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Anil Kumar Tulsiyani v. State Of U.P And Another
Factual and Procedural Background
The appeal arose from an order dated 7 September 2005 by the High Court of Judicature at Allahabad granting bail to the second respondent, an advocate, who was charged under Sections 302 and 201 of the Indian Penal Code for allegedly shooting a close friend inside his own bedroom. Prior to that:
- The co-accused (wife of the respondent) had her bail application rejected by the High Court on 3 June 2005 after a detailed discussion.
- The respondent’s own bail application had been rejected by the Sessions Judge, Allahabad on 10 June 2005.
- Permission to file a special leave petition against the High Court’s bail order was granted by the Supreme Court on 30 September 2005, leading to the present appeal.
Legal Issues Presented
- Whether the High Court exercised its discretion correctly in granting bail to an accused charged with a non-bailable, grave offence under Sections 302/201 IPC.
- Whether the High Court properly considered the established factors governing the grant of bail in serious criminal offences.
Arguments of the Parties
Respondent-Accused's Arguments
- The special leave petition was not maintainable because it was allegedly not filed by an aggrieved party (an objection rendered moot after the Supreme Court granted leave).
- The respondent had been on bail since 7 September 2005 without misusing the liberty granted.
- No allegations existed of tampering with witnesses, absconding, or otherwise obstructing justice.
- The principles applicable to cancellation of bail should apply because the appeal effectively sought cancellation.
The opinion does not detail the appellant’s specific arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of U.P. through CBI v. Amarmani Tripathi, (2005) 8 SCC 21 | Enumerated factors relevant to grant of bail: (i) prima facie case, (ii) nature and gravity of charge, (iii) severity of possible punishment, (iv) risk of absconding, (v) character and status of accused, (vi) likelihood of repetition, (vii) apprehension of witness tampering, (viii) danger of justice being thwarted. | The Court applied these factors and found that the High Court had failed to consider the gravity of the offence, the societal position of the accused, and the potential for witness intimidation. |
Court's Reasoning and Analysis
The Supreme Court focused on whether the High Court had given due weight to the mandatory considerations for bail in a murder case:
- Gravity of the offence: The alleged murder occurred inside the accused’s house, a circumstance that placed a heavy burden on the accused to explain.
- Nature of evidence: The High Court had relied on “tenuous” considerations such as the absence of a ballistic report linking the accused’s fingerprints to the revolver, while ignoring more compelling circumstances.
- Status of the accused: As a practising advocate, the respondent wielded influence that could reasonably give rise to apprehensions of witness tampering.
- Lack of mitigating factors: The Supreme Court found “no mitigating circumstances” justifying bail in a charge under Sections 302/201 IPC.
- Mischaracterisation of proceedings: Rejecting the respondent’s contention that cancellation standards applied, the Court clarified it was assessing the correctness of the initial grant of bail, not a post-facto cancellation.
Holding and Implications
HELD: The appeal is allowed. The High Court’s order dated 7 September 2005 granting bail is quashed and set aside. The respondent’s bail bond and sureties are cancelled, and he is to be taken into custody forthwith.
Implications: The decision reinforces the duty of High Courts to assess the gravity of the offence and other established factors before granting bail in serious, non-bailable cases. While no new legal principle was created, the ruling underscores that failure to apply settled criteria will invite appellate interference.
H.K Sema, J.— Leave granted.
2. The challenge in this appeal is to the order dated 7-9-2005 passed by the High Court of Judicature at Allahabad in Criminal Misc. Bail Application No. 11884 of 2005 granting bail to the second respondent-accused.
3. We may at this stage, dispose of one of the arguments of Mr Vijay Hansaria, learned Senior Counsel, for the second respondent-accused that the petition itself is not maintainable, as the same is not filed by an aggrieved party. This contention does not survive as by our order dated 30-9-2005, permission to file special leave petition has already been granted.
4. Learned Senior Counsel on both sides have advanced arguments touching the merits of the case. We, however, refrain ourselves from making any observation on the merits of the case at this stage lest it may prejudice the case of the accused, as the trial is yet to commence. Suffice it is to say the High Court was not justified in admitting bail to the respondent.
5. The offence under which the respondent was charged is Section 302 read with Section 201 IPC in which the husband was the main accused and the wife was the co-accused.
6. The co-accused's application was rejected by the High Court on 3-6-2005 after a threadbare discussion. The High Court arrived at a finding that the incident had taken place inside the house of the accused, that too in her bedroom itself and that the accused being an advocate there would be no mitigating ground to release her on bail.
7. The respondent husband's application was also rejected by the Sessions Judge, Allahabad by an order dated 10-6-2005 after taking into consideration the submission of both sides and various facts and circumstances of the case.
8. The High Court, in our view, seems to have weighed with the tenuous circumstances such as there being no report of ballistic expert to show the alleged fingerprints found on the recovered revolver to be of his own, there being no previous criminal history of the accused who is a practising advocate of the High Court. The High Court has not at all considered the gravity and the nature of the offence in which the deceased stated to be a close friend of the respondent-accused has been shot at in his house, that too inside his bedroom. Prima facie, the prosecution story has disclosed that a heavy burden is laid on the accused to explain the circumstances.
9. Mr Hansaria, learned Senior Counsel for the respondent, strenuously contended that the respondent is on bail since 7-9-2005 that he has never misused the liberty granted to him that there is no allegation of prosecution witnesses being tampered with and there is no apprehension of the respondent absconding or thwarting justice. According to him, there is no ground made out for cancellation of bail. He also contended that the principles applicable to cancellation of bail should be applied when considering an appeal under Article 136 of the Constitution against an order granting bail. We are unable to countenance with this submission of learned counsel for the respondent. What we are considering is the correctness of the manner in which the respondent has been admitted to bail by the High Court. We are not considering any application for cancellation of bail.
10. By now it is well-settled principle of law that one of the considerations in granting bail in non-bailable offences is the gravity and the nature of the offence. The High Court has not at all addressed to this issue while granting bail to the respondent.
11. This Court in State of U.P v. Amarmani Tripathi (2005) 8 SCC 21 (2) in which one of us (Raveendran, J.) was a member has considered various decisions of this Court and observed that the circumstances 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”.
(emphasis in original)
12. In the present case, admittedly, the respondent is an advocate. Being an advocate he is in a commanding position and standing in the society. Keeping in view his position in the background, a reasonable apprehension of the witnesses being tampered with or won over, coerced, threatened or intimidated by using his influence and position cannot be ruled out.
13. In fact, going through the entire order of the High Court granting bail, we do not find any mitigating circumstances, which warranted the High Court in granting bail in a non-bailable grave offence under Sections 302/201 IPC.
14. For the reasons aforestated this appeal deserves to be allowed. The order of the High Court dated 7-9-2005 granting bail to the respondent is hereby quashed and set aside. The respondent is on bail. His bail bond and surety stands cancelled. He is directed to be taken back into custody forthwith. The appeal is allowed.
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