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[Supreme Court of India|ORG]
Shivani Tyagi vs State Of U.P. on [5 April, 2024|DATE]
Author: [C.T. Ravikumar|PERSON]
Bench: [C.T. Ravikumar|PERSON], [Rajesh Bindal|PERSON]
2024 INSC 343

Reportable

IN [THE SUPREME COURT OF INDIA

|ORG]Criminal Appeal Nos.1957-1961 of 2024

Shivani Tyagi Appellant(s)

Versus
State of U.P. & Anr. Respondent(s)

ORDER
Leave granted.
[1|CARDINAL]. In these quintuplet appeals the victim of an acid attack assails the
suspension of sentence of life imprisonment of the convicted persons, the private
respondents and their consequential enlargement on bail.
[2|CARDINAL]. Heard learned counsel appearing for the self- same appellant-victim
in the captioned appeal, learned counsel appearing for the common [first|ORDINAL]
respondent- State of Uttar Pradesh and learned counsel appearing for the private
respondents.
[3|CARDINAL]. [Section 389|LAW] of [the Code of Criminal Procedure|LAW] (for short
the “[Cr|LAW][.|LAW][PC|LAW]”) deals with the suspension of execution of sentence
pending the appeal against conviction and release of appellant(s) on bail. The said
provision mandates for recording of reasons in writing leading to the conclusion
that the convicts are entitled to get suspension of sentence and consequential
release on bail. The said requirement thus indicates the legislative intention that
the appellate Court invoking the power under [Section 389|LAW], [Cr. PC|LAW],
should assess the matter objectively and that such assessment should reflect in the
order.
[4|CARDINAL]. We will briefly refer to some of the relevant decisions dealing with
[Section 389|LAW], [Cr. PC|LAW]. In the case of short-term imprisonment for
conviction of an offence, suspension of sentence is the normal rule and its
rejection is the exception. (See the decision in [Bhagwan|GPE] Rama Shinde Gosai &
Ors. v. State of Gujarat1). However, we are of the considered view that the
position should be vice-versa in the case of conviction for serious offences when
invocation of power under [Section 389|LAW] is invited. This Court, in the decision
in [Kishori Lal|PERSON] v. [Rupa|PERSON] & Ors.2, held in paragraphs [4|CARDINAL]
and [5|CARDINAL] thus:-
“[4.|CARDINAL] [Section 389|LAW] of the Code deals with suspension of execution of
sentence pending the appeal and release of the appellant on bail.
 There is a distinction between bail and
suspension of sentence. [One|CARDINAL] of the essential
ingredients of [Section 389|LAW] is the requirement for the appellate Court to
record reasons in writing for ordering suspension of execution of the sentence or
order appealed against. If he is in confinement, the said [Court|ORG] can direct
that he be released on bail or on his own bond. The requirement of recording
reasons in writing ([1999|DATE]) 4 SCC 421 ([2004|DATE]) 7 SCC 638 clearly
indicates that there has to be careful consideration of the relevant aspects and
the order directing suspension of sentence and grant of bail should not be passed
as a matter of routine.
[5|CARDINAL]. [The appellate Court|ORG] is duty-bound to objectively assess the
matter and to record reasons for the conclusion that the case warrants suspension
of execution of sentence and grant of bail. In the instant case, the only factor
which seems to have weighed with [the High Court|ORG] for directing suspension of
sentence and grant of bail is the absence of allegation of misuse of liberty during
the earlier period when the accused-respondents were on bail.”
[5|CARDINAL]. In the decision in [Anwari Begum|PERSON] v. [Sher Mohammad|PERSON] &
Anr.3 this Court in paragraphs [7|CARDINAL] and [8|CARDINAL] held thus:-
“7. Even on a cursory perusal [the High Court’s|ORG] order shows complete non-
application of mind. Though a detailed examination of the evidence ([2005|DATE]) 7
SCC 326 and elaborate documentation of the merits of the case is to be avoided by
the [Court|ORG] while passing orders on bail applications, yet a Court dealing with
the bail application should be satisfied as to whether there is a prima facie case,
but exhaustive exploration of the merits of the case is not necessary. The Court
dealing with the application for bail is required to exercise its discretion in a
judicious manner and not as a matter of course.
