ANIL KUMAR YADAVversusSTATE (NCT) OF DELHI & ANR.

                       [2017] 11 S.C.R. 195



                     ANIL KUMAR YADAV                                 A
                                 v.
                STATE (NCT) OF DELHI & ANR.
                (Criminal Appeal No. 1938 of2017)
                      NOVEMBER 14,2017                                B

       [KURIAN JOSEPH AND R. BANUMATHI, JJ.)
      Bail:
        Grant ofbail-In a case u/s.302 & 308 dw s.34 IPC-Propriety
of- Held: While considering question ofgrant of bail, it is necessary c
to consider prima facie case, an exhaustive exploration of the merits
should be avoided - There is no hard and fast rule for grant or
reji1sal of bail - Each case is required to be considered on its ow11
merit - Jn the present case, Sessio11s Court seems lo have gone into
the merits of the prosecution case, while granting bail - In crimes
                                                                        0
like murde1; the period of i11carceralion by itself would not entitle
the accused to be e11/arged on bail - The materials on record show
 'prima facie' case against the accused- Sessions court granted bail
on irrelevant co11siderations - Trial court is yet to record the
 testimony of material witnesses - For ensuring fair trial, it is
 11ecessary that accused are not enlarged on bail - Though liberty E
 of the accused is a relevant consideration as he is only an under
 trial, it is equally important to consider the impact of their release
 on bail - A balance has to be struck, in order to ensure that during
 trial witnesses depose without fear and justice is done to the society
 - High Court rightly cancelled the bail granted by Sessions Court.
                                                                        F
         Grant of bail - Interference with - By High Court -
 Permissibility - Held: Sessions Court grants bail in exercise of its
 discretion - Such discretion normally not be interfered with by High
 court - But can i11te1fere, if the bail order suffers from serious
 infirmities or perversity.
                                                                        G
         Practice and Procedure:
       Framing of charges and grant of bail - By common order -
Propriety of such practice - Held: Considerations for framing of
charge and for grant of bail are different - Therefore, such practice
is not desirable.                                                     H
                              195
196           SUPREME COURT REPORTS                     (2017] JI S.C.R.


A           Dismissing the appeals, the Court
            HELD: I. The Sessions Court considered both framing of
      charges and also grant of bail to accused No.4 by way of a common
      order. Insofar as framing of charges, in a case before the Sessions
      Court, under Section 228 of the Criminal Procedure Code, the
B     court is required to consider "whether there is ground for
      presuming thit the accused has committed an offence ..... " and
      then Court shall frame in writing a charge against the accused.
      For grant of bail, the court is required to consider several other
      factors. The considerations for framing of charge and grant of
      bail arc different. It is not desirable to frame charge and grant
c     bail by way of a common order. [Para 17][204-D-F)
        2.1 While considering the question of grant of bail, Court
  should avoid consideration of details of the evidence as it is not a
  relevant consideration. While it is necessary to consider the prima
  fucie case, an exhaustive exploration of the merits of the case
D should be avoided. [Para 16)[204-C]
            Puran v. Rambi/as and Another (2001) 6 SCC 338 :
            (2001) 3 SCR 432 - relied on.
             2.2 Whil11 granting bail, the relevant considerations arc:-
 E    (i) nature of seriousness of the offence; (ii) character of the
      evidence and circumstances which arc peculiar to the accused;
      and (iii) likelihood of the accused fleeing from justice; (iv) the
      impact that his release may make on the prosecution witnesses,
      its impact on the society; and (v) likelihood of his tampering. No
      doubt, this list is not exhaustive. There arc no hard and fast rules
 F    regarding grant or refusal of bail, each case has to be considered
      on its own merits. The matter always calls for judicious exercise
      of discretion by the Court. [Para 18][204-G-H)
            Stale of U.P. through CBI >: Amarmani Tripathi (2005)
            8 SCC 21 : (2005) 3 Suppl. SCR 454; Jayendra
 G          Saraswathi Swamigal v. State of T.N. (2005) 2 SCC 13 :
            (2005) I SCR 160 - relied on.
           2.3 In the present case, accused No. 4 was granted bail by
      the Sessions Court mainly on the grounds:- (i) as per CCTV

 H
   ANIL KUMAR YADAV v. STATE (NCT) OF DELHI & ANR.                       197


 footage deciphered by the Investigating Officer, no role could be       A
 attributed to accused No. 4 that he inflicted injuries on the injured
 witness as well as to deceased and the photographs do not show
 the presence of the acc'used No. 4 (ii) CCTV footage do not
 corroborate the statement of the witnesses that the accused along
 with their cars were blocking the road; and (iii) accused No.4 has      B
 been in custody since 31.10.2015. The Sessions Court pointed
 out that possibly no role could be attributed to him. (Para 21] (206-
 E-GJ
        2.4 The Sessions Court appears to have gone into the merits
 of the matter, in particular the CCTV footage to hold that accused
 No.4 could not have been present at the place of occurrence or          c
 participated in the incident. Further, the Sessions Court had also
 gone into the discrepancies of the statement of the witnesses.
 The probability or improbability of the prosecution version has
 to be judged bused on the materials available to the court at the
 time when bail is considered and not on the basis of discrepancies.     D
 [Para 21][207-B-C]
        2.5 The High Court had gone into the details of CCTV
, footage and noted the presence of accused No. 4 at the scene of
  occurrence that "he was seen entering into the Mercedes". The
  Sessions Court was not right in raising doubts about the presence      E
  of accused No. 4 and his role in inflicting injuries to deceased as
  well as to the injured witness at the present stage. Since the
  Sessions Court proceeded· to grant bail on erroneous footing and
  also going into the merits of the materials collected, the High
  Court, rightly set aside the order granting bail to accused No. 4.
  [Para 23][208-B-D]                                                     F

