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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.      1456      OF     2012   (Arising out of S.L.P. (Criminal) No. 4083 of 2012)

Ash Mohammad        ... Appellants

Versus

Shiv Raj Singh @ Lalla Babu & Anr.     ... Respondents

J     U     D     G     M     E     N     T       

Dipak     Misra,     J.   

Leave granted.

2. The present appeal by special leave has been preferred  

assailing the legal defensibility of the order dated 26.04.2012  

passed in Criminal Application No.  28461 of 2011 by the High  

Court of Judicature at Allahabad and praying for quashment of the

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same, and further to cancel the grant of bail to the accused-

respondent (hereinafter referred to as ‘the accused’) in respect of  

offences punishable under Sections 365/506 of the Indian Penal  

Code (for short ‘the  IPC’).    

3. The facts material for adjudication of this appeal are that an  

FIR was lodged by the present appellant on 29.05.2011 alleging  

that while he was going to his in-laws’ place in village Samadia, P.S.  

Patwai along with Bihari Lal near canal of Milk Road from Patwai  

which leads to Samdia Khurd, two persons came on a motorcycle  

and after inquiring about the identity of Bihari Lal told him that  

they had been asked by Lalla Babu @ Shiv Raj Singh to compel him  

to accompany them.   As there was resistance, they threatened to  

kill him and eventually made Bihari Lal sit in between them on the  

Hero Honda motorcycle and fled towards Patwai. The incident was  

witnessed by Munish and Rajbir.  In quite promptitude the  

appellant went to the Patwai Police Station, District Rampur and  

lodged the FIR as a consequence of which crime No. 770 of 2011  

was registered for offences punishable under Section 364 and 506  

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of the IPC.  On the basis of the FIR the criminal law was set in  

motion and the accused was arrested and taken into custody.   

4. The accused Shiv Raj Singh @ Lalla Babu preferred bail  

Application No. 1268 of 2011 which came to be dealt by the learned  

Additional Sessions Judge, Rampur who taking note of the  

allegations in the FIR and the stand put forth in oppugnation by the  

prosecution as well as by the victim observed as follows:-   

“I have perused the case diary. While  confirming his abduction, victim Bihari Lal has  stated under Section 164 Cr.P.C. that the  abductors took him to the accused.  Applicant- accused and his accomplices kept him  confined in a room for about 8 days and they  also used to assault him and threaten for life.  As per the victim, he escaped from their  captivity after about 8 days of abduction under  the pretext of nature’s call/time. Munish and  Rajbir reported as eye-witnesses in the First  Information Report stated before the  Investigating Officer that the abductors had  stated at the time of abduction that the  applicant-accused Lalla Babu has send them  to mend you.”

5. Thereafter, taking note of the fact that the accused is a  

history-sheeter and involved in number of cases rejected the  

application for bail.   

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6. Being unsuccessful to secure bail from the court of Session,  

the accused preferred a Bail Application No. 28461 of 2011 before  

the High Court under Section 439 of the Code.  The High Court  

though took note of the statement made under Section 164 CrPC  

that name of Shiv Raj Singh @ Lalla Babu had figured as allegations  

were made against him to that effect that victim Bihari Lal was  

taken by the kidnappers to him, yet observed that he only sat there  

and offended Bihari Lal.  The High Court only mentioned the fact  

that the accused has a criminal history and is involved in number  

of cases but considering the factum that he has been in custody  

since 30.09.2011 directed his enlargement on bail on certain  

conditions, namely, the accused shall report at the police station  

concerned on the first day of each English Calendar month, shall  

not commit any offence similar to the offence which he is accused  

of, and shall not directly or indirectly make any inducement, threat  

or promise to any person acquainted with the facts of the case so as  

to dissuade him from disclosing such facts to the court or to any  

police officer.   

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7. Questioning the justifiability of the impugned order Ms. Abha  

R. Sharma, learned counsel for the petitioner has contended that  

the High Court has absolutely misdirected itself by not appositely  

considering the statement recorded under Section 164 of the Code  

of Criminal Procedure, the gravity of the offences and criminal  

antecedents of the accused and further the affidavit filed by the  

prosecution bringing number of factors as a consequence of which  

an illegal order enlarging the appellant on bail has come into  

existence.  The learned counsel submitted that the non-

consideration of the material facts vitiates the order of the High  

Court and annulment of the same is the judicial warrant.  