[8|CARDINAL]. 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|ORG] dealing
with application for bail to consider among other circumstances, the following
factors also before granting bail, they are:
[1|CARDINAL]. The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence;
[2|CARDINAL]. Reasonable apprehension of tampering with the witness or apprehension
of threat to the complainant;
[3|CARDINAL]. Prima facie satisfaction of the [Court|ORG] in support of the charge.
Any order dehors of such reasons suffers from non-application of mind as was noted
by this Court in [Ram Govind Upadhyay|PERSON] v. [Sudarshan Singh|PERSON] ([2002|
DATE]) [3|CARDINAL] SCC 598, [Puran|PERSON] v. [Rambilas|PERSON] ([2001|DATE]) [6|
CARDINAL] SCC [338|CARDINAL] and in [Kalyan Chandra Sarkar|PERSON] v. [Rajesh
Ranjan|PERSON] ([2004|DATE]) 7 SCC 528.”
[6|CARDINAL]. After referring to the aforesaid paragraphs in the decisions in
[Kishori Las’s|PERSON] case (supra) and [Anwari Begum’s|PERSON] case (supra), this
Court in the decision in [Khilari|PERSON] v. State of Uttar Pradesh & Ors.4
interfered with an order suspending the sentence and granting bail for non-
application of mind and non-consideration of the relevant aspects.
[7|CARDINAL]. Applying the principles and parameters for invocation of the power
under [Section 389. Cr. PC|LAW], revealed from the decisions, as above, we will
have to consider the sustainability of the challenge against the impugned orders by
the appellant victim. In that ([2009|DATE]) [4 SCC|LAW] 23 regard a succinct
narration of the facts involved in the case, strictly confining to the requirement
for consideration of these appeals, is required. The private respondents in the
appeals, [five|CARDINAL] in numbers, were convicted finding guilty of offences,
including under [Sections 307/149 and 326A/149|LAW], IPC. The appellant- victim was
then aged [about 31 years|DATE] and, in the incident, she suffered attack with
sulfuric acid and her body was burnt [30 to 40 percent|PERCENT]. PW-6, Dr. [Uttam
Jain|PERSON] with Ext.A5, would reveal that she suffered deep burn on the face,
chest and both hands and injuries on her were grievous in nature.
[8|CARDINAL]. We may hasten to add that regarding the merits of the appeals by the
party respondents against their conviction, we shall not be understood to have held
or made any observation as it is a matter to be considered on its own merits in the
pending appeals.
9. We have already referred to the mandate under [Section 389 Cr|LAW].PC that the
order passed invoking the said provision should reflect the reason for coming to
the conclusion that the convicts are entitled to get suspended their sentence and
consequential release on bail. In the decision in [State of Haryana|ORG] v.
[Hasmat5|PERSON], this Court held that in an appeal against conviction involving
serious offence like murder punishable under [Section 302|LAW], IPC the prayer for
suspension of sentence and grant of bail should be considered with reference to the
relevant factors mentioned thereunder, though not exhaustively. On its perusal, we
are of the opinion that factors like nature of the offence held to have committed,
the manner of their commission, the gravity of the offence, and also the
desirability of releasing the convict on bail are to be considered objectively and
such consideration should reflect in the consequential order passed under [Section
389, Cr|LAW].PC. It is also ([2004|DATE]) [6 SCC 175|LAW] relevant to state that
the mere factum of sufferance of incarceration for a particular period, in a case
where life imprisonment is imposed, cannot be a reason for invocation of power
under [Section 389 Cr|LAW].PC without referring to the relevant factors. We say so
because there cannot be any doubt with respect to the position that disposal of
appeals against conviction, (especially in cases where life imprisonment is imposed
for serious offences), within a short span of time may not be possible in view of
the number of pending cases. In such circumstances if it is said that disregarding
the other relevant factors and parameters for the exercise of power under [Section
389, Cr. PC|LAW], likelihood of delay and incarceration for a particular period can
be taken as a ground for suspension of sentence and to enlarge a convict on bail,
then, in almost every such case, favourable invocation of said power would become
inevitable. That certainly cannot be the legislative intention as can be seen from
the phraseology in [Section 389 Cr|LAW].PC. Such an interpretation would also go
against public interest and social security. In such cases giving preference over
appeals where sentence is suspended, in the matter of hearing or adopting such
other methods making an early hearing possible could be resorted. We shall not be
understood to have held that irrespective of inordinate delay in consideration of
appeal and long incarceration undergone the power under the said provision cannot
be invoked. In short, we are of the view that each case has to be examined on its
own merits and based on the parameters, to find out whether the sentence imposed on
the appellant(s) concerned should be suspended during the pendency of the appeal
and the appellant(s) should be released on bail.
