Paragraph numbers below are the court’s original numbering, recovered from the source text.
16. As held in Puran case, wbile considering the question of grant c of bail, Colll1l should avoid consideration of details of the evidence as it is not a relevant consideration. While it is necessary to consider the prima fi1cie case, an exhaustive exploration of the merits of the case should be avoided. We, therefore, consciously refrain from considering the merits of the materials/evidence collected by the prosecution.
17. At the outset, it is to be pointed out that the Sessions Court considered both framing of charges and also grant of bail to accused Anil KumarYadav by way ofa common order. On 27.02.2017, charges were framed against all the accused and bail was granted to appellant Anil Kumar Yadav. Insofar as framing of charges, in a case before the Sessions Collrt, under Section 228 of the Criminal Procedure Code, the court is required to consider "whether there is ground for presuming that the acc11sed has committed an offence ….. " and then Court shall frame in writing a charge against the accused. For grant of bail, the comt is required to consider several other factors. The considerations for framing of charge and grant ofbail arc different. It was stated by the Bar that by and large this is the procedure followed in Delhi. We may however indicate that it is not desirable to frame charge and grant bail by way of a common order.
18. While granting bail, the relevant considerations arc:-(i) nature of seriousness of the offence; (ii) character of the evidence and circumstances which arc peculiar to the accused; and (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. No doubt, this list is not exhaustive. There are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court.
19. While considering the basic requirements for grant of bail, in State of U.P. through CBI v. Amarmani Tripathi, (2005) 8 SCC 21, this Court has held as under:- "18. It is well settled that the matters to be considered in an application for bail arc (i) whether there is any prima fade 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 bei11g tampered with; and (viii) danger, of course, of justice being thwarted by gram of bail [see Prahlad Si11gh Bhati v. NCT. Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (DelhiAdmn.) (1978) 1SCC118]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character D that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ra11jan (2004) 7 SCC 528: (SCC pp. 535-36, para 11) "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 merit 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 ofaccusation and the severity of punishment in case of conviction and the nature of supporting evidence. c (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facic satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. S11darshan Singh (2002) 3 SCC 598 and Pu ran v. Rambilas (200 l) 6 SCC 338. )""
20. The test to be applied for grant of bail was also considered in Jayendra Saraswathi Swamigal v. State of T.N., (2005) 2 SCC 13, wherein it was /leld as under:- "16 ……… The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in State v. Capt. Jagjit Singh [ 1962] 3 SCR 622 and Gurcharan Singh v. State (Delhi Admn.) ( 1978) I SCC 118 and basically they are – the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case ……….. "
21. In the present case, accused Anil Kumar Yadav was granted bail by the Sessions Court mainly on the grounds:- (i) as per CCTV footage deciphered by the Investigating Officer, no role could be attributed toAnil Kumar Yadav that he inflicted injuries on Rohit Bansal as well as to deceased Rupesh Tanwar and the photographs do not show the presence of the accused Anil Kumar Yadav; (ii) CCTV footage do not corroborate the statement of the witnesses that the accused along with their cars were blocking the road; and (iii) accusedAnil Kumar Yadav has been in custody since 3 l.I 0.2015. The Sessions Court pointed out that possibly no role could be attributed to accused Anil Kumar Yadav and observed as under:- " ……. Admittedly, the crux of the CCTV footage is deciphered by the IO in the chargesheet as mentioned above and in the said crux no role of accusedAnil Kumar Yadav is found. Furthermore, there arc other discrepancies pointed out by the counsel as discussed above which though could not be considered for the purpose of charge bnt could be considered as ground ofbail… …… " ANIL KUMAR YADAV v. STATE (NCI) OF DELHI & ANR. [R. BANUMATHI, J.] The Sessions Court though repeatedly observed that the court ought not to go into the merits of the prosecution case actually the court appears to have gone into the merits of the matter. in particular the CCTV footage to hold that Anil Kumar Yadav could not have been present at the place of occurrence or participated in the incident. Further, the Sessions Court had also gone into the discrepancies of the statement of the witnesses. The probability or improbability of the prosecution version has to be judged based on the materials available to the court at the time when bail is considered and not on the basis of discrepancies.
