Supreme Court of India
ASH MOHAMMADversusSHIV RAJ SINGH @ LALLA BABU AND ANR.
- Citation
- 2012 INSC 414
- Decided
- 20 September 2012
- Disposal
- Appeal(s) allowed
- Bench
- K S RADHAKRISHNAN
Holding
The grant of bail was perverse because the High Court failed to consider the accused’s criminal antecedents, the gravity of the kidnapping and assault, and the societal interest, and therefore the bail order must be set aside.
Summary
The appellant lodged an FIR alleging that the accused, Shiv Raj Singh (alias Lalla Babu), a known history‑sheeter, orchestrated the kidnapping, confinement for eight days and assault of Bihari Lal under threat, offences punishable under Sections 364 and 506 IPC. The trial court denied bail, but the High Court granted bail under Section 439 CrPC, relying mainly on the accused’s seven‑month custody and ignoring his extensive criminal record and the seriousness of the crime. The Supreme Court examined whether the High Court’s grant of bail was legally sustainable, emphasizing that bail discretion must consider the nature and gravity of the offence, the accused’s antecedents, risk to witnesses and societal interest. It held that the High Court’s order was perverse for failing to weigh these material factors and for giving undue weight to the period of custody alone. Consequently, the Supreme Court set aside the bail order, cancelled the bail bonds and directed the accused to surrender to custody, allowing the appeal.
Issues considered
- The High Court erred in granting bail by not taking into account the accused's extensive criminal antecedents and the seriousness of the kidnapping and assault.
- Whether the period of custody alone suffices as a ground for bail in serious offences such as kidnapping and assault.
- Whether an appeal challenging the grant of bail (as opposed to cancellation) is maintainable.
- Whether the High Court's bail order is perverse or illegal for ignoring material factors relevant to bail.
Legislation cited
- Code of Criminal Procedure, 1973s. 439
- Indian Penal Code, 1860s. 364, s. 506
Subjects
bailcriminal antecedentskidnappinglibertySection 439 CrPCperverse ordersocietal interestcriminal law
Judgment
[2012] 7 S.C.R. 584
A ASH MOHAMMAD
v.
SHIV RAJ SINGH @ LALLA BABU AND ANR.
(Criminal Appeal No. 1456 of 2012)
SEPTEMBER 20, 2012
B
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Bail - Grant of - Duty of the Court - Allegation that on
instructions of accused-respondent, two persons abducted the
C victim under threat whereafter the victim was kept in
confinement for eight days and tortured - Respondent was a
history-sheeter and a number of criminal cases were pending
against him - He was denied bail by the trial court - High
Court, however, granted him bail u/s. 439 CrPC on certain
D conditions - On appeal; held: The High Court, in toto, ignored
the criminal antecedents of the respondent - What weighed
with the High Court was that the respondent had spent seven
months in custody - Though period of custody is a relevant
factor but simultaneously the totality of circumstances and the
E criminal antecedents of the respondent could not have been
totally ignored - Granting of bail is a matter of discretion for
the• High Court and the Supreme Court is slow to interfere with
such orders -But regard being had to the antecedents of the
respondent, the nature of the crime committed and the
F confinement of the victim for eight days, the order of the High
Court is required to be interfered with - The instant appeal was
not an appeal for cancellation of bail as cancellation was not
sought because of supervening circumstances - It was
basically an appeal challenging grant of bail where the High
G Court failed to take into consideration the relevant material
factors which made its order perverse - Societal concern in
the case at hand deserved to be given priority over lifting the
restriction of liberty of the respondent - Consequently, order
passed by the High Court set aside and respondent directed
H 584
ASH MOHAMMAD v. SHIV RAJ SINGH @ LALLA 585
BABU AND ANR.
to surrender to custody forthwith - Code of Criminal Procedure, A
1973 - s.439 - Penal Code, 1860 - ss. 364 and 506.
