Holding

The High Court's bail order was set aside for being passed without reasons, and the matter was remanded for a fresh hearing after the accused surrenders.

Summary

The Supreme Court examined an appeal against a High Court order that granted bail to Munna Jaiswal, who was charged with murder (IPC s.302) and other offences (IPC s.504, s.506). The complainant, Brij Nandan Jaiswal, argued that the accused had a criminal history, pending cases, and that the High Court had granted bail mechanically without recording any reasons. The Court held that a bail order, especially in serious cases, must be justified with reasons and can be challenged by the complainant on merits if not validly passed. Finding that the High Court order lacked any reasoning, the Court set aside the bail and directed the High Court to rehear the application after the accused surrenders. The accused was ordered to surrender within a week, failing which a non‑bailable warrant would be issued, and the bail application was to be decided within two weeks of surrender.

Issues considered

Whether a complainant can challenge a bail order on merits when the order is not validly passed.
Whether a bail order in a murder case must contain recorded reasons and can be set aside for being mechanically granted.
Whether the High Court erred in granting bail to an accused with a criminal history and pending cases without considering the facts.

Legislation cited

Code of Criminal Procedure, 1973s. 107, s. 116
Indian Penal Code, 1860s. 302, s. 323, s. 504, s. 506

Subjects

bailmurdercriminal historyhigh court orderchallenge to baillocus standiIPC s.302IPC s.504IPC s.506CrPC

Judgment

[2008] 17 S.C.R. 1348

BRIJ NANDAN JAISWAL
A -I V.
MUNNA@ MUNNA JAISWAL & ANR.
(Criminal Appeal No. 2087/2008)

f
.DECEMBERi 19, 2008
...

B [TARUN CHATIERJEE AND v:s. SIRPURKAR, JJ.]
;!'
/

BAfL:
Cancellation of bait granted by High Court - Accused
having criminal history - Several criminal cases pending
C against him - Applications seeking protection to
complainants' family from accused - HELD: Complainant can
always question the order granting bail if the same is not .
1

. validly passed - It is not as if once a bail is granted by any
court, the only way is to get it cancelled on account of its
o misuse - Bail order can be tested on merits also - Therefore,
complainant could question the merits of order granting bail
- In the instant case, the order indicates that no reasons were
given by High Court while granting bail and it seems to have
been granted almost mechanically without considering the
pros and cons of the matter - While granting bail. particularly
E in serious cases like murder, some reasons justifying the
grant of bail are necessary - Order granting bail is set aside
and High Court directed to decide the application again -
Accused shall· immediately surrender - After his surrender,
bail application shall be considered by High Court again -
F Order granting bail - Reasons to be recorded.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2087 _of 2008.
From the Final Judgment & Order dated 5.6.2007 of the
High Court of Judicature at Allahabad in Bail Application Nos.
G 11419of2007.
Pramod Kumar Yadav and S.P. Sharma (for Rameshwar
Prasad Goyal) for the Appellant.
Shiva Pujan Singh, Prashant Chaudhary and Bharat Ram
(for Shrish Kumar Misra) for the Respondents.
H 1348
BRIJ NANDAN JAISWAL v. MUNNA @ MUNNA JAISWAL 1349
& ANR.

The following Order of the Court was delivered: A
ORDER
j
1. Leave granted.
2. The order granting bail to the accused Munna @ Munna
Jaiswal passed by the High Court is in challenge here. The
respondent - accused Munna is facing a prosecution for the B
offences under Sections 302, 504 & 506 l.P.C. in Crime Case
No. 152 of 2006 of Police Station Chakia. It is alleged that on
15.12.2006 at about 4.45 p.m., a report came to be lodged
regarding the incident that took place at 2.00 p.m. on the same
day wherein it was alleged by complainant Brij Nandan Jaiswal 0
that his son alongwith Bechan and Balmukund went to cut
woods in the forest and while they were coming back from the
forest on bicycles, Brij Nandan and Bal Mukund were leading
while complainant's son Jai Shankar was following them. When
they all reached Jabelia Mode, Jai Shankar shouted very loudly.
At that time, the complainant and his companions saw that Jai q
Shankar was being inflicted blows with lathis, .danda and iron
rods by Lalji and his son Kallu @ Vined, Munnu @ Munna and
one other unknown person. On seeing the complainant party,
all the four ran away towards forest threatening the complainant
and his companions. While Jai Shankar was being taken for E
r treatment, he died at about 3.00 p.m. The three accused
persons were taken into custody between 03.01.2007 to
05.01.2007. Investigation proceeded during which the lathi was
discovered. It was found that the accused had assaulted the
complainant's family twice and even those cases were pending

