MANNO LAL JAISWALversusTHE STATE OF UTTAR PRADESH & ANR.

990            SUPREME COURT
                         [2022]REPORTS
                                1 S.C.R. 990               [2022] 1 S.C.R.


A                          MANNO LAL JAISWAL
                                       v.
                 THE STATE OF UTTAR PRADESH & ANR.
                        (Criminal Appeal No. 97 of 2022)
B                             JANUARY 25, 2022
                [M. R. SHAH AND SANJIV KHANNA, JJ.]
             Code of Criminal Procedure, 1973 – ss. 439 and 161 – Bail –
      Grant of – Appellant lodged FIR against the respondents-accused
      for murder of his son – Respondents-accused applied for bail –
C
      Sessions Courts rejected the said bail applications – High Court
      granted bail to respondents – Appellant approached this court and
      submitted that – (i) High Court erroneously noted that the accused
      persons were not named in the FIR and that the statement of
      witnesses u/s. 161 Cr.PC were recoded after inordinate delay; (ii)
D     High Court have not considered the gravity of the offence committed
      by the accused persons and have not considered that the offence
      was committed u/s. 149; (iii) No reasons were assigned and the
      decision was passed mechanically and without application of mind
      – Held: Accused persons were named in the FIR and the statements
      u/s. 161 Cr.PC. were recorded on the very same day – High Court
E
      had applied wrong facts in granting of bail – When accused were
      charged u/s. 149 and when their presence was established, adding
      the fact that they were part of the unlawful assembly, the individual
      role of accused is not relevant – High court have not adverted to
      the gravity and nature of offence and no reasons were assigned
F     while granting the bail – High Court have granted bail mechanically
      and on application of wrong facts – Judgement of High Court is
      quashed and set aside – Respondents directed to surrender forthwith
      – Penal Code, 1860 – ss. 147,148, 149, 323, 504, 506, 302, 307
      and 34.
G           Allowing the appeals, the Court
            HELD:1. The fact that all the accused persons were named
      in the FIR and even the statements of relevant witnesses under
      Section 161 Cr.PC were recorded on the very day, on applying
      the wrong facts, the High Court has released respective
H
                                      990
MANNO LAL JAISWAL v. THE STATE OF UTTAR PRADESH & ANR.                  991


respondents No.2-accused on bail. The High Court has noted              A
the submissions made on behalf of the accused, which has been
accepted by the High Court that the accused were not named in
the FIR and that their names were disclosed during investigation
and that the statements of the witnesses under Section 161 Cr.PC
were recorded at a later stage/belatedly. The aforesaid are factually
                                                                        B
incorrect. Even the counsel appearing on behalf of the accused
has submitted that it was not the case on behalf of the accused
that they were not named in the FIR and/or that the statements
of the witnesses under Section 161 Cr.PC were recorded
belatedly and/or at a later stage. Therefore, it appears that the
High Court has granted the bail to respective respondents No.2          C
in such serious offences in which one person was killed
mechanically and without applying the correct facts.
[Para 8.1][995-F-H; 996-A]
      2. The High Court has noted the submissions made on
behalf of the accused that role attributed to respective                D
respondents No.2 that using the wicket as weapon it is difficult
to decipher at that stage that the accused have caused fatal injury
over the person. When the accused were charged for the offences
punishable under Section 149 of the IPC also and when their
presence has been established and it is stated that they were
part of the unlawful assembly, the individual role and/or overt act     E
by the individual accused is not significant and/or relevant. Even
otherwise the order(s) passed by the High Court releasing
respective respondents No.2 on bail in such serious offences in
which one person was killed is unsustainable. The High Court
has not adverted to the gravity and nature of the offences at all.      F
Even no reasons are assigned by the High Court. [Para 8.2,
8.3][996-C-E]
      3. Even otherwise, the High Court has also not considered
the relevant considerations while grant of bail as observed and
held by this Court in the case of Anil Kumar Yadav case. In the         G
said decision, it is observed and held by this Court that while
granting bail, the relevant considerations are (i) nature of
seriousness of the offence; (ii) character of the evidence and
circumstances which are peculiar to the accused; and

                                                                        H
992            SUPREME COURT REPORTS                        [2022] 1 S.C.R.