8. Per contra, Mr. Irshad Ahmed, learned counsel appearing for  

the accused contended that the prosecution case is a fabricated,  

false and malicious one and it has been foisted because of political  

vendetta.   It is urged by him that there is discrepancy between  

statements recorded under Section 161 Cr.P.C and 164 Cr.P.C and,  

therefore, the order passed by the High Court cannot be found fault  

with.   It is his further submission that though the accused has  

been released on bail, yet he has conducted himself and in the  

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absence of any supervening circumstances it would be undesirable  

to cancel the order granting bail as the sanctity of liberty should be  

treated with paramount importance.  It is also argued that the High  

Court was absolutely conscious of the cases pending against  

accused but because of election disputes and constant animosity of  

the administration which was stand of the accused they were not  

dwelled upon in detail and an order admitting the accused to bail  

was passed on imposing stringent conditions.  That apart, it is put  

forth that in the absence of any failure on his part to respect the  

conditions his liberty should not be put to any jeopardy at the  

instance of an interested party who is bent upon to harass him.   

9. The centripodal issue that emerges for consideration is  

whether the order passed by the High Court is legitimately  

acceptable and legally sustainable within the ambit and sweep of  

the principles laid down by this Court for grant of regular bail  

under Section 439 of the Code.   

10. In Ram Govind Upadhyay v. Sudarshan Singh and  

Others1, it has been opined that the grant of bail though involves  

1 (2002) 3 SCC 598

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exercise of discretionary power of the Court, such exercise of  

discretion has to be made in a judicious manner and not as a  

matter of course.  Heinous nature of the crime warrants more  

caution and there is greater chance of rejection of bail, though,  

however dependent on the factual matrix of the matter.  In the said  

case the learned Judges referred to the decision in Prahlad Singh  

Bhati v. NCT,  Delhi and Another2   and stated as follows:-  

“(a)  While granting bail the court has to keep  in mind not only the nature of the accusations,  but the severity of the punishment, if the  accusation entails a conviction and the nature  of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses  being tampered with or the apprehension of  there being a threat for the complainant  should also weigh with the court in the matter  of grant of bail.   

(c) While it is not expected to have the entire  evidence establishing the guilt of the accused  beyond reasonable doubt but there ought  always to be a prima facie satisfaction of the  court in support of the charge.

(d) Frivolity in prosecution should always be  considered and it is only the element of  genuineness that shall have to be considered  in the matter of grant of bail, and in the event  of there being some doubt as to the  

2 (2001) 4 SCC 280

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genuineness of the prosecution, in the normal  course of events, the accused is entitled to an  order of bail. ”

11. In Chaman Lal v. State of U. P. and Another3 this Court  

while dealing with an application for bail has stated that certain  

factors are to be considered for grant of bail, they are; (i) the nature  

of accusation and the severity of punishment in case of conviction  

and the nature of supporting evidence; (ii) reasonable apprehension  

of tampering with the witness or apprehension of threat to the  

complainant; and (iii) prima facie satisfaction of the court in  

support of the charge.         

12. In Masroor v. State of Uttar Pradesh and another4, while  

giving emphasis for ascribing reasons for granting of bail, however,  

brief it may be, a two-Judge Bench observed that there is no  

denying the fact that the liberty of an individual is precious and is  

to be zealously protected by the courts.  Nonetheless, such a  

protection cannot be absolute in every situation.  The valuable right  

of liberty of an individual and the interest of the society in general  

3 (2004) 7 SCC 525 4 (2009) 14 SCC 286

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has to be balanced.  Liberty of a person accused of an offence would  

depend upon the exigencies of the case.   