22. While considering the correctness of the above findings, the learned Judge of the High Court viewed the CCTV footage and observed that the camera installed at the place of occurrence was a revolving camera moving horizontaliy and vertically and further observed that the "CCTV footage possibly could not capture the whole instance from all angles at the same time". After personally viewing CCTV footage, the learned Judge had given graphic description of the various slots/ points and the relevant portion of the High Court judgment reads as under;- "I have examined/viewed the CCTV footage/CD provided by the learned counsel for the respondent in the computer in chamber. Seemingly, the footage recorded in the CCTV did not cover the entire place of occurrence. It was a revolving camera moving horizontally and vertically. Possibly, it could not capture the whole incident from all angles at the same time. In the CCTV footage, Mercedes car is seen to have arrived at the spot at I :30:26. It remained at the spot subsequent to it. At I ;39;34, the Mercedes is seen leaving the spot by reversing it. The respondent is seen entering into the Mercedes. It is, however, not clear as to when the said individual (the respondent) had come out of the said Mercedes. The petitioner has also placed on record photographs developed from the footage recorded in the CCTV. In photographs No. I, 2 and 4, the respondent is indicated inflicting injuries to the victim along with others at 1:37:30; 1:37:31; and 1:37:31 respectively. In photograph No.3, Mercedes is seen at the spot at I :34:49. Jn photo No.5 the respondent is seen entering the Mercedes at l :38;29. It belies the respondent's contention that the Mercedes c c [2017] ll S.C.R. entered for the first time in the lane of the occurrence only at I :37:56. In photos Mark 'A' and 'B' the respondent's car is seen at the spot at I :30:41 and I :31 :50 too."
23. The High Court had gone into the details _of CCTV footage and noted the presence of accused Anil Kumar Yadav at the scene of occurrence that "he was seen entering into the Mercedes". The Sessions Court was not right in raising doubts about the presence of accusedAnil Kwnar Yadav and his role in inflicting injuries to deceased Rupesh Tanwar as well as to the injured Rohit Bansal at the present stage. Since the Sessions Court proceeded to grant bail on erroneous footing and also going into the merits of the materials collected, the High Court, in our view, rightly set aside the order granting bail to the accused Anil Kumar Yadav.
24. As pointed out earlier, one of the grounds for grant of bail to the appellant Anil Kumar Yadav by the Sessions Court was that he was in custody for more than one year. In crimes like murder, the mere fact that the accused was in custody for more than one year, may not be a relevant consideration. In Gobarbhai Naranbhai case, it was observed that the period of incarceration by itself would not entitle the accused to be enlarged on bail. The same was reiterated in Ram Govind Upadhyay v. Sudarshan Singh and others (2002) 3 SCC 598.
25. On behalf of the prosecution, learned senior counsel Ms. Suri and Mr. Dave, learned senior counsel appearing for the complainant submitted that CCTV footage is not the sole material relied upon by the prosecution. It was submitted that apait from CCTV footage, there are eight eye witnesses who named the accused persons and also stated the role of the accused persons. Our attention was drawn to Section 161 Cr.P.C., statement of injured witness Rohit Bansal and other witnesses namely Vineet, Mohinder@ Monu, Jitender. Sagar S!iarma@ Sonu and Bouncers at the Club namely Sonu. Rohit Kumar, Pravccn and Chelan Prakash who have stated about the presence of the accused in the scene of occurrence and their overt acts. That apart, based on the statements of the accused persons, incriminating a1ticles were also recovered and at this stage, it is not necessary to elaborate upon the recoveries made and their relevance.
26. By perus;,il of Post-Mortem certificate, it is seen that over twenty one injuries were inflicted on the various parts of the body of the ANIL KUMAR YADAV v. STATE (NCJ) OF DELHI & ANR. [R. BANUMATHI, J.] deceased and he was disrobed and left unconscious on the spot. The manner in which the deceased was allegedly attacked and the number of injuries inflicted on him prima facie indicate pre-meditation. Jnj ured witness Rohit Bansal also sustained laceration injuries over scalp.
27. As rightly contended by the prosecution, apart from CCTV footage. there are other materials on record to show the "prima facie" case against the appellants/accused viz. (i) statement of eye witnesses who have named the accused and also given statements as to the overt acts of each of the accused; (ii) recoveries made from the accused; and (iii) the incident in which deceased Rupesh Tanwar and complainant Rohit Bansal have sustained injuries. The Sessions Conrt had not taken into consideration these relevant materials; but the Sessions Court granted bail to the appellants/accused on the ground of discrepancies in the statement of witnesses, CCTV footage and the period of incarceration of the accused which arc not relevant considerations for grant of bail by the Sessions Court in the facts and stage of this case. 28 .. In Kanwar Singh Meena case, the High Court granted bail ignoring the averments made against the accused thereon and statement of witnesses recorded under Section 164 Cr.P.C.
