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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   1938   OF 2017

[Arising out of SLP(Crl.) No.4574 of 2017]

ANIL KUMAR YADAV                 …Appellant Versus

STATE (NCT) OF DELHI & ANR.                      ....Respondents With

CRIMINAL APPEAL NO.  1940   OF 2017

[Arising out of SLP(Crl.) No.7145 of 2017]

VIKAS BALGUER                                        …Appellant Versus

STATE (NCT) OF DELHI                          ....Respondent With

CRIMINAL APPEAL NO.    1939   OF 2017

[Arising out of SLP(Crl.) No.7131 of 2017]

ASHISH BALGUER AND ANR.                              …Appellants Versus

STATE (NCT) OF DELHI                                      ....Respondent With

CRIMINAL APPEAL NO.    1942   OF 2017

[Arising out of SLP(Crl.) No.7251 of 2017]

VIKAS @ SHAMMI                                …Appellant Versus

STATE (NCT) OF DELHI                            ....Respondent With     

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CRIMINAL APPEAL NO.   1941   OF 2017

[Arising out of SLP(Crl.) No.7213 of 2017]

TARUN @ MADDY                                 …Appellant Versus

STATE (NCT) OF DELHI                             ....Respondent

J U D G M E N T R. BANUMATHI, J.

Leave granted.

2. These appeals arise from the order of the High Court of Delhi in

and by which the High Court has cancelled the bail granted to the

respondents-accused by two separate orders dated 31.05.2017 and

08.09.2017.  By virtue of the first impugned order, bail granted to Anil

Kumar Yadav (A4) was cancelled and by the second impugned order,

bail granted to other accused were cancelled.

3. The case of prosecution is that  on 21.10.2015, Rohit  Bansal

(injured  witness)  along  with  his  friends  Vineet,  Sonu,  Rupesh

(deceased) and Monu had gone to Shanghai Club, Hauz Khas in two

separate cars, i.e. Santro being registration No.UP-16-AM-6317 and

Honda Civic being registration No.DL-7CF-4118.   At around midnight

12.00-12.15, while dancing in the club, Rohit Bansal's hand struck an

individual to whom he said "sorry". On this, the said individual abused

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and questioned Rohit  Bansal and quarrel  started between the two

groups and the said individual took a glass from one of his friends

and hit the complainant-Rohit Bansal; but the matter was pacified by

the  bouncers/security  personnel  of  the  club.  Thereafter,  the

complainant-Rohit Bansal and his friends were sent out of the club

and after coming out of the club when they reached IIT Gate, then

Rohit Bansal realized that his mobile phone was missing which might

have fallen during the quarrel and he along with his friends Rupesh,

Sonu and Monu came back in Santro car to the club.  When they

came back, they found that a Mercedes and EON car had blocked

the road and a Bolero car was parked on the road-side. When they

asked them to  let  them pass,  one  of  the  accused with  whom an

altercation had taken place in the club, threatened to teach them a

lesson. Thereafter, all  the accused/assailants started beating them;

one of the assailants brought an iron rod from the car and started

hitting Rupesh and when Rohit intervened to save Rupesh, he was

also attacked.  Thereafter, another assailant lifted a cemented brick

and  hit  Rupesh  on  his  head  and  they  all  ran  towards  different

directions to save themselves leaving Santro car at the spot. When

Rohit Bansal returned back to take his car, he saw Rupesh lying at

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the  spot  unconscious  and  sustained  multiple  injuries  on  his  body.

Complainant Rohit along with one Sunil  took Rupesh to the AIIMS

Hospital and got him admitted in the Trauma Centre.  

