Code of Criminal Procedure, 1973: s. 439 – Anticipatory bail in murder case – FIR and the statements under ss. 161 and 164 indicated a specific role in the crime to the two respondents – High Court granted anticipatory bail to the two respondents – Challenge against – Held: The order granting anticipatory bail ignored material aspects including nature and gravity of the offence and specific allegations against the respondents – Hence sufficient case made out for cancelling anticipatory bail granted by High Court.
Bail: Challenge to an order granting bail and application seeking cancellation of bail granted – Difference in the approach the Court should adopt – The considerations that guide the power of an appellate court explained in Mahipal case. Allowing the appeals, the Court
HELD: 1. The material at this stage cannot be examined with a fine toothcomb in the manner of a criminal trial. What needs to be determined is whether the parameters for the grant of anticipatory bail were correctly formulated and applied by the Single Judge. [Para 21][174-A]
2. In relation to the present incident, the appellant’s case is supported by the FIR, his statements under Sections 161 and
164 of the CrPC, and the statements of the other two eyewitnesses under Section 164 of the CrPC. On the other hand, respondents rely on the counter FIR filed by co-accused according to which they were not present at the scene of crime and co-accused shot the deceased in self-defense.The orders of the JMFC advert to the contents of the FIR registered at the behest of the appellant. The investigating officer’s first report dated
15 December 2020 indicated that there was a prima facie case against the co-accused. The supplementary challan dated 8 March 2021 indicates that more material had emerged during the course of investigation as against the events portrayed in the FIR registered at the behest of co-accused. Hence, the case portrayed by the appellant could not have been ignored by solely relying on the counter-FIR. [Para 27][178-A-D]
3. The High Court has placed reliance upon the report submitted under Section 173 of the CrPC on 15 December 2020 to hold that the respondents were not present when the incident occurred. However, the High Court has not addressed the clear deficiencies in the course of the investigation which have been highlighted in the order of the JMFC dated 13 February 2021 and the trial Court’s order dated 24 March 2021. These are, inter alia: (i)the failure to notice eye-witness statements; (ii) reliance on CCTV footage for the period of time after incident had occurred, ignoring prior or contemporaneous footage; (iii)not collecting CCTV footage between Jabalpur and the scene of offence; (iv) relying on CDRs without determining if the respondents had actually used the number; and (v) not conducting any finger print analysis. In the order dated 13 February 2021, the JMFC identified these deficiencies with the investigation and directed further investigation. Upon the submission of the supplementary challan, the JMFC noted in their order dated 10 March 2021 that the challan was only in relation to co-accused, and did not address the role of the respondents. The obvious deficiencies in the investigation have pointed out the errors in the trial Court’s order rejecting the respondent’s applications for anticipatory bail. The Single Judge has, however, overlooked these crucial aspects. [Para 28][178-D-H]
4. It was also argued on behalf of respondents that while the appellant’s statement under Section 164 of the CrPC is that the respondents also shot at the appellant, the FIR and his statement under Section 161 of the CrPC only record that he hit him with the butt of the gun. The trial is yet to take place where the evidence adduced by the prosecution will be appreciated, and the veracity of appellant’s claim in his statement under Section
164 can be determined there. However, at the present stage, the FIR and both the appellant’s statements under Section 161 and
164 are consistent in as much as that respondent did hit him in his head with the butt of the gun. An argument has also been raised in relation to the nature of the injury caused to the appellant, but this has to be decided at the stage of trial after evidence has been led. [Para 29][179-A-C]
5. The Court has to determine whether on the basis of the material available at this stage, the High Court has applied the correct principles in allowing the applications for anticipatory bail. The offence is of a serious nature in which victim was murdered. The FIR and the statements under Sections 161 and 164 of the CrPC indicate a specific role to the respondents in the crime. The order granting anticipatory bail has ignored material aspects, including the nature and gravity of the offence, and the specific allegations against them. Hence, a sufficient case has been made out for cancelling the anticipatory bail granted by the High Court. [Para 30][179-D-E]
Mahipal v. Rajesh Kumar (2020) 2 SCC 118 : [2019]
14 SCR 529; Dr. Naresh Kumar Mangla v. Anita
Agarwal and Others 2020 SCC OnLine SC 1031 –
relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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