Dr. Arijit Pasayat, J.— Leave granted.
2. The challenge in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court, Lucknow Bench granting bail to Respondent 2 who is an accused in Case Crime No. 178 of 2006, Police Station Ashiyana, District Lucknow. The accused persons faced trial for alleged commission of the offences punishable under Sections 302 and 120-B of the Penal Code, 1860 (in short “IPC”).
3. As per the prosecution version, Virendra Singh lodged information at the police station that on 21-9-2006 at about 10 a.m when his younger brother Chandra Pal Singh (hereinafter referred to as “the deceased”), Manager of Lucknow Public School had arrived at the gate of the college, some unknown persons had shot him by making indiscriminate firing and then he was taken to the hospital. The doctors declared that he had been brought dead.
4. During investigation it was found that Respondent 2 and another person named S.B Singh had entered into a criminal conspiracy to commit murder of the deceased and the said S.B Singh had arranged two shooters, Ranvir Singh and Anant Kumar Verma who caused the death of the deceased. In order to show the complicity of Respondent 2 reference was made to the statement of one Munna Katiyar who claimed to have overheard the conversations of Respondent 2 and S.B Singh before the incident relating to the plan to murder the deceased. This was disclosed to the investigating officer on 9-12-2006.
5. The police acted upon the information and it transpired that the amount fixed for doing the killing (in common parlance known as “supari amount”) was Rs 10 lakhs and a sum of Rs 5,87,000 was paid to S.B Singh through demand draft under a camouflage as if the payment was being made towards consideration of purchase of construction materials as S.B Singh happens to be the proprietor of the concern dealing with the sale and purchase of construction materials.
6. It was pointed out by the prosecution that the phone records clearly indicated a link between Respondent 2 and the killers. It was also pointed out that the document which was produced to show that the payment was made for the purchase of construction materials was fake. Prayer for bail was rejected by order dated 7-2-2007 by the learned Sessions Judge, (in charge) Lucknow. An application was filed before the High Court. By the impugned order the High Court granted bail to Respondent 2.
7. The learned counsel for the appellant submitted that the High Court had practically written a judgment of acquittal by not only referring to the incriminating materials but also concluding about their unreliability. This, it is submitted, is not the correct way of dealing with an application for bail.
8. The learned counsel for the respondent State supported the stand of the appellant.
9. The learned counsel for Respondent 2 on the other hand submitted that the conclusions of the trial court to deny bail were factually wrong and legally unsustainable. The High Court has dealt with the stands of the Respondent 2 accused and found that the prosecution version is totally vulnerable and had no legs to stand. That being so, it is submitted, the order does not suffer from any infirmity.
10. The conclusions of the High Court read as follows:
“Having heard the learned counsel for the respective parties as also the Additional Government Advocate, it is amply evident that the FIR with respect to the present incident was lodged against unknown persons on 21-9-2006 and in the statements recorded during the course of the investigation i.e the statement of the son of the deceased recorded on 5-12-2006 and the statement of Munna Katiyar recorded on 9-12-2006 it was disclosed that the applicant had conspired and abetted with respect to the commission of the instant crime by hiring the assassins named above. It is much surprising that if the son of the deceased and the aforesaid Munna Katiyar were knowing that the applicant and deceased Chandra Pal Singh were on inimical terms, why these two persons kept mum and at the very first opportunity did not disclose this fact to the investigating agency and only in their statements recorded under Section 161 CrPC which admittedly were recorded after about two-and-a-half months from the date of the incident, they disclosed the involvement of the applicant in the present crime. As such, this Court at this juncture is of the opinion that at the most the applicant can be said to be an accused under Section 120-B IPC read with Section 302 IPC for which an accused can be sentenced to life imprisonment, but the prosecution story as revealed till now, the manner in which the involvement of the applicant in the commission of the crime has come to light and the evidence collected by the investigating officer puts a dent in the prosecution case. Besides it, involvement of the applicant in the commission of the crime has been disclosed at a very later stage of the investigation.
However, without commenting furthermore, I am of the opinion that the applicant is entitled to be enlarged on bail.”
11. While dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with an application for bail to consider among other circumstances, the following factors also before granting bail. They are:
1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the court in support of the charge.
Any order dehors such reasons suffers from non-application of mind as was noted by this Court in Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598, Puran v. Rambilas (2001) 6 SCC 338 and in Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528, JT (2004) 3 SC 442.
12. Though a conclusive finding in regard to the points urged by the parties is not expected of the court considering the bail application, yet giving reasons is different from discussing merits or demerits. As noted above, at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. But that does not mean that while granting bail some reasons for prima facie concluding why bail was being granted is not required to be indicated.
13. In Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528, JT (2004) 3 SC 442 in para 11 it was noted as follows:
“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598 and Puran v. Rambilas (2001) 6 SCC 338.)”
It was also noted in the said case that the conditions laid down under Section 437(1)(i) are sine qua non for granting bail even under Section 439 of the Code.
14. In Puran v. Rambilas (2001) 6 SCC 338 it was noted as follows:
“11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118. In that case the Court observed as under:
‘16. … If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-à-vis the High Court.’ ”
Above being the position, we are of the view that the High Court was not justified in granting bail to Respondent 2. The order granting bail is set aside. Respondent 2 who was released on bail shall surrender to custody forthwith. We make it clear that we have not expressed any opinion on the merits of the case.
15. The appeal is allowed.