Supreme Court of India
NEERU YADAVversusSTATE OF U.P AND ANOTHER
- Citation
- 2014 INSC 841
- Decided
- 16 December 2014
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
The High Court's grant of bail on the ground of parity was unjustified as the accused's criminal history and distinct role required a separate assessment, so the bail order is set aside.
Summary
The Supreme Court examined an appeal against a High Court order that granted bail to Mitthan Yadav, a history‑sheeter accused of multiple serious offences including murder, under several IPC sections. The High Court had relied on the principle of parity, noting that a co‑accused, Ashok Kumar, had previously been released on bail. The appellant, the wife of the deceased, contended that the accused’s extensive criminal record and distinct role in the shooting warranted a separate assessment. The Court held that the parity ground was inapplicable because the allegations against the two accused differed and the High Court failed to consider the accused’s criminal antecedents and the risk of witness tampering. Citing precedents on bail jurisprudence, the Court emphasized the need to evaluate the nature of the offence, severity of punishment, evidence, and danger to justice. Consequently, the bail order was set aside and the respondent was ordered to surrender to custody.
Issues considered
- Whether the High Court erred in granting bail on the ground of parity without proper scrutiny of the accused's criminal antecedents and distinct role in the offence.
- Whether the principle of parity applies when the allegations against co‑accused persons differ.
- Whether the discretion under Section 439 of the Code of Criminal Procedure can be exercised arbitrarily in granting bail for heinous offences.
- Whether the Supreme Court can set aside a bail order on the ground of non‑application of mind.
Legislation cited
- Arms Act
- Code of Criminal Procedure, 1973s. 439
- Excise Act
- Gangster Act
- Indian Penal Code, 1860s. 1208, s. 120B, s. 147, s. 148, s. 149, s. 247, s. 302, s. 307, s. 34, s. 394, s. 411, s. 454, s. 506
- Narcotic Drugs and Psychotropic Substances Act
Subjects
bailSection 439 CrPCparity principlehistory-sheetercriminal antecedentsheinous offenceslibertySupreme Courtcriminal procedure
Judgment
(2014] 12 S.C.R. 453
NEERU YADAV A
v.
STATE OF U.P AND ANOTHER
(Criminal Appeal No. 2587 of 2014)
DECEMBER 16, 2014.
B
[DIPAK MISRA AND UDAY UMESH LALIT, JJ.]
Code of Criminal Procedure, 1973 - s. 439 - Bail -
Grant of - By the High Court - To the offender in a criminal
case u/ss. 147, 148, 149, 302, 307, 394, 411, 454, 506, 120B C
/PC - Propriety of - Held: The accused was a history-sheeter
and number of cases have been lodged against him - In the
present case allegations against him were different from the
co-accused - Therefore, grant of bail by the High Court on
the ground of parity without scrutinizing every aspect of the D
'case, was not justified - The order, granting bail is set aside
-8~ .
Allowing the appeal, the Court
HELD: 1. The liberty is a priceless treasure for a E
human being. It is founded on the bed rock of
constitutional 'right and accentuated further on human
rights principle. It is basically a natural right. It cannot be
allowed to be paralysed and immobilized. Deprivation of
liberty of a person has enormous. impact on his mind as F
well as body. But, the liberty of an individual is not
absolute. The society by its collective wisdom through
process of law can withdraw the liberty that it has
sanctioned to an individual when an individual becomes
'
a danger to the collective and to the societal order. G
Therefore, when an individual behaves in a
disharmonious manner ushering in disorderly things
which the society disapproves, the legal consequences
are bound to follow. At that stage, the Court cannot
453 H
454 SUPREME COURT REPORTS [2014] 12 S.C.R.
A abandon its sacrosanct obligation and pass an order at
its own whim or caprice. It has to be guided by the
established parameters of law. [Para 16] [463-C-H; 464-
A, B]
2. Respondent No. 2 is a history-sheeter and number
B of cases have been lodged against him. Most of the cases
instituted against him are still pending and some of them
are u/s. 302 IPC and other heinous offences. In the
present case 2nd respondent had fired at the deceased.
Two persons were also injured in the attack. The
C occurrence took place in the broa.d day light. The
allegations against the co-accused and the 2nd
respondent are different. [Paras 14 and 15] [461-E-F; 462-
H; 463-A-C]
3. When a stand was taken that the 2nd respondent
D was a history sheeter, it was imperative on the part of the ·
High Court to scrutinize every aspect and not
capriciously record that .the 2nd respondent was entitled
to be admitted to bail on the ground of parity. It was not
a case of parity and, therefore, the impugned order
E clearl.y exposes
. . the non-application
' of mind.
