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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.2587 OF 2014 (Arising out of S.L.P. (Crl.) No. 8469 of 2014)  

Neeru Yadav …  Appellant

Versus

State of U.P and another        … Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.  

2. The present appeal, by special leave, calls in question the  

legal  substantiality   and  defensibility  of  the  order  dated  

22.09.2014  passed  by  the  High  Court  of  judicature  at  

Allahabad in Criminal Misc. Bail Application No. 31078 of 2014  

whereby the learned Judge, in exercise of power under Section  

439 of Code of Criminal Procedure, 1973 (Cr.PC) had admitted  

the 2nd respondent to bail in Crime No. 237 of 2013 instituted

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for offences punishable under Sections  147, 148, 149, 302,  

307, 394, 411, 454, 506, 120B and 34 of the Indian Penal Code  

(IPC).  

3. As the impugned order would reveal, it was contended on  

behalf of the 2nd respondent that similarly placed co-accused,  

Ashok, had already been enlarged on bail by the High Court by  

order dated 23.9.2013 in Criminal  Misc.  Bail  Application No.  

21876 of 2013 and role of the accused-respondent No.2 was  

identical to that of Ashok Kumar and he should be released on  

bail.  Thus the foundation of the prayer for grant of bail was on  

the bedrock of parity.  The said prayer for grant of bail was  

opposed with vehemence by the learned A.G.A.  contending,  

inter alia, that the accused had criminal antecedents and the  

role  attributed  to  him  was  different.   The  same  was  

controverted by the accused asserting that  the said  aspect  

had  been  explained  in  the  affidavit  attached  to  the  bail  

application.

4. As  the  factual  narration  would  further  undrape,  the  

learned Single  Judge keeping  in  view the  aforesaid  aspects  

passed the following order:-  

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“Considering the submission made by the learned  counsel  for  the  applicant  as  well  as  learned  A.G.A., this Court is of the view that the applicant  has  made  out  a  case  for  grant  of  bail  on  the  ground of party.  In  view of  the above,  let  the applicant,  Mitthan  Yadav  be  released  on  bail  on  his  executing  a  personal bond and furnishing two sureties each in  the like  amount  to  the satisfaction of  the court  concerned in Case Crime No. 237 of 2013, under  sections 147, 148, 149, 302, 307, 394, 411, 454,  506, 120B and 34 I.P.C., P.S. Kavinagar, district- Ghaziabad with the following conditions:-

(a) The  applicant  shall  attend  the  court  according  to  the  conditions  of  the  bond  executed by him.  (b) 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.”

5. Being aggrieved by the aforesaid order, the wife of the  

deceased has preferred this appeal for setting aside the order.  

6. At this juncture, it is apt to note that 2nd respondent had  

moved an  application  for  bail  before  the learned Additional  

District  &  Sessions  Judge,  Ghaziabad  who  took  note  of  the  

factual matrix, which is as follows:-

“As per the prosecution story complainant Sakek  Chand has lodged the report at PS Kavi Nagar that  accused Mitthan, Manoj, lala Kapil and Budhu @  Budhpal were keeping enmity with the brother of  the complainant Salekh Chand on their consuming  

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wine in front of the house of complainant and due  to this fear brother the complainant had keep a  private gunner.  On 25.2.13 at about 11.00 a.m.  complainant  and his  brother  Yashvir,  Munir  and  Deepak were  sitting in  the house and suddenly  above all accused carrying weapon in their hands  entered  into  the  house  of  the  complainant  and  began hectic firing.   Brother of the complainant  received several bullet injuries.  Complainant ran  raising  noise  and  also  caught  him  and  cause  grievous injuries on his head, due to which he fell  down.   Hearing  the  voice  of  firing  gunner  also  came and his  rifle  was snatched him them and  also gave beatings to him and injured him.  When  people of the village gathered accused fled away  giving threatening.  People of the village admitted  brother  of  the  complainant  in  hospital  where  doctor declared him dead.”

Learned Additional District & Sessions Judge, after taking note  

of  the  aforesaid  allegations,  declined  to  grant  bail.   Being  

unsuccessful to secure bail from the Court of Session, the 2nd  

respondent approached the High Court and as has been stated  

hereinbefore, the High Court has admitted him to bail.  