Constitution of India, 1950 - Article 21 - Liberty - Sanctity
,of - Restrictions imposed by law - Necessity of collective
security - Held: Though liberty is a greatly cherished value B
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 fife or liberty of others is
jeopardized, for the rational collective does not countenance
an anti-social or anti-collective act.
c
The appellant lodged an FIR alleging that while he
was going to his in-laws' place along with 'B', two
persons came on a motorcycle and after inquiring about
the identity of 'B' told him that they had been asked by
the respondent to compel him to accompany them; and D
.
that as there was resistance, they threatened to kill him
and eventually made 'B' sit in between them on the
motorcycle and fled away. Consequently, a case was
registered under Section 364 and 506 of IPC against the
accused-respondent who was thereafter arrested and E
taken into custody. The respondent filed bail application
before the trial court, which taking note of the allegations
in the FIR and the stand put forth in opposition by the
prosecution as well as by the victim, and thereafter,
taking note of the fact that the respondent was a history- F
sheeter and involved in number of cases rejected his bail
application. Thereafter the respondent filed bail
application before the High Court under Section 439
CrPC. The High Court directed his enlargement on bail
on certain conditions.
G
The instant appeal was preferred assailing the legal
defensibility of the order passed by the High Court and
praying for quashment of the same. The appellant
contended that the High Court had absolutely misdirected
H
586 SUPREME COURT REPORTS [2012] 7 S.C.R.
A itself by not appositely considering the statement
recorded under Section 164 of CrPC, the gravity of the
offences and criminal antecedents of the respondent and
further the affidavit filed by the prosecution bringing
number of factors as a consequence of which an illegal
B order enlarging the appellant on bail had come into
existence. The appellant submitted that the non-
consideration of the material facts vitiated the order of the
High Court and annulment of the same was the judicial
warrant.
c The question that therefore arose for consideration
was whether the order passed by the High Court was
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 CrPC.
D
Allowing the appeal, the Court
HELD:1.1. The sacrosanctity of liberty is paramount
in a civilized society. However, in a democratic body
E 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
F 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
G individual 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
H
ASH MOHAMMAD v. SHIV RAJ SINGH @ LALLA 587
BABU AND ANR.
laws are made for their obedience so that every member A
of the society lives peacefully in a society to achieve his
individual as well as social interest. [Para 19] [598-E-H;
599-A-B]
1.2. The individual liberty cannot be accentuated to
B
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 C
not only application of mind but also exercise of
jurisdiction on accepted and established norms. 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 D
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. [Paras
20, 21] [599-B-D, F]-
E
1.3. In the instant case, the prosecution by way of an
affidavit had brought to the notice of the High Court about
the cases pending against the respondent. The High
Court recorded the submission of the complainant that
the respondent was involved in 52 cases. On a perusal F
of the counter-affidavit filed before the High Court it is
perceptible that it was categorically stated that the
accused-respondent was a history-sheeter; that he was
the pivotal force in getting the kidnapping done; that the
victim 'B' was in captivity for eight days; and that he G
escaped under the pretext that he was going to attend
the call of nature. The High Court 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
H
588 SUPREME COURT REPORTS [2012] 7 S.C.R.
A opinion on the merits of the case, the applicant is entitled
to be released on bail". [Para 28] (599-G; 560-A-C]
1.4. Coming to the nature of crime it is perceivable
that two persons came on a motorcycle and kidnapped
'B' and kept him in confinement for eight days. The role
8
of the accused-respondent is clearly stated. The High
Court, in toto, has ignored the criminal antecedents of the
respondent. What weighed with the High Court was that
the respondent had spent seven months in custody. That
may be one of the factors but that cannot be the whole
C 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. It is not 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
D of crime in respect of which he has been booked. In the
case at hand, as the prosecution case unfolds, the
respondent did not want anyone to speak against his
activities. He had sent two persons to kidnap 'B', who
remained in confinement for eight days. The victim had
E 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-
respondent. This may be the purpose for sustaining of
authority in the area by the respondent and his criminal
F antecedents, speak eloquently in that regard. In his plea
for bail the respondent 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
G present case his criminal antecedents could not have
been totally ignored. [Para 30] (604-C-F-H; 605-A-C]
1.5. A stage has come that in certain States
abduction and kidnapping have been regarded as
heroism. The concept of crime in the contextual sense of
H
ASH MOHAMMAD v. SHIV RAJ SINGH @ LALLA 589
BABU AND ANR.
kidnapping has really undergone a sea change and has A
really shattered the spine of the orderly society. 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 B
been proper analysis of the criminal antecedents.