Consequently, the order passed by the High Court
admitting respondent No.2 on bail is set aside. [Paras 17
and 18] [464-C-D, F]
F Ram Govind Upadhyay v. Sudarshan Singh (2002) 3
SCC 598: 2002 (2) SCR 52; Prahlad Singh Bhati v. NCT,
Delhi (2001) 4 SCC 280: 2001 (2) SCR 684; Chaman Lal
V. State of U.P. (2004) 7 SCC 525: 2004 (3)
Suppl. SCR 584; Prasanta Kumar Sarkar
, v. Ashis Chatterjee
G (2010) 14 sec 496: 2010 (12) SCR 1165 - relied on.
Case Law Refererice:
2002 (2) SCR 526 relied on Pa~a 10
2001 (2) SCR 684 relied on Para 10
H 2004 (3) Suppl. SCR584 relied ori Para 11
NEERU YADAV v. STATE 455
2010 (12) SCR 1165 relied on Para 12 A
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2587 of 2014.
From the Judgment & Order dated 22.09.2014 of the High
Court, Judicature at Allahabad in Criminal Misc. Ball Applicaton B
No. 31078 of 2014.
Puruish Jitendra Malkan, Pradeep Kumar Yadav, Jitendra.
Malkan, Manju Sharma Jetley, Alok Singh for the Appellant.
Ratnakar Dash, Abhisth Kumar, Sandeep Kumar, Praveen
c
Chaturvedi, Jyoti Chaturvedi for the Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted. D
2. The present appeal, by special leave, calls in question
the legal substantiality and ~efensibility of the order dated
·22.09.2014 passed by the High Court of judicature at
Allahabad in <i(riminal Misc. Bail Application No. 31078 of E
_ 2014 whereby t/ie learned Judge, in exercise of power under
Section 439 of Code of Criminal Procedure, 1973 (Cr.PC) had
admitted the 2nd respondent to bail in Crime No. 237 of 2013
instituted for offences punishable under Sections 147, 148, 149,
302, 307, 394, 411, 454, 506, 120B and 34 of the Indian Penal
Code (IPC). F
3. As the impugned order would reveal, it was .contended
on behalf of the 2nd respondent that similarly placed co-
accused, Ashok, had already been enlarged on bail by the High
Court by order dated 23.9.2013 in Criminal Misc. Bail G
Application No. 21876 of 2013 and role of the accused-
respondent No.2 was identical to that of Ashok Kumar and he
should be released on bail. Thus the foundation of the prayer
for grant of bail was on the bedrock of parity. The said prayer
for grant of bail was opposed with vehemence by the learned H
456 SUPREME COURT REPORTS (2014] 12 S.C.R.
A AG.A. contending, inter alia, that the accused had criminal
antecedents and the role attributed to him was different. The
same was controverted by the accused asserting that the said
aspect had been explained in the affidavit attached to the bail
application.
..
B
4. As the factual narration would further undrape, the
learned Single Judge keeping in view the aforesaid aspects
passed the following order:-
"Considering the submission made by the learned counsel
c for the applicant as well as learned A.G.A., this Court is
of the view that the applicant has made out a case for grant
of bail on the ground of party.'
In view of the above, let the applicant, Mitthan Yadav be
D released on bail on his executing a personal bond and
furnishing two sureties each in the like amount to the
satisfaction of the court concerned in Case Crime No. 237
of 2013, under sections 147, 148, 149, 302, 307, 394, 411,
454, 506, 1208 and 34 l.P.C., P.S. Kavinagar, district-
Ghaziabad with the following conditions:-
E
(a) The applicant shall attend the court according
to the conditions of the bond executed by him.
(b) The applicant shall not directly or indirectly make
F any inducement, threat or promise to any person
acquainted with the facts of the case so as to
dissuade him from disclosing such .facts to the
Court or to any police officer or tamper with the
evidence."
G 5. Being aggrieved by the aforesaid order, the wife of the
deceased has preferred this appeal for setting aside the order.
-'
6. At this juncture, it is apt to note that 2nd respondent had
moved an application for bail before the learned Additional
H
NEERU YADAV v. STATE OF U.P 457
[DIPAK MISRA, J.]
