SUPREME COURT OF INDIA
V.D. Chaudhary
Vs.
State of U.P.
Crl.A.No.1115 of 2005
(Arijit Pasayat and Arun Kumar JJ.)
01.09.2005
Arijit Pasayat, J.
1. Leave granted.
2. Informant calls in question legality of the order passed by a learned Single
Judge of the Allahabad High Court granting bail to respondent No.2 (hereinafter
referred to as the 'accused').
3. Background facts sans unnecessary details are as follows:
On 5.2.2000 complainant lodged the First Information Report. It was stated
therein that when he and his son were attending a marriage party, the
respondent-accused started firing shots from his gun. When he was asked not to
do so, he did not stop and continued the firing. The appellant's son Saurabh
received injuries due to the shots fired by the accused and he died due to the
injuries. Initially, the police registered a case alleging commission of
offences punishable under Sections 304-A and 338 of the Indian Penal
Code, 1860 (in short the 'IPC'). After investigation charge sheet was
filed under Sections 304 and 338 IPC. Cognizance was taken and process was
issued. Accused filed an application for being released on bail. By the
impugned order bail has been granted.
4. According to the appellant, the accused was absconding for about 2 years.
His prayer for bail was initially rejected. Non-bailable warrant and process
under Sections 82 and 83 of the Code of Criminal Procedure, 1973 (in
short the 'Code' were issued. Subsequently he was arrested. It was submitted for
the accused that he was already on bail for offence punishable under Sections
304-A and 338 IPC. On a reading of FIR and other documents offence under
Section 304 could appear against the accused but "surreptitiously"
the same has been converted into offence under Section 304 IPC. With the
following observations the High Court granted bail by the impugned order:
"It is said that even if allegations made in the FIR and other papers are
accepted to be true on its face value, offence under Section 304A and 338 IPC
would appear against the accused applicant in Case Crime No. 2072/2002 State
vs. Dev Kumar, P.S. Sadar Bazar District Saharanpur. But surreptitiously it was
converted into the offence under Section 304 IPC. It was said that the
applicant was already on bail for the offences under Section 304A and 338 IPC.
Looking to the facts and circumstances of the case, learned Magistrate is
directed also to accept fresh bail bonds for the added offence under Section
304 IPC in the Case No. 2702/2002.
Application is disposed of accordingly."
5. Complainant has filed this appeal questioning the correctness of the order
passed. According to him, the High Court should not have accepted plea of
accused that police surreptitiously changed the nature of the offence. It is
clearly contrary to facts. In fact, on completion of investigation it has been
noted that the applicable offence is Section 304 IPC and not 304-A. There was
no surreptitious act involved and, therefore, grant of bail is proper. High
Court has not even indicated any reason for grant of bail. It is pointed out
that taking advantage of the fact that the accused is on bail, there is an
effort to prolong the trial and hardly any progress has been made though nearly
5 years have elapsed.
6. In response, learned counsel for the respondent No.2- accused submitted that
after considering the relevant factors bail has been granted
7. We find that the High Court has not indicated any reason for grant of
bail. As the facts go to show the charge sheet was filed alleging the
commission of offence under Section 304 IPC. Merely because at some earlier
point of time the investigation proceeded on the line as if offence punishable
under Section 304-A is committed yet there is no embargo on the police filing
charge-sheet indicating appropriate offence. At this juncture it would
be appropriate to take note of a decision of this Court in Omar Usman Chamadia
v. Abdul and Anr.)) (referred). In para 10, it was observed as follows:
"However, before concluding, we must advert to another aspect of this case
which has caused some concern to us. In the recent past, we had several
occasions to notice that the High Courts by recording the concessions shown by
the counsel in the criminal proceedings refrain from assigning any reason even
in orders by which it reverses the order of the lower courts. In our opinion,
this is not proper if such orders are appealable, be it on the ground of
concession shown by the learned counsel appearing for the parties or on the
ground that assigning of elaborate reasons might prejudice the future trial
before the lower courts. The High Court should not, unless for very good
reasons desist from indicating the grounds on which their orders are based
because when the matters are brought up in appeal, the court of appeal has
every reason to know the basis on which the impugned order has been made. It
may be that while concurring with the lower courts' order, it may not be
necessary for the said appellate court to assign reasons but that is not so while
reversing such orders of the lower courts. It may be convenient for the said
court to pass orders without indicating the grounds or basis but it certainly
is not convenient for the court of appeal while considering the correctness of
such impugned orders. The reasons need not be very detailed or elaborate, lest
it may cause prejudice to the case of the parties, but must be sufficiently
indicative of the process of reasoning leading to the passing of the impugned
order. The need for delivering a reasoned order is a requirement of law which
has to be complied with in all appealable orders. This court in a somewhat
similar situation has deprecated the practice of non-speaking orders in the
case of ,State of Punjab & Ors. V. Jagdev Singh Talwandi"
8. It was submitted by learned counsel for the accused that there is no
allegation of misuse of liberty after grant of bail. Though the respondent
No.2-accused's stand is that the trial is at the verge of conclusion according
to the appellant, on some ground or the other the matter has been adjourned. As
the quoted impugned order go to show the High Court had not considered the
application in its proper perspective. It is submitted by learned counsel for
respondent No.2-accused that examination of all the witnesses is over and only
the investigation officer (in short the 'IO') is to be examined. It is
submitted that unnecessarily adjournments shall not be sought for and in any
event the respondent No.2-accused shall fully cooperate for early completion of
the trial.
9. Though this is a fit case for cancellation of bail in view of the
infirmities pointed out above considering the fact that prosecution evidence is
practically closed, we dispose of the appeal in the following terms:
(i) The trial Court would try to complete the trial by end of December, 2005.
(ii) The respondent No.2-accused shall fully co-operate for completion of
trial. He shall not seek unnecessary adjournments. If the Court feels that he
is taking advantage of the bail granted which is being continued for nearly
five years, it shall direct cancellation of bail.
(iii) In case the trial is not completed within the stipulated time and
respondent no.2 is found to be responsible for delay and/or tampering with
evidence, the trial Court shall direct cancellation of bail.
10. The appeal is accordingly disposed of.