Case Law Details
Indresh Kumar Vs State of Uttar Pradesh & Anr. (Supreme Court of India)
The matter before the Supreme Court arose from an appeal challenging an order of the Allahabad High Court dated 15 December 2021, by which bail had been granted to an accused arrested in connection with Crime Case No. 08 of 2019. The case involved allegations under Sections 302, 201, 376 read with Section 120B of the Indian Penal Code and Sections 5 and 6 of the POCSO Act concerning the alleged rape and murder of an eleven-year-old child.
The High Court had granted bail after observing that it had considered the overall facts and circumstances, the nature of allegations, the gravity of the offence, the severity of punishment, the evidence against the accused, the principles laid down in Dataram Singh v. State of U.P., and the fact that a co-accused had already been granted bail. The accused was released subject to conditions restraining him from tampering with evidence, threatening witnesses, committing similar offences, and requiring his appearance before the trial court.
Read Allahabad High Court Judgment in this case: Allahabad HC Grants Bail as Victim Fails to Support Allegations during Investigation
The Supreme Court examined the reasoning adopted by the High Court and found the order unsustainable. It observed that the allegations involved rape and the cold-blooded murder of an eleven-year-old child. The Court noted that the allegations indicated that the child had allegedly been killed to prevent disclosure of the offence and that efforts had allegedly been made to conceal evidence by burying the body, clothes, and other articles. According to the Supreme Court, such conduct could indicate a tendency to evade the legal process and raised the possibility that the accused might flee from justice.
The Supreme Court held that the High Court had ignored material available on record, including incriminating statements recorded under Sections 161 and 164 Cr.P.C. Although statements under Section 161 Cr.P.C. may not constitute substantive evidence at trial, the Court clarified that such statements are relevant while assessing the existence of a prima facie case in bail proceedings involving grave offences.
The Court further held that the High Court had granted bail primarily because a co-accused had already been enlarged on bail, without properly considering the heinous nature of the allegations, the gravity of the offences, and the severity of punishment in the event of conviction. The Supreme Court observed that the High Court’s statement that all relevant factors had been considered was not borne out from the contents of the order itself.
Describing the impugned order as one reflecting non-application of mind, the Supreme Court reiterated the principles laid down in Dataram Singh v. State of U.P. The Court noted that although grant or refusal of bail lies within judicial discretion, such discretion must be exercised judiciously, humanely, and in accordance with established principles. The Supreme Court emphasized that the observations in Dataram Singh had arisen in the context of a prosecution under Section 138 of the Negotiable Instruments Act involving prolonged custody and were not intended to justify grant of bail in every case regardless of the seriousness of allegations.
The Supreme Court also took note of submissions regarding the accused’s criminal antecedents, including his alleged involvement in several criminal cases under the IPC and the U.P. Gangsters Act. Referring to its earlier decision in Neeraj Yadav v. State of U.P., the Court observed that criminal antecedents cannot be ignored merely on the basis of parity with co-accused. The judiciary is expected to exercise discretion cautiously, particularly where allegations involve serious offences.
The Supreme Court stated that if the High Court had genuinely considered the gravity of the allegations, it ought to have identified the extenuating circumstances justifying release on bail. On the material available, the Court found that the allegations were grave, the punishment severe, and there existed supporting material on record. Consequently, the appeal was allowed and the High Court order granting bail was set aside. The Court clarified that its observations would not affect the merits of the trial.
The materials also contained a subsequent Allahabad High Court order relating to a different bail application under Sections 363, 366, 504 and 506 IPC and Sections 7 and 8 of the POCSO Act. In that case, the applicant contended that he had been falsely implicated and that the victim, in her statements under Sections 161 and 164 Cr.P.C., had not supported the prosecution version. The applicant had no criminal antecedents, had remained in custody since 17 December 2022, and the charge sheet had already been filed.
The State and the complainant opposed the bail plea but did not dispute that the victim had not supported the prosecution case in her recorded statements. After examining the FIR, the statements of the prosecutrix, and other relevant documents, the High Court concluded that the applicant was entitled to bail. Bail was accordingly granted subject to multiple conditions, including restrictions against influencing witnesses, requirements of regular appearance before the trial court, and provisions enabling cancellation of bail in the event of misuse of liberty.
Thus, while the Supreme Court emphasized that gravity of allegations, criminal antecedents, and available material cannot be ignored in serious offences, the High Court, in the later case, granted bail after finding that the victim herself had not supported the prosecution version and that other relevant circumstances favoured release on bail.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
Leave granted.
This appeal is against an order dated 15th December, 2021 passed by the High Court of Allahabad granting bail to the respondent-accused who was arrested in connection with Crime Case No. 08 of 2019 under Sections 302, 201, 376 read with 120B of the Indian Penal Code and under Sections 5 and 6 of the Protection of Children from Sexual Offences Act (POCSO) for alleged rape and murder of an eleven year old child being the daughter of the appellant.
The High Court held:
“Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, submission of learned counsel for the parties, considering the law laid down in the case of Data Ram Vs. State of U.P. and others, 2018 (3), SCC, 2 and also the fact that aforesaid co-accused has been admitted to the concession of bail by this Court, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Mintu @ Jitendra involved in the aforesaid crime be released on bail on executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i)The applicant shall not tamper with the prosecution evidence.
ii. The applicant shall not threaten or harass the prosecution witnesses.
iii. The applicant shall appear on the date fixed by the trial court;
iv. The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission;
v)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 such person from disclosing facts to the Court or to any police officer or tamper with the evidence.”