. District & Sessions Judge, Ghaziabad who took note of the A
factual matrix, which is as follows:-
"As per the prosecution story complainant Sakek Chand
has lodged the report at PS Kavi Nagar that accused
Mitthan, Manoj, lala Kapil and Budhu @ Budhpal were B
keeping enmity with the brother of the complainant Salekh
Chand on their consuming wine in front of the house of
complainant and due to this fear brother the complainant
had keep a private gunner. On 25.2.13 at about 11.00 a.m.
complainant and his brother Yashvir, Munir and Deepak C
were sitting in the house and suddenly above all accused
carrying weapon in their hands entered into the hol)se of
the complainant and began hectic firing. Brother of the
complainant received several bullet injuries. Complainant
ran raising noise and also caught him and cause grievous
injuries on his head, due to which he fell down. Hearing D
the voice of firing gunner also came and his rifle was
snatched him them and also gave beatings to him and
injured him. When people of the village gathered accused
fled away giving threatening. People of the village admitted
brother of the complainant in hospital where doctor E
declared him dead."
Learned Additional District & Sessions Judge, after taking
note of the aforesaid allegations, declined to grant bail. Being
unsuccessful to secure bail from the Court of Session, the 2nd F
respondent approached the High Court and as has been stated
hereinbefore, the High Court has admitted him to bail.
7. Questioning the legal acceptability of the ir(lpugned
order, it is contended by Mr. Malkan, learned counsel for the
appellant that the High Court has failed to appreciate the role G
ascribed to Ashok Kumar and to the 2nd respondent who had
fired on the deceased; and further the High Court has absolutely
remained oblivious to the criminal antecedents of the said
accused. That apart, it is contended by him that the trial has
H
458 SUPREME COURT REPORTS (2014] 12 S.C.R.
A commenced and at that stage it was absolutely improper on
the part of the High Court to enlarge the accused on bail
brushing aside ~he fact that the man with criminal antecedents
.has the potentiality to intimidate the rest of the witnesses. In
essence, the submission is that the gravity of the offence, the
B manner in which it has been committed and the criminal
antecedents of the accused - the 2nd respondent, have been
totally ignored by the High Court and bail has been granted on
·non-consideration of the material facts, which makes the order
vulnerable.
c 8. Mr. Ratnakar Dash, learned senior counsel appearing
for the State of Uttar Pradesh, supporting the stand of the
appellant submitted that though the State has not assailed the
legal acceptability of the impugned order, yet the fact remains
that when the real victim has approached this Court and on a
D perusal of the facts which have been asserted, it is quite
manifest Iha! the 2nd respondent is a history-sheeter and the
order passed by the High Court should be nullified.
9. Mr. Praveen Chaturvedi, learned counsel appearing for
E the respondent no.2, resisting the aforesaid stand and stance
put forth by the learned counsel for the appellant as well as the
learned senior counsel for the State has canvassed that the
High·Court has appositely applied the principle of parity and,
therefore, the order passed by it cannot be faulted. It is urged
F by him that when the trial has commenced and many witnesses·
have been examined, there was no justification not to release
the 2nd respondent on bail on such terms and conditions which
have been determined by the High Court. It is put forth by him
that the number of cases which were instituted against the 2nd
G respondent are not that grave and in some cases he has been
acquitted, but unfortunately, emphasis has been laid on the
same by the appellant and also learned senior counsel for the
State. It is further contended that in the absence of any failure
to abide by the terms and conditions imposed by the High
Court while granting the accused the benefit of bail, this Court
H
NEERU YADAV v. STATE OF U.P 459
[DIPAK MISRA, J.]
should not interfere as that would seriously jeopardize the liberty A
of the respondent no.2.
10. The pivotal issue that emanates for consideration is
whether the impugned order passed by the High Court
deserves legitimate acceptation and put in the compartment of
8
a legal, sustainable order so that this Court should not interfere
with the same in exercise of jurisdiction under Article 136 of
the Constitution of India. In this context, a fruitful reference be
made to the pronouncement in Ram Govind Upadhyay v.
Sudarshan Singh 1, wherein this Court has observed that grant
of bail though discretionary in nature, yet such exercise cannot C
be arbitrary, capricious and injudicious, for the heinous nature
of the crime warrants more caution and there is greater change
of rejection of bail, though, however dependant on the factual
matrix of the matter. In the said decision, reference was made
to Prahlad Singh Bhati v. NCT, DelhP. and the Court opined D
thus:
"(a) While granting bail the court has to keep in mind not
only the nature of the accusations, but the severity of the
punishment, if the accusation entails a conviction and the E
nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being
tampered with or the apprehension of there being a threat
for the complainant should also weigh with the court in the
matter of grant of bail. F
(c) While it is not expected to have the entire evidence
establishing the guilt of the accused beyond reasonable
doubt but there ought always to be a prima facie
satisfaction of the court in support of the charge. G
(d) Frivolity in prosecution should always be considered
and it is only the element of genuineness that shall have
1. (2002) 3 sec 598.