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 C
conditions would arise. Though period of custody is a
relevant factor but simultane·ously the totality of
circumstances and the criminal 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. In the D
case at hand, the social concern deserves to be given
priority over lifting the restriction of liberty of the accused-
respondent. [Paras 31, 32] [605-C-H; 606-A]
1.6. Granting of bail is a matter of discretion for the E
High Court and this Court is slow to interfere with such
orders. But regard being had to the antecedents of the
accused-respondent 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 F
confinement of the victim for eight days, this Court is
inclined to interfere with the impugned order of High
Court. [Para 33] [606-B-C]
1. 7. The instant appeal is not an appeal for
cancellation of bail as cancellation is not sought because G
of supervening circumstances. The instant appeal is
basically an appeal challenging grant of bail where the
High Court failed to take into consideration the relevant
material factors which make the order perverse.
H
590 SUPREME COURT REPORTS [2012] 7 S.C.R.
A Consequently, the order passed by the High Court is set
aside and the bail bonds of the respondent are cancelled.
The respondent is directed to surrender to custody
forthwith failing which it shall be the duty of the
investigating agency to take him to custody immediately.
B [Para 34, 35) [606-D-F]
Ram Govind Upadhyay v. Sudarshan Singh and Others
(2002) 3 SCC 598: 2002 (2) SCR 526; Prahlad Singh Bhati
v. NCT, Delhi and Another (2001) 4 SCC 280: 2001 (2) SCR
684; Chaman Lal v. State of U. P. and Another (2004) 7 SCC
C 525: 2004 (3) Suppl. SCR 584; Masroor v. State of Uttar
Pradesh and another (2009) 14 SCC 286: 2009 (6) SCR
1030; Prasanta Kumar Sarkar v. Ash is Chatterjee and
another (2010) 14 SCC 496: 2010 (12) SCR 1165; State of
U.P. through CBI v. Amarmani Tripathi (2005) 8 SCC 21:
D 2005 (3) Suppl. SCR 454; Puran v. Rambilas and another
(2001) 6 SCC 338: 2001 (3) SCR 432; Or. Narendra K. Amin
v. State of Gujarat and another 2008 (6) SCALE 415; Prakash
Kadam and others v. Ramprasad Vishwanath Gupta and
another (2011) 6 sec 189: 2011 (6) SCR 800;
E
Sunil Fulchand Shah v. Union of India and others (2000)
3 SCC 409: 2000 (1) SCR 945; P.S.R. Sadhanantham v.
Arunachalam and another AIR 1980 SC 856; Mrs. Harpreet
Kaur Harvinder Singh Bedi v. State of Maharashtra and
F another AIR 1992 SC 979: 1992 (1) SCR 234 and T.K. Gopal '
alias Gopi v. State of Kamataka AIR 2000 SC 1669: 2000
(3) SCR 1040 - referred to.
Mogul Steamship Co. v. McGregor Gow & Co. (1989) 23
QBD 598 - referred to.
G
Halsbury's Laws of England, 4th Edition, Volume 11,
para 166 -referred to.
Case Law Reference:
H 2002 (2) SCR 526 referred to Para 10
ASH MOHAMMAD v SHIV RAJ SINGH @ LALLA 591
BABU AND ANR.
2001 (2) SCR 684 referred to Para 10 A
2004 (3) Suppl. SCR 584 referred to Para 11
2009 (6) SCR 1030 referred to Para 12
2010 (12) SCR 1165 referred to Para 13
B
2005 (3) Suppl. SCR 454 referred to Para 14
2001 (3) SCR 432 referred to Para 15
2008 (6) SCALE 415 referred to Para 16
c
2011 (6) SCR 800 referred to Para 17
2000 (1) SCR 945 referred to Para 22
AIR 1980 SC 856 referred to Para 24
(1989) 23 QBD 598 referred to Para 24 D
1992 (1) SCR 234 referred to Para 25
2000 (3) SCR 1040 referred to Para 26
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal E
No. 1456 of 2012.
From the Judgment & Order dated 26.04.2012 of the High
Court of Judicature at Allhabad in Crl. Misc. Bail Application
No. 28461 of 2011.