13. In Prasanta Kumar Sarkar v. Ashis Chatterjee and  

another5 it has been observed that normally this Court does not  

interfere with an order passed by the High Court granting or  

rejecting the bail of the accused, however, it is equally incumbent  

upon the High Court to exercise its discretion judiciously,  

cautiously and strictly in compliance with the basic principles laid  

down in a plethora of decisions of this Court on the point.  Among  

other circumstances the factors which are to be borne in mind  

while considering an application for bail are whether there is any  

prima facie or reasonable ground to believe that the accused had  

committed the offence; nature and gravity of the accusation;  

severity of the punishment in the event of conviction; danger of the  

accused absconding or fleeing, if released on bail; character,  

behavior, means, position and standing of the accused; likelihood of  

the offence being repeated; reasonable apprehension of the  

witnesses being influenced; and danger, of course, of justice being  

thwarted by grant of bail. 5 (2010) 14 SCC 496

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14. In State of U.P. through CBI v. Amarmani Tripathi6 it has  

been ruled that in an appeal against grant of bail all aspects that  

were relevant under Section 439 read with Section 437 continue to  

be relevant.

15. In Puran v. Rambilas and another7 it has been noted that  

the concept of setting aside an unjustified, illegal or perverse order  

is totally different from the cancelling an order of bail on the ground  

that the accused had misconducted himself or because of some  

supervening circumstances warranting such cancellation.

16. In Dr. Narendra K. Amin v. State of Gujarat and another8,  

a three-Judge Bench has observed that when irrelevant materials  

have been taken into consideration the same makes the order  

granting bail vulnerable.  If the order is perverse, the same can be  

set at naught by the superior court.

17. In Prakash Kadam and others v. Ramprasad Vishwanath  

Gupta and another9, while making a distinction between  

6 (2005) 8 SCC 21 7 (2001) 6 SCC 338 8 2008 (6) SCALE 415 9 (2011) 6 SCC 189

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cancellation of bail and consideration for grant of bail, this Court  

opined thus: -

“18. In considering whether to cancel the bail the  court has also to consider the gravity and nature of  the offence, prima facie case against the accused,  the position and standing of the accused, etc.  If  there are very serious allegations against the  accused his bail may be cancelled even if he has not  misused the bail granted to him.  Moreover, the  above principle applies when the same court which  granted bail is approached for cancelling the bail.  It  will not apply when the order granting bail is  appealed against before an appellate/Revisional  Court.

19. In our opinion, there is no absolute rule that  once bail is granted to the accused then it can only  be cancelled if there is likelihood of misuse of the  bail.  That factor, though no doubt important, is not  the only factor.  There are several other factors also  which may be seen while deciding to cancel the  bail.”

18. We have referred to the above authorities solely for the  

purpose of reiterating two conceptual principles, namely, factors  

that are to be taken into consideration while exercising power of  

admitting an accused to bail when offences are of serious nature,  

and the distinction between cancellation of bail because of  

supervening circumstances and exercise of jurisdiction in nullifying  

an order granting bail in an appeal when the bail order is assailed  

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on the ground that the same is perverse or based on irrelevant  

considerations or founded on non-consideration of the factors  

which are relevant.   

19. We are absolutely conscious that liberty of a person should  

not be lightly dealt with, for deprivation of liberty of a person has  

immense impact on the mind of a person.  Incarceration creates a  

concavity in the personality of an individual.  Sometimes it causes a  

sense of vacuum.  Needless to emphasize, the sacrosanctity of  

liberty is paramount in a civilized society.  However, in a democratic  

body polity which is wedded to Rule of Law an individual is  

expected to grow within the social restrictions sanctioned by law.  

The individual liberty is restricted by larger social interest and its  

deprivation must have due sanction of law.  In an orderly society an  

individual is expected to live with dignity having respect for law and  

also giving due respect to others’  rights.  It is a well accepted  

principle that the concept of liberty is not in the realm of  

absolutism but is a restricted one.  The cry of the collective for  

justice, its desire for peace and harmony and its necessity for  

security cannot be allowed to be trivialized.  The life of an individual  

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living in a society governed by Rule of Law has to be regulated and  

such regulations which are the source in law subserve the social  

balance and function as a significant instrument for protection of  

human rights and security of the collective.  It is because  

fundamentally laws are made for their obedience so that every  

member of the society lives peacefully in a society to achieve his  

individual as well as social interest.  That is why Edmond Burke  

while discussing about liberty opined, “it is regulated freedom”.   

