# Suryamani Mishra @ Sanju Mishra v. State of U.P

- **Citation:** (2021) 10 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-18
- **Case number:** Bail No. 5501 of 2017
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suryamani-mishra-sanju-mishra-v-state-of-u-p-46265
- **Pages:** 13

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section 439 - Indian
Penal Code,1860-Section 302, 307, 386
&
34-application-rejection-deceased
died of gun shot injury and the role of
firing the said shot has been ascribed to
the applicant as per statement of
complainant and eye-witness-applicant
has criminal history-the role of coaccused
is
quite
different
to
that
ascribed to the applicant-Hence, the
applicant cannot seek parity.(Para 1 to
34)

B.
Grant
of
bail
though
being
a
discretionary order, but, however, calls for
exercise of such a discretion in a judicious
manner and not as a matter of course.
Order for bail bereft of any cogent reason
cannot be sustained. Needless to record,
however,
that
the
grant
of
bail
is
dependent upon the contextual facts of
the matter being dealt with by the court
and facts, however, do always vary from
case to case. The nature of offence is one
of the basic considerations for the grant of
bail-more heinous is the crime, the greater
is the chance of rejection of the bail,
though,
however,
dependent
on
the
factual matrix of the matter.(Para 27)

The application is rejected. (E-6)

List of Cases cited:

## Text

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10 All. Suryamani Mishra @ Sanju Mishra Vs. State of U.P.
1
(2021)10ILR A1
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.10.2021

BEFORE

THE HON'BLE JASPREET SINGH, J

Bail No. 5501 of 2017

Suryamani Mishra @ Sanju Mishra
 ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sumit Kumar Srivastava, Rajendra Prasa
Mishra

Counsel for the Respondents:
Govt. Advocate, Ashok Kumar Srivastava

A. Criminal Law - Code of Criminal
Procedure,1973-Section 439 - Indian
Penal Code,1860-Section 302, 307, 386
&
34-application-rejection-deceased
died of gun shot injury and the role of
firing the said shot has been ascribed to
the applicant as per statement of
complainant and eye-witness-applicant
has criminal history-the role of coaccused
is
quite
different
to
that
ascribed to the applicant-Hence, the
applicant cannot seek parity.(Para 1 to
34)

B.
Grant
of
bail
though
being
a
discretionary order, but, however, calls for
exercise of such a discretion in a judicious
manner and not as a matter of course.
Order for bail bereft of any cogent reason
cannot be sustained. Needless to record,
however,
that
the
grant
of
bail
is
dependent upon the contextual facts of
the matter being dealt with by the court
and facts, however, do always vary from
case to case. The nature of offence is one
of the basic considerations for the grant of
bail-more heinous is the crime, the greater
is the chance of rejection of the bail,
though,
however,
dependent
on
the
factual matrix of the matter.(Para 27)

The application is rejected. (E-6)

List of Cases cited:

1. Harjit Singh Vs Inderpreet Singh @ Inder &
anr.(2021) SCC Online SC 633

2. Ash Mohammad Vs Shiv Raj Singh (2012) 9
SCC 446

3. St. of Mah. Vs Sitaram Popat Vetal (2004) 7
SCC 521

4. Mahipal Vs Rajesh Kumar (2020) 2 SCC 118

5. Paras Nath Vishnoi Vs The Director, CBI in
CRLA No.693 of 2021

6. Gokarkonda Naga Saibaba Vs St. of Mah.
(2018) 2 SCC 505

7. Satya Brat Gain Vs St. of Bih. (2000) AIR
SCW 1545

8. Vijay Kumar Vs St. of U.P. B.A. No. 11815 of 2019

(Delivered by Hon'ble Jaspreet Singh, J.)

1. The applicant namely Sri Surya
Mani Mishra @ Sanju Mishra, son of Rama
Kant Mishra has moved the instant bail
application under Section 439 Cr.P.C,
being arraigned in Case Crime No. 1073 of
2016 under Sections 302, 307, 386 & 34
I.P.C.,
P.S.Kotwali
Nagar,
District
Pratapgarh.

