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                                                             Non­ Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.153 OF 2020 (arising out of Special Leave Petition (Crl.) No.9207/2019)

Prabhakar Tewari             …..Appellant

Versus

State of U.P. & Anr.                                        …..Respondents

WITH

Criminal Appeal No.154  OF 2020 (arising out of S.L.P.(Crl.)No.9209/2019)

J U D G M E N T

ANIRUDDHA BOSE, J.

Leave granted in both the appeals.

2. These appeals arise out of two orders passed by the High

Court on 11th September, 2019 granting bail to two accused

persons, Vikram Singh@ Vikki (in SLP(Crl.) No.9207/2019)

and Malkhan Singh (in SLP(Crl.) No.9209/2019) arraigned in

a criminal case initiated on the basis of a First  Information

Report dated 7th February 2009. The said report was made by

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Prabhakar Tewari, being the appellant (in both the appeals) in

Police Station Jagadishpur in the State of Uttar Pradesh.

3. The  appellant  is  the  son  of  the  deceased  victim,

Purushottam Dutt Tiwari. He was assaulted by gunshots on 7th

February,  2019  at  about  4.00  p.m.  while  returning  to  his

residence after attending the Court in connection with a case.

In  the  first  appeal  (i.e.  SLP(Crl.)No.9207  of  2019),  the

appellant assails the order granting bail to Vikram Singh @

Vikky by the High Court.  In the statement of the appellant

recorded in the evening on the date of occurrence at  about

8.40 p.m., five persons have been named as direct assailants.

Said Vikram Singh in the First Information Report has been

named  as  the  person  by  whom  the  “incident  has  been

committed”.  In his statement recorded on the next day i.e. 8 th

February, 2019, the appellant had named Vikram Singh as the

person who had conspired to commit the said crime. Vikram

Singh was taken into custody on 19th March 2019. The High

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Court,  while  granting  bail  to  the  accused  Vikram  Singh

recorded the submission of his learned counsel as also that of

the learned A.G.A., who had opposed the prayer for bail, in

the following terms:-

“Learned counsel for the applicant submits that  accused  applicant  has  falsely  been implicated in the present case. It is further submitted  that  statement  of  independent witness  Narendra  Dev  Upadhyay  was recorded after a span of 52 days and in his statement, he has categorically stated he has overheard  the  applicant  planning  for  the alleged incident thereby indicating criminal conspiracy  on  the  part  of  the  applicant. There is no incriminating evidence against the applicant on record. It is also submitted that no recovery has been shown against the applicant.  The  accused  applicant  is languishing in jail since 19.03.2019. It has been  pointed  out  that  the  applicant  has criminal  history  which  has  been  duly explained  in  the  rejoinder  affidavits.  It  is further submitted that there is no possibility of  the  applicant  of  fleeing  away  from judicial  custody  or  tampering  with  the witnesses. In case the applicant is enlarged on bail,  he shall not misuse the liberty of bail.

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Learned  A.G.A.  opposed  the  prayer  for bail  but  could  not  dispute  the  aforesaid facts as argued by the learned counsel for the applicant.”

4. Learned counsel for the appellant has submitted that the

accused  Vikram  Singh  is  involved  in  at  least  five  other

criminal cases under the same Police Station, Jagdishpur. He

has also brought to our notice the witness statement of one

Narendra Dev Upadhyay. This statement was recorded on 29th

March 2019. The part of his statement to which our attention

has been drawn by learned counsel for the appellant records

that the said witness saw Vikram Singh standing near National

Highway 56 Flyover on the date of occurrence of the incident

in Warisganj with 6 or 7 accomplices and all of them were

talking about plans of killing the victim.

Learned Counsel for the State of Uttar Pradesh supported

the  appellant’s  stand.   Mr.  C.A.  Sundram,  learned  senior

counsel for the accused contested the present appeal. His main

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argument is that the statement of Narendra Dev Upadhyay, on

which  reliance  was  placed  by  the  prosecution  and  the

appellant  was  recorded  after  fifty  days  from  the  date  of

occurrence of the incident.  On the question of granting bail,

Mr. Sundram has argued, such a statement was unreliable. He

has also submitted that even as per the F.I.R. or the witness

statements  recorded  under  Section  161  of  the  Code  of

Criminal Procedure, 1973, his client was not named as having

participated in the act of assault or being present at the place

of occurrence while the assault took place.  

5. We  have  considered  the  respective  submissions.  The

facts highlighted by the appellant are that the case involves

offence under Section 302 read with Sections 120-B/34, 147,

148 and 149 of the Indian Penal Code, 1860. The accused has

several  criminal  cases  pending  against  him  and  has  been

named in the statement forming the basis of the FIR on the

date of occurrence itself.  Two individuals, Rahul Tiwari and

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Narendra  Dev  Upadhyay,  whose  statements  have  been

recorded under Section 161 of the 1973 Code also refer  to

involvement of the accused Vikram Singh.  