20. It is also to be kept in mind that individual liberty cannot be  

accentuated to such an extent or elevated to such a high pedestal  

which would bring in anarchy or disorder in the society.  The  

prospect of greater justice requires that law and order should  

prevail in a civilized milieu.  True it is, there can be no arithmetical  

formula for fixing the parameters in precise exactitude but the  

adjudication should express not only application of mind but also  

exercise of jurisdiction on accepted and established norms.  Law  

and order in a society protect the established precepts and see to it  

that contagious crimes do not become epidemic.  In an organized  

society the concept of liberty basically requires citizens to be  

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responsible and not to disturb the tranquility and safety which  

every well-meaning person desires.  Not for nothing J. Oerter  

stated:

“Personal liberty is the right to act without  interference within the limits of the law.”

21. Thus analyzed, it is clear that though liberty is a greatly  

cherished value in the life of an individual, it is a controlled and  

restricted one and no element in the society can act in a manner by  

consequence of which the life or liberty of others is jeopardized, for  

the rational collective does not countenance an anti-social or anti-

collective act.

22. Having said about the sanctity of liberty and the restrictions  

imposed by law and the necessity of collective security, we may  

proceed to state as to what is the connotative concept of bail.  In  

Halsbury’s Laws of England10 it has been stated thus: -

“The effect of granting bail is not to set the  defendant (accused) at liberty but to release him  from the custody of law and to entrust him to the  custody of his sureties who are bound to produce  him to appear at his trial at a specified time and  place.  The sureties may seize their principal at any  time and may discharge themselves by handing him  

10 Halsbury’s Laws of England, 4th Edn., Vol. 11, para 166

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over to the custody of law and he will then be  imprisoned.”

23. In Sunil Fulchand Shah v. Union of India and others11 Dr.  

A.S. Anand, learned Chief Justice, in his concurring opinion,  

observed: -

“Bail is well understood in criminal jurisprudence  and Chapter XXXIII of the Code of Criminal  Procedure contains elaborate provisions relating to  grant of bail.  Bail is granted to a person who has  been arrested in a non-bailable offence or has been  convicted of an offence after trial.  The effect of  granting bail is to release the accused from  internment though the court would still retain  constructive control over him through the sureties.  In case the accused is released on his own bond  such constructive control could still be exercised  through the conditions of the bond secured from  him.  The literal meaning of the word “bail”  is  surety.”

24. As grant of bail as a legal phenomenon arises when a crime is  

committed it is profitable to refer to certain authorities as to how  

this Court has understood the concept of crime in the context of  

society.  In P.S.R. Sadhanantham v. Arunachalam and  

another12, R.S. Pathak, J. (as his Lordship then was), speaking for  

himself and A.D. Kaushal, J, referred to Mogul Steamship Co. v.  

11 (2000) 3 SCC 409 12 AIR 1980 SC 856

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McGregor Gow & Co. (1989) 23  QBD 598, 606 and the definition  

given by Blackstone and opined thus: -

“A crime, therefore, is an act deemed by law to be  harmful to society in general, even though its  immediate victim is an individual.”

25. In Mrs. Harpreet Kaur Harvinder Singh Bedi v. State of  

Maharashtra and another13 a two-Judge Bench, though in a  

different context, has observed: -

“Crime is a revolt against the whole society and an  attack on the civilization of the day.  Order is the  basic need of any organized civilized society and any  attempt to disturb that order affects the society and  the community.”

26. In T.K. Gopal alias Gopi v. State of Karnataka14 it has  

been held that crime can be defined as an act that subjects the doer  

to legal punishment.  It may also be defined as commission of an  

act specifically forbidden by law; it may be an offence against  

morality or social order.   

27. Keeping in mind the aforesaid aspects, namely, the factors  

which are to be borne in mind while dealing with an application  

preferred under Section 439 of the Code of Criminal Procedure in  13 AIR 1992 SC 979 14 AIR 2000 SC 1669

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respect of serious offences, the distinction between a perverse or  

illegal order and cancellation of order granting bail, the individual  

liberty and social security, the concept of bail, the definition of  

crime and the duty of the court, we may proceed to deal as to how  

in the case at hand the bail application has been dealt with by the  

High Court.