2. The record indicates that Sri Om
Prakash Patel lodged a First Information
Report with P.S. Wali, District Pratapgarh
bearing Case Crime No. 1073 of 2016. It is
alleged that the complainant namely Om
Prakash Patel was the Gram Pradhan of
Gram Kopa Jethawar, P.S. Kotwali Nagar,
District Pratapgarh (At the time of the
lodging of the First Information Report). It
2 INDIAN LAW REPORTS ALLAHABAD SERIES
was alleged by him that the applicant Surya
Mani Mishra @ Sanju Mishra Son of Rama
Kant Mishra is a man of dubious and
overpowering antecedents and frequently
used to demand gunda tax from the
complainant.

3. That on 29.12.2016, the complainant
received a phone from the applicant who
demanded a sum of Rs. 50, 000/- before
commencement of the work of laying
khadanza in Gram Kopa leading to the Pal
Basti Road. He further threatened that in case
if the complainant did not pay the money
before start of the work, he would have to
face dire consequences. On 30.12.3016, the
complainant along with his brother Lal
Bahadur, Shiv Bahadur and his cousin
brothers namely Ravindra Kumar Patel,
Dinesh Kumar Patel had commenced the
work of laying the Khadanja. At around
09:30 AM, the applicant along with his
brother namely Rudra Mani Mishra and
Chandra Dutt Mishra being duly armed
reached the house of Shashi Bhushan and
started abusing. While using offensive
language, the complainant stated that how
dare you start the work without paying the
sum of Rs. 50,000/- as demanded. The
complainant stated that since it was a
Government work how could he pay the
aforesaid amount. At this juncture, Chandra
Dutt Mishra exhorted and incited to kill and
at that very moment, the applicant Surya
Mani Mishra and his brother Rudra Mani
Mishra drew their weapons and shot Shiv
Bahadur and Lal Bahadur. Shiv Bahadur died
on the spot while Lal Bahadur received
grievous injuries and was admitted in District
Hospital from where he was referred to
Higher Center at Allahabad.

4. It is in respect of the aforesaid
incident that the First Information Report was
lodged on 30.12.2016 at 11:30 AM. Upon the
statement of the witnesses including that of
the injured Lal Bahadur both Surya Mani
Mishra, Rudra Mani Mishra and Chandra
Dutt Pandey were apprehended.

5. The record further indicates that
Rudra Mani Mishra has been enlarged on
bail by means of an order dated 03.10.2018
passed in Bail Application No. 3089 of
2018 by a coordinate Bench of this Court.
Sri Chandra Dutt Pandey has also been
enlarged on bail by means of an order dated
03.05.2017 in Bail Application No. 3285 of
2017 passed by a coordinate Bench of this
Court.

6. The applicant has filed several
supplementary
affidavits
so
also
the
counsel for the complainant/the informant
has filed their counter affidavits as well as
supplementary counter affidavits. The State
has also filed its counter affidavit to the
supplementary affidavits filed by the
applicant.

7. The Court has heard the learned
counsel for the applicant Sri R.P. Mishra,
the learned A.G.A. for the State and Sri
Ashok Srivastava, learned counsel for the
complainant.

8. Sri R.P. Mishra, learned counsel for
the applicant while pressing his bail
application has primarily stated that there is
an interpolation in the First Information
Report, inasmuch as, the First Information
Report is only against Rudra Mani Mishra
later on by adding the words, the applicant
has also been roped in. Elaborating his
submissions, it is urged that from the bare
perusal of the First Information Report, it
would indicate that it has been stated that
"brus esa lw;Z ef.k feJ mQZ latw feJ mudk HkkbZ
:nz ef.k vlygk fudky dj esjs HkkbZ f'ko
cgknqj o yky cgknqj dks xksyh ekj fn;kA".
10 All. Suryamani Mishra @ Sanju Mishra Vs. State of U.P.
3

9. It has been emphasized that from
the perusal and reading of the aforesaid
sentence, it would indicate that it was
Rudra Mani who had drawn the weapon
and shot at Lal Bahadur and Shiv Bahadur
and in order to identify the name of Surya
Mani Mishra i.e. the name of the applicant
has been used. It is further urged that only
one gun shot injury has been reported.
Thus, there could be no way that both
Rudra Mani and Surya Mani would have
been present.

10. The learned counsel for the
applicant has further submitted that through
the investigation, the prosecution has
changed its stand, inasmuch as, in the First
Information Report as lodged indicated
only Rudra Mani who is assigned the role
of shooting, however, later when the
statement of Lal Bahadur and Ravindra
Kumar Patel was recorded, it introduced
the name of the applicant as well that both
Rudra Mani Mishra and the applicant drew
weapon and shot at Shiv Bahadur and Lal
Bahadur.