The offence alleged against the respondent-accused of rape and cold-blooded murder of an eleven year old child is heinous and dastardly. The conduct of killing a child to avoid getting caught of the offence, inter alia, of rape and then burial of the child as also her stained clothes and other articles under the soil to cause disappearance of evidence and evade apprehension for the offence of murder is indicative of a tendency to evade the process of law. It is possible that the respondent-accused might flee to evade the process of law.
The High Court has ignored the materials on record including incriminating statements of witnesses under Section 164/161 of the
Code of Criminal Procedure. Statements under Section 161 of Cr.P.C. may not be admissible in evidence, but are relevant in considering the prima facie case against an accused in an application for grant of bail in case of grave offence.
The High Court has granted the respondent-accused bail, without considering the heinous nature of the allegations against him, the gravity of the offence alleged and severity of the punishment in the event of ultimate conviction, only because a co-accused had also been granted bail by the High Court.
The impugned order of the High Court incorrectly states that bail is granted considering all facts and circumstances, nature of the allegations, gravity of the offence, severity of the punishment, the evidence appearing against the accused and the law laid down in Dataram Singh vs. State of U.P. & Ors. reported in (2018) 3 SCC 22. This has not been done.
The impugned order evinces non-application of mind.
In Dataram Singh vs. State of U.P.(supra), this Court held:
“2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case”.
After referring to the observation in Emperor v. Hutchinson, reported in AIR 1931 All. 356, where the Court held that grant of bail is the rule and refusal is the exception, this Court added:
“6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory”.
The observations and directions in Dataram Singh (supra) were in the context of arrest and long custodial detention in a crime case under Section 138 of the Negotiable Instruments Act, 1881 for issuing cheques and then stopping payment of the cheque. Bail
application had been rejected, first by the Trial Court and then by the High Court even after about five months of detention of the accused in custody.
As argued on behalf of the Appellant, the High Court has, apparently ignored the criminal antecedents of the respondent-accused. The Appellant states that the respondent-accused has been implicated in the following cases:-
i. Case Crime No. 0181/2015 u/s 147, 148, 149, 325, 323, 504 and 304 IPC at P.S. Amritpur, District: Farrukhabad.
ii. Case Crime No. 059/2020 under Section 3(1) of the UP Gangster Act, P.S. Amritpur, District: Farrukhabad
iii. Case Crime No. 69 of 2018 under Sections 279, 337 IC, P.S. Amritpur, District: Farrukhabad
iv. Case Crime No. 063 of 2018 under Section 3(1) of the UP Gangster Act, P.S. Amritpur, District: Farrukhabad
v. Case Crime No. 392/2008 under Sections 323, 304 of IPC, P.S. Amritpur, District: Farrukhabad
vi. Case Crime No. 0144/2016 under Section 147, 506 of IPC, P.S. Amritpur, District: Farrukhabad
In Neeraj Yadav vs. State of U.P. reported in (2016) 15 SCC 422, this Court referred to a catena of judgments and held:
“15. This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightning having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner”.
If the High Court had seriously considered the gravity of the offence, there would have been some indication of what was the apparently extenuating circumstance, which entitled the respondent- accused to bail. Ex facie, the allegations are grave, the
punishment is severe and it cannot be said that there are no materials on record at all.
The appeal is, accordingly, allowed. The impugned order granting bail is set aside. It is however made clear that any
observation made in this order will not affect the merits of the trial.
Leave granted.
The appeal is allowed in terms of the signed non-reportable
judgment. The impugned order granting bail is set aside.
It is, however, made clear that any observation made in this
order will not affect the merits of the trial.
Pending applications, if any, shall stand disposed of.
Vakalatnama filed by Shri Amit Kumar Awasthi, Advocate on behalf of the complainant is taken on record.
Heard learned counsel for the applicant, learned A.G.A. for the State, learned counsel for the complainant and perused the record.
The present bail application has been filed by the applicant in F.I.R. No. 594 of 2022, under Sections 363, 366, 504, 506 IPC and Section 7/8 POCSO Act, Police Station Ishanagar, District Lakhimpur Kheri with the prayer to enlarge him on bail.
Learned counsel for the applicant submits that the applicant has falsely been implicated in the present case. It is further submitted that during the course of investigation, statement of the victim was recorded under Sections 161 and 164 Cr.P.C., in which, she has not supported the prosecution version. It is also submitted that charge sheet has been filed and there is no possibility of tampering of any evidence. It is lastly submitted that the applicant, who has no criminal antecedent, is in jail since 17.12.2022. In such circumstances, applicant is entitled for bail. It is also submitted that the applicant will never misuse the liberty of bail and shall fully cooperate in the investigation.
Learned A.G.A. as well as learned counsel for the complainant vehemently oppose the prayer for grant of bail to the applicant, but they do not dispute the fact that the victim has not supported the prosecution version in her statements recorded under Sections 161 and 164 Cr.P.C.
Considering the arguments advanced by the learned counsel for the applicant, learned A.G.A. and going through the contents of F.I.R., bail application statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. as well as other relevant documents, I am of the view that the applicant is entitled to be released on bail.
Application stands allowed.
Let applicant -Indresh Kumar be released on bail in F.I.R. No. 594 of 2022, under Sections 363, 366, 504, 506 IPC and Section 7/8 POCSO Act, Police Station Ishanagar, District Lakhimpur Kheri, on his furnishing personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-
1. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
2. 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 office or tamper with the evidence.
3. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
4. The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229A IPC.
5. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. may be issued and if applicant fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A IPC.
(6) The applicant shall remain present, in person, before the trial court on dates fixed for (a) opening of the case, (b) framing of charge; and (c) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.
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