A     (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. From the
      impugned judgment(s) and order(s), it appears that the High Court
      has not at all adverted to the relevant facts and/or considerations
      while granting bail. [Para 9][996-G-H; 997-A]
B
            Anil Kumar Yadav Vs. State (NCT of Delhi) and another;
            (2018) 12 SCC 129: [2017] 11 SCR 979 4.4 – relied
            on.
                             Case Law Reference
C     [2017] 11 SCR 979               relied on                 Para 4.4
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      97 of 2022.
            From the Judgment and Order dated 06.10.2020 of the High Court
D     of Judicature at Allahabad in Criminal Miscellaneous Bail Application
      No.6294 of 2020.
            With
            Criminal Appeal No. 98 of 2022.
            Vijay Kumar Shukla, Varinder Kumar Sharma, Ms. Nupur Shukla,
E     Shantanu L Sharma, J. K. Verma, Advs. for the Appellant.
           Ardhendumauli Kumar Prasad, AAG, Ms. Alka Sinha, Anuvrat
      Sharma, Krishna M. Singh, Rajiv Kumar, Advs. for the Respondents.
            The Judgment of the Court was delivered by
F           M. R. SHAH, J.
            1. Feeling aggrieved and dissatisfied with the impugned
      judgment(s) and order(s) dated 06.10.2020 passed by the High Court of
      Judicature at Allahabad in Criminal Misc. Bail Application Nos. 6294 of
      2020 and 7992 of 2020 by which the High Court has released respective
G     respondents No.2 herein on bail in connection with Case Crime No.203
      of 2019 for the offences punishable under Sections 147, 148, 149, 323,
      504, 506, 302, 307 and 34 of the IPC, P.S. Barhaj, District Deoria, the
      original informant/complainant – father of the deceased has preferred
      the present appeals.
H
MANNO LAL JAISWAL v. THE STATE OF UTTAR PRADESH & ANR.                         993
                     [M. R. SHAH, J.]

       2. That the appellant herein lodged an FIR against respective           A
respondents No.2 and others for the offences punishable under Sections
147, 148, 149, 323, 504, 506, 302, 307 and 34 of the IPC for murder of
his son. Respective respondents No.2 – accused applied to release them
on bail before the learned Sessions Courts/Additional Sessions Judge,
Deoria. By detailed judgment(s) and order(s) dated 19.11.2019 and
                                                                               B
22.01.2020, the learned Sessions Courts rejected the said bail applications
after perusing the case dairy and other documents. The learned Sessions
Courts observed that the accused persons are named in the FIR and it
has been alleged that all the accused persons with a common intention
attacked the deceased by sword, hockey, stick and rod and killed the son
of the complainant. The learned Sessions Court noted that in the statement     C
of witnesses recorded under Section 161 Cr.PC the relevant witnesses
have given evidence in support of the incident. That thereafter respective
respondents No.2 approached the High Court by way of present
applications under Section 439 Cr.PC to release them on bail. By the
impugned judgment(s) and order(s), the High Court applied the wrong
                                                                               D
facts (which has been demonstrated hereinbelow) and has released
respective respondents No.2 on bail.
      3. Feeling aggrieved and dissatisfied with the impugned
judgment(s) and order(s) passed by the High Court releasing respective
respondents No.2 on bail, the original complainant – father of the
deceased has preferred the present appeals.                                    E

       4. Shri Vijay Kumar Shukla learned counsel appearing on behalf
of the appellant – complainant has vehemently submitted that in the
facts and circumstances of the case the High Court has committed a
grave error in releasing respective respondents No.2 on bail.
                                                                               F
       4.1 It is vehemently submitted by Shri Vijay Kumar Shukla learned
counsel appearing on behalf of the appellant that while releasing
respective respondents No.2 on bail, the High Court has applied the
wrong facts. It is submitted that the High Court in the impugned
judgment(s) and order(s) has noted that the accused were not named in
the FIR, but their names have figured up during investigation. It is           G
submitted that aforesaid is factually incorrect. It is submitted that
respective respondents No.2 were named in the FIR right from the
beginning. It is submitted that it was not the case on behalf of the accused
that they were not named in the FIR and that their names were figured
up during investigation. It is submitted that even the respective learned      H
994             SUPREME COURT REPORTS                            [2022] 1 S.C.R.