11. It has further been urged that
subsequently
Supplementary
(Majid)
statements were recorded wherein there
was a convenient departure from the case
and the role of firing was assigned only to
the applicant and a stand was taken that the
name of Rudra Mani was introduced under
the pressure of other workers, though, he
was not present at the time of occurrence.

12. The learned counsel for the
applicant has further urged that later with the
change
of
Investigation
Officer,
fresh
statements were again recorded wherein
again names of both the applicant and Rudra
Mani Mishra were reiterated. Subsequently,
upon recording of the statement of Om
Prakash Patel, the complainant, under Section
164 Cr.P.C., it was stated that the applicant
had shot Shiv Bahadur while Rudra Mani had
shot Lal Bahadur.

13. It has further been submitted that
only one gun shot injury was found on the
body of the deceased Shiv Bahadur, however,
since the names of both the applicant and
Rudra Mani were incorporated but it was
nowhere stated that from whose weapon Shiv
Bahadur actually sustained the gun shot
injury which lead to his death. It is only in the
statement under Section 164 Cr.P.C. that this
statement was introduced and the same was
recorded on 22.06.2017 i.e. almost 6 months
after the date of occurrence.

14. The learned counsel for the
applicant has further urged that the applicant
himself had sustained serious injuries,
however, there is no explanation by the
prosecution in so far as the injuries of the
applicant is concerned. The applicant was
apprehended and was examined by the doctor
under police supervision and was also
advised for skull x-ray which was done while
the applicant was in jail but the report of the
said skull x-ray has not been provided. The
emphasis is that the applicant was also
injured in the outbreak of the violent scuffle,
however, the First Information Report of the
applicant was not lodged but since the
complainant was the Gram Pradhan, at this
instance, the First Information Report was
lodged, falsely implicating the applicant. It is
urged that once the applicant was attacked, it
was open for him to raise the ground of selfdefence and in the aforesaid circumstances,
the applicant has been castigated while the
true and correct sequence of events have not
emerged.

15. It has further been submitted that
the applicant has been in custody since
31.12.2016 and almost 5 years have lapsed.
4 INDIAN LAW REPORTS ALLAHABAD SERIES
The other co-accused namely Rudra Mani
Mishra has been enlarged on bail on
03.10.2018 so also the other co-accused
Chandra Dutt Mishra and in the aforesaid
circumstances, the applicant is also entitled
to bail especially when the charge sheet has
already been filed, four witnesses of fact
have already been examined and there is no
apprehension that the applicant would
tamper with the evidence or attempt to
influence the witnesses.

16. The learned A.G.A. and the
learned
counsel
for
the
informant/complainant has urged that the
issue regarding interpolation in the First
Information Report is misconceived. It has
been submitted that the First Information
Report was lodged on the basis of a written
complaint filed by Sri Om Prakash Patel.
While drawing the attention of the Court to
the copy of the written complaint made to
the police station concerned, a copy of
which has been brought on record as
Annexure No. CA-1 with the Counter
affidavit filed by Sri Om Prakash Patel
dated 27.08.2017, it is urged that it has
clearly been stated therein that " "brus esa
lw;Z ef.k feJ mQZ latw feJ mudk HkkbZ :nz
ef.k vlygk fudky dj esjs HkkbZ f'ko cgknqj o
yky cgknqj dks xksyh ekj fn;kA".

17. It has been urged that the written
complaint clearly states the presence of both
the applicant and Rudra Mani Mishra and it
has also been clearly stated that both drew
their weapons and shot at Shiv Bahadur and
Lal Bahadur. Any typographical error on the
part of the police authorities in recording the
First Information Report is not going to
change the factual matrix, coupled with the
fact that even in the statements of the
complainant
and
other
eye-witnesses
including the statement of the injured which
clearly stated that both the applicant and
Rudra Mani Mishra had shot with their
weapons. The complainant himself was an
eye-witness who has stated that the applicant
shot Shiv Bahadur who died on the spot
whereas Rudra Mani shot Lal Bahadur (the
injured) and thus at this stage, it is not open
for the applicant to state that there is
interpolation in the First Information Report
and that he has been falsely implicated.

18. It is further been urged that the
applicant has been clearly named in the First
Information Report and even in investigation
his role has been clearly defined and that he
had shot Shiv Bahadur who died on the spot.
It is also urged that a country made pistol was
also recovered at the pointing out of the
applicant.

