SUPREME COURT OF INDIA
Anil Kumar Tulsiyani
Vs
State of Uttar Pradesh and Another
Appeal (Crl.) 529 of 2006 (Arising Out of S.L.P. (Crl.) No.4957 of 2005)
(H. K. Sema and R.V. Raveendran, JJ)
05.05.2006
H. K. SEMA, J.
Leave granted.
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.
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.
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.
The offence under which the respondent was charged is Section 302 read with 201
IPC in which the husband was the main accused and the wife was the co- accused.
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 would be no mitigating ground to release
her on bail.
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.
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 practicing 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.
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.
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.
This court in State of U.P. vs. Amarmani Tripathi, , 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.
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.
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 Section 302/201 IPC.
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. Appeal is
allowed.