortem

not being done.  They did not demand second postmortem either

in case they had suspicion.

(c) Insofar  as  the  report  of  AIIMS  is  concerned,  it  is  solely

based  on  photographs  which  were  provided  to  the  panel  of

doctors and, thus, doctors never conducted any postmortem on

the body of the deceased.

(d) There is no eye-witness account which may show that the

girl  was  either  tortured  or  threatened on  the  way  or  she  was

injured, though vague allegations have been made in this behalf

but without any supporting documents.

(e) After investigation, the chargesheet had been filed by the

CBI. The main crux of the chargesheet is only the documentary

evidence  and  not  any  eye-witness  account.   Documentary

evidence is already available with the CBI.  Therefore, there is no

possible apprehension of respondent No. 2 in either hampering

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with  the  investigation  or  tampering  with  the  evidence  or

threatening anybody in case he is released on bail.   

(f) There is no likelihood of accused absconding as well.

11) Mr. Prashant Bhushan, who argued on behalf of the complainant,

and  Mr.  Maninder  Singh,  learned  Additional  Solicitor  General,

who  argued  for  CBI,  read  out  extensively  from  the  aforesaid

reports of the expert bodies, namely, CRRI, AIIMS, CFSL and IIT.

It  was  submitted  by  them that  the  report  of  the  CRRI  clearly

depicted that  there was no likelihood of  any such accident  as

narrated by respondent No. 2 having regard to the condition of

the car and the place of accident.   It  was, thus, a make-belief

story putforth by the accused.  From the report submitted by the

doctors from the AIIMS, it was pointed out that cause of death

was fatal pressure over neck by ligature and this would indicate

Sara Singh had not died in the accident but was strangulated to

death by the accused.  Reports of CFSL and IIT, likewise, were

read out to support the aforesaid case put up by the prosecution,

namely, alleged accident as projected by respondent No. 2 could

not have happened and, therefore, he was making a false case

that Sara Singh had died in an accident.  It was also argued that

the defence set up by respondent No. 2 was false inasmuch as

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both were sitting in the said car when the alleged incident took

place  and  how it  was  possible  that  insofar  as  one  passenger

(namely, Sara Singh) is concerned, she died and the other one

(namely, respondent No. 2) did not suffer even minor injuries.  It

was,  thus,  pleaded that  when there was nothing to  show that

chargesheet  was  false  and  it  has  also  come  on  record  that

accused is  a history-sheeter  and belongs to influential  political

family, bail should not have been granted by the High Court.  Mr.

Bhushan also referred to the following judgments of this Court in

support of his contention that it was a fit case for setting aside the

order of the High Court granting bail:

(i) Neeru Yadav v. State of Uttar Pradesh & Anr.1

“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 lightning 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.

xxx xxx xxx  

1 (2016) 15 SCC 422

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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  [Budhpal v.  State  of U.P., 2014 SCC OnLine All 14815].”

(ii) Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr.2

“9.   We  are  of  the  opinion  that  the  impugned  order  is clearly unsustainable.  It is trite that 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  the  basic  principles  laid  down  in  a  plethora  of decisions of this Court on the point.  It is well settled that, among  other  circumstances,  the  factors  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 committed 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;

(vi) likelihood of the offence being repeated;

(vii) reasonable  apprehension  of  the  witnesses  being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

2 (2010) 14 SCC 496

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[See  State of U.P.  v.  Amarmani Tripathi  (SCC p.31, para 18), Prahlad Singh Bhati v. NCT of Delhi, and Ram Govind Upadhyay v. Sudarshal Singh.]

10.  It is manifest that if the High Court does not advert to these  relevant  considerations  and  mechanically  grants bail,  the  said  order  would  suffer  from  the  vice  of  non- application of mind, rendering it to be illegal. In Masroor, a Division Bench of this Court, of which one of us (D.K. Jain, J.) was a member, observed as follows: (SCC p. 290, para 13)

“13...Though  at  the  stage  of  granting  bail  an  elaborate examination  of  evidence  and  detailed  reasons  touching the merit of the case, which may prejudice the accused, should be avoided, but there is a need to indicate in such order  reasons  for  prima  facie  concluding  why  bail  was being granted particularly where the accused is charged of having committed a serious office.”