19. The learned A.G.A. has further
submitted that from the perusal of the
recovery memo, it would indicate that while
the search for the applicant was underway,
the police received the information that both
the applicant and the other co-accused
Chandra Dutt Pandey were near the Kusumi
Raliway Gate and were waiting to flee and
were looking for an opportunity to procure a
vehicle. It has been urged that while running
and hiding the applicant sustained injuries
and he had bandaged himself somewhere and
in
the
aforesaid
condition,
he
was
apprehended and thereafter examined by the
doctors under the police supervision.

20. It is urged that the injuries were
not required to be substantiated by the
prosecution as alleged by the applicant
rather from the recovery memo, it is clear
that while running and hiding, the applicant
sustained the said injuries.

21. The learned counsel for the
complainant has further submitted that the
applicant while filing the bail application
10 All. Suryamani Mishra @ Sanju Mishra Vs. State of U.P.
5
did not disclose his criminal history. It is
only after the informant filed the counter
affidavit specifically stating the criminal
history of the applicant that the applicant
subsequently
filed
a
supplementary
affidavit explaining the criminal history.

22. The learned counsel for the
complainant submits that the applicant was
previously convicted in Sessions Trial No.
700 of 2008 where he was sentenced for 7
years of rigorous imprisonment. He has
filed an appeal bearing No. 943 of 2016
which is pending before this Court. It is
also urged that the applicant is also facing
trial in Case Crime No. 674 of 2005 under
Section 147, 148, 149, 188, 307, 332, 353,
435 and 440 I.P.C., P.S. Kotwali Nagar,
District Pratapgarh.

23. It has further been pointed out that
the applicant has such dubious credentials
that he was charged under Section 3 (1) of
the Control of Gundas Act and an order
was passed by the Competent Authority
dated 21.10.2015 expelling the applicant
for a period of 6 months from the District
of Pratapgarh and he was prohibited to
enter the said district, a copy of the said
order has also been placed on record by the
complainant vide supplementary affidavit
dated 23.05.2019.

24. It is further urged that the
applicant has not cooperated in the trial and
had been seeking adjournments and despite
the Trial Court having fixed short dates and
granted adequate opportunity yet only four
witnesses have been examined while there
are 13 witnesses in all.

25. It is submitted that while the
applicant was convicted in Sessions Trial
No. 700 of 2008 and was sentenced to 7
years of rigorous imprisonment and he
preferred the criminal appeal No. 943 of
2016 which is pending before this Court
wherein he was granted bail but during his
release on bail, the applicant has committed
the above heinous offence and under such
circumstances, grant of bail to the applicant
would be jeopardizing the safety and
security of the witnesses as well as the
complainant, hence, in the aforesaid
circumstances, the applicant is not entitled
to be enlarged on bail.

26. The Court has heard the learned
counsel for the parties and has meticulously
perused the record.

27. Before adverting to the present
facts
and
circumstances,
it
will
be
appropriate to notice the decision of the
Apex Court in the case of Harjit Singh Vs.
Inderpreet Singh @ Inder and Another
reported in 2021 SCC Online SC 633
wherein the Apex Court has considered the
manner in which the Court must exercise
its discretionary power for grant of bail.
The Apex Court in the aforesaid decision
has also referred to earlier decisions on the
aforesaid points and relevant para 7.2 to 7.5
and 8 is being noted hereinafter for ready
reference:

"7.2
In
the
case
of
Ash
Mohammad v. Shiv Raj Singh, (2012) 9
SCC 446, this Court in paragraphs 17 to
19 observed and held as under:

"17. We are absolutely conscious
that liberty of a person should not be
lightly dealt with, for deprivation of liberty
of a person has immense impact on the
mind of a person. Incarceration creates a
concavity
in
the
personality
of
an
individual. Sometimes it causes a sense of
vacuum.
Needless
to
emphasise,
the
sacrosanctity of liberty is paramount in a
civilised society. However, in a democratic
6 INDIAN LAW REPORTS ALLAHABAD SERIES
body polity which is wedded to the rule of
law an individual is expected to grow
within the social restrictions sanctioned by
law. The individual liberty is restricted by
larger social interest and its deprivation
must have due sanction of law. In an
orderly society an individual is expected to
live with dignity having respect for law and
also giving due respect to others' rights. It
is a well-accepted principle that the
concept of liberty is not in the realm of
absolutism but is a restricted one. The cry
of the collective for justice, its desire for
peace and harmony and its necessity for
security cannot be allowed to be trivialised.
The life of an individual living in a society
governed by the rule of law has to be
regulated and such regulations which are
the source in law subserve the social
balance and function as a significant
instrument for protection of human rights
and security of the collective. It is because
fundamentally laws are made for their
obedience so that every member of the
society lives peacefully in a society to
achieve his individual as well as social
interest. That is why Edmond Burke while
discussing about liberty opined, "it is
regulated freedom".