4. On receipt  of  DD regarding admission  of  Rupesh and Rohit

Bansal (Complainant) in Trauma Centre AIIMS, ASI Dalbir Singh went

to  the  hospital  and  recorded  the  statement  of  the  injured  Rohit

Bansal,  based  on  which  FIR  No.1187/2015  was  registered  under

Section  307,  Section  308  read  with  Section  34  IPC.  Rupesh

succumbed to injuries on 26.10.2015 and the FIR was altered into

Sections  302,  308  IPC  and  201  IPC  read  with  34  IPC.  Upon

completion  of  the  investigation,  charge-sheet  was  filed  under

Sections 302 and 308 IPC read with Section 34 IPC against Tarun @

Maddy (A1), Vikas @ Shammi (A2), Ashish Balguer (A3), Anil Kumar

Yadav  (A4),  Vikas  Balguer  (A5)  and  Vishal  Balguer  (A6);

charge-sheet against Siddhant @ Goldy (A7) was filed under Section

201/212 IPC.

5. The trial court granted bail to Anil Kumar Yadav (A4) vide order

dated 27.02.2017, inter alia, on the grounds: - (i) that no other overt

act had been attributed to Anil Kumar Yadav (A4); (ii) Based on CCTV

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footage,  in  drawing  an  inference  that  no  specific  role  had  been

assigned to Anil Kumar Yadav (A4); and (iii) that Anil Kumar Yadav

(A4) had been in custody for about sixteen months.

6. The  order  of  granting  bail  to  Anil  Kumar  Yadav  (A4)  was

assailed by the complainant before the High Court on the very next

day.   Pointing  out  that  at  the  stage  of  granting  bail,  a  detailed

examination  of  the  evidence  and  elaborate  documentation  of  the

minute details of the case is not warranted and placing reliance upon

Puran v. Rambilas and Another (2001) 6 SCC 338, the High Court set

aside the order passed by the trial court thereby cancelling the bail

granted to Anil Kumar Yadav (A4).  Being aggrieved by cancellation

of bail,  Anil  Kumar Yadav (A4) preferred appeal before this  Court.

Vide order  dated 16.06.2017,  this  Court  issued notice  and stayed

surrender of Anil Kumar Yadav (A4).

7. While the appeal against grant of bail to Anil Kumar Yadav (A4)

was under consideration before the High Court, rest of the accused

were granted bail by the Sessions Court vide order dated 24.04.2017,

inter alia, on the ground that co-accused Anil Kumar Yadav (A4) had

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already been granted bail and that they were in custody for about one

and half years.   

8. When the appeal of Anil Kumar Yadav (A4) came up for further

hearing before this Court, State took time to take steps to challenge

the  order  of  grant  of  bail  to  other  accused  also.  By  order  dated

08.09.2017,  the  High  Court  cancelled  the  bail  granted  to  other

accused also.  Being aggrieved, other accused have also filed their

respective appeals before this Court.

Contentions:-

9. Mr. Siddharth Luthra, learned Senior Counsel for the appellant

Anil Kumar Yadav (A4) contended that Rohit Bansal who claims to be

an injured eye witness, in his statement recorded on 22.10.2015 did

not name the accused Anil Kumar Yadav as the assailant nor stated

about his overt act.  It was submitted that the presence of accused

Anil Kumar Yadav or use of baseball bat by him was not seen in the

CCTV footage and also taking note of the fact that the accused had

been in custody for more than sixteen months, the trial court granted

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bail to the appellant and the High Court erred in interfering with the

exercise of discretion by the Sessions Court.

10. Taking us through the order of the trial court dated 27.02.2017,

Mr. R. Basant, learned Senior Counsel appearing for Tarun @ Maddy

(A1)  contended that  on the material  available,  the Sessions Court

rightly observed that there was no pre-meditation and that the entire

incident was at the spur of the moment and when the trial court had

taken into consideration the relevant materials, the High Court erred

in substituting its views and setting aside the order of the Sessions

Court.  It  was  further  submitted  that  there  was  independent

consideration  of  the  materials  and  while  so,  the  High  Court

misdirected itself in observing that bail was granted on the ground of

parity.  