[10|CARDINAL]. Having observed and held as above, we are deeply peeved on perusing
the impugned judgment, for the same reflects only non-application of mind and non-
consideration of the relevant factors despite the fact that the case involved an
acid attack on a young woman resulting into permanent disfiguration. In the case on
hand, a scanning of the impugned order would reveal that what mainly weighed with
the [Court|ORG] is the offer made on behalf of the convicts that they would give a
payment of [Rs. 25 lakhs|MONEY] through demand drafts, taking into account the
evidence that the victim had incurred an amount of [Rs. 21 lakhs|MONEY] for her
treatment. Paragraph [10|CARDINAL] of the impugned order would reveal that taking
note of the said offer besides the period of incarceration and also the delay
likely to occur in the consideration of appeal, sentence imposed was suspended and
the private respondents were enlarged on bail. Paragraph [10|CARDINAL] of the order
would reveal this position and it reads thus:-
“10. After hearing counsel for the parties and considering the voluntarily offer
made by the appellants, which is without prejudice to the right of defence as well
as right of the prosecution to be decided at the time of final adjudication and
having no bearing on the merit of the case, over and above, the amount of
compensation being paid by [the District Legal Services Authority|ORG], [Meerut|
GPE], the appellants have offered to pay an amount of [Rs. 25 lacs|MONEY] to the
victim for her medical treatment and also in view of the long custody as well as
the antecedents of the appellants and also considering the fact that the appeals
pertain to [the year 2021|DATE] and are not likely to be listed for final argument
in near future, we deem it appropriate to grant suspension of sentence of the
appellants.”
[11|CARDINAL]. We have no hesitation to hold that the impugned order is infected
with non-application of mind and non- consideration of the relevant factors
required for invocation of power under [Section 389|LAW] in the light of the
settled position of law. An acid attack may completely strip off the victim of her
basic human right to live a decent human life owing to permanent disfiguration. We
have no hesitation to hold that in appeals involving such serious offence(s),
serious consideration of all parameters should be made. Even a cursory glance of
the impugned order would reveal the consideration thereunder was made ineptly. The
serious nature of the offence involved was not taken into account besides the other
relevant parameters for the exercise of power under [Section 389, Cr. PC|LAW].
12. In such circumstances, the impugned judgment cannot be sustained. The upshot of
the discussion is that the order suspending the sentence of the private respondents
and enlarging them on bail, invite interference. Consequently, the impugned order
is set aside and consequently the bail granted to the private respondent in all
these appeals stands cancelled. Consequently, the appellants shall surrender before
[the trial Court|ORG] for the purpose of their committal to judicial custody. This
shall be done within [a period of four days|DATE]. In case of their failure to
surrender as ordered, the private respondents who are convicts shall be re-
arrested and committed to custody.
13. The Appeals are allowed as above.
………..................[J. (C.T. Ravikumar|PERSON]) [New Delhi|GPE];
[April 05, 2024|DATE] REPORTABLE IN [THE SUPREME COURT OF INDIA|ORG] CRIMINAL
APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 1957-1961 OF 2024 (Arising out of
SLP(Crl.) Nos. 3484-3488 of [2024|DATE]) SHIVANI TYAGI … Appellant (s) VERSUS STATE
OF U.P. & Anr. … Respondent(s) ORDER
[1|CARDINAL]. I have gone through the detailed reasons recorded by brother [C.T.
Ravikumar|PERSON], J. Elaborate discussion has been made on the aspect of
suspension of sentence in heinous crimes as it is a case where [the High Court|ORG]
had directed suspension of sentence of the respondents in an acid attack case,
which will haunt the victim throughout her life. The disfigurement of the face of
the victim, as is evident from the photographs placed on record, could not even be
seen.
