TMI Blog2017 (11) TMI 1937X X X X Extracts X X X X X X X X Extracts X X X X ..... lants are only under trials and their liberty is also a relevant consideration. But equally important is to consider the impact of their release on bail on the prosecution witnesses and also its impact on society. In order to ensure that during trial the material witnesses depose without fear and justice being done to the society, a balance has to be struck. It was repeatedly urged that the High Court misdirected itself in interfering with the discretionary order of Sessions Court granting bail to the Accused and there was absolutely nothing to show that the Appellants are likely to abuse the bail or tamper with evidence. The court while granting bail should exercise its discretion in a judicious manner. Of course, once discretion is exercised by the Sessions Court to grant bail on consideration of relevant materials, the High Court would not normally interfere with such discretion, unless the same suffers from serious infirmities or perversity. While considering the correctness of the order granting bail, the approach should be whether the order granting bail to the Accused is vitiated by any serious infirmity, in which case, the High Court can certainly interfere with the exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pacified by the bouncers/security personnel of the club. Thereafter, the complainant-Rohit Bansal and his friends were sent out of the club and after coming out of the club when they reached IIT Gate, then Rohit Bansal realized that his mobile phone was missing which might have fallen during the quarrel and he along with his friends Rupesh, Sonu and Monu came back in Santro car to the club. When they came back, they found that a Mercedes and EON car had blocked the road and a Bolero car was parked on the road-side. When they asked them to let them pass, one of the Accused with whom an altercation had taken place in the club, threatened to teach them a lesson. Thereafter, all the Accused/assailants started beating them; one of the assailants brought an iron rod from the car and started hitting Rupesh and when Rohit intervened to save Rupesh, he was also attacked. Thereafter, another assailant lifted a cemented brick and hit Rupesh on his head and they all ran towards different directions to save themselves leaving Santro car at the spot. When Rohit Bansal returned back to take his car, he saw Rupesh lying at the spot unconscious and sustained multiple injuries on his body. Complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and half years. 8. When the appeal of Anil Kumar Yadav (A4) came up for further hearing before this Court, State took time to take steps to challenge the order of grant of bail to other Accused also. By order dated 08.09.2017, the High Court cancelled the bail granted to other Accused also. Being aggrieved, other Accused have also filed their respective appeals before this Court. Contentions: 9. Mr. Siddharth Luthra, learned Senior Counsel for the Appellant Anil Kumar Yadav (A4) contended that Rohit Bansal who claims to be an injured eye witness, in his statement recorded on 22.10.2015 did not name the Accused Anil Kumar Yadav as the assailant nor stated about his overt act. It was submitted that the presence of Accused Anil Kumar Yadav or use of baseball bat by him was not seen in the CCTV footage and also taking note of the fact that the Accused had been in custody for more than sixteen months, the trial court granted bail to the Appellant and the High Court erred in interfering with the exercise of discretion by the Sessions Court. 10. Taking us through the order of the trial court dated 27.02.2017, Mr. R. Basant, learned Senior Counsel appearing for Tarun @ Maddy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the alleged discrepancies in CCTV footage and discrepancies in statement of the witnesses which are not relevant consideration for grant of bail and the High Court rightly set aside the order granting bail to the Accused and the impugned orders warrant no interference. Placing reliance upon Gobarbhai Naranbhai Singala v. State of Gujarat and Ors. (2008) 3 SCC 775, it was submitted that the period inside the jail is not a relevant consideration for grant of bail. 14. Mr. Dushyant Dave, learned Senior Counsel appearing for the complainant submitted that perversity in the order of the trial court flows from the fact that irrelevant materials had been taken into consideration and when the bail order is unjustified or perverse, the High Court rightly set aside the order. In support of his contention, the learned Senior Counsel placed reliance upon Brij Nandan Jaiswal v. Munna alias Munna Jaiswal and Anr. (2009) 1 SCC 678 and Kanwar Singh Meena v. State of Rajasthan and Anr. (2012) 12 SCC 180. 