11. On  behalf  of  the  accused  Vikas  Balguer  (A5)  and  Ashish

Balguer  (A3),  Ms.  Rebecca  M.  John  learned  Senior  Counsel

submitted that the Sessions Court has independently considered the

relevant materials and granted bail to the accused and while so, the

High  Court  erred  in  proceeding  on  the  erroneous footing  that  the

accused persons were granted bail on parity with Anil Kumar Yadav.

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The learned Senior Counsel submitted that when the trial court had

properly exercised its jurisdiction, the High Court ought not to have

interfered with the exercise of discretion, more so, when the accused

were granted bail after filing of the charge-sheet.  

12. Mr.  Pawan K.  Bahl,  learned counsel  appearing  on  behalf  of

Vikas @ Shammi (A2) contended that because Shammi's name was

not  mentioned  in  the  FIR  and  only  after  the  main  accused  were

arrested and only based on their statement recorded on 22.10.2015

and 23.10.2015, accused Vikas @ Shammi was arrested and there is

no  prima facie case showing involvement of Vikas @ Shammi and

the trial court had rightly granted bail. It was contended that based on

the consideration of relevant materials, the trial  court  exercised its

discretion in granting bail to the accused and the High Court was not

right in setting aside the same.  

13. On behalf  of  the prosecution,  Ms.  Kiran Suri,  learned Senior

Counsel has submitted that the statements of injured witness Rohit

Bansal  and  other  witnesses  prima  facie show involvement  of  the

accused  in  attacking  the  deceased  Rupesh  Tanwar  and  injured

witness Rohit Bansal. It was submitted that based on the statement

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recorded  from  the  accused,  the  incriminating  articles  were  also

recovered from the accused and the trial court ignored these relevant

materials  prima facie indicating involvement of the accused.  It was

submitted  that  the  trial  court  granted  bail  based  on  the  alleged

discrepancies in CCTV footage and discrepancies in statement of the

witnesses which are not relevant consideration for grant of bail and

the High Court rightly set aside the order granting bail to the accused

and the impugned orders warrant  no interference. Placing reliance

upon  Gobarbhai Naranbhai Singala v. State of Gujarat and Others

(2008) 3 SCC 775, it was submitted that the period inside the jail is

not a relevant consideration for grant of bail.   

14. Mr. Dushyant Dave, learned Senior Counsel appearing for the

complainant submitted that perversity in the order of the trial  court

flows  from  the  fact  that  irrelevant  materials  had  been  taken  into

consideration and when the bail order is unjustified or perverse, the

High Court rightly set aside the order.  In support of his contention,

the learned Senior Counsel placed reliance upon Brij Nandan Jaiswal

v.  Munna  alias  Munna  Jaiswal  and  Anr. (2009)  1  SCC  678  and

Kanwar Singh Meena v. State of Rajasthan and Anr. (2012) 12 SCC

180.   

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15. We  have  given  our  thoughtful  consideration  to  the  rival

submissions  made by the counsel  appearing on either  side.   The

point falling for consideration is whether the Sessions Court ignored

relevant materials while granting bail to the appellants accused and

whether  the  order  of  the  Sessions  Court  suffered  from  serious

infirmities,  justifying  interference  by  the  High  Court  in  exercise  of

judicial discretion.

16. As held in Puran case, while considering the question of grant

of bail, Court should avoid consideration of details of the evidence as

it is not a relevant consideration.  While it is necessary to consider the

prima facie case, an exhaustive exploration of the merits of the case

should  be  avoided.  We,  therefore,  consciously  refrain  from

considering  the  merits  of  the  materials/evidence  collected  by  the

prosecution.   

17. At the outset,  it  is to be pointed out that the Sessions Court

considered both framing of charges and also grant of bail to accused

Anil  Kumar  Yadav  by  way  of  a  common  order.   On  27.02.2017,

charges were framed against all the accused and bail was granted to

appellant Anil Kumar Yadav.  Insofar as framing of charges, in a case

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before  the  Sessions  Court,  under  Section  228  of  the  Criminal

Procedure Code, the court is required to consider "whether there is

ground for presuming that the accused has committed an offence....."

and then Court shall frame in writing a charge against the accused.

