Holding

The High Court's grant of bail was not justified; the bail order is quashed.

Summary

The appellant, the State of Uttar Pradesh, challenged the Allahabad High Court's order granting bail to the respondent, an advocate charged with murder under IPC s.302 read with s.201. The High Court had allowed bail despite the offence being non‑bailable and the gravity of the crime, which involved the shooting of a close friend inside his bedroom. The Supreme Court examined the maintainability of the petition and, more importantly, the criteria for bail in non‑bailable offences, emphasizing the need to consider the nature and seriousness of the charge, risk of witness tampering, and the accused's influence. It held that the High Court failed to assess these factors and that no mitigating circumstances justified bail. Consequently, the Supreme Court quashed the bail order, cancelled the bail bond, and directed that the respondent be taken into custody. The appeal was allowed.

Issues considered

Whether the petition for special leave is maintainable when not filed by an aggrieved party.
Whether the High Court was justified in granting bail in a non‑bailable offence of murder (IPC s.302 r/w s.201) considering the gravity of the offence, risk of witness tampering, and the accused's position.

Legislation cited

Code of Criminal Procedure, 1973s. 439
Indian Penal Code, 1860s. 201, s. 302

Subjects

bailnon‑bailable offencemurderIPC 302IPC 201gravity of offencewitness tamperingSupreme Courtappealcriminal procedureadvocate influencebail cancellation

Judgment

l· ANIL KUMAR TULSIYANI A
v.
STATE OF U.P. AND ANR.

MAY 5, 2006

[H.K. SEMA AND R.V. RAVEENDRAN, JJ.] B

Bail-Grant of-Propriety-Non-bailable offence-Accused an influential
person-Grant of bail by High Court-Held: Grant of bail was not justified-
The same was granted without considering the gravity and· nature of the
offence-Code of Criminal Procedure, 1973-S. 439-Penal Code, 1860- c
s.302 rlw s.201

The respondent-accused was charged under S.302 r/w s.201 IPC. His
wife was co-accused. Respondent was an Advocate. His bail application
was rejected by Sessions Court. However, it was later granted by the High D
Court. Hence the present appeal. Respondent-accused interalia contended
that the petition out of which the present appeal arose, was not
maintainable as the same was not filed by the aggrieved party.

Allowing the appeal, the Court
E
HELD: I. It cannot be said that the petition itself is not maintainable,
as the same is not filed by an aggrieved party as permission to file Special
Leave Petition has already been granted. [924-G-H)

2.1. The circumstances to be considered in an application for bail
are (i) whether there is any prima facie or reasonable ground to believe F
that the accused had committed the offence; (iii) severity of the punishment
in the event of conviction; (iv) danger of the accused absconding or fleeing,
if released on bail; (v) character, behaviour, means, position and standing
of the accused; (vi) likelihood of the offence being repeated; (vii)
reasonable apprehension of the witnesses being tampered with; and (viii) G
danger, of course, of justice being thwarted by grant of bail. [926-B-q

2.2. One of the considerations in granting bail in non-bailable
offences is the gravity and the nature of the offence. There are no
' 923 H
924 SUPREME COURT REPORTS [2006] SlJl'P. I S.C.R.

A mitigating circumstances, which warranted the High Court in granting
bail in a non-bailable grave offence under Section 3021201 IPC. The High ·J

Court has not at all considered the gravity and the nature of the offence
in which the deceased stated to be a close friend of the respondent-accused
has been shot at in his house, that too inside his bedroom. Primaf:.icie, the
prosecution story has disclosed that a heavy burden is laid on the accused
B to explain the circumstances. (925-D-FJ

State of UP. v. Amarmani Tripathi, (2005( 8 SCC 21, relied on.

2.3. In the present case, the respondent being an Advocate, is in a
C commanding position and standing in the society. Keeping in view his
position in the background, a reasonable apprehension of the witnesses
being tampered with or won over, coerced, threatened or intimidated by
using his influence and position cannot be ruled out. (926-D(

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 529
D of 2006.

From the Judgment and Order dated 7.9.2005 of the Allahabad High
Court in Criminal Misc. Bail Application No. 11884/2005.

Ranjit Kumar, Siddharth Dave and Vibha Datta Makhija for the
E Appellant.
Vijay Hansaria, C.D. Singh, Prashant Chaudhary, Abhishek Chaudhary
and Praveen Swarup for the Respondents.

The Judgment of the Court was delivered by
F
H.K. SEMA, J. Leave granted.

