Holding

The High Court's order granting bail was unsustainable due to non‑application of mind and lack of consideration of relevant aspects, and is set aside.

Summary

The Supreme Court examined the High Court's order granting bail to a convicted murderer (respondent No.2) under Section 389 of the Code of Criminal Procedure while his appeal was pending. The conviction was based on three eye‑witnesses and the trial court had held that the injuries could have been caused by iron rods. The bail application argued that the injuries could not have been caused by iron rods and that unknown assailants were responsible. The High Court, without recording detailed reasons, granted bail in a cryptic order. The Supreme Court held that the High Court failed to apply its mind and consider the relevant factors required under Section 389, rendering the order unsustainable. Consequently, the bail was cancelled and the matter remitted to the High Court for fresh consideration.

Issues considered

Whether the High Court exercised its discretion correctly under Section 389, CrPC, in granting bail to a person convicted of murder.
Whether the High Court complied with the statutory requirement to record reasons and consider relevant factors before suspending the sentence and granting bail.

Legislation cited

Code of Criminal Procedure, 1973s. 389
Indian Penal Code, 1860s. 302, s. 506

Subjects

bailsuspension of sentenceSection 389 CrPCmurder convictionappellate discretionnon‑application of mindhigh court orderSupreme Court judgmentevidenceinjury analysis

Judgment

[2008] 4 S.C.R. 903

KHILARI A

·~ r V.
STATE OF U.P. AND ANR.
· (Criminal Appeal No. 481 of 2008)
MARCH 13, 2008
8
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

Code of Criminal Procedure, 1973: s.389 - Suspension
}
~ .·of sentence pen.ding appeal - Release of person convicted in
murder cq_se on bail by High Court by a cryptic order - c
Sustaina:bility of - Held: Not sustainable - There was non-
application of mind and non consideration of relevant aspects,
thus order set aside - Matter remitted to High Court for fresh
consideration.
It is alleged that respondent No.2 and his two sons D
mercilessly assaulted S with iron rods and S succumbed
to the injuries. Respondent no.2 was convicted and
-'.
sentenced for offences punishable under s.302 and s.506
IPC. Respondent filed an appeal challenging the
conviction. He also filed bail application during pendency E
of appeal on the ground that the ante mortem injuries on
the body of the deceased could not have been caused by
iron-rods; and that some unknown assailants caused the
injuries to the deceased. High Court granted bail. Hence
the present appeal. F
....., Appellant-informant contended that the impugned
order was unsustainable; that the conviction was
recorded by believing three eye witnesses; and that
discarding the stand that the injuries were not possible
by iron rods, the High Court should not have granted bail G
by a cryptic order.
Appellant no 2-accused contended that it is common
knowledge that appeals in the High Court take long time
903 H
904 SUPREME COURT REPORTS [2008] 4 S.C.R.

A for disposal; that the balance has to be struck between
the right to speedy trial and need for accused being in
custody; and that High Court took note of relevant factors
~
and granted bail. •
Allowing the appeal and remitting the matter to High
B Court, the Court
HELD: The order of High Court shows that there was
complete non-application of mind and non consideration
of the relevant aspects. Therefore, the impugned order is -1 ~
c not sustainable and is dismissed. The bail granted to·the
respondent no.2 is cancelled. The matter is remitted to
the High Court for fresh consideration in accordance with
law. (Para 11 and 12) [908-C, D]
Kishori Lal v Rupa and Ors 2004 (7) SCC 638; Anwari
D Begum v Sher Mohammad (2005) 7 SCC 326 - relied on.
CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
No. 481 of 2008
From the final Judgment and Order dated 15.11.2006 of
E the High Court of Judicature at Allahabad in Crl. A. No. 6724/
2006
S. Chandra Shekhar and Jogendra Kumar for the
Appellant.
F Shail Kumar Dwivedi, A.AG., Vishwajit Singh, Javed
Mahmud Rao, Kamlendra Mishra, Vandana Mishra and Vibha .>-
Dwivedi for the Respondents. ·
~ • -l: • : -~·