For  grant  of  bail,  the  court  is  required  to  consider  several  other

factors.  The considerations for framing of charge and grant of bail

are different.  It was stated by the Bar that by and large this is the

procedure followed in Delhi.  We may however indicate that it is not

desirable to frame charge and grant bail by way of a common order.   

18. While granting bail, the relevant considerations are:- (i) nature

of  seriousness  of  the  offence;  (ii)  character  of  the  evidence  and

circumstances which are peculiar to the accused; and (iii) likelihood

of the accused fleeing from justice; (iv) the impact that his release

may make on the prosecution witnesses, its impact on the society;

and  (v)  likelihood  of  his  tampering.  No  doubt,  this  list  is  not

exhaustive.   There  are  no  hard  and  fast  rules  regarding  grant  or

refusal of bail,  each case has to be considered on its own merits.

The matter  always calls  for  judicious exercise of  discretion by the

Court.   

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19. While considering the basic requirements for grant of bail,  in

State of U.P. through CBI v. Amarmani Tripathi, (2005) 8 SCC 21, this

Court has held as under:-

"18. It  is  well  settled  that  the  matters  to  be  considered  in  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 charge;  (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  tampered  with;  and  (viii)  danger,  of  course,  of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi Admn.)  (1978)  1  SCC  118].  While  a  vague  allegation  that  the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material  to show that he will  use his liberty to subvert  justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in  Kalyan Chandra Sarkar v.  Rajesh Ranjan  (2004) 7 SCC 528: (SCC pp. 535-36, para 11)

“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of  course.  Though  at  the  stage  of  granting  bail  a detailed  examination  of  evidence  and  elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider  among  other  circumstances,  the  following factors also before granting bail; they are:

(a)  The  nature  of  accusation  and  the severity  of  punishment  in  case  of  conviction and the nature of supporting evidence.

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(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c)  Prima facie satisfaction of the court  in support  of  the  charge.  (See  Ram  Govind Upadhyay v.  Sudarshan Singh  (2002) 3 SCC 598   and  Puran v.  Rambilas  (2001)  6  SCC 338.)”"

20. The test to be applied for grant of bail was also considered in

Jayendra Saraswathi Swamigal v. State of T.N.,  (2005) 2 SCC 13,

wherein it was held as under:-  

"16. ........The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court  in  State v.  Capt.  Jagjit  Singh  [1962]  3  SCR  622  and Gurcharan Singh v.  State  (Delhi  Admn.)  (1978)  1 SCC 118 and basically they are — the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not  being  secured  at  the  trial;  reasonable  apprehension  of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case..........."

21. In the present case, accused Anil  Kumar Yadav was granted

bail by the Sessions Court mainly on the grounds:- (i) as per CCTV

footage  deciphered  by  the  Investigating  Officer,  no  role  could  be

attributed  to  Anil  Kumar  Yadav  that  he  inflicted  injuries  on  Rohit

Bansal as well as to deceased Rupesh Tanwar and the photographs

do  not  show the  presence  of  the  accused  Anil  Kumar  Yadav;  (ii)

CCTV footage do not corroborate the statement of the witnesses that

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the accused along with their  cars were blocking the road; and (iii)

accused Anil  Kumar Yadav has been in custody since 31.10.2015.

The  Sessions  Court  pointed  out  that  possibly  no  role  could  be

attributed to accused Anil Kumar Yadav and observed as under:-

".......Admittedly, the crux of the CCTV footage is deciphered by the IO in the chargesheet as mentioned above and in the said crux no role of accused Anil Kumar Yadav is found.  Furthermore, there are other discrepancies pointed out by the counsel as discussed above which though could not be considered for the purpose of charge but could be considered as ground of bail........."