        2.6 In crimes like murder, the mere fact that the accused
 was in custody for more than one year, may not be a relevant
 consideration for grant of bail. The period of incarceration by
                                                •
 itself would not entitle the accused to be enlarged on bail. [Para
 241[208-E]                                                              G
       Gobarbhai Naranbhai Singala v. State of G1yarat and
       others (2008) 3 SCC 775 : [2008] 2 SCR 131; Ram
       Govind Upadhyay v. Sudarshan Singh and others (2002)
       3 SCC 598 : (2002] 2 SCR 521i - relied on.
198           SUPREME COURT REPORTS                      [2017] II S.C.R.


A           2.7 Apart from CCTV footage, there arc other materials on
      record to show the "prima facic" case against the appellants/
      accused viz. (i) statement of eye - witnesses who have named the
      accused and also given statements as to the overt acts of each of
      the accused; (ii) recoveries made from the accused; and (iii) the
      incident in which deceased and complainant have sustained
B
      injuries. The Sessions Court had not taken into consideration
      these relevant materials; but granted bail to the appellants/
      accused on the ground of discrepancies in the statement of
      witnesses, CCTV footage and the period of incarceration of the
      accused which are not relevant considerations for grant of bail by
c     the Sessions Court in the facts and stage of this case. (Para
      2711209-B-DJ
            Kanwar Singh Meena v. Stale of Rajasthan and Am:
            (2012) 12 SCC 180 : ( 2012] 10 SCR 847 - referred
            to.
D            2.8 In the present case, the trial is at a very crucial stage.
      The trial court is yet to record the testimony of material witnesses
      including the complainant as well as all the material witnesses.
      For ensuring the fair trial, witnesses must be in a position to
      freely depose without fear. In the facts and circumstances of the
 E    case, the Court is convinced that a fair trial can be ensured only
      if the appellants arc not enlarged on bail. (Para 29](210-GJ
             2.9 The appellants arc only under-trials and their liberty is
      also a relevant consideration. But equally important is to consider
      the impact of their release on bail on the prosecution witnesses
 F    and also its impact on society. In order to ensure that during trial
      the material witnesses depose without fear and justice being done
      to the society, a balance has to be struck. (Para 30](210-H; 211-
      Al
            Masroor '" Stale of Ullar Pradesh and another (2009)
G
            14 SCC 286 : (2009] 6 SCR 1030; State of Bihar v.
            Rajballav Prasad alias Rajballav Prasad Yadav alias
            Rcy'ballabh Yadav (2017) 2 SCC 178 - relied on.
            2.10 The court while granting bail should exercise its
      discretion in a judicious manner. Of course, once discretion is
      exercised by the Sessions Court to grant bail on consideration of
H
  ANIL KUMAR YADAV v. STATE (NCT) OF DELHI& ANR.                        199


relevant materials, the High Court would not normally interfere A
with such discretion, unless the same suffers from serious
infirmities or perversity. While considering the correctness of
the order granting bail, the approach should be whether the order
granting bail to the accused is vitiated by any serious infirmity, in
which case, the High Court can certainly interfere with the B
exercise of discretion. The materials available on record prima
facie indicating the involvement of the accused, possibility of
accused tampering with witnesses and the gravity of the crime
were not kept in view by the Sessions Court. Since the Sessions
Court granted bail to the appellants on irrelevant considerations
and the same suffered from serious infirmity, the High Court C
rightly set aside the order of grant of bail to the accused. The
 impugned orders do not suffer from any infirmity warranting
 interference. (Para 3211212-F-H; 213-A]
                       Case Law Reference
                                                                        D
[2001) 3 SCR 432               relied on               Para6

[2008) 2 SCR 131               relied on               Para 13

[2012) IO SCR 847               referred to            Para 14
                                                                        E
[2005) 3 Suppl. SCR 454        relied on               Para 19

[2005] 1 SCR 160                relied on              Para 20

[2002] 2 SCR 526                relied on              Para 24
                                                                        F
[2009] 6 SCR 1030               relied on              Para 30

c2011) 2 sec 178               relied on               Para 30

     CRIMINAL APPELLATE JllRISDICTION: Criminal Appeal No.
                           1
1938of2017.                                                             G
      From the Judgment and Order elated 31.05.2017 by the High Court
of Delhi in Criminal Misc. (C) No. 844 of2017.
                               WITH
      Crl.A.Nos.1940, 1939, 1942and 1941 of2017.                        H
    200            SUPREME COURT REPORTS                          (2017) It S.C.R.


