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NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1664 OF 2014 (ARISING OUT OF SLP(Crl.) NO. 2930 OF 2013)

SUNIL KUMAR                           APPELLANT Vs.

VIPIN KUMAR AND ORS.                  RESPONDENTS

J U D G M E N T

V.Gopala Gowda, J.

Leave granted.

2. This appeal is filed by the appellant questioning  

the correctness of the judgment and final Order dated  

18.02.2013 passed by the High Court of Judicature at  

Allahabad in Criminal Appeal No. 2684 of 2009 urging  

various facts and legal contentions in justification  

of his claim.

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3. Necessary relevant facts are stated hereunder to  

appreciate the case of the appellant and also to find  

out whether the appellant is entitled for the relief  

as prayed for in this appeal.

4. It  is  the  case  of  the  prosecution  that  the  

appellant,  who  was  at  the  time  of  the  incident,  

studying in an engineering college at Noida, happened  

to be at Shikarpur crossing within the police station  

Kotwali Nagar. At about 10 a.m. on 27th June 2003, it  

was then that the convicted respondent nos. 2 and 3  

dragged him into their house and began to assault  

him. Hearing the cries, the appellant’s father Shri  

Khem Chand and brother Shri Rajeev would arrive at  

the scene to his rescue. In the scuffle which ensued,  

both the father and the brother of the appellant got  

injured which led to the consequential death of the  

appellant’s brother Rajeev. After the FIR and follow-  

up  investigation  by  police,  charge  sheets  were  

submitted  by  the  police  subjecting  the  convicted  

respondent nos. 2 and 3 to trial under Section 302  

read with Section 34, Section 307 read with Section

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34 of IPC and for offences under Section 4 read with  

Section 25 of the Arms Act.  

5. The  Additional  District  and  Sessions  Judge,  

Bulandshahr on 16.4.2009, convicted and sentenced the  

respondent  nos.  2  and  3  to  various  terms  of  

imprisonment in Sessions trial Nos. 985, 987 and 988  

of 2003.

6. In  the  counter  version  of  the  matter,  the  

convicted respondent nos. 2 and 3, while admitting  

the date, time and place of the incident, claimed  

that the appellant and his deceased brother, Rajeev  

had barged into their house and attempted to sexually  

abuse a lady in their house namely Smt. Kajal. This  

very  criminal  behaviour  of  the  appellant  and  his  

deceased  brother  gave  rise  to  scuffle  between  the  

parties which resulted in the death of the brother of  

the appellant.  

7. On the basis of the complaint of the respondents,  

the  appellant  was  put  to  trial  under  different  

charges in cross Sessions trial No. 524 of 2005. The

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appellant  was  however  acquitted  from  offences  

punishable under Section 376/511, 323 and 324 of IPC.

8. The  convicted  respondent  nos.  2  and  3  filed  

Criminal  Appeal  No.  2684  of  2009  against  their  

conviction  by  the  Additional  District  and  Sessions  

Judge vide Order dated 16.4.2009. A Criminal Revision  

No. 1744 of 2009 was also filed by Smt. Kajal against  

the  acquittal  of  the  appellant  from  charges  under  

Section  376  I.P.C.  The  Criminal  Appeal  and  the  

Criminal  Revision  are  still  pending  for  disposal  

before the High Court.

9. In the meanwhile, the first application for bail  

moved by the convicted respondent nos. 2 and 3 in the  

above Criminal Appeal No. 2684 of 2009 was rejected  

by the Division Bench of the High Court on 27.7.2011.  

10. However,  the  subsequent  application  of  the  

convicted  Respondent  nos.  2  and  3  in  the  same  

Criminal Appeal No. 2684 of 2009 was allowed by the  

High Court vide Order dated 18.2.2013 requiring them  

to furnish individually, a personal bond of Rs.1 lakh

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with two sureties each, to the satisfaction of the  

trial court.  

11. It is against this enlargement of the respondent  

nos. 2 and 3 on bail by the High Court, that the  

appellant has appealed before us.  

12. It  has  been  contended  by  the  learned  senior  

counsel appearing on behalf of the State that the  

High Court erred in granting bail to the respondents  

in  exercise  of  power  under  Section  389  of  CrPC  

without  assigning  any  legal  and  acceptable  reason  

being  oblivious  to  the  nature  and  gravity  of  the  

offence,  the  evidence  being  led  thereof  and  the  

punishment awarded by the trial court.

13. It was further contended by the learned senior  

counsel  that  the  deceased  and  the  father  of  the  

appellant  were  assaulted  with  repeated  blows  on  

chest, head and shoulder. This is to say that the  

deceased  was  assaulted  mercilessly  by  the  

respondents.  Therefore,  they  do  not  deserve  to  be  

enlarged on bail by the High Court.

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14. The learned senior counsel further cited Section  

389 of the CrPC which holds as under to contend that  

the  High  Court  is  required  to  record  reasons  in  

writing  as  to  why  an  accused  is  enlarged  on  bail  

under Section 389.

“389.  Suspension  of  sentence  pending  the  appeal;  release  of  appellant on bail.

(1) Pending  any  appeal  by  a  convicted  person,  the  Appellate  Court  may,  for  reasons  to  be  recorded  by  it  in  writing,  order  that the execution of the sentence  or  order  appealed  against  be  suspended  and,  also,  if  he  is  in  confinement, that he be released on  bail, or on his own bond.”

15. The learned senior counsel has also relied upon  

the decision of this Court in the case of Vijay Kumar  

v.  Narendra & Ors.1 and the case of  Kishori Lal  v.  

Rupa2 wherein this Court has set aside bail granted by  

the High Court under Section 389 on the ground that  

the decision of the High Courts were not based on  

sound legal reasoning.  

1 (2002) 9 SCC 364  2 (2004) 7 SCC 638

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16. On the other hand, while seeking bail for the  

respondents before the High Court, the learned senior  

counsel  on  behalf  of  the  convicted  respondents  

contended that the convicted respondents were on bail  

earlier but they did not misuse the liberty.  

17. It  was  also  contended  by  the  learned  senior  

counsel  that  the  respondents  did  not  dispute  the  

date, time and place of the incident. However, there  

was a different version of the incident according to  

them.

18. We have heard the rival legal contentions raised  

by both the parties. We are of the opinion that the  

High  Court  has  rightly  applied  its  discretionary  

power  under  Section  389  of  CrPC  to  enlarge  the  

respondents  on  bail.  Firstly,  both  the  Criminal  

Appeal  and  Criminal  Revision  filed  by  both  the  

parties are pending before the High Court which means  

that  the  convictions  of  the  respondents  are  not  

confirmed by the appellate court. Secondly, it is an  

admitted fact that the respondents had been granted  

bail earlier and they did not misuse the liberty.

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Also, the respondents had conceded to the occurrence  

of the incident though with a different version.  

19.  We are of the opinion that the High Court has  

taken  into  consideration  all  the  relevant  facts  

including  the  fact  that  the  chance  of  the  appeal  

being heard in the near future is extremely remote,  

hence, the High Court has released the respondents on  

bail on the basis of sound legal reasoning. We do not  

wish to interfere with the decision of the High Court  

at this stage. The appeal is dismissed accordingly.

……………………………………………………J.  [DIPAK MISRA]

……………………………………………………J.    [V. GOPALA GOWDA]

New Delhi,                                          August 7, 2014