The Sessions Court though repeatedly observed that the court ought

not to go into the merits of the prosecution case actually the court

appears to have gone into the merits of the matter, in particular the

CCTV footage to hold that Anil Kumar Yadav could not have been

present  at  the  place  of  occurrence  or  participated  in  the  incident.

Further, the Sessions Court had also gone into the discrepancies of

the statement of the witnesses.  The probability or improbability of the

prosecution  version  has  to  be  judged  based  on  the  materials

available to the court at the time when bail is considered and not on

the basis of discrepancies.

22. While  considering the correctness of  the above findings,  the

learned  Judge  of  the  High  Court  viewed  the  CCTV  footage  and

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observed that the camera installed at the place of occurrence was a

revolving  camera  moving  horizontally  and  vertically  and  further

observed  that  the  "CCTV  footage  possibly  could  not  capture  the

whole instance from all angles at the same time".  After personally

viewing  CCTV  footage,  the  learned  Judge  had  given  graphic

description of the various slots/points and the relevant portion of the

High Court judgment reads as under:-

"I  have examined/viewed the CCTV footage/CD provided by the learned counsel  for  the respondent  in the computer  in chamber. Seemingly, the footage recorded in  the CCTV did not  cover  the entire  place  of  occurrence.   It  was  a  revolving  camera  moving horizontally and vertically.  Possibly, it could not capture the whole incident from all angles at the same time.  In the CCTV footage, Mercedes car is seen to have arrived at the spot at  1:30:26.  It remained at the spot subsequent to it.  At 1:39:34, the Mercedes is seen  leaving  the  spot  by  reversing  it.   The  respondent  is  seen entering into the Mercedes.  It is, however, not clear as to when the said  individual  (the  respondent)  had  come  out  of  the  said Mercedes.  The petitioner has also placed on record photographs developed from the footage recorded in the CCTV.  In photographs No.1, 2 and 4, the respondent is indicated inflicting injuries to the victim  along  with  others  at  1:37:30;  1:37:31;  and  1:37:31 respectively.

In photograph No.3, Mercedes is seen at the spot at 1:34:49. In  photo  No.5 the  respondent  is  seen entering the Mercedes at 1:38:29.  It belies the respondent's contention that the Mercedes entered  for  the  first  time  in  the  lane  of  the  occurrence  only  at 1:37:56.  In photos Mark 'A' and 'B' the respondent's car is seen at the spot at 1:30:41 and 1:31:50 too."

23. The High Court had gone into the details of CCTV footage and

noted the presence of  accused Anil  Kumar Yadav at  the scene of

occurrence  that  "he  was  seen  entering  into  the  Mercedes".   The Page No. 15 of 23

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Sessions Court was not right in raising doubts about the presence of

accused  Anil  Kumar  Yadav  and  his  role  in  inflicting  injuries  to

deceased Rupesh Tanwar as well as to the injured Rohit Bansal at

the present stage.  Since the Sessions Court proceeded to grant bail

on erroneous footing and also going into the merits of the materials

collected,  the  High  Court,  in  our  view,  rightly  set  aside  the  order

granting bail to the accused Anil Kumar Yadav.

24. As pointed out earlier, one of the grounds for grant of bail to the

appellant Anil Kumar Yadav by the Sessions Court was that he was in

custody for more than one year.  In crimes like murder, the mere fact

that the accused was in custody for more than one year, may not be a

relevant  consideration.   In  Gobarbhai  Naranbhai  case,  it  was

observed that the period of incarceration by itself would not entitle the

accused to be enlarged on bail.  The same was reiterated in  Ram

Govind Upadhyay v. Sudarshan Singh and others (2002) 3 SCC 598.  