F
Abha R. Sharma, Susheel TOmar, D.S. Parmar for the
Appellant.
lrshad Ahmed, AAG, Shalini Kumar, Abhisth Kumar for the
Respondents. G
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
2. The present appeal by sp~cial leave has been preferred H
592 SUPREME COURT REPORTS [2012] 7 S.C.R.
A 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 same, and further to cancel the grant of bail to the accused-
respondent (hereinafter referred to as 'the accused') in respect
B 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
C 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
D 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 w~nt to the Patwai
Police Station, District Rampur and lodged the FIR as a
E consequence of which crime No. 770 of 2011 was registered
for offences punishable under Section 364 and 506 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
F 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:-
G
"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
H in a room for about 8 days and they also used to assault
ASH MOHAMMAD v. SHIV RAJ SINGH @ LALLA 593
BABU AND ANR. [DIPAK MISRA, J.]
him and threaten for life. As per the victim, he escaped A
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 B
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.
c
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 D
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 E
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 F
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.
7. Questioning the justifiability of the impugned order Ms. G
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
H
594 SUPREME COURT REPORTS (2012) 7 S.C.R.
A 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
B facts vitiates the order of the High Court and annulment of the
same is the judicial warrant.
8. Per contra, Mr. lrshad Ahmed, learned counsel
appearing for the accused contended that the prosecution case
C 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
D conducted himself and in the 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
E 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
F 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
G 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
H
ASH MOHAMMAD v. SHIV RAJ SINGH @ LALLA 595
BABU AND ANR. [DIPAK MISRA, J.]
Others1, it has been opined that the grant of bail though involves A
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 B
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 C
only the nature of the accusations, but the severity of the
punishment, if the accusation entails a conviction arid 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 D
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
E
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 F
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. and Another this G
Court while dealing with an application for bail has stated that
certain factors are to be considered for grant of bail, they are;
1. (2002) 3 sec 598.
2. c2001) 4 sec 280.
3. (2004) 1 sec 525. H
596 SUPREME COURT REPORTS [2012] 7 S.C.R.
A (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.
B
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.
C 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 has to be balanced. Liberty of
a person accused of an offence would depend upon the
exigencies of the case.
D
13. In Prasanta Kumar Sarkar v. Ashis Chatterjee and
another° 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
E 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
F 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
G 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.
4. (2009) 14 sec 286.
H 5. (2010) 14 sec 496.
ASH MOHAMMAD v. SHIV RAJ SINGH @ LALLA 597
BABU AND ANR. [DIPAK MISRA, J.]
14. In State of UP. through CBI v. Amarmani Tripathi5 it A
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. Rambi/as and another it has been noted B
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.
c
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. D
17. In Prakash Kadam and others v. Ramprasad
Vishwanath Gupta and another°, while making a distinction
between cancellation of bail and consideration for grant of bail,
this Court opined thus: - E
"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 F
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. G
6. (2005) 8 sec 21.
1. (2001) 6 sec 338.
8. 2008 (6) SCALE 415.
9. (2011) 6 sec 189. H
598 SUPREME COURT REPORTS [2012] 7 S.C.R.
A 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
B 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
C 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 on the ground that the same is
perverse or based on irrelevant considerations or founded on
D 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.
E 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
F 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
G 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 living in a society governed by Rule of Law has to
H be regulated and such regulations which are the source in law
subserve the social balance and function as a significant
ASH MOHAMMAD v. SHIV RAJ SINGH @ LALLA 599
BABU AND ANR. [DIPAK MISRA, J.)
instrument for protection of human rights and security of the A
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". B
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 C
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 D
not become epidemic. In an organized society the concept of
liberty basically requires citizens to be responsible and not to
disturb the tranquility and safety which every well-meaning
person desires. Not for nothing J. Oerter stated:
E
"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 F
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 G
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 Ha/sbury's Laws of England1° it has been
stated thus: -
10. Halsbury's Laws of England, 4th Edn., Vol .11, para 166 H
600 SUPREME COURT REPORTS [2012] 7 S.C.R.
A "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
B principal at any time and may discharge themselves by
handing him over to the custody of law and he will then be
imprisoned."
23. In Sunil Fulchand Shah v. Union of India and others 11
Dr. A.S. Anand, learned Chief Justice, in his concurring opinion,
C observed: -
"Bail is well understood in criminal jurisprudence and
Chapter XXXlll of the Code of Criminal Procedure contains
elaborate provisions relating to grant of bail. Bail is
D 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 hail is to release the accused
from internment though the court would still retain
constructive control over him through the sureties. In case
E 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
F 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.O. Kaushal, J, referred
G to Mogul Steamship Co. v. McGregor Gow & Co. (1989) 23
QBD 598, 606 and the definition given by Blackstone and
opined thus: -
11. (2000) 3 sec 409.