[2|CARDINAL]. It is a case in which after hearing the arguments raised by the
appellant and going through the paper book our conscience was shocked. By a short
order we granted the leave in the matters and allowed the appeals, for the reasons
to follow. The respondents were directed to surrender before [the Trial Court|ORG]
on or before [09.04.2024|DATE]. The same is extracted below:
“Leave granted.
Appeals are allowed. Reasons to follow. The respondents-life convicts shall
surrender on or before [9.4.2024|DATE] before the concerned [Trial Court|ORG]. In
case of their failure to surrender, they shall be taken into custody and produced
before [the Trial Court|ORG].” [2.1|CARDINAL]. I fully subscribe to the views
expressed, but wish to add some more reasons.
[3|CARDINAL]. The main ground on which [the High Court|ORG] ordered suspension of
sentence of the respondents, who have been awarded life imprisonment is that the
counsel for the accused submitted that in the evidence it had come on record that
[about ₹ 21 lakhs|MONEY] ([Rupees Twenty-One Lakhs|MONEY] only) have been spent on
her treatment as she suffered disfigurement of her face. It was further argued that
[the Trial Court|ORG] in its judgment of conviction had directed that the victim be
granted adequate compensation for her treatment under [the Victim Compensation
Scheme|LAW]. Then, it was collectively argued by the learned counsel for the
accused that without prejudice to their right of defence the accused collectively
and voluntarily offered to pay a sum of [₹ 25 lakhs|MONEY] ([Rupees Twenty Five
Lakhs|MONEY] only) which may be given to the victim for her medical treatment. It
was objected to by the learned counsel for the State. Taking note of the offer made
by the counsel for the private respondents, who are the convicts, [the High Court|
ORG] accepted the offer made by them and directed that, over and above, the amount
of compensation paid by [the District Legal Services Authority|ORG] to the victim,
the private respondents have offered to pay a sum of [₹ 25 lakhs|MONEY] ([Rupees
Twenty-Five Lakhs|MONEY] only) for her treatment. The sentence awarded to them was
suspended. It was further noticed that the hearing of appeal is likely to take some
time. Relevant paragraph [10|CARDINAL] of the impugned order is extracted below:
“[10|CARDINAL]. After hearing counsel for the parties and considering the
voluntarily offer made by the appellants, which is without prejudice to the right
of defence as well as right of the prosecution to be decided at the time of final
adjudication and having no bearing on the merit of the case, over and above, the
amount of compensation being paid by [the District Legal Services Authority|ORG],
[Meerut|GPE], the appellants have offered to pay an amount of [₹ 25 lakhs|MONEY] to
the victim for her medical treatment and also in view of the long custody as well
as the antecedents of the appellants and also considering the fact that the appeals
pertain to [the year 2021|DATE] and are not likely to be listed for final argument
in near future, we deem it appropriate to grant suspension of sentence of the
appellants.”
[4|CARDINAL]. As the victim may also be in shock and not interested in receiving
the amount as offered by the private respondents, the respondents moved a
Correction Application1 before [the High Court|ORG].
On the aforesaid application, [the High Court|ORG], while noticing that offer made
by the private respondents was not acceptable to the victim, directed the
respondents to deposit the amount with the Chief Judicial Magistrate, [Meerut|GPE].
The relevant part of the order dated [21.02.2024|DATE] is reproduced hereinunder:
“Correction in the order dated [12.12.2023|DATE], is sought to the extent that the
applicants have already handed over the demand drafts in [the Court of Chief
Judicial Magistrate|ORG], Meerut, as the victim has not come forward to accept the
drafts, the appellants, who are granted bail, are still languishing in judicial
custody.
It is further submitted that appellants have performed their part of liability by
depositing the demand draft before the [CJM|ORG], [Meerut|GPE], thus they may be
released on bail.
In paragraph No. [11|CARDINAL] of the order dated [12.12.2023|DATE], we modify to
the extent that the appellants may be released on [Criminal Misc. Correction
Application No. 12|LAW] of [2024|DATE] bail, even prior to handing over the demand
drafts to the victims as ordered earlier.
Notice of the application has been sent by registered post to [Sri P.K. Rai|
PERSON], learned counsel for the respondent No. [2|CARDINAL] by [Sri P.K. Mishra|
PERSON], learned counsel for the appellants on [04.01.2024|DATE], but none appeared
on behalf of respondent No.