25. On behalf of the prosecution, learned senior counsel Ms. Suri

and Mr. Dave, learned senior counsel appearing for the complainant

submitted that CCTV footage is not the sole material relied upon by

the prosecution.   It  was  submitted that  apart  from CCTV footage,

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there are eight eye witnesses who named the accused persons and

also stated the role of the accused persons.  Our attention was drawn

to Section 161 Cr.P.C., statement of injured witness Rohit Bansal and

other witnesses namely Vineet, Mohinder @ Monu, Jitender, Sagar

Sharma  @  Sonu  and  Bouncers  at  the  Club  namely  Sonu,  Rohit

Kumar, Praveen and  Chetan  Prakash  who  have  stated  about  the

presence of the accused in the scene of occurrence and their overt

acts.  That apart, based on the statements of the accused persons,

incriminating articles were also recovered and at this stage, it is not

necessary  to  elaborate  upon  the  recoveries  made  and  their

relevance.   

26. By perusal of Post-Mortem certificate, it is seen that over twenty

one injuries were inflicted on the various parts  of  the body of  the

deceased and he was disrobed and left  unconscious on the spot.

The manner in which the deceased was allegedly attacked and the

number of injuries inflicted on him prima facie indicate pre-meditation.

Injured witness Rohit Bansal also sustained  laceration injuries over

scalp.   

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27. As  rightly  contended  by  the  prosecution,  apart  from  CCTV

footage, there are other materials on record to show the "prima facie"

case  against  the  appellants/accused  viz.  (i)  statement  of  eye

witnesses who have named the accused and also given statements

as to the overt acts of each of the accused; (ii) recoveries made from

the accused; and (iii) the incident in which deceased Rupesh Tanwar

and complainant Rohit Bansal have sustained injuries.  The Sessions

Court had not taken into consideration these relevant materials; but

the  Sessions  Court  granted  bail  to  the  appellants/accused on  the

ground of discrepancies in the statement of witnesses, CCTV footage

and the period of incarceration of the accused which are not relevant

considerations for grant of bail by the Sessions Court in the facts and

stage of this case.   

28. In  Kanwar  Singh  Meena  case,  the  High  Court  granted  bail

ignoring  the  averments  made  against  the  accused  thereon  and

statement of witnesses recorded under Section 164 Cr.P.C.  Pointing

out that the High Court did not keep in view the prima facie materials

against the accused, this Court cancelled the bail.  By setting aside

the order of bail, in para (10), this Court observed as under:-

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"10. Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Session regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the  accused  with  reference  to  the  victim  and  witnesses,  the likelihood  of  the  accused  fleeing  from justice  and  repeating  the offence,  the  possibility  of  his  tampering  with  the  witnesses  and obstructing  the  course  of  justice  and  such  other  grounds  are required  to  be  taken  into  consideration.  Each  criminal  case presents its own peculiar  factual  scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court.  The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling the bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel  the bail  even in cases where the order  granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the  accused,  the  High  Court  or  the  Sessions  Court  would  be justified  in  cancelling  the  bail.  Such  orders  are  against  the well-recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice  and  absence  of  supervening  circumstances  such  as  the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High  Court  or  the  Sessions  Court  is  bound  to  cancel  such  bail orders  particularly  when  they are  passed  releasing  the  accused involved  in  heinous  crimes  because  they  ultimately  result  in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail." [underlying added]

29. In the present case, the trial is at a very crucial stage.  The trial

court is yet to record the testimony of material witnesses including the

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complainant  as  well  as  all  the  material  witnesses.   The  trial  has

commenced and the trial is said to be posted for 04.12.2017.  For

ensuring the fair trial, witnesses must be in a position to freely depose

without  fear.  In  the facts and circumstances of  the case,  we are

convinced that a fair trial can be ensured only if the appellants are not

enlarged on bail.

30. We are conscious of the fact that the appellants are only under

trials and their liberty is also a relevant consideration.  But equally

important  is to consider the impact of  their  release on bail  on the

prosecution witnesses and also its  impact  on society.  In  order  to

ensure that during trial  the material  witnesses depose without fear

and justice being done to the society, a balance has to be struck.