18. It is also to be kept in mind
that
individual
liberty
cannot
be
accentuated to such an extent or elevated to
such a high pedestal which would bring in
anarchy or disorder in the society. The
prospect of greater justice requires that
law and order should prevail in a civilised
milieu. True it is, there can be no
arithmetical
formula
for
fixing
the
parameters in precise exactitude but the
adjudication should express not only
application of mind but also exercise of
jurisdiction on accepted and established
norms. Law and order in a society protect
the established precepts and see to it that
contagious crimes do not become epidemic.
In an organised society the concept of
liberty basically requires citizens to be
responsible
and
not
to
disturb
the
tranquillity and safety which every wellmeaning person desires. Not for nothing J.
Oerter stated:

"Personal liberty is the right to
act without interference within the limits of
the law."

19. Thus analysed, it is clear that
though liberty is a greatly cherished value
in the life of an individual, it is a controlled
and restricted one and no element in the
society can act in a manner by consequence
of which the life or liberty of others is
jeopardised, for the rational collective does
not countenance an anti-social or anticollective act."

7.3 In the case of State of
Maharashtra v. Sitaram Popat Vetal,
(2004) 7 SCC 521, it is observed and held
by this Court that while granting of bail,
the
following
factors
among
other
circumstances
are
required
to
be
considered by the Court:

1. The nature of accusation and
the severity of punishment in case of
conviction and the nature of supporting
evidence;

2. Reasonable apprehension of
tampering with the witness or apprehension
of threat to the complainant; and

3. Prima facie satisfaction of the
court in support of the charge.

It is further observed that any
order dehors such reasons suffers from
non-application of mind.

7.4 In the case of Mahipal v.
Rajesh Kumar (2020) 2 SCC 118, where
the High Court released the accused on
bail in a case for the offence under Section
302 of the IPC and other offences
recording the only contention put forth by
the counsel for the accused and further
recording that "taking into account the
10 All. Suryamani Mishra @ Sanju Mishra Vs. State of U.P.
7
facts and circumstances of the case and
without expressing the opinion on merits of
case, this Court deems fit just and proper to
enlarge/release the accused on bail", while
setting aside the order passed by the High
Court granting bail, one of us (Dr. Justice
D.Y.
Chandrachud)
observed
in
paragraphs 11 and 12 as under:

"11. Essentially, this Court is
required to analyse whether there was a
valid exercise of the power conferred by
Section 439 CrPC to grant bail. The power
to grant bail under Section 439 is of a wide
amplitude. But it is well settled that though
the grant of bail involves the exercise of the
discretionary power of the court, it has to
be exercised in a judicious manner and not
as a matter of course. In Ram Govind
Upadhyay v. Sudarshan Singh (2002) 3
SCC 598, Umesh Banerjee, J. speaking for
a two-Judge Bench of this Court, laid down
the factors that must guide the exercise of
the power to grant bail in the following
terms:

"3. Grant of bail though being a
discretionary order -- but, however, calls
for exercise of such a discretion in a
judicious manner and not as a matter of
course. Order for bail bereft of any cogent
reason cannot be sustained. Needless to
record, however, that the grant of bail is
dependent upon the contextual facts of the
matter being dealt with by the court and
facts, however, do always vary from case to
case. ... The nature of the offence is one of
the basic considerations for the grant of
bail -- more heinous is the crime, the
greater is the chance of rejection of the
bail, though, however, dependent on the
factual matrix of the matter.

4. Apart from the above, certain
other which may be attributed to be
relevant considerations may also be
noticed at this juncture, though however,
the same are only illustrative and not
exhaustive, neither there can be any. The
considerations being:

(a) While granting bail the court
has to keep in mind not only the nature of
the accusations, but the severity of the
punishment, if the accusation entails a
conviction and the nature of evidence in
support of the accusations.

