SUPREME COURT OF INDIA

Before:- K.T. Thomas and S.N. Variava, JJ.

Criminal Appeal No. 880 of 2001 (Arising out of SLP (Crl.) No. 1970 of 2001). D/d. 31.8.2001

Ram Prakash Pandey - Appellant

Versus

State of U.P. - Respondents

For the Appellant :- Ms. Rachana Srivastava, Advocate.

For the Respondent No. 1 :- Mr. Prakash Kr. Singh and Mr. A.S. Pundir, Advocates.

For the Respondent No. 2 :- Mr. Dinesh Dwivedi, Sr. Advocate with Mr. Shashinder Tripathi and Mr. M.P. Shorawala, Advocates.

Criminal Procedure Code, 1973, Sections 437, 438 and 439 - Indian Penal Code, Section 302 - Bail in murder case - Anticipatory bail granted to accused on ground of ailment - Bail cancelled - Accused was previous convict in murder case - Ailment of accused is not such as required releasing him on bail - Accused can always apply to the jail authorities to see that he gets the required medical treatment.

[Para 11]

JUDGMENT

S.N. Variava, J. - Leave granted.

2. Heard parties.

3. This Appeal is against an Order dated 29th September, 2000 by which the High Court of Allahabad has granted bail to the 2nd Respondent.

4. Briefly stated the facts leading to this Appeal are as follows :

The Appellant is the 1st informant and husband of one deceased Hem Lata Pandey. The said deceased Hem Lata Pandey had given evidence against the 2nd Respondent, as an eye witness, in a case of murder of the wife of the 2nd Respondent. This had resulted in the conviction of the 2nd Respondent by the Trial Court. The Trial Court has given a sentence of life imprisonment to the 2nd Respondent.

5. The 2nd Respondent filed an appeal. Pending appeal the appellate court granted him bail. Apprehending danger to her life the deceased Hem Lata Pandey had applied to the Government for protection. She had even filed a petition in the High Court of Judicature at Allahabad. That petition has been disposed of by the High Court with a direction to the Home Secretary to consider the representation made by the deceased and take appropriate action. Inspite of this direction no protection was given to the deceased.

6. It is a case of the appellant that on 31st January, 2000 at about 2.30 p.m., when the appellant, his wife, two sons and two servants were in their farm to irrigate the crop, the 2nd Respondent and the co-accused by name Vinod Kumar suddenly appeared at the farm, opened fire on Hem Lata Pandey with their guns and killed her.

7. The appellant, therefore, lodged an F.I.R. on the same day. A case has been registered as Crime No. 21/2000 under Section 302 read with Section 34 of the Indian Penal Code The co-accused Vinod Kumar is absconding and has not yet been arrested.

8. One further fact which need to be mentioned is that the two servants who were present had earlier given their statements to the Police under Section 164 of the Criminal Procedure Code. Those two servants have now filed affidavits before the Trial Court denying that they have witnessed the incident.

9. On these facts the Sessions Court rejected, on 13th July, 2000, the bail application of the 2nd Respondent.

10. The 2nd Respondent then applied for bail in the High Court. Inspite of the fact that the 2nd Respondent had already been convicted and sentenced to life imprisonment and the fact that two eye witnesses have now retracted their statements even before the trial has started, the High Court has chosen to grant bail to the 2nd Respondent only on the following grounds:

"It is not disputed that the investigation of the case has been entrusted to C.B./C.I.D. by the order of the Chief Minister, copy whereof is annexure-10. It is also not disputed that the C.B./C.I.D. normally takes and year or so in concluding the investigation. The allegations of ailment of the applicant ate not specifically denied. Only this much is stated that documents are forged and have been prepared to obtain bail.

Considering facts and circumstances of the case, I am of the view that the applicant may be released on bail."

In our view the High Court has dealt with the matter in a most cursory manner. Bail has been granted ignoring the provisions of Section 437 of the Criminal Procedure Code. Section 437 of the Criminal Procedure Code read as follows :

"437. When bail may be taken in case of non-bailable offence. - (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but -

(i) such person shall not be so released if, there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence :

Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm;

Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason;

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446-A and pending such inquiry be released on bail or, at the discretion of such officer of Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code, 1860, or abetment of, or conspiracy or attempt to commit any such offence is released on bail under sub-section (1) the Court may impose any condition which the Court considers necessary -

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c) otherwise in the interests of justice.

(4) An officer or a court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons for so doing.

(5) Any Court which has released a person on bail under sub-section (1) or sub-section (2), may if it considers it necessary so to do direct that such person be arrested and commit him to custody.

(6) If in any case triable by Magistrate the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered."

11. Thus a person who has been previously convicted of an offence punishable with life imprisonment shall not be released on bail unless there is no reasonable ground for believing that the person has committed the offence and/or there are special reasons to do so. In this case it is to be seen that the co-accused is still absconding. Two witnesses have already retracted their statements. There are still eye witnesses, who have directly connected the 2nd Respondent and assigned a specific role to the 2nd Respondent in the murder of the deceased. Thus at this stage it could not be said that there is reasonable ground for believing that 2nd Respondent has not committed the offence. No special reasons for granting bail have been indicated by the High Court. The alleged ailment of the 2nd Respondent is also not such as required releasing him on bail. The 2nd Respondent can always apply to the jail authorities to see that he gets the required medical treatment.

12. In our view the Order of the High Court granting bail cannot be sustained. We accordingly set aside the Order. Ist Respondent is directed to ensure that the 2nd Respondent is taken into custody forthwith.

13. The Appeal stands disposed of accordingly. There shall be no Order as to costs.

Appeal disposed of.