A     Sessions Courts while rejecting the bail applications have specifically
      noted that the accused were named in the FIR.
             4.2 It is further submitted by learned counsel appearing on behalf
      of the appellant that the High Court has noted that the statement of the
      witnesses under Section 161 Cr.PC were recorded after inordinate delay
B     of more than 20 days. It is submitted that the same is factually incorrect.
      It is submitted that as such the statements of the relevant witnesses
      under Section 161 Cr.PC were recorded on the very day of the incident.
             4.3 It is submitted that while releasing the accused on bail the
      High Court has not taken into consideration the gravity and the nature of
C     offences committed by the accused. It is submitted that the High Court
      has not at all noted and/or considered that the offence alleged was under
      Section 149 of the IPC also and therefore when it was found that all the
      accused persons with a common intention attacked the deceased by
      sword, hockey, stick and rod and killed the son of the complainant, the
      individual role played by each accused is insignificant and not a relevant
D     consideration at all.
             4.4 It is further submitted that even otherwise as such except
      noting the submissions made on behalf of the accused as well as by
      learned Public Prosecutor and thereafter making the general observations
      that keeping in view the nature of the offence, evidence, complicity of
E     the accused, submissions of the learned counsel for the parties and
      without expressing any opinion on merits of the case, the accused has
      made out a fit case for bail, no further reasons are assigned. It is submitted
      that therefore the order(s) passed by the High Court releasing respective
      respondents No.2 – accused have been passed mechanically and without
      proper application of mind and without considering the relevant
F     considerations of grant of bail as held by this Court in the case of Anil
      Kumar Yadav Vs. State (NCT of Delhi) and another; (2018) 12
      SCC 129 are not at all adhered to and/or considered.
             5. Shri Ardhendumauli Kumar Prasad, learned AAG appearing
      on behalf of the State has supported the appellant. It is submitted that in
G     such grave offences under Sections 302, 147, 148, 149 of the IPC, the
      High Court ought not to have released the respective respondents No.2
      on bail.
            6. The present appeals are opposed by Shri Krishna M. Singh,
      learned counsel appearing on behalf of the accused – respective
H     respondents No.2.
MANNO LAL JAISWAL v. THE STATE OF UTTAR PRADESH & ANR.                        995
                     [M. R. SHAH, J.]

       6.1 It is submitted that as such it was never the case on behalf of    A
the accused that they were not named in the FIR and/or that the
statements of the witnesses under Section 161 Cr.PC were recorded at
a later stage/belatedly. He has taken us to the relevant averments made
in the bail applications.
        6.2 It is submitted that however, when the role attributed to         B
respective respondents No.2 is that they used the wicket and nothing is
on record that they used any deadly weapon and/or caused the injury on
the vital part of the body of the deceased, the High Court has not
committed any error in releasing respective respondents No.2 on bail
more particularly when respective respondents No.2 – accused were in
jail since 26.08.2019 and 05.09.2020, respectively and that accused have      C
no criminal antecedents.
      7. We have heard learned counsel appearing on behalf of the
respective parties at length.
       8. At the outset, it is required to be noted that respective           D
respondents No.2 and other accused are charge-sheeted for the offences
punishable under Sections 147, 148, 149, 323, 504, 506, 302, 307 and 34
of the IPC. That as per the case of the complainant and the prosecution
all the accused including respective respondents No.2 herein with a
common intention attacked the deceased by sword, hockey, stick and
rod and killed the son of the complainant. As per the post mortem report,     E
five injuries were found on the body of the deceased and fracture in the
occipital region of head in right side and presence of hematoma in brain
was found.
      8.1 Despite the fact that all the accused persons were named in
the FIR and even the statements of relevant witnesses under Section           F
161 Cr.PC were recorded on the very day, on applying the wrong facts,
the High Court has released respective respondents No.2 on bail. The
High Court has noted the submissions made on behalf of the accused,
which has been accepted by the High Court that the accused were not
named in the FIR and that their names were disclosed during investigation     G
and that the statements of the witnesses under Section 161 Cr.PC were
recorded at a later stage/belatedly. The aforesaid are factually incorrect.
Even the learned counsel appearing on behalf of the accused has
submitted that it was not the case on behalf of the accused that they
were not named in the FIR and/or that the statements of the witnesses
under Section 161 Cr.PC were recorded belatedly and/or at a later stage.      H
996             SUPREME COURT REPORTS                            [2022] 1 S.C.R.