(See  also  State  of  Maharashtra  v.  Ritesh,  Panchanan Mishra v. Digambar Mishra,  Vijay Kumar v. Narendra and Anwari Begum v. Sher Mohammad.)

11.   We are  constrained  to  observe  that  in  the  instant case, while dealing with the application of the accused for grant of bail,  the High Court completely lost sight of the basic principles enumerated above.  The accused, in the present  case,  is  alleged  to  have  committed  a  heinous crime of killing an old helpless lady by strangulation.  He was seen coming out of the victim’s house by a neighbour around the time of the alleged occurrence, giving rise to a reasonable belief that he had committed the murder.  We feel  that  under  the  given  circumstances,  it  was  not  the stage at which bail under Section 439 of the Code should have been granted to the accused, more so, when even charges have not yet been framed.”

12) Mr. Manan Kumar Mishra, learned senior counsel appearing for

the  accused,  strongly  refuted  the  aforesaid  submissions.   He

referred  to  the  same  very  reports  of  the  expert  bodies  and

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submitted  that  these  very  reports  when  read  minutely,  would

indicate  that  none  of  these  reports  have  given  any  final  and

conclusive opinion.  He laid much stress on the fact that these

reports  were  based  on  postmortem  of  the  ‘photographs’  of

deceased and not of the ‘body of the deceased’ and, therefore,

could not be given much credence in any case.  He also pointed

out that insofar as opinion of doctors of AIIMS is concerned, while

assigning  the  cause  of  death,  the  Medical  Board  itself  had

cautioned  that  same  should  be  corroborated  with  the

circumstantial evidence of the investigation in this case.  On that

basis, he reiterated his submissions which were accepted by the

High Court, as mentioned above, and argued that the High Court

had rightly exercised its discretion in granting bail to respondent

No. 2.  He further argued that once such a discretion is exercised,

unless it is shown that the same is perverse, the Court should not

interfere with the same.  In support, he relied upon the judgments

of this Court in:

(i) Tomaso Bruno and Anr. v. State of Uttar Pradesh3:

“36. In  the  second  post-mortem  report,  Ext.  Ka-11, substantially  there  were  no  changes  except  signs  of decomposition. The second post-mortem report reiterates that  cause  of  death  is  “asphyxia  as  a  result  of strangulation”.  According  to  the  medical  opinion,  a  hard

3 (2015) 7 SCC 178

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blunt  substance  appears  to  have  been  used  to  cause strangulation leading to the death on account of asphyxia. However, no such hard or blunt substance was found or seized from the room. Doctors have not found any physical signs of internal injuries viz. any extravasation of blood in the tissue or any laceration in the underlying muscles.

37. Considering the post-mortem reports, Exts. Ka-10 and Ka-11 and the evidence of PWs 10 and 11, in our view, reasonable doubts arise as to the cause of death due to asphyxia as a result of strangulation. Let us consider the injuries found on the body of deceased Francesco Montis vis-à-vis symptoms of strangulation. As per Modi's Medical Jurisprudence And Toxicology, 24th Edn. 2011, p. 453 the symptoms of strangulation are stated as under:

“(b)Appearances  due  to  Asphyxia.—The  face  is puffy and cyanosed, and marked with petechiae. The eyes are prominent and open. In some cases, they may be closed. The conjunctivae are congested and the  pupils  are  dilated.  Petechiae  are  seen  in  the eyelids  and  the  conjunctivae.  The  lips  are  blue. Bloody foam escapes from the mouth and nostrils, and sometimes, pure blood issues from the mouth, nose and ears, especially if great violence has been used. The tongue is often swollen, bruised, protruding and dark in colour, showing patches of extravasation and occasionally bitten by the teeth.  There may be evidence  of  bruising  at  the  back  of  the  neck.  The hands are usually clenched. The genital organs may be congested and there may be discharge of urine, faeces and seminal fluid.