7. Questioning  the  legal  acceptability  of  the  impugned  

order, it is contended by Mr. Malkan, learned counsel for the  

appellant that the High Court has failed to appreciate the role  

ascribed to Ashok Kumar and to the 2nd respondent who had  

fired  on  the  deceased;  and  further  the  High  Court  has  

absolutely remained oblivious to the criminal antecedents of  

the said accused.  That apart, it is contended by him that the  

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trial  has  commenced  and  at  that  stage  it  was  absolutely  

improper on the part of the High Court to enlarge the accused  

on  bail  brushing  aside  the  fact  that  the  man  with  criminal  

antecedents has the potentiality to intimidate the rest of the  

witnesses. In essence, the submission is that the gravity of the  

offence, the manner in which it has been committed and the  

criminal  antecedents  of  the  accused  –  the  2nd respondent,  

have been totally ignored by the High Court and bail has been  

granted  on  non-consideration  of  the  material  facts,  which  

makes the order vulnerable.   

8. Mr. Ratnakar Dash, learned senior counsel appearing for  

the  State  of  Uttar  Pradesh,  supporting  the  stand  of  the  

appellant submitted that though the State has not assailed the  

legal acceptability of the impugned order, yet the fact remains  

that when the real victim has approached this Court and on a  

perusal  of  the  facts  which  have  been  asserted,  it  is  quite  

manifest that the 2nd respondent is a history-sheeter and the  

order passed by the High Court should be nullified.  

9. Mr.  Praveen Chaturvedi,  learned  counsel  appearing  for  

the respondent no.2, resisting the aforesaid stand and stance  

put forth by the learned counsel for the appellant as well as  

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the learned senior counsel for the State has canvassed that  

the High Court has appositely applied the principle of parity  

and, therefore, the order passed by it cannot be faulted.  It is  

urged by him that when the trial has commenced and many  

witnesses have been examined, there was no justification not  

to  release  the  2nd respondent  on  bail  on  such  terms  and  

conditions which have been determined by the High Court.  It  

is  put  forth  by  him  that  the  number  of  cases  which  were  

instituted against the 2nd respondent are not that grave and in  

some  cases  he  has  been  acquitted,  but  unfortunately,  

emphasis has been laid on the same by the appellant and also  

learned senior counsel for the State.  It is further contended  

that in the absence of any failure to abide by the terms and  

conditions  imposed  by  the  High  Court  while  granting  the  

accused the benefit of bail, this Court should not interfere as  

that would seriously jeopardize the liberty of the respondent  

no.2.  

10. The  pivotal  issue  that  emanates  for  consideration  is  

whether  the  impugned  order  passed  by  the  High  Court  

deserves legitimate acceptation and put in the compartment  

of  a  legal,  sustainable  order  so  that  this  Court  should  not  

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interfere with the same in exercise of jurisdiction under Article  

136  of  the  Constitution  of  India.   In  this  context,  a  fruitful  

reference  be  made to  the  pronouncement  in  Ram Govind  

Upadhyay  v.  Sudarshan  Singh1,  wherein  this  Court  has  

observed that grant of bail though discretionary in nature, yet  

such exercise cannot be arbitrary, capricious and injudicious,  

for  the heinous nature of the crime warrants more caution  

and  there  is  greater  change  of  rejection  of  bail,  though,  

however dependant on the factual matrix of the matter.  In the  

said decision, reference was made to Prahlad Singh Bhati v.  

NCT, Delhi2 and the Court opined thus:

“(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  

1  (2002) 3 SCC 598 2  (2001) 4 SCC 280

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genuineness that shall  have to be considered in  the matter of grant of bail,  and in the event of  there being some doubt as to the genuineness of  the prosecution, in the normal course of events,  the accused is entitled to an order of bail.”

11. In  Chaman Lal V.  State of U.P.3,  the Court  has laid  

down  certain  factors,  namely,  the  nature  of  accusation,  

severity of punishment in case of conviction and the character  

of supporting evidence, reasonable apprehension of tampering  

with the witness or apprehension of threat to the complainant,  

and  prima facie  satisfaction  of  the  Court  in  support  of  the  

charge which are to be kept in mind.