A     Therefore, it appears that the High Court has granted the bail to respective
      respondents No.2 in such serious offences in which one person was
      killed mechanically and without applying the correct facts.
             8.2 Even otherwise the High Court has not at all appreciated the
      fact that all the accused were charged for the offences punishable under
B     Sections 147, 148 and 149 also along with Section 302 of the IPC and as
      noted by the learned Sessions Court vide order dated 19.11.2019 that all
      the accused persons with a common intention attacked the deceased –
      Sumit Jaiswal by deadly weapons like sword, hockey, stick and rod. The
      High Court has noted the submissions made on behalf of the accused
      that role attributed to respective respondents No.2 that using the wicket
C     as weapon it is difficult to decipher at that stage that the accused have
      caused fatal injury over the person. When the accused were charged
      for the offences punishable under Section 149 of the IPC also and when
      their presencehas been established and it is stated that they were part of
      the unlawful assembly, the individual role and/or overt act by the individual
D     accused is not significant and/or relevant.
             8.3 Even otherwise the order(s) passed by the High Court releasing
      respective respondents No.2 on bail in such serious offences in which
      one person was killed is unsustainable. The High Court has not adverted
      to the gravity and nature of the offences at all. Even no reasons are
E     assigned by the High Court except observing in one paragraph as under:-
            “The submissions made by learned counsel for the applicant, prima
            facie, quite appealing and convincing for the purpose of bail only.
            Keeping in view the nature of the offence, evidence, complicity
            of the accused, submissions of the learned counsel for the parties
F           and without expressing any opinion on merits of the case, I am of
            the view that the applicant has made out a fit case for bail.”
            The aforesaid can hardly be said to be assigning the reasons.
             9. Even otherwise, the High Court has also not considered the
      relevant considerations while grant of bail as observed and held by this
G
      Court in the case of Anil Kumar Yadav (supra). In the said decision, it
      is observed and held by this Court that while granting bail, the relevant
      considerations are (i) nature of seriousness of the offence; (ii) character
      of the evidence and circumstances which are peculiar to the accused;
      and (iii) likelihood of the accused fleeing from justice; (iv) the impact
H     that his release may make on the prosecution witnesses, its impact on
MANNO LAL JAISWAL v. THE STATE OF UTTAR PRADESH & ANR.                        997
                     [M. R. SHAH, J.]

the society; and (v) likelihood of his tampering. From the impugned           A
judgment(s) and order(s), it appears that the High Court has not at all
adverted to the relevant facts and/or considerations while granting bail.
At the cost of repetition, it is observed that the High Court has released
respective respondents No.2 on bail mechanically and on applying the
wrong facts which even as per the accused were not their cases. The
                                                                              B
impugned judgment(s) and order(s) releasing respective respondents No.2
on bail are unsustainable both on facts as well as on law.
       10. In view of the above and for the reasons stated above the
present appeals succeed. The impugned judgment(s) and order(s) passed
by the High Court releasing respective respondents No.2 on bail are
hereby quashed and set aside. Now respondent No.2 – Pradyumn alias            C
Pradumn alias Deepak Gupta in Criminal Appeal No.97 of 2022 and
respondent No.2 - Shalu in Criminal Appeal No.98 of 2022 to surrender
forthwith. However, it is observed that the observations made in the
present order be confined for the purpose of deciding the bail only and
the learned Trial Court shall proceed with the trial and decide the same      D
in accordance with law and on the basis of the evidences led by both the
sides. The present appeals are accordingly allowed.


Ankit Gyan                                                 Appeals allowed.
(Assisted by : Aarsh Choudhary, LCRA)                                         E




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