Referring to Masroor v. State of Uttar Pradesh and another (2009) 14

SCC 286 and other cases, in State of Bihar v. Rajballav Prasad alias

Rajballav Prasad Yadav alias Rajballabh Yadav  (2017) 2 SCC 178,

this Court held as under:-

"26. We are conscious of the fact that the respondent is only an undertrial and his liberty is also a relevant consideration. However, equally important consideration is the interest of the society and fair trial  of  the  case.  Thus,  undoubtedly  the  courts  have to  adopt  a liberal approach while considering bail applications of the accused persons.  However, in  a  given case,  if  it  is  found that  there is  a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair trial would outweigh the personal interest

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of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair  trial  on the other hand. When the witnesses are not  able to depose  correctly  in  the  court  of  law,  it  results  in  low  rate  of conviction  and many times even hardened criminals  escape the conviction.  It  shakes  public  confidence  in  the  criminal justice-delivery system. It is this need for larger public interest to ensure  that  criminal  justice-delivery  system  works  efficiently, smoothly  and  in  a  fair  manner  that  has  to  be  given  prime importance in such situations. After all, if there is a threat to fair trial because  of  intimidation  of  witnesses,  etc.,  that  would  happen because  of  wrongdoing  of  the  accused  himself,  and  the consequences thereof, he has to suffer........" [underlying added]

31. After  referring  to  various  case  laws  and observing  that  in  a

criminal trial, witnesses must be able to depose without fear, freely

and truthfully, in Rajballav Prasad case, this Court cancelled the bail

granted to the accused thereon.  In para (24) of the judgment, it was

held as under:-

"24. As indicated by us in the beginning, prime consideration before us is to protect the fair trial and ensure that justice is done. This may happen only if the witnesses are able to depose without fear, freely and truthfully and this Court is convinced that in the present case, that can be ensured only if the respondent is not enlarged on bail.  This  importance of fair  trial  was emphasised in  Panchanan Mishra v. Digambar Mishra  (2005) 3 SCC 143 while setting aside the order  of  the  High Court  granting  bail  in  the  following terms: (SCC pp. 147-48, para 13)

“13. We have given our careful consideration to the rival submissions made by the counsel appearing on either side. The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime and if there is delay in such a case the underlying object of cancellation of bail practically loses all its purpose and significance to

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the  greatest  prejudice  and  the  interest  of  the prosecution. It hardly requires to be stated that once a person is released on bail  in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members  of  the  deceased  victim  and  also  create problems of law and order situation.”"

32. It was repeatedly urged that the High Court misdirected itself in

interfering with the discretionary order of Sessions Court granting bail

to the accused and there was absolutely nothing to show that the

appellants are likely to abuse the bail or tamper with evidence.  The

court while granting bail should exercise its discretion in a judicious

manner.  Of  course,  once  discretion  is  exercised  by  the  Sessions

Court to grant bail on consideration of relevant materials, the High

Court would not normally interfere with such discretion, unless the

same suffers from serious infirmities or perversity.  While considering

the correctness of the order granting bail,  the approach should be

whether  the  order  granting  bail  to  the  accused  is  vitiated  by any

serious infirmity, in which case, the High Court can certainly interfere

with the exercise of  discretion.   The materials  available on record

prima facie indicating the involvement of the accused, possibility of

accused tampering with witnesses and the gravity of the crime were

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not kept in view by the Sessions Court.  Since the Sessions Court

granted bail  to  the appellants on irrelevant considerations and the

same suffered from serious infirmity, the High Court rightly set aside

the order of grant of bail to the accused.  The impugned orders do not

suffer from any infirmity warranting interference.   

33. In  the  result,  all  the  appeals  are  dismissed.   All  the

appellants/accused are directed to surrender  before the Committal

Court within one week from the date of this order.

     …….…………...………J.         [KURIAN JOSEPH]

…………….……………J.          [R. BANUMATHI]

New Delhi; November 14, 2017  

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