Supreme Court of India
KHILARIversusSTATE OF U.P. & ORS.
- Citation
- 2009 INSC 65
- Decided
- 23 January 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The High Court’s order granting bail was unsustainable and is set aside; bail is cancelled and the matter remitted for fresh consideration.
Summary
The appellants were convicted under Sections 302 and 506 of the IPC for the murder of Shiv Kumar. While the conviction was under appeal, the co‑accused (respondents 2 and 3) applied for bail under Section 389 of the CrPC. The Allahabad High Court granted bail without recording detailed reasons, relying merely on the absence of alleged misuse of liberty. The Supreme Court examined the parameters for granting bail during the pendency of an appeal and held that the High Court had failed to apply its mind, did not consider the seriousness of the offence, the credibility of eye‑witnesses, or the risk of witness tampering. Consequently, the Court set aside the bail order, cancelled the bail, and remitted the matter to the High Court for fresh consideration. The appeal was allowed.
Issues considered
- What is the appropriate procedure and criteria for granting bail under Section 389 CrPC during the pendency of an appeal in a serious offence?
- Did the High Court’s order granting bail demonstrate a sufficient application of mind and consideration of relevant factors?
Legislation cited
- Code of Criminal Procedure, 1973s. 389
- Indian Penal Code, 1860s. 302, s. 506
Subjects
bailSection 389 CrPCsuspension of sentencemurderserious offenceappellate courtapplication of mindprima facie casewitness tamperinghigh courtSupreme Court
Judgment
[200] 1 S.C.R. 543
KHILARI A
v.
STATE OF U.P. & ORS.
(Criminal Appeal No. 141 of 2009)
JANUARY 23, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR I
·GANGULY, JJ.]
-J,,
Code of Criminal Procedure, 1973:
c
s. 389 - Suspension of sentence pending appeal -
Re/ease of appellant on bail - On facts, conviction of
appellant uls. 302 and 506 /PC - Bail application during
pendency of appeal - Case of accused that injuries could not
have been caused with iron rods as alleged and some D
-t- unknown assailants were involved - Prosecution case that
evidence of eye witnesses and independent witnesses found
to be credible and cogent and trial court examined the aspect
relating to injuries - Grant of bail by High Court -
Sustainability of - Held: Not sustainable - Order shows.
E
complete non-application of mind and non-consideration of
relevant aspects - Bail granted to co-accused also set aside
- Thus, grant of bail cancelled - Matter remitted to High Court
for afresh consideration.
'r
s. 389 - Suspension of sentence pending appeal - F
Application for bail - Parameters to be adopted - Reiterated.
Kishori Lal v. Rupa and Ors. 2004 (7) SCC 638; Anwari
Begum v. Sher Mohammad and Anr. 2005 (7) SCC 326 and
Pancham Chand and Ors. v. State of Himachal Pradesh and G
Ors. 2008 (3) SCALE 379, relied on.
-,...
Case Law Reference:
2004 (7) sec 638 Relied on. Para 9
543 H
544 SUPREME COURT REPORTS [2009) 1 S.C.R.
A 2oos (7) sec 326 Relied on. Para 10
2008 (3) SCALE 379 Relied on. Para 11
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 141 of 2009.
B
From the Judgment and Order dated 3/12/2007 of the High
Court of Judicature at Allahabad in Crl. Appeal No. 7567 of
2006.
S. Chandra Shekhar, for the Appellant.
c
Shobha Dixit, T.N. Singh, Rajeev Dubey and Kamlendra
Mishra, for the Respondent.
The Judgment of the Court was delivered by
D DR. ARIJIT PASAYAT, J.1. Leave granted.
2. Ch~llenge in this appeal is to the order passed by a
Division Bench of the Allahabad High Court allowing the prayer
for bail made by respondent nos.2 and 3 during the pendency
E of Criminal Appeal No.6724 of 2006. Challenge before the
High Court was to the conviction recorded by learned Sessions
Judge, Bagpat, in Sessions Trial No.299 of 2000. Respondent
nos. 2 and 3 were convicted for offences punishable under
Section 302 and Section 506 of the Indian Penal Code, 1860
F (in short 'IPC') and each was sentenced to undergo
imprisonment for life and one year for the offences respectively.
The accused persons were convicted allegedly for committing
murder of Shiv Kumar. Challenging the conviction appeal has
been filed and simultaneously prayer for being released on bail
G during the pendency of the appeal was filed. By the impugned
order the Division Bench accepted the prayer and granted bail
to the respondent nos. 2 & 3. The High Court noted that the
allegation was that the incident took place on 8.6.2000 at about
8.30 p.m. and accused persons assaulted Shiv Kumar
H (hereinafter referred to as the 'deceased') mercilessly with iron
KHILARI v. STATE OF U.P. & ORS. 545
[DR. ARIJIT PASAYAT, J.]
rods and he succumbed to the injuries . A
......
3. The only stand taken before the High Court was that the
ante mortem injuries on the body of the deceased included
three contusions, one abraded contusion and four lacerated
wounds of different dimensions on various parts of the body B
" which could not have been caused by iron rods. It was their
stand that some· unknown assailants caused the injuries to the
. - ._
. deceased. It was also submitted that by order dated
15.11.2006 the co-accused has been released on bail.