    A            Sidharth Luthra, R. Basant, Sr. Advs .. Tanveer Ahmed Mir,
          Faheem N. Shah, Diviani Khanna, lshaan Shivkumar, Anoopam N.
          Prasad, Kartikeya Asthana, Ms. Mchaak, Ms. Liz Mathew, Shashank
          Singh, Arjun Minocha, KartikAshok, Samar Vijay Singh. Nikhil Ranjan
          Pahuja, Ms. Nicy Paulson, Saurav Vig, Advs. for the Appellant.
    B            Dushyant Dave, Ms. Kiran Sw·i, Sr. Advs., Pawan K. Bahl,Ashish
          Sharma, Rakesh K. Sharma, Harsh Khanna, Harish Pandey, Aman
          Usman, Subhash Tanwar, Vinod Kumar, Gaurav Baisla, Abhay Kumar,
          P. K. Dey, Sanjiv Das, B. V. Balaram Das, Advs. for the Respondents.
                The Judgment of the Court was delivered by
    c            R. BANUMATHJ, J. I. Leave granted.
                 2. These appeals arise from the order of the High Court of Delhi
)         in and by which the High Court has cancelled the bail granted to the
          respondents-accused by two separate orders dated 31.05.2017 and
          08.09.2017. By virtue of the first impugned order, bail granted to Anil
    D     Kumar Yadav (A4) was cancelled and by the second impugned order.
          bail granted to other accused were cancelled.
                  3. The case of prosecution is that on 21.10.2015, Rohit Bansal
          (injured witness) along with his friends Vineet, Sonu, Rupesh (deceased)
          and Monu had gone to Shanghai Club. Hauz Khas in two separate cars,
     E    i.e. Santro being registration No.UP-16-AM-6317 and Honda Civic being
          registration No.DL-?CF-4118. At around midnight 12.00-12.15, while
          dancing in the dub, Roh it Bansal 's hand struck an individual to whom he
          said "sorry". On this, the said individual abused and questioned Rohit
          Bansal and quarrel started between the two groups and the said individual
          took a glass from one of his friends and hit the complainant-Ro hit Bansal;
     F
          but the matter was pacified by the bouncers/security personnel of the
          club. Thereafter, the complainant-Rohit Bansal and his friends were sent
          out of the club and after coming out of the club when they reached llT
          Gate, then Rohit Bansal realized that his mobile phone was missing which
          might have fallen during the quarrel and he along with his friends Rupesh,
    G     Sonu and Monu came back in Santro car to the club. When they came
          back, they found that a Mercedes and EON car had blocked the road
          and a Bolero car was parked on the road-side. When they asked them
          to let them pass, one of the accused with whom an altercation had taken
          place in the club, threatened to teach them a lesson. Thereafter, all the
    H
  ANIL KUMAR YADAV v. STATE (NCT) OF DELHI & ANR.                             201
                [R. BANUMATHI, J.]

accused/assailants staiied beating them; one of the assailants brought        A
an iron rod from the car and started hitting Rupesh and when Rohit
intervened to save Rupesh, he was also attacked. Thereafter, another
assailant lifted a cemented brick arid hit Rupesh on his head and they all
ran towards different directions to save themselves leaving Santro car
at the spot. When Rohit Bansal returned back to take his car, he saw          B
Rupesh lying at the spot unconscious and sustained multiple injuries on
his body. Complainant Rohit along with one Sunil took Rupcsh to the
AIIMS Hospital and got him admitted in the Trauma Centre.             ·
       4. On receipt of DD regarding admission of Rupesh and Roh it
Bansal (Complainant) in Trauma CentrcAIIMS, AS! Dalbir Singh went
to the hospital and recorded the statement of the injured Roh it Bansal,      C
based on which FIR N o.1187/2015 was registered under Section 307,
Section 308 read with Section 34 !PC. Rupesh succumbed to injuries on
26.10.2015 and the FIR was altered into Sections 302, 308 !PC and201
!PC read with 34 IPC. Upon completion .of the investigation, charge-
sheet was filed under Sections 302 and 308 IPC read with Section 34           D
IPC against Tarun @ Maddy (A 1}, Vikas @ Slmmmi {A2), .Ashish
Balguer (A3), Anil Kumar Yadav (A4), Vikas Balguer (AS) and Vishal
Balguer {A6); charge-sheet against Siddhant@ Goldy {A7) was filed
under Section 201/212 IPC.
       5. The trial court granted bail to Anil Kumar Yadav (A4) vide          E
order dated 27.02.2017, inter a/ia, on the grounds: - (i) that no' other
overt act had been attributed to Anil Kumar Yadav (A4); (ii) Based on
CCTV footage, in drawing an inference that no specific role had been
assigned to Anil Kumar Yadav (A4); and (iii) that Anil Kumar Yadav
(A4) had been in custody for about sixteen months.
                                                                              F
       6. The order of granting bail to Anil Kumar Yadav (A4) was
assailed by the complainant before the High Court on the very next day.
Pointing out that at the stage of granting bail, a detailed examination of
the evidence and elaborate documentation of the minute details of the
case is not warranted and placing reliance upon Puran v. Rambilas
and Another (2001) 6 SCC 338, the High Court set aside the order              G
passed by the trial court thereby cancelling the bail granted to Anil Kumar
Yadav (A4). Being aggrieved by cancellation ofbail,Anil Kumar Yadav
{A4) preferred appeal before this .Court. Vide order dated 16.06.2017,
this Court issued notice and stayed sw-render ofAnil Kumar Yadav {A4).
                                                                              H
202            SUPREME COURT REPORTS                          (2017) I l S.C.R.