12. In this context, we may profitably refer to the dictum in  

Prasanta Kumar Sarkar v. Ashis Chatterjee4,  wherein it  

has been held that normally this Court does not interfere with  

the order passed by the High Court when a bail application is  

allowed or declined, but the High Court has a duty to exercise  

its discretion cautiously and strictly.  Regard being had to the  

basic principles laid down by this Court from time to time, the  

Court enumerated number of considerations and some of the  

considerations which are relevant for the present purpose are;  

3  (2004) 7 SCC 525 4   (2010) 14 SCC 496

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whether there is likelihood of the offence being repeated and  

whether there is danger of justice being thwarted by grant of  

bail.  

13. We have referred to certain principles to be kept in mind  

while granting bail, as has been laid down by this Court from  

time to time.  It is well settled in law that cancellation of bail  

after  it  is  granted  because  the  accused  has  misconducted  

himself  or  of  some  supervening  circumstances  warranting  

such cancellation have occurred is in a different compartment  

altogether  than  an  order  granting  bail  which  is  unjustified,  

illegal and perverse.  If in a case, the relevant factors which  

should have been taken into consideration while dealing with  

the application for bail and have not been taken note of bail or  

it  is  founded  on  irrelevant  considerations,  indisputably  the  

superior court can set aside the order of such a grant of bail.  

Such  a  case  belongs  to  a  different  category  and  is  in  a  

separate realm. While dealing with a case of second nature,  

the Court does not dwell upon the violation of conditions by  

the  accused  or  the  supervening  circumstances  that  have  

happened subsequently.  It, on the contrary, delves into the  

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justifiability  and  the  soundness  of  the  order  passed  by  the  

Court.   

14. In the case at hand, two aspects have been highlighted  

before  us.   One,  the  criminal  antecedents  of  the  2nd  

respondent  and second, the non-applicability of the principles  

of parity on the foundation that  the accusations against the  

accused  Ashok  and  2nd respondent  are  different.   First,  we  

shall dwell upon the criminal antecedents.  The appellant, the  

real  victim, being the wife of the deceased,  has annexed a  

chart relating to the criminal history of the accused.  The State  

has filed a counter affidavit.  We think it apt to refer to the  

cases  which  find  place  in  the  counter  affidavit  filed  by  the  

state.   Be it  clarified though it  has been filed as a counter  

affidavit, it is not in oppugnation of the prayer sought in the  

petition.   On the contrary,  it  is  supportive of  the stand put  

forth  in  the  petition.     It  has  been  asseverated  that  the  

respondent  no.2  is  a  history-sheeter  and  number  of  cases  

have been lodged against him.  The following are the details of  

the cases:-

“(i) Case  crime  No.  1009/2006  u/s  302/201/34  IPC Police Station Shahibabad, District Ghaziabad.  

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(ii) Case crime No. 1007/2006 u/s 302 IPC Police  Station Shahibabad, District Ghaziabad. (iii) Case  crime  No.  360/2008  u/s  302/201  IPC  Police Station Shahibabad, District Ghaziabad. (iv) Case crime No.  1614/2008 u/s 364/302/201  IPC Police Station Sihani Gate, District Ghaziabad. (v) Case crime No. 495/2008 u/s 8/15 NDPS Act,  Police Station Kavi Nagar, District Ghaziabad. (vi) Case crime No.  496/2008 u/s  25 Arms Act,  Police Station Kavi Nagar, District Ghaziabad. (vii) Case crime No. 405/2008 u/s 307 IPC Police  Station Kavi Nagar, Ghaziabad. (viii) Case crime No.  913/2008 u/s  25 Arms Act,  Police Station Kavi Nagar, Ghaziabad. (ix) Case  crime  No.  1247/2009  u/s  147/323/324/506 IPC P.S. Kavi Nagar, Ghaziabad. (x) Case crime No. 116/2011 u/s 307 IPC Police  Station Kavi Nagar, Ghaziabad. (xi) Case crime No.  170/2011 u/s  25 Arms Act,  P.S. Sec-58, Noida, Gautambudh Nagar. (xii) Case  crime  No.  2372013  u/s  247/148/149/302/307/  394/411/506/120B/34  IPC  P.S. Kavi Nagar, Ghaziabad. (xiii) Case crime No. 330/2013 u/s 60 Excise Act,  P.S. Kavi Nagar, Ghaziabad. (xiv) Case crime No.  1091/2013 u/s  384/506 IPC  P.S. Kavi Nagar, Ghaziabad. (xv) Case crime No. 1238/2013 u/s 2/3 Gangster  Act, P.S. Kavi Nagar, Ghaziabad. Note:- The respondent Mitthan has been declared  as History Sheetor being H.S. No. 39-A P.S. Kavi  Nagar”.