(ii)  Internal  Appearance.—The  neck  and  its structures  should  be  examined  after  removing  the brain  and the  chest  organs,  thus  allowing  blood to drain  from the neck to  the blood vessels.  There is extravasation of blood into the sub-cutaneous tissues under the ligature mark or finger marks, as well as in the adjacent muscles of the neck, which are usually lacerated.  Sometimes,  there  is  laceration  of  the sheath of  the carotid arteries,  as also their  internal coats  with  effusion  of  blood  into  their  walls.  The cornua of the hyoid bone may be fractured also the superior cornua of thyroid cartilage but fracture of the cervical vertebrae is extremely rare. These should be

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carefully  dissected  in  situ  as  they  are  difficult  to distinguish from dissection artefacts in the neck.”

(emphasis in original)

xxx xxx xxx

40.  The courts,  normally  would  look  at  expert  evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory and unsustainable.  We agree  that  the  purpose  of  an  expert opinion is primarily to assist the court in arriving at a final conclusion but such report is not a conclusive one. This Court  is  expected  to  analyse  the  report,  read  it  in conjunction with  the other  evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. As discussed earlier, serious doubts arise about  the  cause  of  death  stated  in  the  post-mortem reports.”

 (ii) Siddharam Satlingappa Mhetra  v.  State of Maharashtra

& Ors.4:

“87. The complaint filed against the accused needs to be thoroughly  examined  including  the  aspect  whether  the complainant  has  filed  a  false  or  frivolous  complaint  on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.

88. The gravity of charge and the exact role of the accused must  be  properly  comprehended.  Before  arrest,  the arresting officer must record the valid reasons which have led  to  the  arrest  of  the  accused  in  the  case  diary.  In exceptional  cases  the  reasons  could  be  recorded immediately after the arrest, so that while dealing with the

4 (2011) 1 SCC 694

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bail  application,  the  remarks  and  observations  of  the arresting  officer  can  also  be  properly  evaluated  by  the court.

89.  It  is  imperative  for  the  courts  to  carefully  and  with meticulous precision evaluate the facts of  the case. The discretion must be exercised on the basis of the available material  and  the  facts  of  the  particular  case.  In  cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.

xxx xxx xxx

115. In  Joginder Kumar case [(1994) 4 SCC 260 : 1994 SCC (Cri)  1172]  a three-Judge Bench of  this  Court  has referred  to  the  3rd  Report  of  the  National  Police Commission, in which it  is  mentioned that the quality of arrests by the police in India mentioned the power of arrest as one of the chief sources of corruption in the police. The Report  suggested that,  by and large,  nearly  60% of the arrests  were  either  unnecessary  or  unjustified  and  that such unjustified police action accounted for 43.2% of the expenditure of the jails.

116. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

117. In case, the State considers the following suggestions in  proper  perspective  then  perhaps  it  may  not  be necessary to curtail the personal liberty of the accused in a routine  manner.  These  suggestions  are  only  illustrative and not exhaustive:

(1)  Direct  the accused to join the investigation and only when  the  accused  does  not  cooperate  with  the investigating agency, then only the accused be arrested.

(2)  Seize  either  the  passport  or  such  other  related documents,  such as, the title deeds of  properties or the fixed deposit receipts/share certificates of the accused.

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(3) Direct the accused to execute bonds.

(4) The accused may be directed to furnish sureties of a number of persons which according to the prosecution are necessary in view of the facts of the particular case.

(5) The accused be directed to furnish undertaking that he would not visit  the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided.

(6) Bank accounts be frozen for small duration during the investigation.

118. In case the arrest is imperative, according to the facts of the case, in that event, the arresting officer must clearly record the reasons for the arrest of the accused before the arrest in the case diary, but in exceptional cases where it becomes imperative to arrest the accused immediately, the reasons be recorded in the case diary immediately after the arrest  is  made without  loss of  any time so that  the court has an opportunity to properly consider the case for grant or refusal of bail in the light of reasons recorded by the arresting officer.