A           7. While the appeal against grant of bail to Anil Kumar Yadav
      (A4) was under consideration before the High Court, rest of the accused
      were granted bail by the Sessions Court vide order dated 24.04.2017,
      imer alia. on the ground that co-accused Anil Kumar Yadav (A4) had
      already been granted bail and that they were in custody for about one
      and half years.
B
             8. When the appeal ofAnil Kumar Yadav(A4) came up for further
      hearing before this Court, State took time to take steps to challenge the
      order of grant of bail to other accused also. By order dated 08.09.2017,
      the High Court cancelled the bail granted to other accused also. Being
      aggrieved, other accused have also filed their respective appeals before
c     this Court.
      Contcntions:-
             9. Mr. Siddharth Luthra, learned Senior Counsel for the appellant
      Anil Kumar Yadav (A4) contended that Rohit Bansal who claims to be
D     an injured eye witness, in his statement recorded on 22. 10.2015 did not
      name the accused Anil Kumar Yadav as the assailant nor stated about
      his overt act. It was submitted that the presence of accused Anil Kumar
      Yadav or use of baseball bat by him was not seen in the CCTV footage
      and also taking note of the fact that the accused had been in custody for
      more than sixteen months, the trial court granted bail to the appellant
 E    and the High Court erred in interfering with the exercise of discretion by
      the Sessions Court.
              JO. Taking us through the order of the trial court dated 27.02.2017,
      Mr. R. Basant, learned Senior Counsel appearing for Tarun @ Maddy
      (Al) contended that on the material availabk, the Sessions Court rightly
 F    observed that there was no pre-meditation and that the entire incident
      was at the spur of the moment and when the trial court had taken into
      consideration the relevant materials, the High Court erred in substituting
      its views and setting aside the order of the Sessions Court. It was further
      submitted that there was independent consideration of the materials and
G     while so, the High Court misdirected itself in observing that bail was
      granted on the ground of parity.
             I l. On behalf of the accused Vikas Balguer (A5) and Ashish
      Balgucr (A3), Ms. Rebecca M. John learned Senior Counsel submitted
      that the Sessions Court has independently considered the relevant
H
   ANIL KUMAR YADAV v. STATE (NCT) OF DELHI & ANR.                              203
                 [R. BANUMATHI, J.]

materials and granted bail to the accused and while so, the High Court          A
erred in proceeding on the erroneous footing that the accused persons
were granted bail on parity with Anil Kumar Yadav. The learned Senior
Counsel submitted that when the trial court had properly exercised its
jurisdiction, the High Court ought not to have interfered with the exercise
of discretion, more so, when the accused were granted bail after filing
                                                                                B
of the charge-sheet.
       12. Mr. Pa wan K. Bahl, learned counsel appearing on behalf of
Vikas @ Shammi (A2) contended that because Shammi's name was
not mentioned in the FIR and only after the main accused were arrested
and only based on their statement recorded on 22.10.2015 and 23.l 0.2015,
accused Vikas @ Shammi was arrested and there is no prima facie
                                                                                c
case showing involvement ofVikas@ Shammi and the trial court had
rightly granted bail. It was contended that based on the consideration of
relevant materials, the trial court exercised its discretion in granting bail
to the accused and the High Court was not right in setting aside the
same.                                                                           D
       13. On behalf of the prosecution, Ms. Kiran Suri, learned Senior
Counsel has submitted that the statements ofinjured witness Rohit Bansal
and other witnesses prima facie show involvement of the accused in
attacking the deceased Rupesh Tanwar and injured witness Rohit Bansal.
It was submitted that based on the statement recorded from the accused,         E
the incriminating articles were also recovered from the accused and the
trial court ignored these relevant materials prima fade indicating
involvement of the accused. It was submitted that the trial court granted
bail based on the alleged discrepancies in CCTV footage and
discrepancies in statement of the witnesses which are not relevant
consideration for grant of bail and the High Court rightly set aside the        F
order granting bail to the accused and the impugned orders warrant no
interference. Placing reliance upon Gobarbhai Naranbhai Singala v.
State of Gujarat and Others (2008) 3 SCC 775, it was submitted that
the period inside the jail is not a relevant consideration for grant of bail.
       14. Mr. Dushyant Dave, learned Senior Counsel appearing for              G
the complainant submitted that perversity in the order of the trial court
flows from the fact that irrelevant materials had been taken into
consideration and when the bail order is unjustified or perverse, the High
Court rightly set aside the order. In support of his contention, the learned
                                                                                H
204             SUPREME COURT REPORTS                             (2017] I l S.C.R.