28. On a perusal of the order passed by the High Court it will be  

difficult to say that the High Court has passed a totally cryptic or  

unreasoned order.  The spinal question is whether it has ignored  

the relevant factors which were brought to its notice at the time of  

extending the benefit of enlargement of bail to the accused.  The  

prosecution by way of an affidavit had brought to the notice of the  

High Court about the cases pending against the accused.  The High  

Court recorded the submission of the complainant that the accused  

was involved in 52 cases.  On a perusal of the counter-affidavit filed  

before the High Court it is perceptible that it was categorically  

stated that the accused was a history-sheeter; that he was the  

pivotal force in getting the kidnapping done; that the victim Bihari  

Lal was in captivity for eight days; and that he escaped under the  

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pretext that he was going to attend the call of nature.  The High  

Court has only made a passing reference to the same and took note  

of period of custody of seven months and held, “considering the  

facts and circumstances of the case but without expressing any  

opinion on the merits of the case, the applicant is entitled to be  

released on bail”.   

29. It is worthy to note that the fact relating to involvement of the  

accused in various crimes was brought to the notice of the High  

Court by virtue of an affidavit filed by the competent authority of  

the prosecution.  As per the Inspector-in-charge of the concerned  

police station the following cases were pending against the accused:  

S.  No.

Crime No. Sections Police  Station

District

1. 270/86 25 Arms Act Shahabad Rampur 2. 271/86 395/397/307/332/  

337/225/427 Shahabad Rampur

3. 137/88 3(1) Gangster Act Shahabad Rampur 4. 209/92 147/148/149/302 Shahabad Rampur 5. 189/95 323/342/35/504/  

506 Shahabad Rampur

6. 184/96 3/4 U.P. Gunda Act Shahabad Rampur 7. 185/96 147/148/149/307/  

225 Shahabad Rampur

8. 485/98 323/504/506/3(1)  10 S.C./S.T. Act

Shahabad Rampur

9. 493/98 420/506/467/468/  47

Shahabad Rampur

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10. 281/99 3/4 U.P. Gunda Act Shahabad Rampur 11. 626/05 347/504/506 Shahabad Rampur 12. 628A/05 452/352/504/506 Shahabad Rampur 13. 363/06 3(1) Prevention of  

damage to Public  Property Act, 1984

Shahabad Rampur

14. 2171/08 147/143/283/341  and 6 United  Province Special  Power Act, 1936 and  Section 7 of Criminal  Law Amendment Act.

Shahabad Rampur

15. 670/09 3(1) Gangster Act Shahabad Rampur 16. 1207/09 448/380 Shahabad Rampur 17. 939/10 323/324/307/302 Shahabad Rampur 18. 507/11 147/506 Shahabad Rampur 19. 537/11 147/148/149/307 Shahabad Rampur 20. 538/11 147/148/149/307/  

353/354 and Section  7 of Criminal Law  Amendment Act

Shahabad Rampur

21. 313/91 447/323/504/506 &  3(1) 10 S.C./S.T. Act

Shahabad Rampur

22. 391/92 348/379/504/506 &  3(4) 10 S.C./S.T. Act

Shahabad Rampur

23. 99/09 147/148/307/323/  504/506 & 3(2) 10  S.C./S.T. Act

Milk Rampur

24. 2007/08 147/504/506/307/  427 & 3(1) 10 S.C./  S.T. Act

Milk Rampur

25. 770/11 364/506 Patwai Rampur 26. 575/93 302/392/412 IPC Islam  

Nagar Badayun

27. 441/94 25 Arms Act Civil Line Moradabad 28. 17/01 364 IPC (The court  

issued non-bailable  warrants but  absconding)

Faizganj  Behta

Badayun

29. 269/02 420 IPC Kasganj Eta 30. 270/02 25 Arms Act Kasganj Eta

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In this Court also the same list has been filed.  Thus, there is no  

doubt that the accused is a history-sheeter.

30. Coming to the nature of crime it is perceivable that two  

persons came on a motorcycle and kidnapped Bihari Lal and kept  

him in confinement for eight days.  The role of the accused is clearly  

stated.  It is apt to note that a history-sheeter has a recorded past.  