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In the reply filed by the respondent no.2 contended, inter  

alia, that he has been acquitted in certain case.  However, in  

the course of hearing, we have been apprised that most of the  

cases instituted against the respondent no.2 are still pending  

and  some  of  them  are  under  Section  302  IPC  and  other  

heinous offences.   

15. In the case at hand the 2nd respondent, as the allegations  

would show, had fired at the deceased.   Two persons were  

also injured in the attack.  The occurrence took place in the  

broad  day  light.   As  we  find  from  the  FIR  and  statement  

recorded  under  Section  161  CrPC,  the  allegations  against  

Ashok and the 2nd respondent are different.  That apart, the  

number  and  nature  of  crimes  registered  against  the  2nd  

respondent speaks voluminously about  his antecedents.  

16. The  issue  that  is  presented  before  us  is  whether  this  

Court can annul the order passed by the High Court and curtail  

the liberty of the 2nd respondent.  We are not oblivious of the  

fact that the liberty is a priceless treasure for a human being.  

It  is  founded  on  the  bed  rock  of  constitutional  right  and  

accentuated further on human rights principle.  It is basically a  

natural right.  In fact, some regard it as the grammar of life.  

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No one would like to lose his liberty or  barter it  for  all  the  

wealth of the world.   People from centuries have fought for  

liberty, for absence of liberty causes sense of emptiness.  The  

sanctity of liberty is the fulcrum of any civilized society.  It is a  

cardinal  value on which the  civilisation rests.   It  cannot  be  

allowed  to  be  paralysed  and  immobilized.   Deprivation  of  

liberty of a person has enormous impact on his mind as well as  

body.  A democratic body polity which is wedded to rule of  

law, anxiously guards liberty.  But, a pregnant and significant  

one, the liberty of an individual is not absolute.  The society by  

its collective wisdom through process of law can withdraw the  

liberty  that  it  has  sanctioned  to  an  individual  when  an  

individual  becomes  a  danger  to  the  collective  and  to  the  

societal  order.   Accent  on  individual  liberty  cannot  be  

pyramided  to  that  extent  which  would  bring  chaos  and  

anarchy  to  a  society.   A  society  expects  responsibility  and  

accountability  from  the  member,  and  it  desires  that  the  

citizens  should  obey  the  law,  respecting  it  as  a  cherished  

social norm.  No individual can make an attempt to create a  

concavity in the stem of social  stream.  It  is  impermissible.  

Therefore,  when  an  individual  behaves  in  a  disharmonious  

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manner  ushering  in  disorderly  things  which  the  society  

disapproves, the legal consequences are bound to follow.  At  

that  stage,  the  Court  has  a  duty.   It  cannot  abandon  its  

sacrosanct obligation and pass an order at its own whim or  

caprice.  It has to be guided by the established parameters of  

law.  

17. Coming to the case at hand, it is found that when a stand  

was taken that the 2nd respondent was a history sheeter,  it  

was  imperative  on  the  part  of  the  High  Court  to  scrutinize  

every  aspect  and  not  capriciously  record  that  the  2nd  

respondent is entitled to be admitted to bail on the ground of  

parity.  It can be stated with absolute certitude that it was not  

a case of  parity  and,  therefore,  the impugned order  clearly  

exposes the non-application of mind.  That apart, as a matter  

of fact it has been brought on record that the 2nd respondent  

has  been  charge  sheeted  in  respect  of  number  of  other  

heinous offences. The High Court has failed to take note of the  

same.  Therefore, the order has to pave the path of extinction,  

for its approval by this court would tantamount to travesty of  

justice, and accordingly we set it aside.   

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18. Consequently, the appeal is allowed and the order passed  

by the High Court admitting the respondent no.2 on bail is set  

aside.  The respondent no. 2 is commanded to surrender to  

custody  forthwith  failing  which  it  shall  be  the  duty  of  the  

Investigating Agency to  take him into  custody immediately.  

We may hasten to clarify that what we have stated here is  

only to be read and understood for the purpose of annulling  

the order of grant of bail and they would have no bearing on  

the trial.  The learned trial Judge shall proceed with the trial as  

per the evidence brought on record.  

........................................J. [DIPAK MISRA]

........................................J.                  [UDAY UMESH LALIT]

NEW DELHI DECEMBER 16, 2014.

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