[2|CARDINAL]. Learned [AGA|ORG] has no objection to the prayer made by counsel for
the appellants.
The bail order dated [12.12.2023|DATE] was passed in other connected [Criminal
Appeal No. 996|LAW] of [2021|DATE], [Criminal Appeal No. 801|LAW] of [201|DATE],
[Criminal Appeal No. 1155|LAW] of [2021|DATE] and [Criminal Appeal No. 467|LAW] of
[2021|DATE].
Considering the facts and circumstances of the case, it is undisputed that the
demand drafts have been handed over to the [CJM|ORG], [Meerut|GPE], the appellants
be released on bail subject to furnishing of surety bond.
The appellants will tender an undertaking before the Court that in case the victim
appears subsequently and applies for release of money and in the meantime if the
validity of the drafts have lapsed, they will revalidate the draft and hand over
the same to [the Court of CJM|ORG], [Meerut|GPE].
With the aforesaid observations, the order dated [12.12.2023|DATE] is modified
accordingly.”
[5|CARDINAL]. Detailed discussions have been made in the opinion expressed by my
brother [C.T. Ravikumar, J.|PERSON] with reference to the suspension of sentence in
case of heinous offences. I would like to touch upon the issue of offer of money to
the victim for suspension of sentence in a heinous crime of acid attack, where the
victim suffered burn injuries to the extent of [30 to 40%|PERCENT] resulting in
total disfigurement of her face. As is evident from the record, despite spending [₹
21 lakhs|MONEY] ([Rupees Twenty-One Lakhs|MONEY] only) on the treatment, she still
has not been cured.
[6|CARDINAL]. [One|CARDINAL] of the principles of sentencing in criminal law is
proportionality. If the appropriate punishment is not awarded or if, after
conviction for a heinous crime, the court directs the suspension of the sentence
without valid reasons, the very purpose for which the criminal justice system
exists will fail.
[7|CARDINAL]. After passing of the order dated [12.12.2023|DATE] vide which [the
High Court|ORG] directed the suspension of the sentence of the private respondents
on payment of [₹ 25 lakhs|MONEY] ([Rupees Twenty-Five Lakhs|MONEY] only) to the
victim, the amount was not accepted by the victim and the convicts could not be
released from the jail. An application for correction2 of the impugned order was
filed by the private respondents. The infirmity of the court is evident from the
fact that despite this development, [the High Court|ORG] went on to modify the
earlier [Criminal Misc. Correction Application No. 12|LAW] of [2024|DATE] order
dated [12.12.2023|DATE] and noted that a Demand Draft having been handed over to
the Chief Judicial Magistrate, [Meerut|GPE] the private respondents be released on
bail subject to Surety Bonds. It was recorded that, in case subsequently the victim
appears in court for release of amount and the validity of [the Demand Draft|
PRODUCT] lapses, the private respondents shall get the same revalidated.
[8|CARDINAL]. From the facts it can safely be noticed that there is no question of
acceptance of money by the victim as she has challenged the order of suspension of
sentence of the private respondents.
[9|CARDINAL]. This court had been taking the offence of acid attacks, which are on
increase, seriously. It is even to the extent of regulating the sale of the acid
with stringent action so that the same is not easily available to the people with
perverse mind. Observations made by this court in paragraph [13|CARDINAL] of
[Parivartan Kendra|ORG] vs [Union of India|ORG] and Others3 being appropriate is
extracted below:
“[13|CARDINAL]. We have come across many instances of acid attacks across the
country. These attacks have been rampant for the simple reason that there has been
no proper implementation of the regulations or control for the supply and
distribution of acid. There have been many cases where the victims of acid attack
are made to sit at home owing to their difficulty to work. These instances unveil
that the State ([2016|DATE]) 3 SCC 571: [2015|DATE] INSC 893 has failed to check
the distribution of acid falling into the wrong hands even after giving many
directions by this Court in this regard. Henceforth, stringent action be taken
against those erring persons supplying acid without proper authorisation and also
the authorities concerned be made responsible for failure to keep a check on the
distribution of the acid.”