- \'
and charge sheets were filed in those cases. Apart from that,
the accused Munna was also involved in a gambling case. The
post-mortem report showed that the deceased had sustained
F

several injuries and that Jai Shankar had died due to
hemorrhage and resultant shock.
3. A bail application was filed before the Sessions Judge G
'

• who rejected the same. It was urged before the Sessions
Judge that the seven injuries were found on the hands and feet
.It ~ of the deceased and as such it could not be said that this
offence could be brought under Section 302 l.P.C. It was also
urged that the alleged 4th person in the complainant's party was H
1350 SUPREME COURT REPORTS [2008] 17 S.C.R.

A not located. The Sessions Judge took the view that the accused
had criminal history. The Sessions Judge also found that it was
broad day light murder and since the witnesses had seen the ,
murder been committed on account of the old enmity, the
accused was not entitled to bail.
8 4. The High Court, however, in a very short order came to
the conclusion that the accused was entitled to be released on
bail. The High Court seems to.have noted the arguments on
behalf of the accused respondent that there was no motive or
intention to commit the alleged offence and that there were three
others also who had caused injuries by iron rods, lathi and
C danda and the deceased received the injury on the non-vital
part of the body.
5. The High Court, thus released the respondent on bail.
Feeling aggrieved, the complainant had filed this Special Leave
Petition.
D 6. It is argued by the learned counsel appearing for the
complainant that the accused had criminal history and that there
were criminal cases pending against him. It is pointed out by
the learned counsel that even earlier since there was an
apprehension of attack, the son of the petitioner Kamala
E Prasad had already moved an application on 17.03.2006 for
·providing protection to petitioner's family from the accused
persons. However, no action was taken. Learned counsel
further contends that on 28.05.2006, the accused had assaulted
deceased with intention to commit murder and crime case no.
F MCR 75/06 was registered. It is further pointed out that on
03.06.2006, the wife of the deceased Jai Shankar had also
moved an application for protection to her husband and his
family as the accused had given threat to kill him. It is further
pointed out that on 17.07.2006, the accused no. 1 was bound
by Sub Divisional Magistrate under Sections 107 and 116
G Cr.P.C. for not committing breach of peace. It is also pointed
out that again on 31.07.2006, the accused inflicted injuries by
lathi and knife on the chest of the deceased for which Crime
No. MCR No. 108/06 was registered against him in which
chargesheet was also filed for offences under Sections 323 and
H 504 1.P.C. The learned counsel points out that while granting
BRIJ NANDAN JAISWAL v. MUNNA @ MUNNA JAISWAL 1351
& ANR.

bail, the bitter enmity was not taken into consideration by the A
High Court and the High Court mechanically proceeded to grant
the bail to the accused. On the other hand, it was urged by the
defence counsel that while it was true that there was enmity.
between the two families, it could not be forgotten that they were
relatives of each other and due to enmity, the allegations were
8
made and criminal cases were(inflicted. It is further urged that
even after the bail was granted, there was no incident and
therefore the apprehension on the part of the complainant was
ill founded. It was also pointed out that the prosecutions faced
by the accused were of insignificant crimes and there was no
allegation against the accused. Learned counsel also urged C
that there was no justification for canceling the bail once
granted.
7. It is now a settled law that complainant can always
question the order granting bail if the said order is not ,validly
passed. It is not as if once a bail is granted by any court, the o
only way is to get it cancelled on account of its misuse. The
bail order can be tested on merits also. In our opinion,
therefor~, the complainant could question the merits of the
order granting bail. However, we find from the order that no
reasons were given by the learned Judge while granting the bail
and it seems to have been granted almost mechanically without I E 1

considering the pros and cons of the matter. While granting bail, i
particularly in serious cases like murder some reasons justifying
the grant are necessary.
8. Therefore, without expressing anything on the merits of
the bail application, we would chose to set aside the order F
granting bail and direct the High Court to decide the application
again. The accused shall immediately surrender within one
week from today. If he does not surrender, a non-bailable
warrant shall be issued against him. After his surrender, the bail
application shall be considered by the High Court again. G
9. We, therefore, allow this appeal to the limited extent as
we have indicated. The bail application shall be disposed of
' A J , within two weeks of the surrender of the accused or as the case
may be of his arrest.
RP. Appeal partly allowed. H