KHILARI versus STATE OF U.P. & ORS.

Leave granted.

p. 544, margin D

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 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 (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 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 (hereinafter referred to as the 'deceased') mercilessly with iron rods and he succumbed to the injuries .

pp. 544–545, margin D

The only stand taken before the High Court was ante mortem injuries on the body of the deceased three contusions, one abraded contusion and four wounds of different dimensions on various parts of which could not have been caused by iron rods. It stand that some· unknown assailants caused the injuries deceased. It was also submitted that by order dated 15.11.2006 the co-accused has been released on bail.

p. 545, margin A

The prosecution and the present appellant opposed prayer for grant of bail. It was their stand that PWs 1 the informant had seen the attacks and were eye-witnesses the occurrence and PW3 is an independent witness. evidence has been analysed in great detail by the who found it to be credible and cogent. So far as the of injuries is concerned, that aspect was also examined trial Court.

p. 545, margin C

After noticing the rival stands, the High Court impugned order granted the bail with the following conclusions: "Considering fact and circumstances of the without making any opinion on the merit of the this stage, we are of the view that the accused-appellants Dharmendra and Manoj shall also be released

p. 545, margin D

Learned counsel for the informant appellant that the approach of the High Court is clearly erroneous. the conviction has been recorded by believing witnesses and also discarding the stand that some injuries were not possible by iron rods, the High Court not have by a cryptic order directed grant of bail. therefore, submitted that the impugned order is unsustainable.

p. 545, margin F

Learned counsel for the State supported the the informant.

p. 545, margin G

Learned counsel for the respondent nos.2 accused submitted that it is common knowledge in the High Court take a long time for disposal. to be struck between the right to speedy trial the accused being in custody. The High Court of relevant factors and has granted bail.

p. 546, margin A

The parameters to be adopted while application for bail by suspension of sentence pendency of the appeal has been examined several cases. In Kishori Lal v. Rupa and Ors. 638) it was noted as follow: "4. Section 389 of the Code deals with execution of sentence pending the appeal the appellant on bail. There is a distinction and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for appellate court to record reasons in writing suspension of execution of the sentence or against. If he is in confinement, the said that he be released on bail or on his requirement of recording reasons in indicates that there has to be careful consideration relevant aspects and the order directing sentence and grant of bail should not matter of routine. 5. The appellate court is duty-bound to objectively the matter and to record reasons for the the case warrants suspension of execution grant of bail. In the instant case, the only seems to have weighed with the High Court suspension of sentence and grant of bail of allegation of misuse of liberty during the when the accused-respondents were on

p. 546, margin B

In Anwari Begum v. Sher Mohammad sec 326) it was, inter alia, observed as follows: "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 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 matter of course. 8. There is a need to indicate in the order reasons for prima facie concluding why bail was being granted, particularly where an accused was charged of having 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: 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 complainant; 3. Prima facie satisfaction of the court in support of the charge. Any order dehors of such reasons suffers from nonapplication 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 A Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav & Anr. (JT 2004 (3) SC 442)."

pp. 546–548, margin G

As the extracted portion of the High Court's order goes to show there was complete non-application of mind and nonconsideration 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.

p. 548

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.

p. 548, margin C

The appeal is allowed to the aforesaid extent. N.J. Appeal allowed.

p. 548, margin C