Pointing out that the High Court did not keep in view the prima facie materials against the accused, this Court cancelled the bail. By setting aside the order ofbail, in para (IO), this Court observed as undcr:- "10. Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Session regarding bail. But, while granting bail, the High Court and the Sessions Cou1i are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstmcting the course of justice and such other grounds arc required to be taken into consideration. Each c1iminal case presents its own peculiar factual scenario and. therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police c c and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling the bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order grunting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused. the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of j us ti cc and absence of supervening circumstances such as the propensitv of the accused to tamper with the evidence. to flee from justice, etc. would not deter the court from cancelling the bail. The High Comt or the Sessions Court is bound to cancel such bail orders particularly when they arc passed releasing the accused involved in heinous crimes because they ultimately result in weakc;ning the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court arc much wider, this Court is equally guided by the above principles in the matter of grant or cancellation ofhail." [underlying added]
29. In the present case, the trial is at a very crucial stage. The trial court is yet to record the testimony of material witnesses including the complainant as well as all the material witnesses. The trial has commenced and the trial is said to be posted for04.l2.2017. For ensuring the fair trial, witnesses must be in a position to freely depose without fear. In the facts and circumstances of the case, we arc convinced that a fair trial can be ensured only if the appellants arc not enlarged on bail.
30. We arc conscious of the fact that the appellants arc only m1dcr trials and their liberty is also a relevant consideration. But equally important is to consider the impact of their release on bail on the prosecution witnesses and also its impact on society. In order to ensure that during trial the material witnesses depose without fear and justice being done to the society, a balance has to be struck. Referring to Masroor v. State of Uuar Pradesh and another (2009) 14 SCC 286 and other cases, in State of Bihar >: Rajhallav Prasad alias Rqjhal/av Prasad fodav alias Rajballabh Yadav (2017) 2 SCC 178, this Court held as under:- "26. We are conscious of the fact that the respondent is only an undertrial and his liberty is also a relevant consideration. However, equally important consideration is the interest of the society and fair trial of the case. Thus, undoubte.dly the courts have to adopt a liberal approach while considering bail applications of the accused persons. However. in a given case. if it is found that there is a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair trial would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses c arc not able to depose correctly in the court of law. it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice-delivery system. It is this need for larger public interest to ensure that criminal justice-delivery system work.~ efficiently, smoothly and in a fair manner that has to be given prime importance in such situations. After all, ifthcrc is a threat to fair trial because of intimidation of witnesses, etc., that would happen because of wrongdoing of the accused himself, and the consequences thereof, he has to suffer …….. " [underlying added]
31. After referring to various case laws and observing that in a criminal trial, witnesses must be able to depose without fear, freely and truthfully, in Raj ball av Prasad case, this Com1 cancelled the bail granted to the accused thereon. In para (24) of the judgment, it was held as under:- "24.As indicated by us in the beginning, prime consideration before us is to protect the fair trial and ensure that justice is done. This may happen only if the witnesses are able to depose without fear, freely and truthfully and this Court is convinced that in the present case, that can be ensured only ifthe respondent is not enlarged on bail. This imp01tance of fair trial was emphasised in Panchanan c [2017] l l S.C.R. Mishra v. Digambar Mishra (2005) 3 SCC 143 while setting aside the order of the High Court granting bail in the following terms: (SCC pp. 147-48, para 13) "13. We have given our careful consideration to the rival submissions made by the coWJsel appearing on either side.
The object Wlderlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime and if there is delay in such a case the underlying object of cancellation of bail practicaJly loses aJI its purpose and significance to the greatest prejudice and the interest of the prosecution. It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches ofthe same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation.''"' 32. It was repeatedly urged that the High Court misdirected itself in interfering with the discretionary order of Sessions Court granting bail to the accused and there was absolutely nothing to show that the appcJiants arc likely to abuse the bail or tamper with evidence. The court while granting bail should exercise its discretion in a judicious manner. Of course, once discretion is exercised by the Sessions Court to grunt bail on consideration ofrelevant materials, the High Court would not normally interfere with such discretion, unless the same suffers from serious infirmities or perversity. While considering the correctness of the order granting bail, the approach should be whether the order granting bail to the accused is vitiated by any serious infirmity, in which case, the High Court can certainly interfere with the exercise of discretion. The materials available on record primaji1cie indicating the involvement of the accused, possibility of accused tampering with witnesses and the gravity of the crime were not kept in view by the Sessions Court. Since the Sessions Court granted bail to the appellants on irrelevant considerations and the same suffered from serious infirmity, the High Court rightly set aside the order of grant of bail to the accused. The impugned orders do not suffer from any infirmity wmranting interference.
33. In the result, all the appeals are dismissed. All the appellants/ accused are directed to surrender before the Committal Court within one week from the date of this order. Kalpana · K. Tripathy Appeals dismissl-"CI.