119. Exercise of jurisdiction under Section 438 CrPC is an extremely important judicial function of a Judge and must be entrusted to judicial officers with some experience and good track record.  Both the individual  and society  have vital interest in orders passed by the courts in anticipatory bail applications.

120. It is imperative for the High Courts through its judicial academies  to  periodically  organise  workshops, symposiums,  seminars  and  lectures  by  the  experts  to sensitise judicial officers, police officers and investigating officers  so  that  they  can  properly  comprehend  the importance  of  personal  liberty  vis-à-vis  social  interests.

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They  must  learn  to  maintain  fine  balance  between  the personal liberty and the social interests.

121. The  performance  of  the  judicial  officers  must  be periodically evaluated on the basis of the cases decided by them.  In  case,  they  have  not  been  able  to  maintain balance between  personal  liberty  and societal  interests, the lacunae must be pointed out to them and they may be asked to take corrective measures in future. Ultimately, the entire discretion of grant or refusal of bail has to be left to the  judicial  officers  and all  concerned  must  ensure  that grant or refusal of bail is considered basically on the facts and circumstances of each case.

122. In  our  considered  view,  the  Constitution  Bench  in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] has comprehensively  dealt  with  almost  all  aspects  of  the concept  of  anticipatory  bail  under  Section  438 CrPC.  A number of judgments have been referred to by the learned counsel  for  the parties consisting of  Benches of  smaller strength  where  the  Courts  have  observed  that  the anticipatory  bail  should  be  of  limited  duration  only  and ordinarily on expiry of that duration or standard duration, the court granting the anticipatory bail  should leave it to the  regular  court  to  deal  with  the  matter.  This  view  is clearly  contrary  to  the  view  taken  by  the  Constitution Bench in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] . In the preceding para, it is clearly spelt out that no limitation  has  been  envisaged  by  the  legislature  under Section  438  CrPC.  The  Constitution  Bench  has  aptly observed that “we see no valid reason for rewriting Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court or the Court of Session but, for the purpose of limiting it”.

123. In view of the clear declaration of law laid down by the Constitution Bench in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] , it would not be proper to limit the life of  anticipatory  bail.  When  the  Court  observed  that  the anticipatory bail is for limited duration and thereafter the accused  should  apply  to  the  regular  court  for  bail,  that means the life of Section 438 CrPC would come to an end after  that  limited  duration.  This  limitation  has  not  been

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envisaged by  the  legislature.  The Constitution  Bench in Sibbia  case [(1980)  2  SCC 565 :  1980 SCC (Cri)  465] clearly observed that it is not necessary to rewrite Section 438 CrPC. Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under Section 438 CrPC granting bail cannot be curtailed.

124. The ratio of the judgment of the Constitution Bench in Sibbia  case [(1980)  2  SCC 565 :  1980 SCC (Cri)  465] perhaps was not brought to the notice of Their Lordships who  had  decided  the  cases  of  Salauddin  Abdulsamad Shaikh v. State of Maharashtra [(1996) 1 SCC 667 : 1996 SCC (Cri) 198] , K.L. Verma v. State [(1998) 9 SCC 348 : 1998 SCC (Cri) 1031] ,  Adri Dharan Das v.  State of W.B. [(2005) 4 SCC 303 : 2005 SCC (Cri) 933] and Sunita Devi v.  State  of  Bihar [(2005)  1  SCC 608 :  2005  SCC (Cri) 435] .”

13) We have deliberated on the respective arguments in conjunction

with the record of the case.  Since we are concerned with the

order  of  the  High  Court  whereby  respondent  No.  2  has  been

granted bail,  having regard to the limited scope of interference

with such an order and keeping in mind the parameters on which

such an order  can be interdicted,  we are of  the view that  the

reasons given by the High Court to grant bail to respondent No. 2,

cannot  be termed as perverse.   It  can  be discerned from the

reading of the impugned order, from which we have culled out

circumstances,  that  the  High  Court  kept  in  mind  the  relevant

factors  while  considering  the  bail  application.  No  doubt,  the

offence with which respondent No. 2 is charged is a serious one.

