ANWARI BEGUMversusSHER MOHAMMAD AND ANR.

                             ANWAR! BEGUM                                        A
                                      V.

                     SHER MOHAMMAD AND ANR.

                          SEPTEMBER 19, 2005

              [ARIJIT.PASAYAT AND ARUN KUMAR, JJ.)                               B


        Code of Criminal Procedure, 1973-Section 439-Bail-Application
for-Grant of, by High Court, by cryptic non-reasoned order-Correctness
 of-Held: Non speaking and non reasoned order is clearly indefensible and        C
 not proper-Court dealing with bail applications is to exercise its discretion
 in judicious manner and not as a matter of course-It should indicate prim a
 facie reasons for granting bail and any order dehors of such reasons suffers
from non-application of mind-Hence, order of High Court set aside and
 grant of bail cancelled.
                                                                                 D
      Respondent No.I shot the deceased with the intention of causing his
deat~ and later filed a bail application. Trial Court rejected the application
since the respondent No.I was clearly implicated by the eyewitnesses who•e
statements were recorded during investigation. However, High Court
allowed the bail application. Hence the present appeal.
                                                                                 E
      Allowing the appeal, the Court

      HELD: I. A cursory perusal of the order of High Court shows
complete non-application of mind. High Court granted bail to the
respondent by a non-speaking and non-reasoned order, and as such is
clearly indefensible and was not proper. Therefore, the order of the High        F
Court is set aside and the bail granted to respondent no.I is cancelled.
                                                      (29I-A-B; 292-A-BI

      2.1. Detailed examination of the evidence and elaborate
documentation of the merits of the case is to be avoided by the Court while      G
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.
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.

                                     287
    288                    SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.

A         2.2. 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 (I)
B   the nature of accusation and the severity of punishment in case of
    conviction and the nature of supporting evidence; (2) Reasonable
    apprehension of tampering of 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 non-application of
    mind. (291-C-D-E-FJ
c          Omar Usman Chamadia v. Abdul and Anr., JT (2004) 2 SC 176; V.D.
    Chaudhary v. State of Uttar Pradesh and Anr., (2005) 7 SCALE 68; Ram
    Govind Upadhyay v. Sudarshan Singh and Ors., [20021 3 SCC 598; Puran
    etc. v. Rambilas and Anr. etc., [2001) 6 SCC 338; Kalyan Chandra Sarkar v.
    Rajesh Ranjan alias Pappu Yadav and Anr., JT (2004) 3 SC 442 and Chaman
D   Lal v. State of U.P. and Anr., JT (2004) 6 SC 540, relied on.

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1223
    of 2005.

         From the Judgment and Order dated 30.6.2003 of the Allahabad High
E   Court in Crl. Misc. C.No. 1482 of 2002(B).

         B.S. Jain, Ajay Veer Singh Jain, Ms. Charuwali Khanna and Dr. (Mrs.)
    Vipin Gupta for the Appellant.

          Ms. Neelam Singh, Ravi Prakash Mehrotra and Adesh Kumar Gill for
p the Respondents.
          The Judgment of the Court was delivered by

          ARIJIT PASAYAT, J. Leave granted.

          This appeal is by the informant questioning grant of bail to respondent
G No. I (hereinafter referred to as the 'accused') by the impugned judgment
    passed by a learned Single Judge of the Allahabad High Court, Lucknow
    Bench.

          Factual position, as highlighted by the appellant is as follows:

H         On 26.4.2002, the respondent No. I and other in pursuance of their
            ANWAR! BEGUMv. SHER MOHAMMAD [PASAYAT, J.]                       289
 common object, surrounded Jamaluddin, husband of the appellant, (hereinafter A
 referred to as the 'deceased') while he was coming by scooter along with the
 appellant and their daughter. Because of some previous litigations, respondent
No. I-accused had animosity with the deceased and with the intention of
causing his death the respondent No. I-accused who was armed with a double
barrel gun shot at the deceased. Others also participated in the attack. The
 informant and her daughter started crying for help hearing which co-villagers B
came to the spot. The respondent No. I and others fled away but they were
still firing and had threatened to wipe out the entire family of the deceased.
The occurrence took place at about 6.00 p.m. and the First Information Report
was lodged immediately thereafter. The respondent No. I and others filed
application for bail before the trial court. The learned Additional Sessions C
Judge, Sultanpur rejected the application taking note of the fact that the
incident had been witnessed by eye-witnesses and their statements recorded
during investigation clearly implicated the respondent No. I. An application
for bail in terms of Section 439 of the code of Criminal Procedure, 1973 (in
short the 'Code') was filed by respondent No. I before the High Court. By D
the impugned order, the prayer for bail has been accepted.