H 12. AIR 1980 SC 586.
ASH MOHAMMAD v. SHIV RAJ SINGH @ LALLA 601
BABU AND ANR. [DIPAK MISRA, J.]
"A crime, therefore, is an act deemed by law to be harmful A
to socjety in general, even though its immediate victim is
an individual."
25. In Mrs. Harpreet Kaur Harvinder Singh Bedi v. State
of Maharashtra 13 and another a two-Judge Bench, though in a
8
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." C
26. In T.K. Gopal alias Gopi v. State of Karnataka 14 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 D
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 E
Criminal Procedure in 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. F
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 G
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
13. AIR 1992 SC 979.
14. AIR 2000 SC 1669. H
602 SUPREME COURT REPORTS [2012] 7 S.C.R.
A 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
B kid'napping done; that the victim Bihari Lal was in captivity for
eight days; and that he escaped under the 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
C 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
D 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. Crime Sections Police District
E No. No. Station
1. 270/86 25 Arms Act Shahabad Rampur
2. 271/86 395/397 /307/332/ Shahabad Rampur
337 /225/427
F 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
G
8. 485/98 323/504/506/3( 1) Shahabad Rampur
10 S.C./S.T. Act
9. 493/98 420/506/467/468/ 47 Sha ha bad Rampur
10. 281/99 3/4 U.P. Gunda Act Shahabad Rampur
H
ASH MOHAMMAD v. SHIV RAJ SINGH @ LALLA 603
BABU AND ANR. [DIPAK MISRA, J.]
11. 626/05 34 7/504/506 Shahabad Rampur A
12. 628A105 452/352/504/506 Sha ha bad Rampur
13. 363/06 3(1) Prevention of Shahabad Rampur
damage to Public
Property Act, 1984
B
14. 2171/08 147/143/283/341 and Sha ha bad Rampur
6 United Province
Special Power Act,
1936 and Section 7
of Criminal Law
c
Amendment Act.
15. 670/09 3(1) Gangster Act Shahabad Rampur
16. 1207/09 448/380 Sha ha bad Rampur
17. 939/10 323/324/307 /302 Sha ha bad Rampur
18. 507/11 147/506 Shahabad Rampur D
19. 537/11 147/148/149/307 Shahabad Rampur
20. 538/11 147/148/149/307/ 353 Shahabad Rampur
/354 and Section 7 of
Criminal Law
E
Amendment Act
21. 313/91 447/323/504/506 & Sha ha bad Rampur
3(1) 10 S.C./S.T. Act
22. 391/92 348/379/504/506 & 3 Sha ha bad Rampur
(4) 10 S.C./S.T. Act
F
23. 99/09 147/148/307/323/ 504 Milk Rampur
1506 & 3(2) 10 S.C.
/S.T. Act
24. 2007108 147/504/506/307/ 427 Milk Rampur
& 3(1) 10 S.C./ S.T. G
Act
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 Morada bad
H
604 SUPREME COURT REPORTS [2012] 7 S.C.R.
A
28. 17/01 364 IPC (The court Faizganj Badayun
Issued non-bailable Behta
warrants but
absconding)
29. 269/02 420 IPC Kasganj Eta
B
30. 270/02 25 Arms Act Kasganj Eta
In this Court also the same list has been filed. Thus, there
is no doubt that the accused is a history-sheeter.
C 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
o 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
E 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
F the case at hand, as the prosecution case unfolds, the accused
did not want anyone to speak against his 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
G 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
H
ASH MOHAMMAD v. SHIV RAJ SINGH @ LALLA 605
BABU AND ANR. [DIPAK MISRA, J.]
to spread terror or to establish authority are in a different realm A
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 B
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 c
criminal antecedents could not have been totally ignored.
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 D
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. E
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. F
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 G
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 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
H
606 SUPREME COURT REPORTS [2012] 7 S.C.R.
A 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
8
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
C 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.
o 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 into consideration the relevant material factors which
E 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
F 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.
G 36. The appeal is, accordingly, allowed.
8.8.B. Appeal allowed.
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