6. In the case of  Mahipal Vs. Rajesh Kumar @ Polia &

Anr.  (Criminal  Appeal  No.1843  of  2019)  decided  on  5th

December,  2019,  a  coordinate  Bench  of  this  Court  has

discussed the scope of jurisdiction of the appellate Court in

setting aside an order of granting bail.  The two key factors for

interfering with such an order are non-application of mind on

the part of the Court granting bail or the opinion of the Court

in granting bail is not borne out from a prima facie view of the

evidence on record.   In  the  case  of  Maulana Mohammed

Amir  Rashadi  vs.  State  of  Uttar  Pradesh  and  Another

[(2012) 2 SCC 382], a two Judge Bench of this Court declined

to interfere with an order of the High Court granting bail to an

accused having considered the factual features of that case.

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7. On considering the submissions of the learned counsel

for the parties.   Having regard to the circumstances of this

case,  in our opinion,  there has been no wrong or improper

exercise of discretion on the part of the High Court in granting

bail  to  the  accused.  The  factors  outlined  in  the  case  of

Mahipal (supra) for testing the legality of an order granting

bail are absent in the order impugned. The materials available

do  not  justify  arriving  at  the  conclusion  that  the  order

impugned suffers from non-application of mind or the reason

for granting bail is not borne out from a prima-facie view of

the evidence on record. The offence alleged no doubt is grave

and  serious  and  there  are  several  criminal  cases  pending

against the accused. These factors by themselves cannot be

the basis for refusal of prayer for bail. The High Court has

exercised its discretion in granting bail to the accused Vikram

Singh upon considering relevant materials. No ex-facie error

in the order has been shown by the appellant which would

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establish  exercise  of  such  discretion  to  be  improper.   We

accordingly sustain the order of the High Court granting bail.

This appeal is dismissed.

Criminal Appeal No……../2020

(arising out of SLP(Crl) No.9209/2019)  

1. This appeal  also has its  origin in the same FIR which

forms  subject  matter  of  SLP(Crl.)  No.9207/2019.  The

submissions on the basis of which the accused arraigned in the

same case was granted bail would appear from the following

passage of the order of the High Court:-

“Learned  counsel  for  the  applicant submits  that  accused  applicant  has falsely  been  implicated  in  the  present case.  It  is  further  submitted  that  the alleged  incident  took  place  on 07.02.2019  and  statement  of independent  witness  Narendra  Dev Upadhyay was recorded after a span of 52 days. It is also submitted that there is no recovery from the applicant,  which may  lead  towards  his  involvement  in the  commission  of  alleged  crime.  No specific  role  has  been  assigned to  the applicant.  The  accused  applicant  is

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languishing in jail since 12.03.2019. It is  next  submitted  that  the  applicant  is neither  a  previous  convict  nor  he  has any  criminal  history.  It  is  further submitted that there is no possibility of the  applicant  of  fleeting  away  from judicial  custody or tampering with the witnesses.  In  case  the  applicant  is enlarged on bail, he shall not misuse the liberty of bail.

Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid fact  as  argued  by  the  learned  counsel for the applicant.”

2. The accused is  Malkhan Singh in this  appeal.  He was

named in the FIR by the appellant Prabhakar Tewari as one of

the five persons who had intercepted the motorcycle on which

the deceased victim was riding, in front of Warisganj Railway

Station (Halt) on the highway. All the five accused persons,

including Malkhan Singh, as per the F.I.R. and majority of the

witness  statements,  had  fired  several  rounds  upon  the

deceased victim. The statement of Rahul Tewari recorded on

15th March,  2019,  Shubham Tewari  recorded  on  12th April,

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2019 and Mahipam Mishra recorded on 20th April 2019 giving

description of the offending incident has been relied upon by

the appellant. It is also submitted that there are other criminal

cases pending against him.  Learned counsel for the accused-

respondent  no.2  has  however  pointed  out  the  delay  in

recording  the  witness  statements.  The  accused  has  been  in

custody for about seven months. In this case also, we find no

error  or  impropriety  in  exercise  of  discretion  by  the  High

Court  in granting bail  to the accused Malkhan Singh.  The

reason why we come to this conclusion is broadly the same as

in the previous appeal. This appeal is also dismissed and the

order of the High Court is affirmed.  

              ………………………….J.               (Deepak Gupta)

………………………….J.           (Aniruddha Bose)

New Delhi, Dated:  24th January, 2020.