[10|CARDINAL]. In [Suresh Chandra Jana|WORK_OF_ART] vs [State of West Bengal|ORG]
and Others4, while rejecting the acquittal of an accused as ordered by [the High
Court|ORG] in an acid attack case, this Court observed that the acid attack has
transformed itself to a gender-based violence, which causes immense psychological
trauma resulting in hurdle in overall development of the victim. Paragraph [30|
CARDINAL] thereof is extracted below:
“[30|CARDINAL]. At the outset, certain aspects on the acid attack need to be
observed. Usually vitriolage or acid attack has transformed itself as a gender
based violence. Acid attacks not only cause damage to the physical appearance of
its victims but also cause immense psychological trauma thereby becoming a hurdle
in their overall development. Although we have acknowledged the seriousness of the
acid attack when we amended our laws in [2013|DATE] [ [The Criminal Law (Amendment)
Act|LAW], [2013|DATE] ([13 of 2013|DATE]).] , yet the number of acid attacks are on
the rise. Moreover, this Court has been passing various orders to restrict the
availability of ([2017|DATE]) 16 SCC 466 : [2017|DATE] INSC 1296 corrosive
substance in the market which is an effort to nip this social evil in the bud.
[Parivartan Kendra v. Union of India, ([2016|DATE]) [3|CARDINAL] SCC 571 : ([2016|
DATE]) [2|CARDINAL] SCC (Cri) [143|CARDINAL]] It must be recognised that having
stringent laws and enforcement agencies may not be sufficient unless deep-rooted
gender bias is removed from the society.”
[11|CARDINAL]. In another case reported as [State of Himachal Pradesh|ORG] and
Another vs [Vijay Kumar alias Pappu|PERSON] and Another5 regarding acid attack on a
young girl of [19 years|DATE], in which this Court observed in paragraph [13|
CARDINAL] thereof, that the victim had suffered [16%|PERCENT] burn injuries and
that such a victim cannot be compensated by grant of any compensation. Paragraph
[13|CARDINAL] is thereof extracted below:
“[13|CARDINAL]. Indeed, it cannot be ruled out that in the present case the victim
had suffered an uncivilised and heartless crime committed by the respondents and
there is no room for leniency which can be conceived. A crime of this nature does
not deserve any kind of clemency. This Court cannot be oblivious of the situation
that the victim must have suffered an emotional distress which cannot be
compensated either by sentencing the accused or by grant of any compensation.”
([2019|DATE]) 5 SCC 373 : [2019|DATE] INSC 377
12. The circumstances under which a bail granted by the court below can be
cancelled, having been summarised by this Court in [Deepak Yadav|PERSON] vs State
of Uttar Pradesh and Another6. Relevant paragraphs [31|CARDINAL] to [35|CARDINAL]
are extracted below:
“C. Cancellation of bail
[31|CARDINAL]. This Court has reiterated in several instances that bail once
granted, should not be cancelled in a mechanical manner without considering whether
any supervening circumstances have rendered it no longer conducive to a fair trial
to allow the accused to retain his freedom by enjoying the concession of bail
during trial. Having said that, in case of cancellation of bail, very cogent and
overwhelming circumstances are necessary for an order directing cancellation of
bail (which was already granted).
[32|CARDINAL]. A [two|CARDINAL]-Judge Bench of this Court in [Dolat Ram|GPE] v.
State of Haryana [Dolat Ram v. State of Haryana, ([1995|DATE]) 1 SCC 349 : [1995|
DATE] SCC (Cri) [237|CARDINAL]] laid down the grounds for cancellation of bail
which are:
(i) interference or attempt to interfere with the due course of administration of
justice;
(ii) evasion or attempt to evade the due course of justice;
(iii) abuse of the concession granted to the accused in any manner;
(2022) 8 SCC 559 : [2022|DATE] INSC 610
(iv) possibility of the accused absconding;
(v) likelihood of/actual misuse of bail;
(vi) likelihood of the accused tampering with the evidence or threatening
witnesses.
[33|CARDINAL]. It is no doubt true that cancellation of bail cannot be limited to
the occurrence of supervening circumstances. This Court certainly has the inherent
powers and discretion to cancel the bail of an accused even in the absence of
supervening circumstances. Following are the illustrative circumstances where the
bail can be cancelled:
33.1. Where the court granting bail takes into account irrelevant material of
substantial nature and not trivial nature while ignoring relevant material on
record.