A     Senior Counsel placed reliance upon Brij Nandan Jaiswal v. Munna
      alias Munna Jaiswal and Anr. (2009) l SCC 678 and Kanwar Singh
      Meena v. State of Rajasthan and Am: (2012) 12 SCC 180.
              l 5. We have given our thoughtful consideration to the rival
      submissions made by the counsel appearing on either side. The PQ-int
 B    falling for consideration is whether the Sessions Court ignored relevant
      materials while granting bail to the appellants accused and whether the
      order of the Sessions Court suffered from serious infirmities, justifying
      interference by the High Court in exercise ofjudicial discretion.
               16. As held in Puran case, wbile considering the question of grant
 c     of bail, Colll1l should avoid consideration of details of the evidence as it is
       not a relevant consideration. While it is necessary to consider the prima
      fi1cie case, an exhaustive exploration of the merits of the case should be
       avoided. We, therefore, consciously refrain from considering the merits
       of the materials/evidence collected by the prosecution.

 D           17. At the outset, it is to be pointed out that the Sessions Court
      considered both framing of charges and also grant of bail to accused
      Anil KumarYadav by way ofa common order. On 27.02.2017, charges
      were framed against all the accused and bail was granted to appellant
      Anil Kumar Yadav. Insofar as framing of charges, in a case before the
      Sessions Collrt, under Section 228 of the Criminal Procedure Code, the
 E    court is required to consider "whether there is ground for presuming
      that the acc11sed has committed an offence..... " and then Court shall
      frame in writing a charge against the accused. For grant of bail, the
      comt is required to consider several other factors. The considerations
      for framing of charge and grant ofbail arc different. It was stated by the
 F    Bar that by and large this is the procedure followed in Delhi. We may
      however indicate that it is not desirable to frame charge and grant bail
      by way of a common order.
             18. While granting bail, the relevant considerations arc:-(i) nature
      of seriousness of the offence; (ii) character of the evidence and
      circumstances which arc peculiar to the accused; and (iii) likelihood of
 G
      the accused fleeing from justice; (iv) the impact that his release may
      make on the prosecution witnesses, its impact on the society; and (v)
      likelihood of his tampering. No doubt, this list is not exhaustive. There
      are no hard and fast rules regarding grant or refusal of bail, each case
      has to be considered on its own merits. The matter always calls for
 H    judicious exercise of discretion by the Court.
  ANIL KUMAR YADAV v. STATE (NCT) OF DELHI & ANR.                               205
                [R. BANUMATHI, J.]

       19. While considering the basic requirements for grant of bail, in       A
State of U.P. through CBI v. Amarmani Tripathi, (2005) 8 SCC 21,
this Court has held as under:-
      "18. It is well settled that the matters to be considered in an
      application for bail arc (i) whether there is any prima fade or
      reasonable ground to believe that the accused had committed the           B
      offence; (ii) nature and 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 bei11g tampered with; and (viii) danger, of course,         C
      of justice being thwarted by gram of bail [see Prahlad Si11gh
      Bhati v. NCT. Delhi (2001) 4 SCC 280 and Gurcharan Singh v.
      State (DelhiAdmn.) (1978) 1SCC118]. While a vague allegation
      that the accused may tamper with the evidence or witnesses may
      not be a ground to refuse bail, if the accused is of such character       D
      that his mere presence at large would intimidate the witnesses or
      if there is material to show that he will use his liberty to subvert
      justice or tamper with the evidence, then bail will be refused. We
      may also refer to the following principles relating to grant or refusal
      of bail stated in Kalyan Chandra Sarkar v. Rajesh Ra11jan
      (2004) 7 SCC 528: (SCC pp. 535-36, para 11)                               E

          "11. The law in regard to grant or refusal of bail is very well
          settled. The court granting bail should exercise its discretion in
          a judicious manner and not as a matter of course. Though at
          the stage of granting bail a detailed examination, of evidence
          and elaborate documentation of the merit of the case need not         F
          be undertaken, there is a need to indicate in such orders reasons
          for prima facie concluding why bail was being granted
          particularly where the accused is charged of having committed
          a serious offence. Any order devoid of such reasons would
          suffer from non-application of mind. It is also necessary for         G
          the court granting bail to consider among other circumstances,
          the following factors also before granting bail; they are:
             (a) The nature ofaccusation and the severity of punishment
          in case of conviction and the nature of supporting evidence.
                                                                                H
206            SUPREME COURT REPORTS                          [2017] 11 S.C.R.


