SUPREME COURT OF INDIA

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

Criminal Appeal No. 745 of 2001, Arising out of SLP (Crl.) No. 243 of 2001. D/d. 25.7.2001.

Union of India and another - Appellants

Versus

Rajesh Ranjan alias Pappu Yadav - Respondent

Criminal Procedure Code, 1973 Sections 439(1) and 437(1)(i) Indian Penal Code, Sections 302, 120B and 34 - Arms Act - Bail - Bail granted by High Court - Restriction contained in Section 437(1)(i) for granting bail - High Court observing that the respondent could renew the bail application after framing of the charge against him - Such an observation is not a ground envisaged under Section 437(1)(i) of the Code for granting bail - High Court did not apply its mind to the condition under, which is sine qua non for granting bail - Order granting bail set aside - No opinion on merits.

[Paras 7 and 8]

Cases Referred :-

State of Maharashtra v. Damu, (2000) 6 SCC 269 .

ORDER

K.T. Thomas, J. - Leave granted.

2. The respondent is one of the accused in a case involving Sections 302, 120B and 34 of the Indian Penal Code besides offences under the Arms Act. Three persons have been murdered according to the prosecution which included one Member of Legislative Assembly of Bihar by the name of Ajit Sarkar. The incident happened on 14-6-1998. The respondent is described as a Member of Parliament. The allegation against him is that he entered into a criminal conspiracy with the other accused including the co-accused Rajan Tiwari for the purpose of eliminating Ajit Sarkar, MLA. The assassination was carried out by Rajan Tiwari according to the prosecution by means of lethal weapons like AK-47 etc.

3. Though the Sessions Court and the High Court rejected the applications for bail filed by the respondent on earlier occasions, learned Single Judge of the High Court allowed the respondent to be enlarged on bail this time as per the impugned order dated 6-9-2000. Learned Single Judge has noted that the prayer of the respondent for bail was rejected in the past for more than once, but on 27-7-2000 the High Court gave him liberty to renew the prayer after framing charges and that charges have been framed by the trial court on 19-8-2000. Learned Single Judge also noted that the respondent was under detention for more than one year. Learned Single Judge for granting bail has stated that "having regard to the incarceration as well as observations made in the previous order" the respondent is directed to be released on bail. Of course, some conditions were also imposed on him. The said order is now under challenge in this appeal by special leave at the instance of the Union of India through CBI.

4. Learned Additional Solicitor General contended that the High Court did not apply its mind from the angle provided under Section 437(1)(i) of the Criminal Procedure Code which restricts the discretion of the court in granting bail "if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life".

5. Learned Additional Solicitor General invited our attention to the decision of this Court in State of Maharashtra v. Damu, (2000) 6 SCC 269 for bolstering up the point that in a case where criminal conspiracy is one of the counts of charges, Section 10 of the Evidence Act has a special application.

6. Mr. K.T.S. Tulsi, learned Senior Counsel for the respondent contended that though the High Court did not say in so many words that there are reasonable grounds for presuming that the respondent is not guilty of the offence punishable with death or imprisonment for life, the very fact that the High Court has chosen to exercise the discretion in favour of granting bail can be taken as proof that it appeared to the High Court that there are no reasonable grounds for believing that the respondent is guilty of such offence.

7. As we have noticed that the High Court considered only two grounds for granting bail ? one is that the respondent was in custody for more than one year and the other is that the High Court made some observation in the previous order. We may point out that the previous order referred to by the High Court only made a mention that the respondent could renew the application after framing of the charge against him. That observation is not a ground envisaged under Section 437(1)(i) of the Code for granting bail. We are of the definite opinion that the High Court did not approach the bail application from a legal angle.

8. We refrain from expressing any opinion on the merits of the rival contentions raised before us. We have noticed from the impugned judgments that there was no application of mind of the High Court from the angle provided in the aforesaid clause, which is sine qua non for granting bail, in the light of the specific prohibition contained in the sub-clause that such persons shall not be so released if there appears a reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life.

9. While setting aside the impugned judgment, we make it clear that we have not considered the case of either the appellant or the respondent relating to the entitlement of bail claimed by the respondent. We leave it to the High Court to consider this aspect afresh if any motion is made by the respondent in that behalf. In such an event the High Court will pass orders untrammelled by any observations made by the High Court in the impugned order or by us in this order.

10. With these observations the appeal is disposed of.

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