The High Court, in toto, has ignored the criminal antecedents of the  

accused.  What has weighed with the High Court is that the  

accused had spent seven months in custody.  That may be one of  

the factors but that cannot be the whole and the sole factor in every  

case.  It depends upon the nature of the offence, the manner in  

which it is committed and its impact on the society.  We may  

hasten to add that when we state that the accused is a history-

sheeter we may not be understood to have said that a history-

sheeter is never entitled to bail.  But, it is a significant factor to be  

taken note of regard being had to the nature of crime in respect of  

which he has been booked.  In the case at hand, as the prosecution  

case unfolds, the accused did not want anyone to speak against his  

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activities.  He had sent two persons to kidnap Bihari Lal, who  

remained in confinement for eight days.  The victim was tortured.  

Kidnapping, as an offence, is on the increase throughout the  

country.  Sometimes it is dealt with formidable skill and sometimes  

with terror and sometimes with threat or brute force.  The crime  

relating to kidnapping has taken many a contour.  True it is,  

sometimes allegations are made that a guardian has kidnapped a  

child or a boy in love has kidnapped a girl.  They do stand on a  

different footing.  But kidnapping for ransom or for revenge or to  

spread terror or to establish authority are in a different realm  

altogether.  In the present case the victim had been kidnapped  

under threat, confined and abused.  The sole reason for kidnapping  

is because the victim had shown some courage to speak against the  

accused.  This may be the purpose for sustaining of authority in the  

area by the accused and his criminal antecedents, speak eloquently  

in that regard.  In his plea for bail the accused had stated that such  

offences had been registered because of political motivations but  

the range of offence and their alleged years of occurrence do not  

lend prima facie acceptance to the same.  Thus, in the present case  

his criminal antecedents could not have been totally ignored.   

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31. Be it noted, a stage has come that in certain States abduction  

and kidnapping have been regarded as heroism.  A particular crime  

changes its colour with efflux of time.  The concept of crime in the  

contextual sense of kidnapping has really undergone a sea change  

and has really shattered the spine of the orderly society.  It is  

almost nauseating to read almost every day about the criminal  

activities relating to kidnapping and particularly by people who call  

themselves experts in the said nature of crime.   

32. We may usefully state that when the citizens are scared to  

lead a peaceful life and this kind of offences usher in an  

impediment in establishment of orderly society, the duty of the  

court becomes more pronounced and the burden is heavy.  There  

should have been proper analysis of the criminal antecedents.  

Needless to say, imposition of conditions is subsequent to the order  

admitting an accused to bail.  The question should be posed  

whether the accused deserves to be enlarged on bail or not and only  

thereafter issue of imposing conditions would arise.  We do not  

deny for a moment that period of custody is a relevant factor but  

simultaneously the totality of circumstances and the criminal  

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antecedents are also to be weighed.  They are to be weighed in the  

scale of collective cry and desire.  The societal concern has to be  

kept in view in juxtaposition of individual liberty.  Regard being had  

to the said parameter we are inclined to think that the social  

concern in the case at hand deserves to be given priority over lifting  

the restriction of liberty of the accused.   

33. In the present context the period of custody of seven months,  

in our considered opinion, melts into insignificance.  We repeat at  

the cost of repetition that granting of bail is a matter of discretion  

for the High Court and this Court is slow to interfere with such  

orders.  But regard being had to the antecedents of the accused  

which is also a factor to be taken into consideration as per the  

pronouncements of this Court and the nature of the crime  

committed and the confinement of the victim for eight days, we are  

disposed to interfere with the order impugned.   

34. We may note with profit that it is not an appeal for  

cancellation of bail as cancellation is not sought because of  

supervening circumstances.  The present one is basically an appeal  

challenging grant of bail where the High Court has failed to take  

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into consideration the relevant material factors which make the  

order perverse.   

35. Consequently, the order passed by the High Court is set aside  

and the bail bonds of the accused are cancelled.  The accused is  

directed to surrender to custody forthwith failing which it shall be  

the duty of the investigating agency to take him to custody  

immediately.  We may hasten to clarify that anything that has been  

stated here are only to be read and understood for the purpose of  

annulment of the order of grant of bail and they would have no  

bearing whatsoever on trial.   

36. The appeal is, accordingly, allowed.

……………………….J. [K. S. Radhakrishnan]

……………………….J. [Dipak Misra]

New Delhi; September 20, 2012.

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