[33.2|CARDINAL]. Where the court granting bail overlooks the influential position
of the accused in comparison to the victim of abuse or the witnesses especially
when there is prima facie misuse of position and power over the victim.
[33.3|CARDINAL]. Where the past criminal record and conduct of the accused is
completely ignored while granting bail.
33.4. Where bail has been granted on untenable grounds.
33.5. Where serious discrepancies are found in the order granting bail thereby
causing prejudice to justice.
[33.6|CARDINAL]. Where the grant of bail was not appropriate in the [first|ORDINAL]
place given the very serious nature of the charges against the accused which
disentitles him for bail and thus cannot be justified.
[33.7|CARDINAL]. When the order granting bail is apparently whimsical, capricious
and perverse in the facts of the given case.
[34|CARDINAL]. In [Neeru Yadav|PERSON] v. State of U.P. [[Neeru Yadav|PERSON] v.
State of U.P., ([2014|DATE]) 16 SCC 508 : ([2015|DATE]) [3|CARDINAL] SCC (Cri)
[527|CARDINAL]] , the accused was granted bail by [the High Court|ORG]. In an
appeal against the order [[Mitthan Yadav|PERSON] v. State of U.P., [2014|DATE] SCC
OnLine All 16031] of [the High Court|ORG], a [two|CARDINAL]-Judge Bench of this
Court examined the precedents on the principles that guide grant of bail and
observed as under :
([SCC|LAW] p. [513|CARDINAL], para [12|CARDINAL]) “12. … It is well settled in law
that cancellation of bail after it is granted because the accused has misconducted
himself or of some supervening circumstances warranting such cancellation have
occurred is in a different compartment altogether than an order granting bail which
is unjustified, illegal and perverse. If in a case, the relevant factors which
should have been taken into consideration while dealing with the application for
bail have not been taken note of or it is founded on irrelevant considerations,
indisputably the superior court can set aside the order of such a grant of bail.
Such a case belongs to a different category and is in a separate realm. While
dealing with a case of [second|ORDINAL] nature, the court does not dwell upon the
violation of conditions by the accused or the supervening circumstances that have
happened subsequently. It, on the contrary, delves into the justifiability and the
soundness of the order passed by the court.”
[35|CARDINAL]. This Court in [Mahipal|GPE] [[Mahipal|PERSON] v. [Rajesh Kumar|
PERSON], ([2020|DATE]) 2 SCC 118 : ([2020|DATE]) 1 SCC (Cri) [558|CARDINAL]] held
that : (SCC p. [126|CARDINAL], para [17|CARDINAL]) “17. Where a court considering
an application for bail fails to consider relevant factors, an appellate court may
justifiably set aside the order granting bail.
An appellate court is thus required to consider whether the order granting bail
suffers from a non- application of mind or is not borne out from a prima facie view
of the evidence on record. It is thus necessary for this Court to assess whether,
on the basis of the evidentiary record, there existed a prima facie or reasonable
ground to believe that the accused had committed the crime, also taking into
account the seriousness of the crime and the severity of the punishment.”
[13|CARDINAL]. The impugned order passed by [the High Court|ORG] is perused.
Specifically the order dated [21.02.2024|DATE] passed in the Correction
Application. The order does not suggest that there was any consideration of the
parameters laid down by this court for grant of bail or suspension of sentence.
Instead, [the High Court|ORG] had noticed and directed that the convicts have
offered to pay compensation to the victim for grant of suspension of sentence,
which when she refused to accept, was directed to be deposited in the court. It was
in a way kind of “Blood Money” offered by the convicts to the victim for which
there is no acceptability in our criminal justice system.