A                  (b) Reasonable apprehension of tampering with the witness
                or apprehension of threat to the complainant.
                   (c) Prima facic satisfaction of the court in support of the
                charge. (See Ram Govind Upadhyay v. S11darshan Singh
                (2002) 3 SCC 598 and Pu ran v. Rambilas (200 l) 6 SCC 338. )""
B          20. The test to be applied for grant of bail was also considered in
      Jayendra Saraswathi Swamigal v. State of T.N., (2005) 2 SCC 13,
      wherein it was /leld as under:-
            "16......... The considerations which normally weigh with the court
            in granting bail in non-bailable offences have been explained by
c           this Court in State v. Capt. Jagjit Singh [ 1962] 3 SCR 622 and
            Gurcharan Singh v. State (Delhi Admn.) ( 1978) I SCC 118 and
            basically they are - the nature and seriousness of the offence;
            the character of the evidence; circumstances which are peculiar
            to the accused; a reasonable possibility of the presence of the
D           accused not being secured at the trial; reasonable apprehension
            of witnesses being tampered with; the larger interest of the public
            or the State and other similar factors which may be relevant in
            the facts and circumstances of the case ........... "
             21. In the present case, accused Anil Kumar Yadav was granted
 E    bail by the Sessions Court mainly on the grounds:- (i) as per CCTV
      footage deciphered by the Investigating Officer, no role could be attributed
      toAnil Kumar Yadav that he inflicted injuries on Rohit Bansal as well as
      to deceased Rupesh Tanwar and the photographs do not show the
      presence of the accused Anil Kumar Yadav; (ii) CCTV footage do not
      corroborate the statement of the witnesses that the accused along with
 F    their cars were blocking the road; and (iii) accusedAnil Kumar Yadav
      has been in custody since 3 l.I 0.2015. The Sessions Court pointed out
      that possibly no role could be attributed to accused Anil Kumar Yadav
      and observed as under:-
            " ....... Admittedly, the crux of the CCTV footage is deciphered by
 G          the IO in the chargesheet as mentioned above and in the said
            crux no role of accusedAnil Kumar Yadav is found. Furthermore,
            there arc other discrepancies pointed out by the counsel as
            discussed above which though could not be considered for the
            purpose of charge bnt could be considered as ground ofbail... ......"
H
  ANIL KUMAR YADAV v. STATE (NCI) OF DELHI & ANR.                               207
                [R. BANUMATHI, J.]

       The Sessions Court though repeatedly observed that the court             A
ought not to go into the merits of the prosecution case actually the court
appears to have gone into the merits of the matter. in particular the
CCTV footage to hold that Anil Kumar Yadav could not have been
present at the place of occurrence or participated in the incident. Further,
the Sessions Court had also gone into the discrepancies of the statement
                                                                                B
of the witnesses. The probability or improbability of the prosecution
version has to be judged based on the materials available to the court at
the time when bail is considered and not on the basis of discrepancies.
       22. While considering the correctness of the above findings, the
learned Judge of the High Court viewed the CCTV footage and observed
that the camera installed at the place of occurrence was a revolving
                                                                                c
camera moving horizontaliy and vertically and further observed that the
"CCTV footage possibly could not capture the whole instance from
all angles at the same time". After personally viewing CCTV footage,
the learned Judge had given graphic description of the various slots/
points and the relevant portion of the High Court judgment reads as             D
under;-
       "I have examined/viewed the CCTV footage/CD provided by the
       learned counsel for the respondent in the computer in chamber.
       Seemingly, the footage recorded in the CCTV did not cover the
       entire place of occurrence. It was a revolving camera moving             E
       horizontally and vertically. Possibly, it could not capture the whole
       incident from all angles at the same time. In the CCTV footage,
       Mercedes car is seen to have arrived at the spot at I :30:26. It
       remained at the spot subsequent to it. At I ;39;34, the Mercedes is
       seen leaving the spot by reversing it. The respondent is seen
       entering into the Mercedes. It is, however, not clear as to when         F
       the said individual (the respondent) had come out of the said
       Mercedes. The petitioner has also placed on record photographs
       developed from the footage recorded in the CCTV. In photographs
       No. I, 2 and 4, the respondent is indicated inflicting injuries to the
       victim along with others at 1:37:30; 1:37:31; and 1:37:31                G     ~

       respectively.
            In photograph No.3, Mercedes is seen at the spot at I :34:49.
       Jn photo No.5 the respondent is seen entering the Mercedes at
       l :38;29. It belies the respondent's contention that the Mercedes
                                                                                H
208             SUPREME COURT REPORTS                          [2017] ll S.C.R.



A           entered for the first time in the lane of the occurrence only at
            I :37:56. In photos Mark 'A' and 'B' the respondent's car is seen
            at the spot at I :30:41 and I :31 :50 too."
             23. The High Court had gone into the details _of CCTV footage
      and noted the presence of accused Anil Kumar Yadav at the scene of
B     occurrence that "he was seen entering into the Mercedes". The
      Sessions Court was not right in raising doubts about the presence of
      accusedAnil Kwnar Yadav and his role in inflicting injuries to deceased
      Rupesh Tanwar as well as to the injured Rohit Bansal at the present
      stage. Since the Sessions Court proceeded to grant bail on erroneous
      footing and also going into the merits of the materials collected, the High
 c    Court, in our view, rightly set aside the order granting bail to the accused
      Anil Kumar Yadav.
             24. As pointed out earlier, one of the grounds for grant of bail to
      the appellant Anil Kumar Yadav by the Sessions Court was that he was
      in custody for more than one year. In crimes like murder, the mere fact
 D    that the accused was in custody for more than one year, may not be a
      relevant consideration. In Gobarbhai Naranbhai case, it was observed
      that the period of incarceration by itself would not entitle the accused to
      be enlarged on bail. The same was reiterated in Ram Govind Upadhyay
      v. Sudarshan Singh and others (2002) 3 SCC 598.
 E            25. On behalf of the prosecution, learned senior counsel Ms. Suri
      and Mr. Dave, learned senior counsel appearing for the complainant
      submitted that CCTV footage is not the sole material relied upon by the
      prosecution. It was submitted that apait from CCTV footage, there are
      eight eye witnesses who named the accused persons and also stated the
 F    role of the accused persons. Our attention was drawn to Section 161
      Cr.P.C., statement of injured witness Rohit Bansal and other witnesses
      namely Vineet, Mohinder@ Monu, Jitender. Sagar S!iarma@ Sonu and
      Bouncers at the Club namely Sonu. Rohit Kumar, Pravccn and Chelan
      Prakash who have stated about the presence of the accused in the scene
      of occurrence and their overt acts. That apart, based on the statements
 G    of the accused persons, incriminating a1ticles were also recovered and
      at this stage, it is not necessary to elaborate upon the recoveries made
      and their relevance.
            26. By perus;,il of Post-Mortem certificate, it is seen that over
      twenty one injuries were inflicted on the various parts of the body of the
 H
  ANIL KUMAR YADAV v. STATE (NCJ) OF DELHI & ANR.                             209
                [R. BANUMATHI, J.]