The Judgment of the Court was delivered by
G DR ARIJIT PASAYAT, J. 1. leave granted..
2. Challenge in this appeal is to the order passed by a
Division Bench of the Allahat:>ad High Court allowing the prayer
for bail made by respondent no.2 .during ttie pendency of
C_(iminal.Appeal no.6724 of 2006. Challenge before the High
H
e•
KHILARI v. STATE OF U.P. AND ANR. 905
[DR. ARIJIT PASAYAT, J.]
~ r
Court was to the conviction recorded by learned Sessions A
Judge, Bagpat, in Sessions Trial no.299 of 2000. Respondent
no.2 was convicted for offences punishable under Section 302
and Section 506 of the Indian Penal Code, 1860 (in short 'IPC')
and was sentenced to undergo imprisonment for life and one
year for the offences respectively. He and his two sons were B
also convicted allegedly for committing murder of Shiv Kumar.
f 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 c
respondent no.2. The High Court noted that the allegation was
that the incident took place on 9.3.2000 at about 8.30 p.m. and
accused no.2 and his two sons assaulted Shiv Kumar
(hereinafter referred to as the 'deceased') mercilessly with iron
rods and he succumbed to the injuries.
D
~ ,J
3. The only stand taken was that the ante mortem injuries
on the body of the deceased included three contusions, one
abraded contusion and four lacerated wounds of different
dimensions on various parts of the body which could not have
been caused by iron rods. It was their stand that some unknown E
assailants caused the injuries to the deceased.
4. The prosecution and the present appellant opposed the
prayer for grant of bail and PWs 1 and 2 and the informant had
""( . seen the attacks and were eye witnesses to the occurrence and
PW 3 is an independent witness. Their evidence has been F
analysed in great detail by the trial Court who found that_ credible
and cogent. So far as the possibility of injuries is concerned,
that aspect was also examined by the trial Court.

5. After noticing the rival stands the High Court by the
G
impugned order granted the bail with the following conclusions:
"Looking to all facts and circumstances of the case and
particularly the antemortem injuries and after consideration
the submissions made on behalf of the parties we find it
appropriate to release appellant on bail during pendency H
I

e
906 SUPREME COURT REPORTS . [2008] 4 S.C.R.

A of the appeal."
6. Learned counsel for the informant appellant submitted
that the approach of the High·Court is clearly erroneous. After
the conviction has been recorded by believing three eye
witnesses and also discarding the stand that it was not possible
B by iron rods, the High Court should not have by a cryptic order
directed grant of bail. It was, therefore, submitted that the
impugned order is unsustainable. -t ..,_,

7. Learned counsel for the State supported the stand of
c the informant.
8. Learned counsel for the appellant no.2 accused
submitted that it is common knowledge that appeals in the High
Court take long time for disposal. The balance has to be struck
between the right to speedy trial and the need for the accused
D being in custody. The High Court has taken note of relevant
factors and has granted bail.
9. The parameters to be adopted while dealing with the
application for bail by suspension of sentence during the .
pendency of the appeal has been examined by this Court in
E several cases. In Kishori Lal v. Rupa and Ots. (2004 (7) sec
638) it was noted as follows:
"4. Section 389 of the Code deals with suspension of
execution of sentence pending the appeal and release of
F the appellant on bail. There is a distinction between bail
and suspension of sentence. One of the essential
ingredients of Section 389 is the requirement for the
appellate court to record reasons in writing for ordering
suspension of execution of the sentence or order appealed
against. If he is in confinement, the said court can direct
G
that he be released on bail or on his own bond. The
requirement of recording reasons in writing clearly
indicates that there has to be careful consideration of the
relevant aspects and the order directing suspension of
sentence and grant of bail should not be passed as a
H
• KHILARI v. STATE OF U.P. AND ANR. 907
[DR. ARIJIT PASAYAT, J.]

matter of routine. A
5. The appellate court is duty-bound to objectively assess
the matter and to record reasons for the conclusion that
the case warrants suspension of execution of sentence
and grant of bail. In the instant case, the only factor which
seems to have weighed with the High Court for directing 8
suspenl?ion of sentence and grant of bail is the absence
• -~ of allegation of misuse of liberty during the earlier period
when the accused-respondents were on bail."
10. In Anwari Begum v. Sher Mohammad and Anr (2005 c
(7) 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 detailed
examination of the evidence and elaborate documentation
of the merits of the case is to be avoided by the Court D
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 E
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 F
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:
G
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 of the
witness or apprehension of threat to the complainant; H
908 SUPREME COURT Ri=PORTS [2008] 4 S.C.R.

3. Prima facie satisfaction of the Court in support of -(
..
~

A )"-
~

the charge.
Any order dehors of such reasons suffers from non-
application of mind as was noted by this Court, in
Ram G()vind Upadhyay v. Sudarshan Singh and
B Ors. [(2002) 3 SCC 598], Puran etc. v. Rambi/as
and Anr. etc. [(2001) 6 sec 338)] and in Kalyan
Chandra Sarkar v. Rajesh Ranjan alias Pappu
Yadav & Anr. [JT 2004 (3) SC 442]."
~-
'-
c 11. As the extracted portion and the High Court's order
goes to show there was complete non-application ·of mind and
non-consideration of the relevant aspects.
12. The impugned order, therefore, is not sustainable and
is dismissed. The bail granted to the respondent no.2 is
D cancelled. The matter ·is remitted to the High Court for fresh ~

consideration in accordance with law. :>

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

..
L.