      According to learned counsel for the appellant, no reason has been
assigned by the High Court as to why the prayer for bail was accepted,
notwithstanding the fact that respondent No. I was clearly implicated by the
persons whose statements were recorded during investigation. Respondent             E
No. I is the main accused and the accusations against him were clearly
established. The trial court had elaborately analyzed the factual position and
keeping in view the statement of the eye-witness, who clearly implicated the
respondent No. I, had rejected the prayer for bail. There is no appearance on
behalf of respondent No. I in spite of service of notice. The learned counsel
appearing for the State-respondent No. 2 supported the stand of the appellant       F
and submitted that this is not a case where bail is to be granted. It is pointed
out that the respondent No. I is implicated in several cases involving heinous
crimes and even proceedings under Goonda Act have been initiated.

      We find that the High Court had disposed of the bail application without
indicating and reason and in a very cryptic manner. The entire order reads as       G
follows:

        "Heard learned counsel for the parties.

            Considering the overall facts and circumstances, I find this is a fit
                                                                                    H
    290                    SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A          case for bail, let applicant Sher Mohd. be enlarged on bail in Crime
           No. 149 of2002 under Sections 147/148/149/504/302 lPC P.S. Amethi,
           District Sultanpur on his furnishing a personal bond. of Rs. 5,000
           (Rupees five thousand only) and two sureties each in the like amount
           to the satisfaction of CJM, Sultanpur, subject to the condition that
          ·once every week he would report at P.S. Amethi, District Sultanpur."
B
          The order of the High Court shows that there are allegations of
    commission of offences punishable under Sections 147/148/149/504/302 of
    the Indian Penal Code, 1860 (in short the '!PC').

          At this juncture, it would be appropriate to take note of a decision of
C   this Court in Omar Usman Chamadia v. Abdul and Anr., JT (2004) 2 SC 176.
    In para 10, it was observed as follows:

           "However, before concluding, we must advert to another aspect of
           this case which has caused some concern to us. In the recent past, we
           had several occasions to notice that the High Courts by recording the
D          concessions shown by the counsel in the criminal proceedings refrain
           from assigning any reason even in orders by which it reverses the
           orders of the lower courts. In our opinion, this is not proper if such
           orders are appealable, be it on the ground of concession shown by
           learned counsel appearing for the parties or on the ground that
E          assigning of elaborate reasons might prejudice the future trial before
           the lower courts. The High Court should not, unless for very good
           reasons desist from indicating the grounds on which their orders are
           based because when the matters are brought up in appeal, the court
           of appeal has every reason to know the basis on which the impugned
           order has been made. It may be that while concurring with the lower
F          court's order, it may not be necessary for the said appellate court to
           assign reasons but that is not so while reversing such orders of the
           lower courts. It may be convenient for the said court to pass orders
           without indicating the grounds or basis but it certainly is not convenient
           for the court of appeal while considering the correctness of such
G           impugned orders. The reasons need not be very detailed or elaborate,
            lest it may cause prejudice to the case of the parties, but must be
           sufficiently indicative of the process of reasoning leading to the passing
           of the impugned order. The need for delivering a reasoned order is
           a requirement of law which has to be complied with in all appealable
            orders. This Court in a somewhat similar situation has deprecated the
           ANW ARI BEGUM v. SHER MOHAMMAD [PASA YAT, J.]                     291

        practice of non-speaking orders in the case of State of Punjab and           A
        Ors. v. Jagdev Singh Talwandi, AIR (1984) SC 444".

      These aspects were recently highlighted in V.D. Choudhary v. State of
Uttar Pradesh and Anr., (2005) 7 SCALE 68.

      Even on a cursory perusal the High Court's order shows complete non-           B
application of mind. Though 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       C
manner and not as a matter of course.

      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        D
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;
                                                                                     E
        2. Reasonable apprehension of tampering of 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 non-application of mind           p
as was noted by this Court, in Ram Govind Upadhyay v. Sudarshan Singh
and Ors., [2002] 3 SCC 598, Puran etc. v. Rambilas and Anr. etc., [2001]
6 SCC 338 and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu
Yadav and Anr., JT (2004) 3 SC 442.

      The above position was highlighted by this Court in Chaman Lal v.              G
State of UP. and Anr., JT (2004) 6 SC 540.

      Above being the position, the cryptic non-reasoned order of the High
Court, is clearly indefensible.

                                                                                     H
    292                     SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.
A         The inevitable conclusion is that the grant of bail to the respondent by
    a non-speaking and non-reasoned order was not proper. Therefore, we set
    aside the order of the High Court. The bail granted to respondent No. I stands
    cancelled. The respondent No. I shall surrender to custody forthwith.

           The appeal is, accordingly, allowed.
B
    N.J.                                                         Appeal allowed.