deceased and he was disrobed and left unconscious on the spot. The            A
manner in which the deceased was allegedly attacked and the number
of injuries inflicted on him prima facie indicate pre-meditation. Jnj ured
witness Rohit Bansal also sustained laceration injuries over scalp.
        27. As rightly contended by the prosecution, apart from CCTV
footage. there are other materials on record to show the "prima facie"        B
case against the appellants/accused viz. (i) statement of eye witnesses
who have named the accused and also given statements as to the overt
acts of each of the accused; (ii) recoveries made from the accused; and
(iii) the incident in which deceased Rupesh Tanwar and complainant
Rohit Bansal have sustained injuries. The Sessions Conrt had not taken
into consideration these relevant materials; but the Sessions Court granted   c
bail to the appellants/accused on the ground of discrepancies in the
statement of witnesses, CCTV footage and the period of incarceration
of the accused which arc not relevant considerations for grant of bail by
the Sessions Court in the facts and stage of this case.
       28.. In Kanwar Singh Meena case, the High Court granted bail           D
ignoring the averments made against the accused thereon and statement
of witnesses recorded under Section 164 Cr.P.C. Pointing out that the
High Court did not keep in view the prima facie materials against the
accused, this Court cancelled the bail. By setting aside the order ofbail,
in para (IO), this Court observed as undcr:-                                  E
      "10. Thus, Section 439 of the Code confers very wide powers on
      the High Court and the Court of Session regarding bail. But, while
      granting bail, the High Court and the Sessions Cou1i are guided
      by the same considerations as other courts. That is to say, the
      gravity of the crime, the character of the evidence, position and       F
      status of the accused with reference to the victim and witnesses,
      the likelihood of the accused fleeing from justice and repeating
      the offence, the possibility of his tampering with the witnesses
      and obstmcting the course of justice and such other grounds arc
      required to be taken into consideration. Each c1iminal case presents
      its own peculiar factual scenario and. therefore, certain grounds       G
      peculiar to a particular case may have to be taken into account by
      the court. The court has to only opine as to whether there is prima
      facie case against the accused. The court must not undertake
      meticulous examination of the evidence collected by the police
                                                                              H
210            SUPREME COURT REPORTS                           [2017] 11 S.C.R.


A           and comment on the same. Such assessment of evidence and
            premature comments are likely to deprive the accused of a fair
            trial. While cancelling the bail under Section 439(2) of the Code,
            the primary considerations which weigh with the court are whether
            the accused is likely to tamper with the evidence or interfere or
            attempt to interfere with the due course of justice or evade the
 B
            due course of justice. But, that is not all. The High Court or the
            Sessions Court can cancel the bail even in cases where the order
            grunting bail suffers from serious infirmities resulting in miscarriage
            of justice. If the court granting bail ignores relevant materials
            indicating prima facie involvement of the accused or takes into
c           account irrelevant material, which has no relevance to the question
            of grant of bail to the accused. the High Court or the Sessions
            Court would be justified in cancelling the bail. Such orders are
            against the well-recognised principles underlying the power to grant
            bail. Such orders are legally infirm and vulnerable leading to
            miscarriage of jus ti cc and absence of supervening circumstances
D
            such as the propensitv of the accused to tamper with the evidence.
            to flee from justice, etc. would not deter the court from cancelling
            the bail. The High Comt or the Sessions Court is bound to cancel
            such bail orders particularly when they arc passed releasing the
            accused involved in heinous crimes because they ultimately result
 E          in weakc;ning the prosecution case and have adverse impact on
            the society. Needless to say that though the powers of this Court
            arc much wider, this Court is equally guided by the above principles
            in the matter of grant or cancellation ofhail." [underlying added]
              29. In the present case, the trial is at a very crucial stage. The
 F    trial court is yet to record the testimony of material witnesses including
      the complainant as well as all the material witnesses. The trial has
      commenced and the trial is said to be posted for04.l2.2017. For ensuring
      the fair trial, witnesses must be in a position to freely depose without
      fear. In the facts and circumstances of the case, we arc convinced that
      a fair trial can be ensured only if the appellants arc not enlarged on bail.
 G
             30. We arc conscious of the fact that the appellants arc only m1dcr
      trials and their liberty is also a relevant consideration. But equally
      important is to consider the impact of their release on bail on the
      prosecution witnesses and also its impact on society. In order to ensure
      that during trial the material witnesses depose without fear and justice
 H
  ANIL KUMAR YADAV v. STATE (NCT) OF DELHI & ANR.                                211
                [R. BANUMATHI, J.]