(b) Reasonable apprehensions of
the witnesses being tampered with or the
apprehension of there being a threat for the
complainant should also weigh with the
court in the matter of grant of bail.

(c) While it is not expected to
have the entire evidence establishing the
guilt of the accused beyond reasonable
doubt but there ought always to be a prima
facie satisfaction of the court in support of
the charge.

(d)
Frivolity
in
prosecution
should always be considered and it is only
the element of genuineness that shall have
to be considered in the matter of grant of
bail, and in the event of there being some
doubt as to the genuineness of the
prosecution, in the normal course of events,
the accused is entitled to an order of bail."

12. The determination of whether
a case is fit for the grant of bail involves
the balancing of numerous factors, among
which the nature of the offence, the severity
of the punishment and a prima facie view of
the involvement of the accused are
important. No straitjacket formula exists
for courts to assess an application for the
grant or rejection of bail. At the stage of
assessing whether a case is fit for the grant
of bail, the court is not required to enter
into a detailed analysis of the evidence on
record to establish beyond reasonable
doubt the commission of the crime by the
accused. That is a matter for trial.
However, the Court is required to examine
whether there is a prima facie or
reasonable ground to believe that the
8 INDIAN LAW REPORTS ALLAHABAD SERIES
accused had committed the offence and on
a balance of the considerations involved,
the continued custody of the accused
subserves the purpose of the criminal
justice system. Where bail has been granted
by a lower court, an appellate court must
be slow to interfere and ought to be guided
by the principles set out for the exercise of
the power to set aside bail.

7.5 That thereafter this Court
considered the principles that guide while
assessing the correctness of an order
passed by the High Court granting bail.
This Court specifically observed and held
that normally this Court does not interfere
with an order passed by the High Court
granting or rejecting the bail to the
accused. However, where the discretion of
the High Court to grant bail has been
exercised without the due application of
mind or in contravention of the directions
of this Court, such an order granting bail is
liable to be set aside. This Court further
observed that the power of the appellate
court in assessing the correctness of an
order granting bail stand on a different
footing
from
an
assessment
of
an
application for cancellation of bail. It is
further observed that the correctness of an
order granting bail is tested on the anvil of
whether there was a proper or arbitrary
exercise of the discretion in the grant of
bail. It is further observed that the test is
whether the order granting bail is perverse,
illegal or unjustified. Thereafter this Court
considered the difference and distinction
between an application for cancellation of
bail and an appeal before this Court
challenging the order passed by the
appellate court granting bail in paras 13,
14, 16 and 17 as under:

"13. The principles that guide this
Court in assessing the correctness of an order
[Ashish Chatterjee v. State of W.B., CRM No.
272 of 2010, order dated 11-1-2010 (Cal)]
passed by the High Court granting bail were
succinctly laid down by this Court in Prasanta
Kumar Sarkar v. Ashis Chatterjee (2010) 14
SCC 496. In that case, the accused was facing
trial for an offence punishable under Section
302 of the Penal Code. Several bail
applications filed by the accused were
dismissed by the Additional Chief Judicial
Magistrate. The High Court in turn allowed the
bail application filed by the accused. Setting
aside the order [Ashish Chatterjee v. State of
W.B., CRM No. 272 of 2010, order dated 11-12010 (Cal)] of the High Court, D.K. Jain, J.,
speaking for a two-Judge Bench of this Court,
held:

"9. ... It is trite that this Court does
not, normally, interfere with an order [Ashish
Chatterjee v. State of W.B., CRM No. 272 of
2010, order dated 11-1-2010 (Cal)] passed by
the High Court granting or rejecting bail to the
accused. However, it is equally incumbent upon
the High Court to exercise its discretion
judiciously,
cautiously
and
strictly
in
compliance with the basic principles laid down
in a plethora of decisions of this Court on the
point. It is well settled that, among other
circumstances, the factors to be borne in mind
while considering 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
accusation;

(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 influenced; and

(viii) danger, of course, of justice
being thwarted by grant of bail.
10 All. Suryamani Mishra @ Sanju Mishra Vs. State of U.P.
9

10. It is manifest that if the High
Court does not advert to these relevant
considerations and mechanically grants
bail, the said order would suffer from the
vice of nonapplication of mind, rendering it
to be illegal."