15. We have given our thoughtful consideration to the rival submissions made by the counsel appearing on either side. The point falling for consideration is whether the Sessions Court ignored ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the Accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the Accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the Accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118]. While a vague allegation that the Accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the Accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presence of the Accused Anil Kumar Yadav; (ii) CCTV footage do not corroborate the statement of the witnesses that the Accused along with their cars were blocking the road; and (iii) Accused Anil Kumar Yadav has been in custody since 31.10.2015. The Sessions Court pointed out that possibly no role could be attributed to Accused Anil Kumar Yadav and observed as under: .......Admittedly, the crux of the CCTV footage is deciphered by the IO in the chargesheet as mentioned above and in the said crux no role of Accused Anil Kumar Yadav is found. Furthermore, there are other discrepancies pointed out by the counsel as discussed above which though could not be considered for the purpose of charge but could be considered as ground of bail......... The Sessions Court though repeatedly observed that the court ought not to go into the merits of the prosecution case actually the court appears to have gone into the merits of the matter, in particular the CCTV footage to hold that Anil Kumar Yadav could not have been present at the place of occurrence or participated in the incident. Further, the Sessions Court had also gone into the discrepancies of the statement of the witnesses. The pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... role in inflicting injuries to deceased Rupesh Tanwar as well as to the injured Rohit Bansal at the present stage. Since the Sessions Court proceeded to grant bail on erroneous footing and also going into the merits of the materials collected, the High Court, in our view, rightly set aside the order granting bail to the Accused Anil Kumar Yadav. 24. As pointed out earlier, one of the grounds for grant of bail to the Appellant Anil Kumar Yadav by the Sessions Court was that he was in custody for more than one year. In crimes like murder, the mere fact that the Accused was in custody for more than one year, may not be a relevant consideration. In Gobarbhai Naranbhai case, it was observed that the period of incarceration by itself would not entitle the Accused to be enlarged on bail. The same was reiterated in Ram Govind Upadhyay v. Sudarshan Singh and Ors. (2002) 3 SCC 598. 25. On behalf of the prosecution, learned senior Counsel Ms. Suri and Mr. Dave, learned senior Counsel appearing for the complainant submitted that CCTV footage is not the sole material relied upon by the prosecution. It was submitted that apart from CCTV footage, there are eight eye witnesses who named the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the Accused with reference to the victim and witnesses, the likelihood of the Accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the Accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the Accused of a fair trial. While cancelling the bail Under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the Accused is likely to tamper with the evidence or interfere or attem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ballav Prasad alias Rajballav Prasad Yadav alias Rajballabh Yadav (2017) 2 SCC 178, this Court held as under: 26. We are conscious of the fact that the Respondent is only an undertrial and his liberty is also a relevant consideration. However, equally important consideration is the interest of the society and fair trial of the case. Thus, undoubtedly the courts have to adopt a liberal approach while considering bail applications of the Accused persons. However, in a given case, if it is found that there is a possibility of interdicting fair trial by the Accused if released on bail, this public interest of fair trial would outweigh the personal interest of the Accused while undertaking the task of balancing the liberty of the Accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice-delivery system. It is this need for larger public interest to ensure that criminal justice-delivery system works efficiently, smoothly and in a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld exercise its discretion in a judicious manner. Of course, once discretion is exercised by the Sessions Court to grant bail on consideration of relevant materials, the High Court would not normally interfere with such discretion, unless the same suffers from serious infirmities or perversity. While considering the correctness of the order granting bail, the approach should be whether the order granting bail to the Accused is vitiated by any serious infirmity, in which case, the High Court can certainly interfere with the exercise of discretion. The materials available on record prima facie indicating the involvement of the Accused, possibility of Accused tampering with witnesses and the gravity of the crime were not kept in view by the Sessions Court. Since the Sessions Court granted bail to the Appellants on irrelevant considerations and the same suffered from serious infirmity, the High Court rightly set aside the order of grant of bail to the Accused. The impugned orders do not suffer from any infirmity warranting interference. 33. In the result, all the appeals are dismissed. All the Appellants/Accused are directed to surrender before the Committal Court within one week f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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