being done to the society, a balance has to be struck. Referring to Masroor      A
v. State of Uuar Pradesh and another (2009) 14 SCC 286 and other
cases, in State of Bihar >: Rajhallav Prasad alias Rqjhal/av Prasad
fodav alias Rajballabh Yadav (2017) 2 SCC 178, this Court held as
under:-
      "26. We are conscious of the fact that the respondent is only an           B
      undertrial and his liberty is also a relevant consideration. However,
      equally important consideration is the interest of the society and
      fair trial of the case. Thus, undoubte.dly the courts have to adopt a
      liberal approach while considering bail applications of the accused
      persons. However. in a given case. if it is found that there is a
      possibility of interdicting fair trial by the accused if released on       c
      bail, this public interest of fair trial would outweigh the personal
      interest of the accused while undertaking the task of balancing
      the liberty of the accused on the one hand and interest of the
      society to have a fair trial on the other hand. When the witnesses
      arc not able to depose correctly in the court of law. it results in        D
      low rate of conviction and many times even hardened criminals
      escape the conviction. It shakes public confidence in the criminal
      justice-delivery system. It is this need for larger public interest to
      ensure that criminal justice-delivery system work.~ efficiently,
      smoothly and in a fair manner that has to be given prime importance
      in such situations. After all, ifthcrc is a threat to fair trial because   E
      of intimidation of witnesses, etc., that would happen because of
      wrongdoing of the accused himself, and the consequences thereof,
      he has to suffer........ " [underlying added]
       31. After referring to various case laws and observing that in a
criminal trial, witnesses must be able to depose without fear, freely and        F
truthfully, in Rajballav Prasad case, this Com1 cancelled the bail granted
to the accused thereon. In para (24) of the judgment, it was held as
under:-
      "24.As indicated by us in the beginning, prime consideration before
      us is to protect the fair trial and ensure that justice is done. This      G
      may happen only if the witnesses are able to depose without fear,
      freely and truthfully and this Court is convinced that in the present
      case, that can be ensured only ifthe respondent is not enlarged on
      bail. This imp01tance of fair trial was emphasised in Panchanan
                                                                                 H
212             SUPREME COURT REPORTS                          [2017] l l S.C.R.


A           Mishra v. Digambar Mishra (2005) 3 SCC 143 while setting
            aside the order of the High Court granting bail in the following
            terms: (SCC pp. 147-48, para 13)
                "13. We have given our careful consideration to the rival
                submissions made by the coWJsel appearing on either side. The
B               object Wlderlying the cancellation of bail is to protect the fair
                trial and secure justice being done to the society by preventing
                the accused who is set at liberty by the bail order from tampering
                with the evidence in the heinous crime and if there is delay in
                such a case the underlying object of cancellation of bail
                practicaJly loses aJI its purpose and significance to the greatest
c               prejudice and the interest of the prosecution. It hardly requires
                to be stated that once a person is released on bail in serious
                criminal cases where the punishment is quite stringent and
                deterrent, the accused in order to get away from the clutches
                ofthe same indulge in various activities like tampering with the
D               prosecution witnesses, threatening the family members of the
                deceased victim and also create problems of law and order
                situation.''"'

              32. It was repeatedly urged that the High Court misdirected itself
      in interfering with the discretionary order of Sessions Court granting bail
E     to the accused and there was absolutely nothing to show that the
      appcJiants arc likely to abuse the bail or tamper with evidence. The
      court while granting bail should exercise its discretion in a judicious
      manner. Of course, once discretion is exercised by the Sessions Court
      to grunt bail on consideration ofrelevant materials, the High Court would
      not normally interfere with such discretion, unless the same suffers from
 F    serious infirmities or perversity. While considering the correctness of
      the order granting bail, the approach should be whether the order granting
      bail to the accused is vitiated by any serious infirmity, in which case, the
      High Court can certainly interfere with the exercise of discretion. The
      materials available on record primaji1cie indicating the involvement of
G     the accused, possibility of accused tampering with witnesses and the
      gravity of the crime were not kept in view by the Sessions Court. Since
      the Sessions Court granted bail to the appellants on irrelevant
      considerations and the same suffered from serious infirmity, the High
      Court rightly set aside the order of grant of bail to the accused. The
      impugned orders do not suffer from any infirmity wmranting interference.
H
   ANIL KUMAR YADAV v. STATE (NCT) OF DELHI & ANR.                                 213
                 [R. BANUMATHI, J.]

      33. In the result, all the appeals are dismissed. All the appellants/        A
accused are directed to surrender before the Committal Court within
one week from the date of this order.


Kalpana · K. Tripathy                                      Appeals dismissl-"CI.