2. (2001) 4 sec 280. H
460 SUPREME COURT REPORTS [2014] 12 S.C.R.
A to be considered in the matter of grant of bail, and in the
event of there being some doubt as to the genuineness of
the prosecution, in the normal course of events, the
accused is entitled to an order I of bail."
11. In Chaman Lal V. State of U.P. 3 , the Court has laid
8
down certain factors, namely, the nature of accusation, severity
of punishment in case of conviction and the character of ·
supporting evidence, reasonable apprehension of tampering
with the witness or apprehension of threat to the complainant,
and prima facie satisfaction of the Court in support of the
C charge which are to be kept in mind.
12. In this context, we may profitably refer to the dictum in
Prasanta Kumar Sarkar v. Ash is .Chatterjee", wherein it has
been held that normally this Court does not interfere with the
D order passed by the High Court when a bail application is
allowed or declined, but the High Court has a duty to exercise
its discretion cautiously and strictly. Regard being had to the
basic principles laid down· by this Court from time to time, the
Court enumerated number of considerations and some of the
E considerations which are relevant for the present purpose are;
. whether there is likelihood of the offence being repeated and
whether there is danger of justice being thwarted by grant of
bail.
13. We have referred to certain principles to be kept in
F mind while granting bail, as has been laid down by this Court
from time to time. It is well settled in law thatcancellation of bail
after it is granted because the accused has misconducted
himself or of some supervening circumstances warranting such
cancellation have occurred is in a different compartment
G altogether than an order granting bail Which is unjustified, illegal
and perverse. If in a case, the relevant factors which should have
been taken into consideration while dealing with the application
3. (2004) 1 sec 525.
H 4. (2010) 14 sec 496.
NEERU YADAV v. STATE OF U.P 461
[DIPAK MISRA, J.]
for bail and have not been taken note of bail or it is founded A
on irrelevant considerations, indisputably the superior court can
set aside the order of such a grant of bail. Such a case belongs
to a different category and is in a separate realm. While dealing
with a case of second nature, the Court does not dwell upon
the violation of conditions by the accused or the supervening B
circumstances that have happened subsequently. It, on the
contrary, delves into the justifiability and the soundness of the
order passed by the Court. ·
14. In the case at hand, two aspects have been highlighted
before us. One, the criminal antecedents of the 2nd respondent C
and second, the non~applicability of the principles of parity on
the foundation that the accusations against the accused Ashok
and 2nd respondent are different. First, we shall dwell upon the
criminal antecedents. The appellant, the real victim, being the
wife of the deceased, has annexed a chart relating to the D
criminal history of the accused. The State has filed a counter
affidavit. We think it apt to refer to the cases which find place
in the counter affidavit filed by the state. Be it clarified though
it has been filed as a counter affidavit, it is not in oppugnation
of the prayer sought in the petition. On the contrary, it is E
supportive of the stand put forth in the petition. It has been
asseverated that the respondent no.2 is a history-sheeter and
number of eases have been lodged against him. The following
are the details of the cases:-
F
"(i) Case crime No: 1009/2006 u/s 302/201/34 IPC Police
Station Shahibabad, District Ghaziabad.
(ii) Case crime No. 1007/2006 u/s 302 IPC Police Station
Shahibabad, District Ghaziabad.
G
(iii) Case crime No. 360/2008 u/s 302/201 IPC Police
Station Shahibabad, District Ghaziabad.
(iv) Case crime No. 1614/2008 u/s 364/302/201 IPC
· Police Station Sihani Gate, District Ghaziabad.
H
462 SUPREME COURT REPORTS (2014] 12 S.C.R.
·A (v) Case crime No. 495/2008 u/s 8/15 NDPS Act, Police
Station Kavi Nagar •. District Ghaziabad.
(vi) Case crime No. 496/2008 u/s 25 Arms Act, Police
Station Kavi Nagar. District Ghaziabad.
8 (vii) Case crime No. 405/2008 u/s 307 IPC Police Station
Kavi Nagar, Ghaziabad.
(viii) Case crime No. 913/2008 u/s 25 Arms Act, Police
Station Kavi. Nagar, Ghaziabad.
c
(ix) Case crime No. 1247/2009 u/s 147/323/324/506 IPC
P.S, Kavi Nagar, Ghaziabad.
(x) Case crime No. 116/2011 u/s .307 IPC Police Station
Kavi Nagar, Ghaziabad.