4. The prosecution and the present appellant opposed the c
prayer for grant of bail. It was their stand that PWs 1 and 2 and
the informant had seen the attacks and were eye-witnesses to
the occurrence and PW3 is an independent witness. Their
evidence has been analysed in great detail by the trial Court
-' f who found it to be credible and cogent. So far as the possibility D
of injuries is concerned, that aspect was also examined by the
trial Court.
5. After noticing the rival stands, the High Court by the
impugned order granted the bail with the following conclusions:
E
"Considering fact and circumstances of the case but
without making any opinion on the merit of the appeal at
this stage, we are of the view that the accused-appellants
Dharmendra and Manoj shall also be released on bail."
F
6. Learned counsel for the informant appellant submitted
that the approach of the High Court is clearly erroneous. After
the conviction has been recorded by believing three eye
witnesses and also discarding the stand that some of the
injuries were not possible by iron rods, the High Court should G
not have by a cryptic order directed grant of bail. It was,
therefore, submitted that the impugned order is unsustainable.
7. Learned counsel for the State supported the stand of
the informant.
H
546 SUPREME COURT REPORTS [2009] 1 S.C.R.
A 8. Learned counsel for the respondent nos.2 and 3
accused submitted that it is common knowledge that appeals
in the High Court take a long time for disposal. A balance has
to be struck between the right to speedy trial and the need for
the accused being in custody. The High Court has taken note
B of relevant factors and has granted bail.
9. The parameters to be adopted while dealing with the
application for bail by suspension of sentence during the .. -
pendency of the appeal has been examined by this Court in
C several cases. In Kishori Lal v. Rupa and Ors. (2004 (7) sec
638) it was noted as follow:
"4. Section 389 of the Code deals with suspension of
execution of sentence pending the appeal and release of
the appellant on bail. There is a distinction between bail
D and suspension of sentence. One of the essential
ingredients of Section 389 is the requirement for the
appellate court to record reasons in writing for ordering
suspension of execution of the sentence or order appealed
against. If he is in confinement, the said court can direct
E that he be released on bail or on his own bond. The
requirement of recording reasons in writing clearly
indicates that there has to be careful consideration of the
relevant aspects and the order directing suspension of
sentence and grant of bail should not be passed as a
F matter of routine.
5. The appellate court is duty-bound to objectively assess
the matter and to record reasons for the conclusion that
the case warrants suspension of execution of sentence and
grant of bail. In the instant case, the only factor which
G seems to have weighed with the High Court for directing
suspension of sentence and grant of bail is the absence
of allegation of misuse of liberty during the earlier period
when the accused-respondents were on bail."
H 10. In Anwari Begum v. Sher Mohammad and Anr. (2005
KHILARI v. STATE OF U.P. & ORS. 547
[DR. ARIJIT PASAYAT, J.]
~ (7) sec 326) it was, inter alia, observed as follows: A
"7. Even on a cursory perusal the High Court's order
shows complete non-application of mind. Though a
detailed examination of the evidence and elaborate
documentation of the merits of the case is to be avoided B
by the court while passing orders on bail applications, yet
a court dealing with the bail application should be satisfied
--+- as to whether there is a prima facie case, but exhaustive
exploration of the merits of the case is not necessary. The
court dealing with the application for bail is required to
exercise its discretion in a judicious manner and not as a
c
matter of course.
8. There is a need to indicate in the order reasons for
4 prima facie concluding why bail was being granted,
-f particularly where an accused was charged of having D
committed a serious offence. It is necessary for the courts
dealing with application for bail to consider among other
circumstances, the following factors also before granting
bail, they are:
E
1. The nature of accusation and the severity of
punishment in case of conviction and the nature of
supporting evidence;
2. Reasonable apprehension of tampering with the
witness or apprehension of threat to the F
complainant;
3. Prima facie satisfaction of the court in support
of the charge.
Any order dehors of such reasons suffers from non- G
-...,.... application of mind as was noted by this Court in
Ram Govind Upadhyay v. Sudarshan Singh &
Ors. (2002 (3) SCC 598), Puran etc. v. Rambi/as
and Anr. etc. (2001) (6) SCC 338) and in Kalyan
H
548 SUPREME COURT REPORTS (2009) 1 S.C.R.
A Chandra Sarkar v. Rajesh Ranjan Alias Pappu
Yadav & Anr. (JT 2004 (3) SC 442)."
11. As the extracted portion of the High Court's order goes
to show there was complete non-application of mind and non-
B consideration of the relevant aspects. The order relating to grant
of bail in respect of co-accused by order dated 15.11.2006 was
the subject matter of challenge in Pancham Chand & Ors. v.
State of Himahal Pradesh & Ors. (2008 (3) SCALE 379) and ... -
the order was set aside.
C 12. The impugned order, therefore, is not sustainable and
is set aside. The bail granted to the respondent nos. 2 and 3
is cancelled. The matter is remitted to the High Court for fresh
consideration in accordance with law.
D 13. The appeal is allowed to the aforesaid extent.
N.J. Appeal allowed.
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