14. The provision for an accused
to be released on bail touches upon the
liberty of an individual. It is for this reason
that this Court does not ordinarily interfere
with an order of the High Court granting
bail. However, where the discretion of the
High Court to grant bail has been
exercised without the due application of
mind or in contravention of the directions
of this Court, such an order granting bail is
liable to be set aside. The Court is required
to factor, amongst other things, a prima
facie view that the accused had committed
the offence, the nature and gravity of the
offence and the likelihood of the accused
obstructing the proceedings of the trial in
any manner or evading the course of
justice. The provision for being released on
bail draws an appropriate balance between
public interest in the administration of
justice and the protection of individual
liberty pending adjudication of the case.
However, the grant of bail is to be secured
within the bounds of the law and in
compliance with the conditions laid down
by this Court. It is for this reason that a
court must balance numerous factors that
guide the exercise of the discretionary
power to grant bail on a case-by-case
basis. Inherent in this determination is
whether, on an analysis of the record, it
appears that there is a prima facie or
reasonable cause to believe that the
accused had committed the crime. It is not
relevant at this stage for the court to
examine in detail the evidence on record to
come to a conclusive finding.

16. The considerations that guide
the power of an appellate court in
assessing the correctness of an order
granting bail stand on a different footing
from an assessment of an application for
the cancellation of bail. The correctness of
an order granting bail is tested on the anvil
of whether there was an improper or
arbitrary exercise of the discretion in the
grant of bail. The test is whether the order
granting bail is perverse, illegal or
unjustified.
On
the
other
hand,
an
application for cancellation of bail is
generally examined on the anvil of the
existence of supervening circumstances or
violations of the conditions of bail by a
person to whom bail has been granted. In
Neeru Yadav v. State of U.P. (2014) 16
SCC 508, the accused was granted bail by
the High Court [Mitthan Yadav v. State of
U.P. [2014 SCC OnLine All 16031]. In an
appeal against the order [Mitthan Yadav v.
State of U.P., 2014 SCC OnLine All 16031]
of the High Court, a two-Judge Bench of
this Court surveyed the precedent on the
principles that guide the grant of bail.
Dipak Misra, J. held:

"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 bail 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
nature, the Court does not dwell upon the
violation of conditions by the accused or
10 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

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. The order [Rajesh Kumar
v. State of Rajasthan, 2019 SCC OnLine
Raj 5197] of the High Court in the present
case, insofar as it is relevant reads:

"2. Counsel for the petitioner
submits that the petitioner has been falsely
implicated in this matter. Counsel further
submits that, the deceased was driving his
motorcycle, which got slipped on a sharp
turn, due to which he received injuries on
various parts of body including antemortem head injuries on account of which
he died. Counsel further submits that the
challan has already been presented in the
court and conclusion of trial may take long
time.

3. The learned Public Prosecutor
and counsel for the complainant have
opposed the bail application.

4. Considering the contentions
put forth by the counsel for the petitioner
and taking into account the facts and
circumstances of the case and without
expressing opinion on the merits of the
case, this Court deems it just and proper to
enlarge the petitioner on bail." Thereafter
this Court set aside the order passed by the
High Court releasing the accused on bail."

Thereafter, this Court set aside
the order passed by the High Court
releasing the accused on bail.

8. At this stage, a recent decision
of this Court in the case of Ramesh Bhavan
Rathod v. Vishanbhai Hirabhai Makwana
(koli) (2021) 6 Scale 41 is also required to
be referred to. In the said decision, this
Court considered in great detail the
considerations which govern the grant of
bail, after referring to the decisions of this
Court in the case of Ram Govind Upadhyay
(Supra); Prasanta Kumar Sarkar (Supra);
Chaman Lal v. State of U.P. (2004) 7 SCC
525; and the decision of this Court in Sonu
v. Sonu Yadav 2021 SCC OnLine SC 286.
After considering the law laid down by this
Court on grant of bail, in the aforesaid
decisions, in paragraphs 20, 21, 36 & 37 it
is observed and held as under:

"20. The first aspect of the case
which stares in the face is the singular
absence in the judgment of the High Court
to the nature and gravity of the crime. The
incident which took place on 9 May 2020
resulted in five homicidal deaths. The
nature of the offence is a circumstance
which has an important bearing on the
grant of bail. The orders of the High Court
are conspicuous in the absence of any
awareness or elaboration of the serious
nature of the offence. The perversity lies in
the failure of the High Court to consider an
important circumstance which has a
bearing on whether bail should be granted.
In the two-judge Bench decision of this
Court in Ram Govind Upadhyay v.
Sudharshan Singh, the nature of the crime
was recorded as "one of the basic
considerations" which has a bearing on the
grant or denial of bail. The considerations
which govern the grant of bail were
10 All. Suryamani Mishra @ Sanju Mishra Vs. State of U.P.
11
elucidated in the judgment of this Court
without attaching an exhaustive nature or
character to them. This emerges from the
following extract:

"4. Apart from the above, certain
other which may be attributed to be
relevant considerations may also be
noticed at this juncture, though however,
the same are only illustrative and not
exhaustive, neither there can be any. The
considerations being:

(a) While granting bail the court
has to keep in mind not only the nature of
the accusations, but the severity of the
punishment, if the accusation entails a
conviction and the nature of evidence in
support of the accusations.

(b) Reasonable apprehensions of
the witnesses being tampered with or the
apprehension of there being a threat for the
complainant should also weigh with the
court in the matter of grant of bail.

(c) While it is not expected to
have the entire evidence establishing the
guilt of the accused beyond reasonable
doubt but there ought always to be a prima
facie satisfaction of the court in support of
the charge.

(d)
Frivolity
in
prosecution
should always be considered and it is only
the element of genuineness that shall have
to be considered in the matter of grant of
bail, and in the event of there being some
doubt as to the genuineness of the
prosecution, in the normal course of events,
the accused is entitled to an order of bail."

21. This Court further laid down
the standard for overturning an order
granting bail in the following terms:

"3. Grant of bail though being a
discretionary order -- but, however, calls
for exercise of such a discretion in a
judicious manner and not as a matter of
course. Order for bail bereft of any cogent
reason cannot be sustained."

xxxxxxxxx

36. Grant of bail under Section
439 of the CrPC is a matter involving the
exercise of judicial discretion. Judicial
discretion in granting or refusing bail - as
in the case of any other discretion which is
vested in a court as a judicial institution -
is not unstructured. The duty to record
reasons is a significant safeguard which
ensures that the discretion which is
entrusted to the court is exercised in a
judicious manner. The recording of reasons
in a judicial order ensures that the thought
process underlying the order is subject to
scrutiny and that it meets objective
standards of reason and justice. This Court
in Chaman Lal v. State of U.P. (2004) 7
SCC 525 in a similar vein has held that an
order of a High Court which does not
contain reasons for prima facie concluding
that a bail should be granted is liable to be
set aside for nonapplication of mind. This
Court observed:

"8. Even on a cursory perusal the
High Court's order shows complete nonapplication of mind. Though detailed
examination of the evidence and elaborate
documentation of the merits of the case is
to be avoided by the Court 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.

9. 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..."

37. We are also constrained to
record our disapproval of the manner in
12 INDIAN LAW REPORTS ALLAHABAD SERIES
which the application for bail of Vishan (A6) was disposed of. The High Court sought
to support its decision to grant bail by
stating that it had perused the material on
record and was granting bail "without
discussing the evidence in detail" taking
into consideration:

(1) The facts of the case;

(2) The nature of allegations;

(3) Gravity of offences; and

(4)
Role
attributed
to
the
accused."

28. Applying the principles as
outlined by the Apex Court to the present
case at hand, it would indicate that prima
facie, there are clear statement of the
complainant, the injured as well as the
other eye-witness Ravindra Kumar Patel
which indicate the alleged involvement of
the applicant in the offence. The record
further indicates that Shiv Bahadur died of
gun shot injury and the role of firing the
said gun shot which caused the death of
Shiv Bahadur has been ascribed to the
applicant. It is to be noticed that despite the
statements and supplementary statements
having
been
recorded
by
different
investigation officers, yet one thing in
common is that in all such versions, the
name and role of the applicant has been
reiterated and maintained which is of firing
a gun shot which has taken the life of Shiv
Bahadur. The record also indicates and it
could not be disputed by the learned
counsel for the applicant that the applicant
was previously convicted in Sessions Trial
No. 700 of 2008 and while the applicant
was on bail, he is alleged to have
committed the aforesaid offence. The
involvement of the applicant in the other
cases also could not be disputed apart from
the fact that the applicant did not disclose
his criminal history candidly but only later
it was explained.