The challenge in this appeal is to the order dated 7.9.2005 passed by
the High Court of judicature at Allahabad in Criminal Misc. Bail Application
No.11884 of 2005 granting bail to the second respondent-accused.
G
We may at this stage, dispose of one of the arguments of Mr. Vijay
Hansaria, learned senior counsel, for the second respondent-accused that the
petition itself is not maintainable, as the same is not filed by an aggrieved
party. This contention does not survive as by our order dated 30.9.2005
permission to file Special Leave Petition has already been granted.
H
ANIL KUMAR TULSIYANI v. STATE OF U.P. (H.K. SEMA, J.] 925
Learned senior counsel on both sides have advanced arguments touching A
l..1
the merits of the case. We, however, refrain ourselves from making any
observation on the merits of the case at this stage lest it may prejudice the
case of the accused, as the trial is yet to commence. Suffice it is to say the
High Court was not justified in admitting bail to the respondent.

The offence under which the respondent was charged is Section 302 B
read with 20 I !PC in which the husband was the main accused and the wife
was the co-accused.

Co-accused's application was rejected by the High Court on 3.6.2005
after a threadbare discussion. The High Court arrived at a finding that the
incident had taken place inside the house of the accused, that too in her c
bedroom itself and that the accused being an Advocate would be no mitigating
ground to release her on bail.

The respondent-husband's application was also rejected by the Sessions
Judge, Allahabad by an order dated 10.6.2005 after taking into consideration
D
the submission of both sides and various facts and circumstances of the case.

The High Court, in our view, seems to have weighed with the tenuous
circumstances such as there being no report of ballistic expert to show the
alleged fingerprints found on the recovered revolver to be of his own, there
being no previous criminal history of the accused who is a practicing advocate E
of the High Court. The High Court has not at all considered the gravity and
the nature of the offence in which the deceased stated to be a close friend of
the respondent-accused has been shot at in his house, that too inside his
bedroom. Prima facie, the prosecution story has disclosed that a heavy burden
is laid on the accused to explain the circumstances.
F
Mr. Hansaria, learned senior counsel for the respondent, strenuously
contended that the respondent is on bail since 7.9.2005 that he has never
misused the liberty granted to him that there is no allegation of prosecution
witnesses being tampered with and there is no apprehension of the respondent
absconding or thwarting justice. According to him, there is no ground made
G
out for cancellation of bail. He also contended that the principles applicable
to cancellation of bail should be applied when considering an appeal under
Article 136 of the Constitution against an order granting bail. We are unable
to countenance with this submission of learned counsel for the respondent.
.I What we are considering is the correctness of the manner in which the
respondent has been admitted to bail by the High Court. We are not considering H
926 SUPREME COURT REPORTS [2006) SUPP. I S.C.R.

A any application for cancellation of bail.
By now it is well-settled principle of law that one of the considerations
in granting bail in non-bailable offences is the gravity and the nature of the
offence. The High Court has not at all addressed to this issue while granting
bail to the respondent.
B
This court in State of U.P. v. Amarmani Tripathi, [2005] 8 SCC 21, in
which one of us (Raveendran, J.) was a member has considered various
decisions of this Court and observed that the circumstances to be considered
in an application for bail are (i) whether there is any prima facie or reasonable
ground to believe that the accused had committed the offence; (ii) nature and
C gravity of the charge; (iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail; (v)
character, behaviour, means, position and standing of the accused; (vi)
likelihood of the offence being repeated; (vii) reasonable apprehension of the
witnesses being tampered with; and (viii) danger, of course, of justice being
D thwarted by grant of bail.

In the present case, admittedly, the respondent is an Advocate. Being
an advocate he is in a commanding position and standing in the society.
Keeping in view his position in the background, a reasonable apprehension
••
of the witnesses being tampered with or won over, coerced, threatened or
E intimidated by using his influence and position cannot be ruled out.

Jn fact, going through the entire order of the High Court granting bail,
we do not find any mitigating circumstances, which warranted the High
Court in granting bail in a non-bailable grave offence under Section 302/20 I
!PC.
F
For the reasons aforestated this appeal deserves to be allowed. The
order of the High Court dated 7.9.2005 granting bail to the respondent is
hereby quashed and set-aside. The respondent is on bail. His bail bond and
surety stands cancelled. He is directed to be taken back into custody forthwith.
G Appeal is allowed.
K.K.T. Appeal allowed.

' ..