D
(xi) Case crime No. 170/2011 u/s 25 Arms Act, P.S. Sec-
58, Neida, Gautambudh Nagar.
(xii) Case crime No. 2372013 u/s 247/148/149/302/307/
394/411/506/1208/34 IPC P.S, Kavi Nagar, Ghaziabad.
E
'
(xiii) Case crime No. 330/2013 u/s 60 Excise Act, P.S.
Kavi Nagar, Ghaziabad.
(xiv) Case crime No. 1091/2013 u/s 384/506 IPC P.S.
F Kavi Nagar, Ghaziabad.
(xv) Case crime No. 1238/2013 u/s 2/3 Gangster Act, P.S.
Kavi Nagar, Ghaziabad.
Note:- The respondent Mitthan has been declared as
G History Sheeter being H.S. No. 39-A P.S. Kavi Nagar".
1
In the reply filed by the respon dent no.2 contended, inter
alia, that he has been acquitted in certain case. However, in
the course of hearing, we have been apprised that most of the
H cases instituted against the respondent no.2 are still pending
NEERU YADAV v. STATE OF U.P 463
[DIPAK MISRA, J.)
and some of them are under Section 302 IPC and other heinous A
offences ..
15. In the case at hand the 2nd respondent, as the
allegations would show, had fired at the deceased. Two
persons were also. injured in the attack. The occurrence took B
place in the broad day light. As we find from the FIR and
statement recorded under Section 161 CrPC, the allegations
against Ashok and the 2nd respondent are different. That apart,
the number and nature of crimes registered against the 2nd
respondent speaks voluminously about his antecedents.
c
16. The issue .that is pres19nted before us is whether this
Court can annul the order. passed by the High Court and curtail
the liberty of the 2nd respondent. We are not oblivious of the
fact that the liberty is a priceless treasure for a human being. It
is founded on the bed rock of constitutional right and D
accentuated further on human rights principle. It is basically a
natural right. In fact, some regard it as the grammar of life. No
one would like to lose his liberty or barter it for all the wealth of
the world. People from centuries have fought for liberty, for
absence of liberty causes sense .of emptiness. The sanctity of. E
liberty is the fulcrum of any civilized society. It is a. cardinal value
on which the civilisation rests. It cannot be allowed to be
paralysed and immobilized. Deprivation of liberty of a person
· has enormous impact on his mind as well as body. A
democratic body polity which is wedded to rule of law, anxiously F
guards liberty. But, a pregnant and significant one, the liberty
of an individual is not absolute. The society by its collective
wisdom through process of law can withdraw the liberty that it
has sanctioned to an individual when an individual becomes a
danger to the collective and to the societal order. Accent on
individual liberty cannot be pyramided to that extent which would ·G
bring chaos and anarchy to a society. A society expects
responsibility and accountability from the member, and it
desires that the citizens should obey the law, respecting it as
a cherished social norm. No individual can make an attempt H
464 SUPREME COURT REPORTS · [2014] 12 S.C.R.
A to create a concavity in the stem of social stream. It is
impermissible. Therefore, when an individual behaves in a
disharmonious manner ushering in disorderly things which the
society disapproves, the legal consequences are bound to
follow. At that stage, the Court has a duty. It cannot abandon
B its sacrosanct obligation and pass an order at its own whim or ·
caprice. It has to be guided by the established parameters of·
law.
17. Coming to the case at hand, it is found that when a
C stand was taken that the 2nd respondent was a history sheeter,
it was imperative on the part of the High Court to scrutinize
every aspect and not capriciously record that the 2nd
respondent is entitled to be admitted 'lo baii on the ground of
parity. It can be stated with absolute certitude that it was not a
case of parity and, therefore, the impugned order clearly
D exposes the non-application of mind. That apart, as a matter
of fact it has been brought on record that the 2nd respondent
has been charge sheeted in respect' of number of other heinous
offences. The High Court has failed to take note of the same.
Therefore, the order has to pave the· path of extinction, fcir its
E approval by this court would tantamount to travesty of justice,
and accordingly we set it aside~
18. Consequently, the appeal is allowed and the order
passed by the High Court admitting the respondent no.2 on bail
F is set aside. The respondent no. 2 is commanded to surrender
to custody forthwith failing which it shall be the duty of the
Investigating Agency to take him into custody immediately. We ·
may hasten to clarify that what we have stated here is only to
be read and understood for the purpose of annulling the order
G of grant of bail and they would have no bearing on the trial. The
learned trial Judge shall proceed with the trial as per the'
evidence brought on record.
Kalpana K. Tripathy Appeal allowed.
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