14. This Court in [Gian Singh vs State of Punjab|WORK_OF_ART] and Another7 while
dealing with an issue regarding quashing of criminal proceedings on the ground of
settlement between the offender and victim, observed that even if settlement or
payment of compensation is pleaded in a heinous crime, still the same should not be
quashed as the crimes are acts which have harmful effect on the public and in
general the well-being of the society. It is not safe to leave the crime-doer on
the plea of settlement with victim. Relevant paragraph [58|CARDINAL] thereof is
extracted below:
“[58|CARDINAL]. Where [the High Court|ORG] quashes a criminal proceeding having
regard to the fact that the dispute between the offender and the victim has been
settled although the offences are not compoundable, it does so as in its opinion,
continuation of criminal proceedings will be ([2012|DATE]) 10 SCC 303 : [2012|DATE]
INSC 419 an exercise in futility and justice in the case demands that the dispute
between the parties is put to an end and peace is restored; securing the ends of
justice being the ultimate guiding factor. No doubt, crimes are acts which have
harmful effect on the public and consist in wrongdoing that seriously endangers and
threatens the well-being of the society and it is not safe to leave the crime-doer
only because he and the victim have settled the dispute amicably or that the victim
has been paid compensation, yet certain crimes have been made compoundable in law,
with or without the permission of the court. In respect of serious offences like
murder, rape, dacoity, etc., or other offences of mental depravity under [IPC|LAW]
or offences of moral turpitude under special statutes, like [the Prevention of
Corruption Act|LAW] or the offences committed by public servants while working in
that capacity, the settlement between the offender and the victim can have no legal
sanction at all. However, certain offences which overwhelmingly and predominantly
bear civil flavour having arisen out of civil, mercantile, commercial, financial,
partnership or such like transactions or the offences arising out of matrimony,
particularly relating to dowry, etc. or the family dispute, where the wrong is
basically to the victim and the offender and the victim have settled all disputes
between them amicably, irrespective of the fact that such offences have not been
made compoundable, [the High Court|ORG] may within the framework of its inherent
power, quash the criminal proceeding or criminal complaint or FIR if it is
satisfied that on the face of such settlement, there is hardly any likelihood of
the offender being convicted and by not quashing the criminal proceedings, justice
shall be casualty and ends of justice shall be defeated. The above list is
illustrative and not exhaustive. Each case will depend on its own facts and no
hard-and-fast category can be prescribed.”
[15|CARDINAL]. In [the State of Jharkhand|GPE] vs. Md. [Sufiyan8|PERSON], [the
Jharkhand High Court|ORG] directed the accused to deposit certain amount in court,
as ad interim compensation to be paid to the victim as a condition for grant of
anticipatory bail. It was a case for various crimes committed under [IPC|LAW],
[POCSO Act|LAW] and [I.T. Act|LAW]. The aforesaid direction of [the High Court|ORG]
was deprecated by this Court. It was opined that the willingness of the accused to
pay compensation to the victim cannot be a reason for grant of anticipatory bail.
[Para 6|LAW], thereof is extracted below:
“[6|CARDINAL]. The factors on which anticipatory bail could be granted are very
well crystallized in a catena of judgments of this Court. Leave aside the
discussion of such factors, not even a whisper as to on what grounds anticipatory
bail was being allowed were considered by [the High Court|ORG]. Merely because the
accused is willing to pay some amount as an SLP (Crl) No. 1960 of [2022|DATE]
decided on [16.01.2024|DATE] interim compensation cannot be a ground for grant of
anticipatory bail.”
[16|CARDINAL]. Similar view was expressed by this Court in [Sahab Alam|PERSON]
alias Guddu vs. State of Jharkhand and another9. Paras [2|CARDINAL] and [8|
CARDINAL] thereof are extracted below:
“[2|CARDINAL]. We have a batch of petitions before us, arising from different
nature of offences from dowry to [Section 420 IPC|LAW] to [Section 376, IPC|LAW]
and [POCSO Act|LAW]. The common aspect in all these cases is that [one|CARDINAL]
particular learned Judge of [the High Court|ORG] has granted bail on condition on
deposit of substantive sums of money without consideration of the requirements of
bail dependent on the nature of offences. It is trite to say that bail cannot per
se be granted if a person can afford to deposit the money or his capacity to pay.
That is what seems to have happened. Since there is no proper consideration, it is
also difficult for us to analyse what weighed with the learned Judge while granting
bail and it is certainly not the jurisdiction of this Court to be [first|ORDINAL]
or a [second|ORDINAL] court of bail.
[8|CARDINAL]. We also clarify that in view of our judgment in [Dharmesh|GPE] v.
State of Gujarat ([2021|DATE]) 7 SCC 198 there is no [2022|DATE] [SCC Online SC
1874|LAW] question of victim compensation, as there cannot be such a criteria at
the stage of grant of bail.” ……………….……………..J. (RAJESH BINDAL) [New Delhi|GPE]
[April 5, 2024|DATE].