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That by itself cannot be the ground to outrightly deny the benefit

of  bail  if  there are other overwhelming circumstances justifying

grant of bail.  The High Court has discussed those factors which

are reproduced above in para 9. No doubt, the counsel for the

appellants  have  extensively  referred  to  the  reports  of  CRRI,

AIIMS, CFSL and IIT.  Their evidentiary value is yet to be tested,

more so, when these reports are given on the basis of studies

undertaken much after the incident.  Report of AIIMS is based on

the photographs and not on the basis of postmortem of the body

of the deceased. Moreover, the learned counsel for respondent

No.  2  has  made  a  submission  that  AIIMS has  not  given  any

conclusive opinion. According to him, same is the position  qua

other  reports  as well.  We are not  supposed to examine these

reports in depth at this stage as that exercise has to be done by

the trial court when these reports are proved by the makers of the

report and they are cross-examined thereupon.  Moreover, in a

criminal case where respondent No. 2 is charged of committing

murder, the burden is upon the prosecution to establish, beyond

reasonable doubts, that the death of Sara Singh was the result of

a murder and that it is respondent No. 2 who committed the said

murder.  His defence about alleged accident is only one of the

factors  that  would  be  looked  into  as  to  whether  such  a  story

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putforth by him is correct or not and the effect thereof.  We have

to keep in mind that, at this juncture, the limited question is as to

whether the High Court is rightly used its discretion to grant the

bail.

14) We  are  of  the  opinon  that  the  High  Court  has  taken  into

consideration  relevant  factors  while  granting  the  bail  to

respondent No.2.  The impugned order is also a speaking order

with reasons that need to be given in brief while deciding as to

whether the undertrial  is  entitled to bail  or not.   Therefore, the

judgment cited by the learned counsel for the complainant would

not apply to the facts of this case.  We may refer to a recent

judgment dated February 06, 2018 in the case of Dataram Singh

v.  State of Uttar Pradesh & Anr.5 wherein this Court (speaking

through  Madan  B.  Lokur,  J.)  made  the  following  pertinent

observations:

“2.   A fundamental  postulate of criminal  jurisprudence is the  presumption  of  innocence,  meaning  thereby  that  a person  is  believed  to  be  innocent  until  found  guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of  other  offences.  Yet  another  important  facet  of  our criminal  jurisprudence  is  that  the  grant  of  bail  is  the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to

5 (2018) 3 SCC 22

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use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for  longer  periods.  This  does  not  do  any  good  to  our criminal jurisprudence or to our society.

3.   There is no doubt  that  the grant  or  denial  of  bail  is entirely the discretion of the judge considering a case but even  so,  the  exercise  of  judicial  discretion  has  been circumscribed by a large number of decisions rendered by this  Court  and by  every  High Court  in  the  country.  Yet, occasionally  there  is  a  necessity  to  introspect  whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

xxx xxx xxx

7.  However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be  exercised  judiciously  and  in  a  humane  manner  and compassionately.  Also,  conditions  for  the  grant  of  bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.”

15) It  has not  been disputed that  after  the  incident  in  which  Sara

Singh died,  mother of  the deceased, other family members as

well as some doctors who were close to the family had arrived.

Postmortem was  conducted  in  their  presence.   At  that  stage,

nobody nurtured any suspicion.  FIR was lodged nine days after

the  incident.   The  material  collected  by  the  CBI  during

investigation is  documentary  in  nature  which are  given on the

basis of photographs produced before them and had to be tested

during trial.  Insofar as allegations of threat are concerned, it was

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argued by Mr.  Manan that  the police  examined the same and

found to be false.  In any case, the High Court has given liberty to

the prosecution to apply for cancellation of bail in case any such

threat  is  extended  or  there  is  any  violation  on  the  part  of

respondent No. 2 to any of the conditions of the bail.  The High

Court has imposed strict  conditions of bail  keeping in view the

interest of the prosecution as well.   

16) We, therefore, do not find any merit in these appeals which are

accordingly dismissed.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; APRIL 18, 2018.

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